text:
    United Insurance Co. of America v. Wall.
    5-2369
    345 S. W. 2d 927
    Opinion delivered May 8, 1961.

      B. D. Smith, Jr., for appellant.

      Daggett & Daggett, by Carrold E. Bay, for appellee.
   Ed. F. McFaddin, Associate Justice.

Appellant, United Insurance Company of America, seeks to reverse a judgment obtained by appellee Wall on a policy issued to Wall by appellant. On June 3, 1957, for an annual premium of $81.00 paid, the Insurance Company issued to Mr. Wall a policy whereby the Company agreed to pay $100.00 per month, “. . . for loss of time commencing while this policy is in force from sickness originating more than thirty days after the policy date. ’ ’ On January 23, 1958, Mr. Wall became incapacitated because of a circulatory ailment, and as a result both of his legs have been amputated, and he claims total and permanent disability. On February 18, 1960, Wall filed action in the Circuit Court; and the Insurance Company denied liability because it claimed: (1) that Wall had the circulatory ailment before the policy was issued; and (2) that the $81.00 premium had been refunded to Mr. Wall. Trial to a jury resulted in a verdict and judgment for Wall; and on this appeal the Insurance Company urges only two points, both of which relate to instructions.

1. Modification of Defendant’s Instruction No. 2 The Insurance Company requested the following instruction :

“You are instructed that the policy sued on in this action insures against loss of time commencing while this policy is in force, from sickness originating more than thirty days after the policy date, so if you should find by a preponderance of the evidence that the illness with which the plaintiff is afflicted originated before the expiration of thirty days after the policy date, whether he knew it or not, then the defendant is not liable and your verdict will be for the defendant.”

The Trial Court modified the requested instruction by eliminating the words shown in italics — i. e., “ivhether lie knew it or not,” — and gave the instruction as so modified. The Insurance Company complains of the elimination of the italicized words. The evidence established that the policy was issued without a physical examination. Two representatives of the Insurance Company persuaded Mr. Wall to sign an application on May 1, 1957. The answers were warranties; and the following questions and answers were contained in the application:

“Q. Have you received medical or surgical advice ■or treatment, or had any local or constitutional disease within the past five years?

A. Yes.

Q. When?

A. April, 1955.

Q. For what?

A. Circulatory system check-up.

Q. Duration?

A. No loss of time.”

Mr. Wall gave the name of the two physicians who had treated him and gave permission for them to make disclosures to the Insurance Company. The Insurance Company wrote both doctors and received answers which the Company considered as justifying the issuance of the policy to Mr. Wall. Certainly Mr. Wall made no concealment. The policy was issued on June 3, 1957; and in January 1958 Mr. Wall became disabled because of his circulatory condition resulting from arteriosclerosis. The surgeon who then and thereafter attended him testified that, according to the history Mr. Wall gave "him, the circulatory ailment had been in existence in his right leg for approximately eighteen months before January 1958, and in his left foot for approximately one and one-half months before that date. The appellant urges that its policy only insured Wall for, “. . . loss of time commencing while this policy is in force, from sickness originating more than thirty clays after the policy date.” The appellant says that Wall had the circulatory ailment prior to the issuance of the policy in June 1957, “. . . whether he knew it ot not,” and that therefore appellant is not liable.

The Trial Court was correct in eliminating the italicized language. In Home Life Ins. Co. v. Allison, 179 Ark. 65, 14 S. W. 2d 229, in holding that the insured could recover against a similar defense to the one here made, we said: “Certainly the parties did not contract with reference to latent germs or seeds of disease or illness existing in the body prior to the delivery of the policy.” Likewise, in State National Life Ins. Co. v. Stamper, 228 Ark. 1128, 312 S. W. 2d 441, we allowed the insured to recover against a defense such as is here asserted and we cited an annotation in 53 A. L. R. 2d 686, and said:

“. . . the weight of authority is that the sickness should be deemed to have had its inception at the time it first manifested itself or became active, or when sufficient symptoms existed to allow a reasonably accurate diagnosis of the case, so that recovery can be had, even though the disease, germs or infection was present in the body prior to the excluded time, if the condition was latent, inactive, and perhaps not discovered.”

The fact that no reference was made to the presence -of arteriosclerosis in the reports of the doctors who had examined Mr. Wall is a strong indication that the disease had not manifested itself at that time sufficiently to indicate a reasonable diagnosis. According to the testimony of the surgeon, practically everyone had arteriosclerosis in some degree but few ever have it as severely as appellee. Therefore, the fact that appellee had experienced some symptoms before the policy was issued was no indication that the disease would advance to a state causing total disability. The Insurance Company was put on notice by appellee in his application that he had been checked for a circulatory condition. The burden was then on the Company to satisfy itself as to his insurability in this respect, and if it issued the policy without having made a sufficient investigation, such is not appellee’s fault. The Trial Court committed no error in modifying the instruction as it did.

II. Refusal of the Court to Give Appellant’s Instruction No. 5. The evidence established, that Mr. Wall’s right leg was amputated on February 24, 1958, and his left leg was amputated on April 27, 1958. On April 30, 1958, the Insurance Company returned the $81.00 premium to Mr. Wall and denied liability. Mr. Wall endorsed the draft and it was applied on his hospital bill; and the Insurance Company claimed -that such endorsement constituted a full release. The attending physician testified that Mr. Wall was under heavy sedation during all of such time:

“Q. ... It requires a good deal of time to recover ?

A. Yes, they are kept pretty well ‘out’ for a few days; it is a severe shock; lots of blood transfusions and lots of narcotics involved. I am sure he had quite a bit because he went through a lot.

Q. Based on your experience and recollection, would you say during these times a man would be competent and capable of conducting his own business, carrying on his own affairs and appreciating his legal rights ?

A. While he was in the hospital, no. I recall his wife was very much disturbed and he was terribly depressed when he lost his legs and was worried about finances. She talked to me about the possibility of putting him in a nursing home to be cared for; that he wouldn’t be capable of looking after his affairs'as he normally would. ’ ’

Along with the foregoing, there was other evidence which made a case for the jury on the issue of when Mr. Wall became capable of transacting his business within the purview of our applicable cases,- some of which are: S. L. I. M. & S. Ry. Co. v. Brown, 73 Ark. 42, 83 S. W. 332; Bearden v. S. L. I. M. & S. Ry. Co., 103 Ark. 341, 146 S. W. 861, 107 Ark. 363, 155 S. W. 499; Trumann Cooperate Co. v. Crye, 137 Ark. 293, 209 S. W. 278; and Gillenwater v. Johnson, 226 Ark. 400, 290 S. W. 2d 1. At the request of the appellee, and without objection of appellant, the Court instructed the jury:

“You are instructed that if you find from the evidence that the plaintiff, Enoch T. Wall, at the time of the receipt by him of the $81.00 check and the following ■period up to the time of the filing of this suit was continuously incapable of transacting his own business and recognizing the import thereof, then yon are instructed that the acceptance of said check and failure to sooner institute this litigation does not defeat his cause of .action. ’ ’

Then, upon request of the appellant, the Court gave the appellant’s requested Instruction No. 4, as follows:

“You are instructed that even if you should find hy a preponderance of the evidence in this case that the plaintiff Enoch T. Wall was mentally unable to comprehend the meaning of retaining and executing the draft tendered by the defendant of the return premium, if you find that same was in fact returned and negotiated, "by a preponderance of the testimony, then you are further instructed that if you find from a preponderance of the evidence that the plaintiff Enoch T. Wall regained his mental facilities to such extent as to enable him to comprehend and appreciate his normal business affairs, and that he continued thereafter to retain said return premium for an unreasonable length of time after re.gaining his mental facilities by a preponderance of the testimony, then he will, in law, be deemed to have ratified his prior acts in rescinding said contract and the defendant would not be liable, and your verdict should be for the defendant.”

With the jury thus instructed, the appellant then requested its Instruction No. 5, which the Court refused. This instruction is the one now in issue; and reads:

“The defendant in this case contends that there has been a mutual rescission of the contract of insurance between the United Insurance Company of America and Enoch T. Wall in that when proof of loss was furnished the defendant it refunded to plaintiff Enoch T. Wall the premium, which had been paid, accompanied by a letter setting forth the grounds for said rescission and a draft for the amount of the return premium, which was signed and negotiated by the plaintiff Enoch T. Wall. If you should find by a preponderance of the evidence that the defendant mailed the plaintiff the draft for the amount of the return premium together with a letter of explanation thereof, which said draft was retained and negotiated, or applied on his hospital bill, with knowledge of the reason for the return of said premium; then that, in law would amount to a mutual rescission of said contract of insurance, and the defendant would not be liable to the plaintiff in any amount, and your verdict would be for the defendant.”

In refusing the Instruction No. 5, the Court stated that, “. . . it is covered by other instructions already given.” We hold that the Trial Court was correct in refusing the Instruction No. 5. We need not decide whether the phraseology in the requested instruction correctly stated the applicable rules becausej the other instructions did state them, and the Court wab under no duty to multiply the instructions.

Affirmed.

       The annotation is entitled, “When sickness deemed to have incep-tion within clause of health or hospital policy covering sickness originating while policy is in force.”


source: Caselaw Access Project

author: Ed. F. McFaddin, Associate Justice.

license: Public Domain

text:
    Hammond v. Kirby, Judge.
    5-2476
    345 S. W. 2d 910
    Opinion delivered May 8, 1961.

      Thad D. Williams, for petitioner.

      J. Frank Holt, Attorney General, by Thorp Thomas, Asst. Attorney General, for respondent.
   Ed. F. McFaddin, Associate Justice.

This is an original proceeding in which the petitioners seek a writ of mandamus to compel the Honorable William J. Kirby, Judge of the First Division of the Pulaski Circuit Court, to forthwith set their cases for trial. The Attorney General, representing the State, waived time in which to answer and entered the appearance of the State, and the matter was presented orally before the Court without delaying the hearing for the preparation of briefs. We recite as facts the admissions and statements made by counsel for opposing sides in the oral argument before this Court.

The three petitioners were arrested and committed to jail on March 23, 1961, charged with the crime of rape (§ 41-3401, Ark. Stats.). The terms of the Pulaski Circuit Court are the First Monday in March and the Fourth Monday in September (§ 22-310, Ark. Stats.). By law, all criminal cases in Pulaski County are tried in the First Division of the Pulaski Circuit Court, unless otherwise assigned by consent of the Judges (§ 22-327, Ark. Stats.) ; and there is no claim of such consent in the case at bar. The petitioners have not been admitted to bail, and tneir attorney frankly told this Court that bail was not in issue, despite some language in the petition. The petitioners insist that they want an imrnediatc trial on the merits, in the First Division of the Pulaski Circuit Court, and they claim that such trial is being denied them. The petitioners’ attorney admitted that if they should be brought to trial at the present time, they would immediately move to quash the jury panel of the First Division of the Pulaski Circuit Court on the claim of systematic exclusion of Negroes. The basis of such motion would he the present holding of the United States Circuit Court of Appeals of the Eighth Circuit in the case of Bailey v. Henslee, 287 F. 2d 936.

The decision of the United States Circuit Court of Appeals in the Bailey v. Henslee case is responsible for all of the delay that has occurred. In that case, the conviction of Bailey was set aside on the claim that there had been deliberate exclusion of Negroes on trial juries in the First Division of the Pulaski Circuit Court; and the decision indicated that the omission of Negroes from the jury panels of the Second and Third Divisions of the Pulaski Circuit Court might have some bearing.

Petitioners insist that they want a speedy trial as guaranteed under the Constitution; hut they frankly confess that if they were called to trial, they would delay the trial .by motion to quash the jury panel. Should their motion to quash the jury panel of the First Division be granted, then the Circuit Court, in the exercise of discretion, could postpone the trial of petitioners until a new jury panel could be obtained either at the present or at the next term, which is in September, 1961.

Furthermore, Judge Kirby, as the presiding Judge of the First Division, has no control whatsoever over the Jury Commissioners of the Second or the Third Division of the Pulaski Circuit Court. Bach Court selects its own Jury Commissioners (§§ 39-201, 22-318, Ark. Stats.). So far as concerns Jury Commissioners and the selection of jurors, the three Divisions of the Pulaski Circuit Court are as separate of each other as though they were in different counties. If Judge Kirby should quash his present jury panel on motion of the petitioners, and the Jury Commissioners should bring in a new jury panel with a great preponderance of Negroes, still the petitioners could move to quash the new jury panel because there had been no Negroes on the panels in either the Second or Third Division of the Pulaski Circuit Court, which are Civil Divisions.

Until the language of the Circuit Court of Appeals in the Bailey case can be clarified, either by that Court or by the Supreme Court of the United States, Judge Kirby has delayed until September the trial of these petitioners — after their attorney had indicated they were going to move to quash the jury panel — in order to prevent the doing of a useless thing, i. e., quashing the present jury panel, which would result in continuing the cases until the September Term. We issue a writ of mandamus to require a court to act, but not to control its discretion. State ex rel., Pilkinton v. Bush, 211 Ark. 28, 198 S. W. 2d 1004; Better Way Life Ins. Co. v. Graves, 210 Ark. 13, 194 S. W. 2d 10. In Barney v. Texarkana, 185 Ark. 1123, 51 S. W. 2d 509, we said: . . the writ of mandamus does not issue as a matter of absolute right, and it would be an improper use of the writ to issue it when it is clearly apparent to the Court to which the application is made that it would serve no purpose and would be useless when issued.” The petitioners cannot expect us to issue a writ of mandamus to require a trial when they frankly state that as soon as they are called for trial they will move to quash the jury panel, which would result in the Trial Judge exercising discretion to continue the cases to the September Term.

The petition for writ of mandamus is denied at this time.

       Petitioners’ attorney was informed that the procedure for bail would be by petition for writ of habeas corpus in the Trial Court and then by certiorari to this Court (Parnell v. State, 206 Ark. 652, 176 S. W. 2d 902; and Fikes v. State, 221 Ark. 81, 251 S. W. 2d 1014). Petitioners’ attorney admitted this and frankly stated that any language in the petition regarding bail should be stricken, as hail was not desired at this time.

       Here are two pertinent excerpts from the opinion of the United States Circuit Court of Appeals in the Bailey case, delivered on March 17, 1961:
      “We mention only that there has been Negro representation, at least since 1952, on the regular panels of the First Division; that there has been no (or, at the most, one) instance of Negro representation on the alternate panels; that there is no positive evidence of any Negro representation on the special panels; that since 1939 no Negro has served on any panel in the Second and Third Divisions; ... .
      “Since 1939 no Negro has ever served on any kind of panel, regular, alternate or special, in the Second or Third Divisions of the Pulaski County Circuit Court. A fact of this kind, as has been noted above, would support a conclusion that a prima facie case of discrimination in the selection of juries in these civil divisions has been established.”


author: George Bose Smith, J.

text:
    Employers Mutual Casualty Co. v. Buckner.
    5-2391
    345 S. W. 2d 924
    Opinion delivered May 8, 1961.

      Gannaway & Gannaway, for appellant.

      Long & Ñemeo, Howell, Price & Worsham, for appellee.
   George Bose Smith, J.

This action was brought by the appellee to recover $657.97 upon an automobile insurance policy, together with penalty and attorney’s fee. The appellant, as the defendant below, failed to file a pleading within the time allowed, and a default judgment was entered against it. Thereafter the appellant appeared specially for the purpose of filing two successive motions to quash the service of process. This appeal is from the court’s denial of those motions.

The first motion alleges that the proper venue is in Prairie county, where the plaintiff resides, rather than in Pulaski county. The second motion alleges that the attempted service of process pursuant to § 61 of the Insurance Code of 1959 was incomplete and invalid in that the Insurance Commissioner mailed the process to the appellant at its home office in Iowa by airmail rather than by certified or registered mail, as the statute requires. Ark. Stats. 1947, § 66-2219.

We do not reach the point of considering either motion upon its merits, for it is evident that the appellant is pursuing a course that cannot afford it any effective relief. After the entry of a default judgment the defendant’s attack should be directed against the judgment rather than against the service of process. Files v. Robinson & Co., 30 Ark. 487, 495. Although a judgment may be set aside for unavoidable casualty upon a showing that the defendant was not served with process, the defendant must also show that he did not know of the proceeding against him and that he has a meritorious defense. Hunton v. Euper, 63 Ark. 323, 38 S. W. 517; Blanton Co. v. First Nat. Bank, 175 Ark. 1107, 1 S. W. 2d 558; O’Neal v. B. F. Goodrich Rubber Co., 204 Ark. 371, 162 S. W. 2d 52. In the case at bar the appellant has not alleged and has not proved either that it did not know of this proceeding or that it has a defense. An order merely setting aside the service of process would accomplish nothing, for the appellant would still be subject to liability upon the judgment.

Affirmed.


author: Paul Ward, Associate Justice. Ed. F. McFaddin, Associate Justice,

text:
    Ark. State Highway Comm. v. Snowden.
    5-2414
    345 S. W. 2d 917
    Opinion delivered May 8, 1961.

      Dowell Anclers, W. B. Thrasher and O. Wendell Hall, Jr., for appellant.

      Catlett <& Henderson, for appellees.
   Paul Ward, Associate Justice.

This is an eminent domain action wherein, on appeal, the only issue is the amount of the judgment entered in favor of the landowners for land taken and damages to adjacent land.

High-way No. 67, a limited highway, runs from Little Bock to Benton, a distance of approximately 28 miles. Where the subject property is located this highway runs in a southwesterly direction toward Benton, and running almost parallel to it is the old blaektopped highway, No. 5, about one and a quarter miles to the north. Approximately midway between Little Bock and Benton the Alexander road (black-topped) runs from No. 5 south (along the line between Pulaski County and Saline County) to and over No. 67 (on an overpass). The subject land (owned by Mr. and Mrs. B. B. Snow-den, appellees) consists of 40 acres (described as the Southeast Quarter of the Southeast Quarter of Section 12, Township 1 South, Bange 14 West) being on the west side (and abutting) the Alexander road. The said forty acres does not border on No. 67 or No. 5, but is approximately 150 or 200 feet from both.

On August 19, 1957, appellant (the Arkansas Highway Commission) filed suit to condemn a small portion of Snowden’s land, described substantially as follows:

Beginning at the southeast corner of the said forty (near the No. 67 overpass) and running west 84 feet, thence in a north-northeasterly direction 445.9 feet to a point, thence east 40 feet to the east line of said forty, and thence south 439 feet to the point of beginning, consisting of .322 acres.

Appellees, in their answer, asked for the value of the property taken and for damages to the rest of the forty acres.

The trial judge, sitting as a jury, rendered judgment in favor of appellees in the total amount of $12,000. In doing so the trial judge made a finding of facts to which we will later refer. Appellant appeals on the sole contention that there is no substantial evidence to support the judgment for the full amount of $12,000.

After careful consideration we have concluded, for reasons hereafter set out, that appellant’s contention must be sustained. In so concluding we are aware that certain well established legal principles must be observed. The judgment in its entirety must be sustained if there is substantial evidence to support it. Missouri Pacific Transportation Co. v. Sacker, 200 Ark. 92, 138 S. W. 2d 371. The testimony must be considered in the light most favorable to appellees. Mutual Benefit Health and Accident Association v. Basham, 191 Ark. 679, 87 S. W. 2d 583. It is well established that the findings of the trial judge in this instance must be treated the same as a jury verdict, but this court has the authority to decide, as a matter of law, what constitutes substantial evidence.

Value of the Forty Acres. We think the trial court erred in fixing the market value of appellees’ land at $50,000. Only four witnesses testified as to the value, two for appellees and two for appellant. Both of appellees’ witnesses fixed the value at $50,000. One of appellant’s witnesses fixed the value of $32,000 and the other one at $30,000. All of the four witnesses appear to be equally well qualified, although one of appellant’s witnesses was the only one to say he was acquainted with land values in Saline County. As a basis for their estimates both of appellees’ witnesses appear to have relied heavily on the price for which a parcel of land across the Alexander (Jones land) road sold for. That land, consisting of 31.59 acres sold, they said, for $50,000. The trial court, in its finding of facts, made this statement: “Testimony of the witnesses as to the damages is, in the opinion of the court, completely irreconcilable and leaves no room for a compromise between the figures submitted by the various experts.”

We think the above statement indicates a misconception of the function of a trial judge sitting as a jury. Since his findings are given the force of a jury finding-on appeal it must follow that he should exercise the functions of a jury. As such he was not obligated to accept one figure and reject the other, but to weigh all the testimony and, if possible, reconcile it. In the case Bridgman v. Baxter County, 202 Ark. 15, 148 S. W. 2d 673, we find this statement:

“Five real estate men testified as to values, damages and benefits, four for the defendant and one for the plaintiffs, the latter being himself a claimant and an interested party. We do not attempt to reconcile the conflicting opinions of these witnesses, as this was a question for the jury.”

There are present in this case several elements or factors which the trial court could have hut patently did not consider in an attempt to reconcile the disparity in the conclusions of the two sets of witnesses, (a) Appellees paid $20,000 for their land in 1955; which is of some significance, Arkansas State Highway Commission v. Watkins, 229 Ark. 27, 313 S. W. 2d 86; (b) Appellees assessed this forty acres for $300, which (at 20% of the real value) indicates to some degree an actual value of $1,500, which was proper for consideration, (Ark. Stats., § 76-521 and Omohundro v. Saline County, 226 Ark. 253, 289 S. W. 2d 185); (c) Appellees’ land fronted 1,320 feet on the Alexander road while the Jones’ land fronts 1,247 feet, appellees’ land does not front on the main highway No. 67, while the Jones’ land fronts 440 feet, appellees’ land does not front on highway No. 5 while the Jones’ land fronts 753 feet, and the Jones’ land had on it revenue producing property of an undisclosed amount which could have enhanced its value; (d) It is conceded that where the Jones’ property abuts No. 67 the property is wholly commercialized, and it is further conceded that such property is more valuable than residential property such as appellees’ property is conceded to be. In addition to the above, the record reflects that just south of appellees’ forty acres there is a strip of land some 100 to 150 feet wide between it and highway No. 67 where there is located a filling station, a cafe, a car-sales business, and a junk yard. This condition is such that appellees’ witnesses conceded that residences would likely not be built facing toward highway No. 67.

We point out also a misconception of the testimony on the part of the trial court which appears to have influenced its decision to accept the value fixed by appellees’ Avitnesses. In his findings the trial judge said that “the testimony was in hopeless conflict as to the highest and best use that the land could be put to,” but we find that there was no conflict on this point. Appellees’ two witnesses agreed that such nse was for subdivision. One of appellant’s .witnesses concurred unqualifiedly with appellees ’ witnesses on this point and the other said it could be used for that purpose.

It is admitted as common knowledge that it would cost a great deal of money to pave streets and provide for utilities to convert forty acres of land into a- housing-project, and one would hardly undertake such a venture unless he was sure there was a demand to justify it. We find little if any testimony of that nature by appellees’ witnesses, but Wesley Adams, for appellant, stated without contradiction that there was no such demand. He further stated that there was a subdivision near appellees’ property and that only one little “Shell House” had been built on it within the last two years. Adams also stated that appellees’ property was made more desirable because of the improved access to the highway. Ark. Stats., § 76-521 says that, “. . . any court or jury considering claims for right-of-way damages shall deduct from the value of any land taken for a right-of-way the benefits of said State highway to the remaining lands of the owner.” It is apparent from the-finding of facts that the trial court gave no consideration to this statute or Adams’ testimony. It is interesting to note that the trial court frankly stated it was- ‘ ‘ difficult to believe, using his own knowledge, of values-of lands, that claimant’s lands could be worth $50,000.”

In view of all the above we must in good conscience-say that there is no substantial evidence to support a finding that appellees ’ land had, in 1957, a market value-of $50,000. We are aware that two qualified witnesses were of the opinion that the land was worth the above-figure, but that opinion must be evaluated in relation, to the facts (heretofore set out) upon which it is based.. See: City of Harrison v. Moss, 213 Ark. 721, 212 S. W. 2d 334; Arkansas State Highway Commission v. Byars, 221 Ark. 845, 256 S. W. 2d 738.

This court cannot of course, in a situation like this,, say there is substantial evidence to justify a certain amount — no more and no less — but we can, as we have? frequently done heretofore, fix an amount with the conviction that there is no substantial evidence to support a larger amount. See: Railway Express Agency, Inc. v. Gee, 197 Ark. 925, 125 S. W. 2d 802; Missouri Pacific Railroad Company v. Barham, 198 Ark. 158, 128 S. W. 2d 353; Coca Cola Bottling Company of Southeast Arkansas v. Bell, 199 Ark. 386, 134 S. W. 2d 549; Fort Smith Couch and Bedding Company v. Rozell, 203 Ark. 35, 155 S. W. 2d 707; Jackson v. Ellis, 213 Ark. 826, 212 S. W. 2d 715; and Arkansas State Highway Commission v. Watkins, 229 Ark. 27, 313 S. W. 2d 86. The essence of what we have just said amounts to saying that, in reducing a jury verdict for lack of substantial evidence, we give the benefit of any doubt to the judgment holder, as we will do in reaching a final conclusion in this opinion.

Damages. We now proceed to examine whether there is substantial evidence to support the judgment for $12,000. The recognized general rule calls for a determination of the market value of the forty acres before the taking and subtracting therefrom the determined market value after the taking, the difference being the amount of compensation for the .322 acres of land taken plus the damages to the rest of the forty. However, since we have decided that the first mentioned item of value is excessive the general rule must give way to or be supplemented by an evaluation of the evidence regarding the value of land taken and the resulting damages to the rest of the forty. Such evaluation must, however, be made in the light of the excessive value of the forty acres as it was determined by the trial court.

Appellees’ witness Reid estimated the .322 acres (together with the loss of footage on No. 5) to be worth $4,500, based on comparable sales along No. 67. This comparison, we feel, was not fair to the State, first because No. 67 is a more important road than No. 5 and also because commercial property is conceded to be more valuable than residential property. He estimated the damage to the rest of the forty acres at $7,500. The reason given was that the forty (valued by him at $50,000) was damaged 15%. He gave no detailed expíanation of liow he arrived at 15%. Such testimony, as we have heretofore explained, is not substantial to support the figure of $7,500.

Appellees’ witness Barry, stating that he took a different approach, estimated the total amount for the taking and damages at $13,400. His explanation of how he arrived at the above figure is not entirely clear. He said that the logical entrance to the forty acres (for subdivision purposes) would be off the Alexander road at the middle of the forty; that this was not now possible since the state had taken the 439 foot frontage; and this would create an engineering problem in platting. After a lengthy explanation of his theory the witness concludes:

££. . . if you put the road over this way too far you would have too many lots facing that road that would have to come this way, but this would divide it equally, about 660 feet on two separate blocks. Now this fellow would have to go up here to get out; of course, there could be another road up here between the main service road that would come up here. Then this taking here, this is to form selling lots fronting this road here. Put this on the North 20, and already you have here a paved road available there, but on the South 20 you have to come and build your own road. You have to create your own frontage and here you come in and build your own road to create your new frontage, and that being through 660 feet there is a direct loss to the property owner, because he can’t use it because it narrows down too much, he can’t use it. That would be 660 feet then less 65 which would be 635 feet at $10.00 a foot would be $6,350.00. This new road would be 635 feet long and at $10.00 a foot to construct this paved road would be an additional $6,350.00. Then to bring the gas line in there would be $1.10 a foot for approximately 710 feet.”

From the above it is not clear to us just how appellees would lose 635 foot frontage when the State has taken only 439 feet, nor is it clear why 635 feet of extra road, in addition to what would have to be built in any event for a subdivision, would be required. This was not explained hy the trial court in the finding of facts. At any rate a shadow of unsubstantiality is cast over the entire matter hy the last portion of the witness’ testimony.

Q. “Ton know it costs lots of money to develop a subdivision, to put in utilities and paved streets?”

A. “Tes.”

Q. “And it’s purely a speculative proposition?”

A. “Yes, a subdivider always speculates, he gambles.”

Q. “And there’s other land closer to Little Bock and closer to Benton that has not been developed?”

A. “Uh-huh.”

Q. “That is all.”

Speculation is not a sound basis upon which to predicate a verdict, and it cannot take the place of proof. See: Sadler, Trustee v. Scott, 203 Ark. 648 (at page 652), 158 S. W. 2d 40, cited and approved in Arkansas Highway Commission v. Byars, supra at 852.

In contrast to the above, we have the expert testimony of the two witnesses on behalf of appellant. Adams, -who owns property in Saline County and who stated that he “had experience in buying and selling” in that county, figured appellees’ total damage at $161 but was willing to make it $175. His reasons, in part, are set forth in his own words as follows:

Q. “What was the market value of the property after part of it was taken by the Highway Department?”

A. “Actually there is very little difference, if any, in the market value. In fact, by reason of the improved access to the property afforded by the new highway it has made the property a more desirable piece of property to own for further development for most any use it might have.”

"Watson, an expert witness for appellant, after explaining his reasons, fixed appellees’ total damages at $250, and he was also of the opinion that the highest and best nse of the property was for housing development purposes.

Having in mind all we have heretofore set out and giving appellees the benefit of all reasonable doubts, we cannot in good conscience say that the substantial evidence in this case supports a judgment in excess of $7,000. In doing so we answer in the negative the questions posed and approved in Arkansas Highway Commission v. Dupree, 228 Ark. 1032 (at page 1037), 311 S. W. 2d 791, to-wit:

“Must appellate judges close their eyes .and their minds to the obvious fact that in a particular case the evidence, from its very nature, could not have been convincing, though it produced a given result? Shall we affirm that such evidence was necessarily substantial because it was favorably acted upon by the jury?”

Therefore, if appellees enter within 17 calendar days a remittitur accepting a judgment in the amount of $7,000, such judgment will be affirmed, otherwise the judgment of the trial court will be reversed and the cause remanded for a new trial.

Robinson, J., not participating.

McFaddin and Johnson, JJ., dissent.

Ed. F. McFaddin, Associate Justice,

dissenting. My dissent is because — as I see it- — -the Majority of this Court is sitting as an appellate jury and weighing and evaluating the evidence.

This case was tried in a law court. The parties agreed —as they had a right to do — to try the case before the Court without a jury. Our cases are legion to the effect that in such a situation the finding of the Trial Court has the force and effect of a jury verdict, and it is the duty of the Supreme Court to affirm the findings if there is any substantial evidence in support thereof. I submit that there is an abundance of evidence to support the findings of the Trial Court. Two qualified real estate men — A. C. Reid and Floyd Barry — -testified for the landowner. One said that Snowden had sustained damages of $12,500.00, and the other said Snowden had sustained damages of $13,400.00. These witnesses were cross-examined at length. Whether these witnesses “knew what they were talking about” was for the Circuit Court, as the trier of the facts. Yet the majority opinion of this Court clearly shows that the Majority has examined, weighed, and evaluated the testimony of these two witnesses, just as a jury of a trier of the facts should do. It is not the prerogative of this Court to sit as an appellate jury.


author: Sam Robinson, Associate Justice.

text:
    Peoples Indemnity Insurance Co. v. Mashburn.
    5-2394
    345 S. W. 2d 922
    Opinion delivered May 8, 1961.

      Frierson, Walker & Snellgrove, for appellant.

      Douglas Bradley, for appellee.
   Sam Robinson, Associate Justice.

Appellant, Peoples Indemnity Company, issued to appellees a policy of fire insurance covering a house located on a farm. The policy contains the following provisions: “Unless otherwise provided by agreement in writing added hereto, this company shall not be liable for loss or damage occurring, . . . (b) while the hazard is increased by means within the control or knowledge of the insured; or . . . (d) while the described building, whether intended for occupancy by owner or tenant, is vacant or unoccupied beyond a period of ten days; or without written endorsement attached hereto; . . .”

The house burned and the insurance company refused payment on the policy. Appellees then filed this suit. There was a jury verdict for the policyholders and the insurance company has appealed. In its answer the insurance company alleged: “The plaintiffs failed to comply with the provisions of the insurance policy [above mentioned], in that the hazard insured against was increased by means within the control or knowledge of the insured, since the policy was issued insuring the property as a tenant dwelling, whereas, in fact, it was not used as such and that fact was not known to the defendant company or any of its agents, and, further, the property insured was vacant and unoccupied beyond a period of ten days without any written endorsement attached to the policy and without any knowledge of the defendant or its agents.”

Mr. S. L. Griffin was the agent who wrote, the policy in question and he had full authority to write and deliver policies for the insurance company. At the time the house burned, the property was rented to Faber Thomas and his son and it was shown that the house had not been occupied for more than ten days at the time of the fire nor had the insurance company given its consent to the vacancy. In fact, the house had not been regularly occupied for a long time. It was used to house Mexican laborers at seasonal periods. Mrs. Mashburn, the assured, testified that Mr. Griffin’s firm had been the agency that attended to the issuance of policies on the house for several years and that Mr. Griffin was fully aware that the house was occupied only a portion of the time and that it was vacant at the time the policy was issued. Mrs. Mashburn testified that she specifically gave Mr. Griffin this information. On the other hand. Mr. Griffin denied that he knew the house was vacant at the time he wrote the policy and denied that he knew it was occupied only a part of the time. Thus, there was a question of fact to be decided by the jury, and it was decided in Mrs. Mashburn’s favor.

The issue was submitted to the jury by the court’s Instruction No. 3, as follows: “You are instructed that on Policy No. 1 [there was another policy involved in the trial court that is not in issue on appeal,] it will be your duty to return a verdict for the plaintiffs for the sum of $1,000.00, unless you find that the defendant’s agent, Mr. Griffin, did not know that the house was unoccupied at the time the insurance policy was issued, and that the house was unoccupied as defined by later instructions of the Court.” The only objection appellant made to Instruction No. 3 was that there “had been no evidence in the case which would raise a question of fact on that question.” But, as heretofore pointed out, the testimony of Mrs. Mashburn did raise such an issue of fact. Appellant alleged in its answer “that the property was vacant for more than ten days without any knowledge of the defendant or its agents.” Appellant failed to prove this allegation in the answer to the satisfaction of the jury.

In Washington County Farmers Mutual Fire Ins. Co. v. Reed, 218 Ark. 522, 237 S. W. 2d 888, this Court quoted from Farmers’ Union Insurance Co. v. Hill, 205 Ark. 139, 167 S. W. 2d 874, as follows: “‘Hoggard (Insurance Company’s agent) knew the building was not completed and that it had never been occupied by anyone. He had been in and about the building at different times and knew that there was another building within less than 100 feet of the building in question. Under these facts, it is our view that appellant’s agent Hoggard waived the occupancy provision and the untrue statements of appellee in the application as to the distance of the nearest building, or risk, to the property in question, and the length of time that it had been occupied prior to the application. Notice to Hoggard, appellant’s agent, was notice to the principal, appellant, and appellant has waived any right to claim forfeiture of the insurance on account of appellee’s false answers in the application or for violation of the provision of the policy. ’ ’ ’ Appellant now says appellees did. not plead waiver, but no objection was made to Mrs. Mashburn’s testimony regarding Griffin’s knowledge of the vacancy.

Appellant further argues that the policyholders are precluded from recovery by the following policy provision: “This entire policy shall be void, unless otherwise provided by agreement in writing added thereto, . . . (d) if any change, other than by the death of an insured, take place in the interest, title or possession of the subject of insurance (except change of occupants without increase of hazard).” This provision is not applicable because if the property was vacant at the time the policy was issued, as claimed by the appellees, there was no evidence of change in occupancy that increased the hazard.

Affirmed.


author: Jim Johnson, Associate Justice.

text:
    Mitchell v. State.
    5-2328
    346 S. W. 2d 201
    Opinion delivered May 8, 1961.
    [Rehearing denied June 5, 1961.]

      Thad D. Williams and Christopher C. Mercer, for appellant.

      J. Frank Holt, Attorney General, by Thorp Thomas, Asst. Attorney General, for appellee.
   Jim Johnson, Associate Justice.

On the 11th day of April 1959, appellant, Lonnie B. Mitchell, a Negro 23 years of age, was convicted of raping a crippled white woman 77 years of age, and sentenced to death. On appeal to this Court, the judgment, which was based upon a jury verdict, was unanimously affirmed on September 21, 1959, Mitchell v. State, 230 Ark. 894, 327 S. W. 2d 384. In that opinion we said: “The overwhelming and uncontradicted evidence proves appellant guilty beyond any shadow of doubt. In fact, there is no contention that the evidence is not sufficient to sustain the verdict.” Following this decision, appellant, on January 14, 1960, filed in the Union Circuit Court, where he was originally tried, a motion to vacate the judgment. The motion was overruled and upon appeal the decision of the trial court was affirmed on June 6, 1960. Mitchell v. State, 232 Ark. 371, 337 S. W. 2d 663. Thereafter, on September 23, 1960, appellant filed the present petition for a writ of habeas corpus in the Jefferson Circuit Court. In his petition appellant alleged that his conviction was void in that the death penalty for rape in Arkansas was not imposed upon any person other than Negro men convicted of rape upon white women and that such unequal punishment violates his constitutional rights under the Fourteenth Amendment to the Constitution and laws of the United States. He also alleged that the trial court did not appoint him competent counsel, along with the usual allegations of systematic exclusion and/or limitation of Negroes on the jury panels. He further claimed that his confession was coerced and that he is presently insane and was at the time of the commission of the offense.

A hearing was held on the petition for a writ of habeas corpus on September 28, 1960. No evidence was introduced and the trial court dismissed the writ and denied an appeal. Upon proper prayer this Court on November 28, 1960, granted an appeal.

For reversal of the holding of the trial court, appellant relies on two points. His first contention is that: “Appellant is entitled to a judicial inquiry into the truth and substance on the cause of his detention.” In support of his contention appellant argues that the effect of the trial court’s decision denies him the opportunity to prove the allegations contained in his petition.

The law relative to the scope of the inquiry when a writ of habeas corpus is petitioned is well settled in this State. It is concisely set forth in Rowland v. Rogers, 199 Ark. 1041, 137 S. W. 246, as follows:

“The rule is that where a petitioner for a writ of habeas corpus is in custody under process regular on its face, nothing will be inquired into except the jurisdiction of the Court whence the process came. Ex parte Williams, 99 Ark. 475, 138 S. W. 985.”

See also: Ex parte O’Neal, 191 Ark. 696, 87 S. W. 2d 401; State v. Martineau, 149 Ark. 237, 232 S. W. 609; Ex parte Foote, 70 Ark. 12, 65 S. W. 706.

As to the allegations contained in the instant petition, they are the same as were advanced in Mitchell v. State, 232 Ark. 371, 337 S. W. 2d 663. There we said:

“It is alleged in the motion that appellant is a Negro and that it is the custom and practice in Arkansas to sentence Negro men to death for raping white women, but that white men are not sentenced to death for rape; that Negroes were systematically excluded from the jury which tried him; that he is an ignorant youth (he was 23 years of age at that time); that he did not have access to effective assistance of counsel; that a purported confession made by appellant was coerced and not voluntary; that at the trial he was insane and not mentally present at the trial; that he was insane at the time of the commission of the rape; that he is presently insane; and that he was denied an examination by a private psychiatrist prior to this trial. Nothing is alleged in the motion that -was not or could not have been raised on appeal in the first instance except the allegation of present insanity.”

The record reveals that no petition for a writ of certiorari was filed with the United States Supreme Court in the above quoted case and as we there said, nothing is alleged that was not or could not have been raised on appeal except the allegation of present insanity. Thus the language in Goodman v. Storey, Sheriff, 221 Ark. 308, 254 S. W. 2d 63, is applicable here:

“In Brandon, Ex Parte, 49 Ark. 143, 4 S.W. 452, the court said: ‘. . . an application for habeas corpus cannot be made to perform the function of an appeal, or writ of error, in correcting errors and irregularities at the trial. To authorize the judge of the superior court to interfere and discharge a convicted prisoner in this summary fashion, the sentence must be a nullity, or the court which imposed it must have been without jurisdiction.’ ”

Therefore, since the record reveals that the trial court found the appellant to be in custody under process regular on its face, and that the court from which the process issued was the court of competent jurisdiction, from what we have said above, and the record before us, we find nothing to indicate that the trial court erred in its judgment. As to appellant’s allegation of present insanity, that question can be determined as provided by Ark. Stats, § 43-2622.

Appellant’s remaining contention 'for reversal is that: “Bach state must provide a clearly defined post conviction remedy by which claims of infringement of federal rights may be asserted.”

In support of this contention appellant argues that to hold that habeas corpus cannot be used to enforce his constitutional rights deprives him of an opportunity to assert such rights. He then cites Young v. Regan, 337 U. S. 235, 69 S. Ct. 1073, 93 L. Ed. 1333, in support of his view that a State must provide a post conviction remedy for the vindication of his constitutional rights. In our view, Arkansas does provide a post conviction remedy, i. e., an appeal whereby he can assert any alleged deprivation of his constitutional rights. If he fails to take advantage of this opportunity, the State need not provide him with limitless other methods whereby he could forever prolong the litigation. In Brown v. Allen, 344 U. S. 443, 503, 73 S. Ct. 437, 87 L. Ed. 268, the question now raised was disposed of in the following language:

Of course, nothing we have said suggests that the federal habeas corpus jurisdiction can displace a State’s procedural rule requiring that certain errors be raised on appeal. Normally, rights under the Federal Constitution can be waived at the trial, Adams v. United States ex rel. McCann, 317 U. S. 269, 63 S. Ct. 236, 87 L. Ed. 268, and may likewise be waived by failure to assert such errors on appeal. Compare Frank v. Mangum, 237 U. S. 309, 343, 35 S. Ct. 582, 59 L. Ed. 969. When a State insists that a defendant be held to his choice of trial strategy and not be allowed to try a different tack on State habeas corpus, he may be deemed to have waived his claim and thus have no right to assert on federal habeas corpus. Such considerations of orderly appellate procedure give rise to the conventional statement that habeas corpus should not do service for an appeal. See Adams v. United States ex rel. McCann, supra, at 274. Compare Sunal v. Large, 332 U. S. 174, 67 S. Ct. 1588, 91 L. Ed. 1982, with Johnson v. Zerbst, 304 U. S. 458, 465-469, 58 S. Ct. 1019, 82 L. Ed. 1461.”

Affirmed.

       Arkansas cases have not yet been digested by race. On the point here alleged, if it can properly be termed a point, a cursory research discloses Needham v. State, 215 Ark. 935, 224 S.W. 2d 785, to be a recent case affirming a judgment based upon a verdict assessing the death penalty to a white person convicted of rape. Almost all of the cases found made no reference whatever to race, thereby rendering it impossible to tell the race of the condemned.

       The record in Mitchell v. State, 230 Ark. 894, 327 S. W. 2d 384, reveals that all relief sought by appellant relative to systematic exclusion and/or limitation of Negroes on the jury panels was granted. On motion of appellant, the panel was quashed, a new jury was selected and sworn according to law, and the trial then proceeded without objection.


author: Ed. F. McFaddin, Associate Justice,

text:
    In re Harold C. Rains, Jr.
    346 S. W. 2d 195
    Dissenting opinion delivered May 8, 1961.
   Ed. F. McFaddin, Associate Justice,

dissenting. In the per curiam opinion from which I dissent, the majority has reinstated Harold C. Bains, Jr. to the practice of the law. I find myself in disagreement with the policy and procedure which the majority has taken in this case, and a brief review of the facts is necessary. By Constitutional Amendment No. XXVIII, adopted in 1938, the People of Arkansas clothed this Court with the broadest possible power over attorneys and the practice of the law. The Amendment says: “The Supreme Court shall make rules regulating the practice of law and the professional conduct of attorneys at law.” Pursuant to that Amendment, this Court, on April 24, 1939, promulgated certain rules, the second of which says: “The Court shall appoint a committee of seven lawyers . . . to serve at the pleasure of the Court to assist the Court in enforcing these rules.” This Committee we have always called the “Bar Buies Committee,” and to it we have usually referred matters for the investigation of the professional conduct of attorneys.

Some time in 1954, we referred to the Bar Buies Committee a complaint about the conduct of Harold C. Bains, Jr. He had the privilege, at that time, of insisting on a formal trial before a circuit or chancery court, as provided in our said rules. Instead, he elected to voluntarily surrender his license and to lie permanently disbarred from the practice of law. Such an order was entered in the November 1954 Term of this Court. In the May 1956 Term, he asked for reinstatement, and it was denied. Subsequently, lie filed another application for reinstatement. We referred the matter to the Bar Rules Committee for investigation. Testimony was taken, witnesses heard, and the Bar Rules Committee, by a majority vote, recommended against the reinstatement. A majority of that Committee has twice reported to us adversely to the reinstatement of Mr. Rains. Now, this Court is going contrary to the recommendations of the Bar Rules Committee and reinstating Mr. Rains. I see no need to have a committee of excellent and outstanding lawyers to hear the evidence and make recommendations to us unless we are going to follow their recommendations; and so the first reason for my dissent is that I would not overrule the recommendations of the Bar Rules Committee.

I desire to go a step further and state what I think our standard procedure should be. We have another committee called the “State Board of Bar Examiners” whose duty it is to examine all applicants for the practice of the law to see if they possess the necessary legal qualifications. Nearly seven years have passed since Mr. Rains was disbarred. His disbarment has become final, and his application for reinstatement must be treated as an application for admission to practice law. Therefore, the course this Court should pursue is to refer his application to the State Board of Bar Examiners for investigation as to his moral character and legal qualifications. If his moral character is found satisfactory, then the State Board of Bar Examiners can permit him to take the Bar Examination; and if he passes that examination, then he can be re-admitted. After a lapse of nearly seven years, it must be recognized that there have been so many tremendous changes in the law that what was known seven years ago may be entirely erroneous of the present law. The point I am • making is that an application for reinstatement is really an application to be re-admitted to the practice.

In the case of In re Fleming, decided by the Supreme Court of New Mexico in 1932, and reported in 36 N. M. 93, 8 Pac. 2d 1063, a disbarred attorney filed application for reinstatement and the Court used this language; “An application for reinstatement of an attorney, after the judgment of disbarment has become final, ‘must be' treated as an application for admission to practice and not as an application to vacate the order of disbarment/ Danford v. Superior Court, 49 Cal. App. 303, 193 Pac. 272, 274; In re Cate, (Cal. App.) 270 P. 968.” In Ex parte Marshall (1933), 165 Miss. 523, 147 So. 791, I find this statement: “Of course, the requirements for reinstatement are the same as for original admission to the bar . . .” And in Ex parte Montgomery (1947), 249 Ala. 378, 31 So. 2d 85, I find this statement: “An application for reinstatement of a disbarred or suspended attorney has been likened to an application for admission to practice . . .”

So, as a matter of policy and procedure, I submit that the procedure this Court should pursue in this case is to refer Mr. Rains’ application to the State Board of Bar Examiners, who will then investigate his moral qualifications; and, if found satisfactory, the Board will permit him to take the bar examination. If he can pass the examination, then he can be admitted to practice. By acting as it is in this case, the majority is setting aside its previous order of disbarment entered at Mr. Rains’ own personal request, and re-admitting him to the practice without any examination of any kind. By the same token, the majority could find any person who desires to practice law and admit him to practice without any examination. I am confident that the People of Arkansas, in passing Amendment XXVIII, expected us to make “rules”; and the rules that we have made envisage that a person seeking to practice law must pass the bar examination.

So far as I recall, there has been only one other case of reinstatement granted since I have been a member of this Court, and it was under most exceptional circumstances. In 1943, when the Second World War was in progress, a man who had been disbarred only a short time claimed that he was to enter the service of his country and he wanted the stigma of disbarment removed. His reinstatement under such circumstances ■certainly has not set a precedent. There is no need for me to cite authorities; but I want the reasons for my dissent preserved as a matter of record;

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


author: Carretón Harris, Chief Justice.

text:
    Haville v. Pearrow.
    5-2390
    346 S. W. 204
    Opinion delivered May 15, 1961.

      Eldridge S Eldridge, for appellant.

      Lloyd Henry, Comer Boyett, Jr. and Victor Nutt, for appellee.
   Carretón Harris, Chief Justice.

On January 2, 1959, appellees, Carl Pearrow and wife, filed a substituted complaint against appellants, Duke Haville and wife, for damages resulting from an automobile collision, the complaint alleging appellants to be residents of Zachary, Louisiana, and former residents' of Bussell, White County, Arkansas. Summons was issued and served upon the Secretary of State by the Sheriff of Pulaski County. A registered letter, with return receipt requested, was sent to appellants at Zachary, and returned, with a notation in the upper right hand corner of the envelope, “Notified 3/4/59”, and a check ,v'ark by the words, “Moved, left no address.” No answer was filed, and on April 20, 1959, a default judgment was entered against appellants in the total amount of $2,676.03. Execution was issued to the Sheriff of White County on February 8, 1960. On February 22, 1960, appellants, appearing specially, moved that the court vacate the default judgment, contending that they were residents of White County, Arkansas, throughout the entire year of 1959, and specifically on January 2nd and March 9th, the respective dates on which returns were made on the summonses issued on the first and second complaints. The motion further stated that Mrs. Haville was physically present in Russell on both occasions, and that Mr. Haville was physically present on “virtually” every weekend during the months of January, February, and March. Appellants contended that they had no knowledge or notice of the pendency of the litigation, nor of the default judgment entered, until February, 1960. They further alleged a valid defense “consisting of the fact that the accident complained of by plaintiffs was caused solely by the negligence and carelessness of the plaintiff, Carl Pearrow, in that he was proceeding at a grossly excessive and reckless rate of speed considering the conditions existing at the time of the accident, that he was violating the law, that he failed to yield the right of way, that he failed to keep proper and careful lookout for persons on the highway; that the defendant, Mrs. Duke Haville, who was the sole occupant of the car, was operating her vehicle in a careful and prudent manner with due regard for the safety of persons or property on the highway and that she was not negligent in any respect.” Appellants asserted that the judgment should be vacated under the provisions of Subsection 7, Section 29-506, Ark. Stats. Anno., which provides that the court shall have power to vacate a judgment or order “for unavoidable casualty or misfortune preventing the party from appearing or defending.” Following a hearing, the court declined to set the judgment aside, and entered its order dismissing the motion, and ordering the judgment to stand. Appellants have perfected this appeal.

Under the view that we take, it is not necessary that we discuss whether the service was valid, for under our holdings, irrespective of the validity of service, the judgment must be affirmed. We have many times held that before one can successfully set aside a judgment, he must show a meritorious defense. This is in accord with our statutes. Section 29-508 provides that proceedings to vacate judgments or orders under § 29-506 shall be by complaint, verified by affidavit, and shall set forth the judgment or order, grounds to vacate or modify same, and the defense to the action, if the party applying was a defendant. Section 29-509 provides that a judgment shall not be vacated on motion or complaint until it is adjudged that there is a valid defense to the action on which the judgment is rendered. As far back as 1891, in Chambliss v. Reppy, 54 Ark. 539, 16 S. W. 571, in an opinion by the late Chief Justice Cockrill, this Court, in construing § 3912 of Mansfield’s Digest (indentical with our present § 29-509), held that a judgment could not be vacated ‘ ‘ until it is adjudged that there is a valid defense to the action on which the judgment was rendered.” In that case, the appellant contended that service was not had upon him. Again, in Knights of Maccabees of the World v. Gordon, 83 Ark. 17, 102 S. W. 711, this Court, in construing § 4434 of Kirby’s Digest (identical with § 3912 of Mansfield’s Digest and § 29-509 of Arkansas Statutes), held that a judgment could not be set aside on motion or complaint, but evidence must be heard by the court before it could be adjudged that a valid defense existed. In Merriott v. Kilgore, 200 Ark. 394, 139 S. W. 2d 387, this Court said:

“To get a judgment or decree set aside, vacated, or modified after the lapse of the term, the statutes above referred to must be complied with. To be sure, this court has said that a motion might be considered as a complaint, but if the motion is so considered, it must be verified and the statute complied with in other respects, and there must be not only an allegation of a meritorious defense, but there must be evidence of it.”

See also O’Neal v. B. F. Goodrich Rubber Company, 204 Ark. 371, 162 S. W. 2d 52. In the case before us, the testimony of appellant, Mrs. Haville, and her witnesses, was directed to the fact that she was physically in White County at the time the suits were instituted; there was no evidence directed toward the establishment of a meritorious defense.

Affirmed.

       The original complaint alleged appellants to be residents of White County, but the return on the summons by Deputy Sheriff R L Griffin (now deceased), reflected that appellants had left Russell and gone to Zachary.

       This has reference to the statutory requirements found in Pope’s Digest, which are substantially the same, if not identical, to the statutes in the earlier digests, and to our present day statute.

       Mr. Haville did not testify.


author: Ed F. McFaddin, Associate Justice.

text:
    Easley v. Inglis.
    5-2364
    346 S. W. 2d 206
    Opinion delivered May 15, 1961.

      House, Holmes, Butler & Jewell, for appellants; Fenton Stanley, Guardian Ad Litem for the minor cross-appellant, Christine Gross.

      Terral & Rawlings and Gail O. Matthews, for appellee.
   Ed F. McFaddin, Associate Justice.

This litigation stems from a traffic mishap which occurred near Malvern when an automobile driven by Miss Christine Gross (and owned by her father, Frank Gross) struck the side of a truck-trailer driven by Travis D. Easley (and owned by his father, F. A. Easley); and the Gross car swerved into a building owned by Foster Inglis and occupied by L. D. Burrow as a grocery store.

Inglis and Burrow (appellees here) sued the owners and drivers of both the Gross automobile and the Easley truck, alleging that the four defendants were jointly and severally liable to Inglis and Burrow for the damages sustained by the appellees. There were denials by each defendant; a cross-complaint by the Grosses against the Easleys; and a “counterclaim” by the Easleys against the Grosses. With issues joined, the causes were tried by the Circuit Judge, a jury being waived, and resulted in judgments in favor of Inglis for $675.00 for damage to the building, and in favor of Burrow for $750.00 for damage to the grocery fixtures and stock. These judgments were against all four of the defendants, jointly and severally. The Court also found that the defendant Christine Gross and the defendant Travis Easley were each guilty of fifty percent, negligence which caused the collision and therefore that neither the Grosses nor the Easleys could recover against the other. The Easleys appealed as against Inglis, Burrow, and the Grosses; and the Grosses appealed as against Inglis, Burrow, and the Easleys.

I. The Easleys Say: “The Court erred in refusing to grant the counterclaimants’ motion to strike the answer of the defendants, Christine Gross and Frank Gross, to the counterclaim and in failing to award a default judgment against the defendants, Christine Gross and Frank Gross, in favor of the counterclaimant, F. A. Easley, on his counterclaim.” As heretofore mentioned, the Grosses cross-complained against the Easleys, and the Easleys answered and incorporated in the answer a “counterclaim” against the Grosses alleging: that Christine Gross was a minor fourteen years of age, driving her father’s car with his knowledge and consent; that Christine Gross was guilty of all of the negligence that caused the mishap; that the damage to the Easley truck was $600.00; and that the Easleys should recover $600.00 from the Grosses and should also have judgment over against the Grosses for any amount that Inglis and Burrow might recover against the Easleys. This “counterclaim” was filed on February 4th, and twenty days later the Grosses filed an answer to the “counterclaim” denying all allegations.

The Easleys then filed a motion to strike the answer to the “counterclaim” as filed too late, and also to render judgment by default for the Easleys against the Grosses on the “counterclaim.” The Trial Court denied the said motion of the Easleys, and the first point in the Easley brief challenges this ruling of the Trial Court. The Easleys rely on § 27-1137, Ark. Stats., which reads: “If the answer contains a counterclaim or set-off, a reply shall be filed within five (5) days, or, in the cases at law, upon the calling of the case for trial, if it be called before the expiration of the said five (5) days.” The Easleys claim that under § 29-401, Ark. Stats., as amended, they are entitled to judgment by default since the Grosses did not answer the “counterclaim” within the time provided by § 27-1137, Ark. Stats.

We conclude that the Easleys have failed to show that the ruling of the Trial Court was erroneous, either in refusing to strike the answer of the Grosses to the “counterclaim”, or in refusing to render judgment by default against the Grosses; and there are several reasons which support our conclusions. (1) The Easleys rely on our opinion in Walden v. Metzler, 227 Ark. 782, 301 S. W. 2d 439, which was rendered when Act 49 of 1955 was in effect. After the opinion in Walden v. Metzler, the Legislature amended Act 49 of 1955 by Act 53 of 1957, which added this concluding language: “. . . and that nothing in this act shall impair the discretion of the Court to set aside any default judgment upon showing of excusable neglect, unavoidable casualty, or other just cause. ’ ’ The 1957 Amendment was considered by us in Fitzwater v. Harris, 231 Ark. 173, 328 S. W. 2d 501, in which we recognized that the Trial Court had authority to set aside a default, even if one had been granted, for either of three causes: (a) excusable neglect; (b) unavoidable casualty; or (c) other just cause. We cannot say that any of these three causes was absent in the case at bar. (2) Secondly, it is difficult to decide whether the claim of the Easleys against the Grosses was a “counterclaim” or a cross-complaint. If it were a cross-complaint, the Grosses had twenty days in which to file an answer under § 27-1135, Ark. Stats. The distinction between counterclaims and cross-complaints is so uncertain in the statutory and judicial language of this State that the attorney for the Grosses might well have considered, and might have persuaded the Trial Court, that the so-called “counterclaim” of the Easleys was in fact a cross-complaint. At all events, the Trial Court could have held that the failure of the Grosses’ attorney to answer within five days might have been excusable neglect under the facts. (3) Finally on this point, we conclude that, even if the answer to the “counterclaim” had been stricken, testimony would still have been required to determine the amount of the damages that the Easleys claimed against the Grosses; and, in the trial, the Grosses could have shown under their cross-complaint against the Easleys, the same facts that were developed in this case. With those facts developed, the Trial Judge, sitting as a jury, could well have decided, as he did, that Travis Easley and Christine Gross were each fifty percent. negligent, and that consequently neither could recover against the other. We hold this point of the Easleys to be without merit.

II. The Easleys Say: “The Court erred in finding that the defendants, F. A. Easley and Travis D. Easley were liable for fifty percent of the damages suffered by the plaintiffs, and that the other defendants were liable for fifty percent of the plaintiffs’ damages; and the Court also erred in finding against F. A. Easley and Travis D. Easley, on their counterclaim, the Court’s judgment thereon is not based on the proper evidence, is not based on circumstantial evidence and is contrary to the evidence.”

The Guardian ad litem for Christine Gross, in the brief to support the cross-appeal against the Easleys, denies all of the foregoing and claims that Travis Easley was guilty of all of the negligence that caused the collision, and that Christine Gross and her father should recover damages against the Easleys.

As we see the evidence, there is an irreconcilable conflict between the testimony of Christine Gross and Travis Easley:

(a) Christine Gross testified that her car would not start; that she and her escort induced the driver of a pick-up truck to give a push to her car to start the motor; that she did not have her lights burning when the truck first began pushing her car but that she turned on the lights when the motor started, which -was about a quarter of a mile before the scene of the collision. Travis Easley testified that he turned off the traveled highway to consult a road map; that he looked in both directions before re-entering the main traveled highway; that he did not see any vehicles coming; but that when he saw the Gross car an instant before the impact,- its lights were burning.

(b) Travis Easley testified that the Gross car was traveling 60 to 80 miles an hour. Christine Gross testified that she had just picked up enough speed to start the car and was going approximately 30 or 40 miles an hour.

(c) Christine Gross testified that another car was approaching her and that the lights from the other car blinded her so that she did not see the Easley truck until she was too close to stop. Travis Easley stated that no other cars passed at that time from either direction.

(d) Christine Gross stated that it appeared to her that Easley (who had driven the truck and trailer from the highway into the driveway area of the Wilcox Bait Shop) was making a “U” turn and that his truck appeared to be pulling out into the highway as in an arc. Travis Easley denied that he was making a “U” turn, stating that he was angling out into the highway with the intention of going down to the junction of Highway 84 in order to turn around. He did not explain how he knew that there would be a place to turn around at the junction, or whether it could be readily observed at night from the bait shop where he had stopped his truck.

We have detailed enough of the testimony to show that according to Christine Gross she was free of all negligence, and according to Travis Easley he was free of all negligence. The Court found that Christine Gross was under a duty to keep a reasonable and prudent lookout ahead for other vehicles, persons, or property which might be on or alongside the highway so as to constitute an immediate hazard. (§ 75-601 et seq., Ark. Stats.) However, the Court further held that it was equally apparent that the collision could have been avoided by Travis Easley had he kept a proper lookout; that, even if the headlights of the Gross car were not burning when he began moving his truck, a proper lookout would have revealed the approaching automobile from the headlights of the pick-up truck whieh was pushing it; and that, under the provisions of § 75-624, Ark. Stats., “The driver of a vehicle about to enter or cross a highway from a private road or driveway shall yield the right-of-way to all vehicles approaching on said highway.” The Trial Judge saw these parties and heard them testify; and he reached the conclusion that the contributory negligence of the parties was equal, and that, under the Comparative Negligence Statute ($ 27-1730.1 et seq., Ark. Stats.), neither party could recover against the other. We hold that there is substantial evidence to support the Court’s finding and judgment in the disputes between the Easleys and the Grosses.

III. Both The Easleys And The Grosses Claim: “The Court erred in awarding judgment in favor of the plaintiffs in the amounts stated in the judgment and said judgment thereon was not based on proper evidence nor upon evidence of any circumstance.” The car driven by Christine Gross struck the Easley truck and veered to the other side of the road into a store building which was owned by the appellee L. D. Burrow and occupied by the appellee Foster Inglis as a grocery store.

To show the extent of the damage to the building, Mr. Inglis established by J. W. Neighbors, the contractor who repaired the building, the full amount of the repair work and the cost of the same. The total amount that Inglis paid Neighbors for such repairs was $675.00; and Neighbors said that such was to “. . . put back (the damaged building) in as good condition as it was in. ’ ’ The case was tried by both sides on the theory that the damages to the building were temporary, rather than permanent; and in Benton Gravel Co. v. Wright, 206 Ark. 930, 175 S. W. 2d 208, we said:

“Of course, if the injuries were temporary, then the rule would be that where the injury to real property is temporary, the measure of damages, in a case like this one, is the cost of the restoration to condition prior to the injury plus decreased rental value from the time of injury to the time of award for restoration. Railway Co. v. Jones, 59 Ark. 105, 26 S. W. 595; 15 Am. Jur. 519; 25 C. J. S. ‘Damages,’ § 84 p. 605; West’s Arkansas Digest, ‘Damages,’ § 109.”

The Trial Court allowed Mr. Burrow $750.00 as damages to his fixtures and stock of groceries in the building; and it is claimed that the evidence was insufficient to support such an award. Mrs. Burrow testified that she was familiar with the damaged items and prices of same; and that the total damages to all the items were slightly more than $918.00. Mr. Burrow testified that the damaged property was listed at selling price and that it had a mark-up of between 15% and 20% ; that is to say, slightly in excess of 15% was added to the cost of the merchandise to establish the retail selling price. The Trial Court was evidently familiar with our holding in Gen. Fire Est. Co. v. Beal-Doyle D. G. Co., 110 Ark. 49, 160 S. W. 889, and Whaley v. Crutchfield, 226 Ark. 921, 294 S. W. 2d 775, and deducted slightly more than 15% from the $918.00, and awarded $750.00 as damage to the stock and fixtures. The evidence supports this amount.

We hold that the Trial Court did not err in awarding a judgment in favor of the appellees, as hereinabove set out, with said judgment to be paid jointly and/or severally by the Easleys and the Grosses. The judgment of the Circuit Court is therefore in all things affirmed, and the Guardian ad litem for Christine Gross is allowed the sum of $50.00 for his brief in this Court, which amount is to be taxed as costs.

       For the future guidance of the Bench and Bar, we call attention to the fact that by Act No. 218 of 1961, the Legislature has amended § 27-1137, Ark. Stats, to allow twenty days in which to answer a counterclaim.

       For whatever it may be worth to anyone seeking to make a present-day distinction between counterclaim and cross-complaint in Arkansas, we mention that the Civil Code of 1869, § 117, defined counterclaim : “The counterclaim mentioned in this chapter must be a cause of action in favor of the defendants, or some of them, against the plaintiffs, or some of them, arising out of the contract or transactions set forth in the complaint, as the foundation of the plaintiff’s claim, or connected with the subject of the action.” But that by Act 267 of 1917 (as now found in § 27-1123, Ark. Stats.) this definition was .changed to read: “The counterclaim mentioned in this chapter (§§ 27-1121 to 27-1125, 27-1129, 27-1130) may be any cause of action in favor of the defendants, or some of them, against the plaintiffs, or some of them.”


text:
    Stovall v. State.
    5009
    346 S. W. 2d 212
    Opinion delivered May 15, 1961.

      Witt & Witt and Shaver, Tackett Jb Jones, for appellant.

      J. Frank Holt, Attorney General, by Dennis W. Horton and Jack L. Lessenberry, Asst. Attorneys General, for appellee.
   Ed F. McFaddin, Associate Justice.

Appellant, Bud Stovall, was convicted of second degree murder (§ 41-2206, Ark. Stats.) for the death of Ed Hulsey; and this appeal resulted. The motion for new trial contains twenty-one assignments, all of which we have studied, and some of which we now discuss.

I. The Sufficiency Of The Evidence. Stovall admitted that he killed Hulsey by shooting him with a -30-30 Winchester rifle. The claim was self-defense. The parties were neighbors and long time friends. Someone took the condenser from Hulsey’s whiskey still; and, armed with a .22 caliber rifle, Hnlsey, either by accident or design, met Stovall and accused the latter’s son of taking the condenser. Inflammatory language was used. Hulsey aimed the .22 rifle at Stovall, who left the encounter, went to his home, obtained a .30-30 Winchester rifle, and started looking for Hulsey. They approached each other in the road, and the fatal shooting took place while the parties were some distance apart. The evidence was in conflict as to who fired first, and also as to other matters; but the fact of the homicide and of Stovall’s weapon was admitted. Malice and intent to kill may be inferred from the use of a weapon such as the one here used. Wallin v. State, 210 Ark. 616, 197 S. W. 2d 26; Wooten v. State, 220 Ark. 750, 249 S. W. 2d 964. Viewing the evidence in the light most favorable to the jury verdict — as is our rule on appeal — we find the evidence is amply sufficient to sustain the verdict.

II. Voir Dire. Appellant contends that the Court erred in permitting the Prosecuting Attorney to ask each juror in the voir dire examination whether evidence during the course of the trial, to the effect that the deceased, as well as the defendant, had been engaged in the production or sale of illegal liquor, would bias and prejudice the juror for or against the defendant or the deceased. Under § 39-226, Ark. Stats, the Court is given discretion in the scope of the examination of prospective jurors; and we hold that the question complained of in the voir dire examination was relevant, inasmuch as appellant and deceased had, in fact, been engaged in the making of whiskey, and such testimony was later adduced without objection.

III. “Opinion” Evidence. Appellant contends that the Court erred in allowing the Sheriff to testify as to how much of the Sims road he could see from a picture and diagram of the place where the shooting occurred. It is claimed that this was a conclusion which should have been reserved to the jury. We hold that this is a conclusion reached through the sense of sight and is not objectionable as a matter of opinion. In McElroy v. State, 100 Ark. 301, 140 S. W. 8, where a witness testified that she recognized the voice of the person who called her husband out in the night and shot him, we held that it was a statement of a conclusion reached through the sense of hearing, and was not objectionable as a mere matter of opinion; and that it was for the jury to determine the weight to be given such testimony. Also, it was held in Robinson v. State, 177 Ark. 534, 7 S. W. 2d 5, that testimony that deceased had been dragged sixteen feet from pool of blood was a statement of physical fact and was not error. See also Bobo v. State, 179 Ark. 207, 14 S. W. 2d 1115; 32 C. J. S. “Evidence” § 497; 20 Am. Jur. “Evidence” § 803; 26 Am. Jur. “Homicide” §§ 434, 435. This testimony, to which appellant here objects, was presented before the jury visited the scene of the shooting and we believe was helpful in presenting a clearer picture to the jury. However, since the jurors did, in fact, visit the scene, and were therefore able to make a personal observation, there was eliminated any chance that appellant could have been prejudiced by the testimony of the Sheriff.

IY. Conversations Betioeen Witnesses, and Deceased. The State’s witness, Yernie Summit, testified that Hulsey was in a good humor as he returned from work to his home on the day of the killing, and that Hulsey showed no signs of anger. Then the following occurred: • ■

‘ ‘ CROSS EXAMINATION BY MR. TACKETT

Q. You don’t know whether he had been to his whiskey still before he got home or not and found that somebody had gotten something off of it or not, do you?

A. I am almost sure he hadn’t before he got home.

Q. You don’t know what mood he was in when he found out the condenser was gone do you?

A. He knew that before that date.

REDIRECT EXAMINATION BY MR. RIDGEWAY

Q. Was that the subject of the conversation you had with him?

Mr. Taci-cett : I object to any conversation he had— (Interruption.)

Mr. Ridgeway: Your Honor, he brought it out.

Mr. Tackett : I didn’t bring out any conversation.

The Court: You brought out about his still Mr. Tackett.

Mr. Tackett : I sure did.

Mr. Ridgeway: He objected to me saying anything about that.

The Court: You opened the door, Mr. Tackett, and Mr. Ridgeway asked him if he had a conversation about a still; I think you opened the door.

Mr. Tackett: I asked nothing about a conversation about a still. I asked him if he had known whether or not he had gone to his still before he got home.

Q. Was that the subject of the conversation on the way to work? . . .

A. He said he lost his condenser. ...

CROSS EXAMINATION BY MR. TACKETT

Q. He was just tickled to death that he lost his condenser, wasn’t he?

A. He was laughing, he was always laughing.

Q. That’s all.”

The appellant complains that in the above testimony the witness Vernie Summit was allowed to detail a conversation between the witness and the deceased, which conversation occurred in the absence of the appellant. But when the full record is considered, it is clear that no error occurred prejudicial to the appellant. The State had shown that Hulsey was in a good humor as he returned home from Avork. On cross examination, the appellant’s counsel tried to establish that Hulsey was in a good humor before he knew that someone had taken the condenser from his still. The obvious purpose for the examination by appellant’s skilled counsel was to show that when Hulsey learned that someone had taken the condenser from his still he became angry and armed himself and started on a dangerous enterprise. This is shown by the questions that were asked on cross examination. But the witness Summit said that Hulsey knew the condenser was gone before that date. Quite naturally, then, on redirect examination, the State asked the witness if Hulsey had so informed him. When appellant’s attorney objected, the Court correctly said, “You brought out about about his still, ... ” Every time the witness tried to relate anything, except about the loss of the condenser, the Court properly sustained the objection. The obvious purpose of the State on redirect examination was to show that the deceased Hulsey was in a good humor, even though he knew someone had taken the condenser to his still. The appellant injected this matter into the case by the questions on cross examination and therefore cannot complain of what was developed. Coffee v. Ark. P. & L. Co., 195 Ark. 559, 113 S. W. 2d 1100; Stuckey v. O’Neal, 86 Ark. 145, 109 S. W. 1164; and Eaves v. Lamb, 209 Ark. 987, 193 S. W. 2d 328.

The appellant also urges that the Court committed error in allowing Mrs. Hulsey (widow of the deceased) to testify as to a conversation she had with her husband after he reached home from work and before he left with his gun. The only purpose of such testimony was to show that Hulsey was in a good humor; and such testimony was merely cumulative to that of Yernie Summit, previously detailed. We find no prejudicial error committed, even if we concede that exceptions were properly made.

Y. Other Claimed Errors. Several other assignments in the motion for new trial related to rulings in admitting or excluding evidence; and also there were several assignments regarding the giving, modifying, or refusing of instructions. It would unduly prolong this opinion to list each assignment and detail the reasons for onr decision. It is sufficient to say that we have discussed the only assignments that gave us any serious concern. We have studied all of the others and find them to be without merit.

Affirmed.


author: George Rose Smith, J. Ed. F. McFaddin, Associate Justice,

text:
    Central Casualty Company v. State.
    5-2417
    346 S. W. 2d 193
    Opinion delivered May 15, 1961.

      Claude B. Brinton and Bon McCourtney, for appellant.

      J. Frank Holt, Attorney General, by Bussell Morton, Asst. Attorney General, for appellee.
   George Rose Smith, J.

Stockton Darneille, charged with burglary and grand larceny, was admitted to bail in the sum of $15,000 with the appellant as the surety on the bond. When the case was called for trial on November 21, 1960, Darneille failed to appear, and the court entered an order forfeiting the bond. After a hearing upon a motion to set aside the forfeiture the court remitted half the amount and rendered judgment for the remaining $7,500. The appellant now contends that the court abused its discretion in not remitting a greater portion of the forfeiture. (Darneille, we are told, died during the pendency of the appeal; the appellant elected to continue the matter alone, without asking for a revivor.)

Discretionary power to remit the forfeiture is conferred by Ark. Stats. 1947, § 43-729: “If, before judgment is entered against the bail, the defendant is surrendered or arrested, the court may, at its discretion, remit the whole or part of the sum specified in the bail-bond.” The court’s discretion is not arbitrary; it should be fairly exercised upon the facts in the particular case. Hickey v. State, 150 Ark. 304, 234 S. W. 168. The Kentucky court, in construing an identical statute, pointed out that the court’s power to remit the forfeiture is intended to provide the bail with an incentive for securing the arrest of the defendant. Hicks v. Commonwealth, 265 Ky. 123, 95 S. W. 2d 1076. It was said: “When the criminal has been arrested promptly, as in this case, it would entirely defeat the purpose of the statute if no part of the penalty of the bond is remitted; for, if this may be done, no inducement will be held out to the bail to have the defendant arrested and brought to justice.” The court also observed that the whole amount of the bond might be remitted if the accused had a good excuse for being absent.

In the case at bar it is shown without dispute that Darneille’s failure to appear for trial was not willful. He had attended a session of court on November 14, when the case was continued until the next Monday, November 21. During that week Darneille went to Seattle, Washington, where he maintained his residence. His return trip to Arkansas, by commercial airline, was arranged and paid for by the appellant. It was expected that Darneille would reach Jonesboro, the place of trial, at about midnight on Sunday, November 20. His flight was delayed by a blizzard, however, and he did not arrive at Jonesboro and surrender himself to the sheriff until about four o’clock on Monday afternoon, the day of trial. Earlier that day he had called his attorneys from Chicago and again from Memphis, to say that he was on his way.

The trial was to have begun at 9:30 on Monday morning. When the accused had not arrived by 11:35 the court ordered the bond forfeited but directed that the jury panel return at 1:30. When Darneille failed to arrive % then the court discharged the jury for the term and excused the witnesses. At the hearing upon the motion to set aside the forfeiture the testimony disclosed the facts that we have outlined. The trial court concluded that Darneille had not “ completely exonerated himself from fault, ’ ’ in that he should not have risked the trip to Seattle at a time when inclement weather might be expected.

We think the court abused its discretion in rendering a judgment for $7,500 as the penalty for Darneille’s having been late by a few hours. It is well settled that the giving of bail bonds is to be encouraged, not only because the accused is ordinarily entitled to his freedom before trial but also because the state is relieved of the expense of maintaining the prisoner until the case can be heard. As the court said in the Hicks case, supra: ‘ ‘ The purpose of requiring bail bonds is not to enrich the treasury, but to secure the administration of justice.”

Even though, as the trial court observed, Darneille did not completely excuse his delay in reaching Jonesboro, Ms freedom from fault was nevertheless almost complete. He testified that he had traveled by air many times and that it is “very rare” that planes are delayed by weather conditions. There is no proof at all to the contrary. Darneille’s good faith is fully confirmed by his having taken care to keep his attorneys informed of his whereabouts and by his having surrendered himself only a few hours after the case was to have been tried. In these circumstances the judgment against the bailsman should not have exceeded an amount sufficient to reimburse the county for its various costs such as jury expense, witness fees (some 25 or 30 witnesses had been summoned), and other costs that cannot be determined with certainty. We are of the opinion that a judgment for $750 is sufficient and proper in the case at bar. See the Hicks case, supra; Abrams v. Commonwealth, 254 Ky. 68, 70 S. W. 2d 983; Nicholson v. State, 132 Okla. 298, 270 P. 567.

With the indicated modification the judgment is affirmed.

McFaddin, J., dissents.

Ed. F. McFaddin, Associate Justice,

dissenting. I dissent from the modification. The Trial Court was invested with broad discretion; and I do not find that such discretion was abused in arriving at the figure of $7,500.00 for the bond forfeiture. The facts in the case at bar are somewhat similar to those in Hickey v. State, 150 Ark. 304, 234 S. W. 168; and what was there said as to the discretion of the Circuit Court applies to the case at bar:

“ It is conceded that under the statute it is a matter of discretion with the court whether or not the penalty of the bond, or any part thereof shall be remitted, but the contention is that, on the facts recited in the answer, the refusal of the court to remit any part of the bond constituted an abuse of discretion. The statute plainly lodges a discretion in the trial court to determine whether or not the sum mentioned in the bond, or any part thereof, shall be remitted, and this discretion should be fairly exercised upon the facts of a given case. The mere fact that the principal in the bond has been surrendered into custody by the bail does not entitle the bail, as a matter of right, to a remission of the penalty of the bond. 6 Corpus Juris 1053.

“The substance of the answer is nothing more than that appellant, at his own expense, returned the principal in the bond to custody, and, as before stated, this does not necessarily call for a remission of the penalty. It devolved upon appellant to establish facts to justify favorable action in the exercise of the discretion authorized by the statute, and, even if the facts set forth in the answer are accepted as true, that does not necessarily show an abuse of the court’s discretion.”

There is also an annotation in 84 A.L.R. 420 entitled: “Right of bail to relief from forfeiture of bond or recognizance in event of subsequent surrender or production of principal”; and the Hickey case, and also cases from a score of other jurisdictions, are cited to sustain the rule:

‘ ‘ The statutes authorizing the court to remit the penalty of a forfeited bail bond or recognizance when the principal has been produced or has surrendered generally leave the matter of granting such relief to the sound discretion of the court. ’ ’

In the case at bar, this Court is exercising its discretion instead of respecting the discretion exercised by the Trial Court.