author: Ed. F. McEaddin, Associate Justice.

text:
    Mills v. Patton.
    5-2485
    346 S. W. 2d 689
    Opinion delivered June 5, 1961.

      Wiley W. Bean, Marvin Holman, A. F. House, Harry E. Meek, for appellant.

      D. B. Bartlett, Edward H. Patterson, Mark Woolsey, for appellee.
   Ed. F. McEaddin, Associate Justice.

This is an appeal from an order granting a temporary injunction, and we have advanced the case because the statute so provides (§ 27-2102, Ark. Stats.). We only consider whether the Trial Court was in error in granting the temporary injunction.

The controversy stems from the alleged selection of Dolan Cecil as alderman of Clarksville, Arkansas. The appellees are Messrs. Patton (Mayor of Clarksville), Revis and Stephens (admitted to be aldermen), and Cecil, whom appellees claim to be an alderman. The appellants are Messrs. Mills, Clark,'and Stumbaugh (admitted to be aldermen), and Cline, whose claim to be an alderman is denied. Appellees filed suit in the Chancery Court, alleging: (1) that Cecil was an aider-man of the City of Clarksville; (2) that Cecil had taken the oath of office and entered into the discharge of his duties as alderman; (3) that appellants were seeking to oust Cecil by expunging the minutes of the Council meeting that showed his election; and (4) that appellants were interfering with Cecil in performing the duties of his office. Their prayer was that appellants be temporarily and permanently enjoined from interfering with Cecil in the discharge of his duties as alderman.

In their answer, the appellants admitted that Cecil was an alderman of Clarksville; they admitted that John Cline removed from the ward wherein he had been elected as alderman; they admitted that a meeting of the Council occurred on Mar. 13, 1961, at which meeting Cecil was elected by those present, but they claimed that there was no quorum present at the time of the election; they admitted that the Council minutes of March 13, 1961, showed Cecil’s election and that defendants proposed to have a Council meeting to expunge the said minutes; and they also admitted that Cline was asserting that he had the right to act as alderm,an. Because of the admissions made in the answer, the appellees found it unnecessary to take evidence. The Chancellor on exchange heard the cause on application for temporary injunction, and granted a temporary injunction, as follows:

“That the defendants, Joe B. Mills, Yintris Clark, Levon Stumbaugh and John Cline, and each of them, and all other persons acting in concert with them, be, and they are hereby, individually, collectively and severally enjoined and restrained from molesting or interfering with the plaintiff, Dolan Cecil, in the discharge of his duties as alderman from Ward 3 of the city of Clarksville, Arkansas, unless and until said plaintiff shall have been by proper proceedings in a court of competent jurisdiction removed from office as such alderman, and are further enjoined and restrained from erasing or expunging from the records of the city council of the city of Clarksville, Arkansas, the minutes and record of the election and appointment of said plaintiff as such alderman on March 13, 1961. AND IT IS FURTHER BY THE COURT CONSIDERED, ORDERED, ADJUDGED AND DECREED That the defendant, John Cline, be, and he is hereby, enjoined and restrained from acting or attempting to act, as alderman of said City of Clarksville from Ward 3, and is enjoined and restrained from voting or participating as such aider-man in the meeting or meetings of the city council of said city; and the defendants, Joe B. Mills, Yintris Clark, and Levon Stumbaugh, and each of them, are hereby enjoined and restrained from recognizing said defendant, John Cline, as such alderman.”

As aforesaid, the appellants appealed, and we advanced the canse, stating, inter alia-. “The sole point to be considered is the correctness of the chancellor’s ruling in granting the temporary injunction. See Ark. Stats., Sec. 27-2102.” The questions before us are two: (1) did the Chancery Court have power to grant a temporary injunction in a case like this one? and (2) did the Court abuse its permissible discretion in granting the temporary injunction in this case?

I. Power Of Equity To Grant An Injunction In A Case Like This. We have a number of cases which hold that a court of equity has power to maintain the status quo in a case such as this until the title to the office can be determined by the law court. In Rhodes v. Driver, 69 Ark. 606, 65 S. W. 106, Driver was actually exercising the duties of Circuit Clerk and Rhodes was contesting the election of Driver. This Court, speaking by Mr. Justice Battle, stated the issue:

“Appellee is in possession of the office in controversy, is in possession of its records and paraphernalia, and is discharging the duties of the same. He holds under a claim that he was legally elected to fill the office. The contest of his election is still pending in the Mississippi Circuit Court. Can appellant be lawfully enjoined by a court of equity from interfering with the exercise of the functions of the office by appellee until the final determination of the contest of his election, or he is ousted by due process of law?”

This Court sustained an injunction in favor of Driver, and here was the reasoning assigned for such holding:

“ . . the actual incumbents of an office may be protected, pending a contest as to their title, from interference with their possession, and with the exercise of their functions. * * * And the granting of an injunction in such case in no manner determines the question of title involved, but merely goes to the protection of the present incumbents against the interference of claimants out of possession, and whose title is not yet established.’ ” The holding in Rhodes v. Driver has been reaffirmed in a long line of cases, some of which are: Lucas v. Futrall, 84 Ark. 540, 106 S. W. 667; Allen v. Sellers, 141 Ark. 206, 217 S. W. 257; and Sheffield v. Heslep, 206 Ark. 605, 177 S. W. 2d 412, and cases there cited. It is therefore crystal clear that a court of equity will not interfere to determine questions relating to the title of the office, but will, by injunction, protect the possession of the officer de facto against interference by other claimants, and the granting of such an injunction in no manner determines the question of title to the office but merely goes to the protection of the incumbent against interference until the question of title to the office is determined in the court at law.*

II. The Correctness Of The Decree In The Case At Bar. In Scrivner v. Portis Merc. Co., 220 Ark. 814, 250 S. W. 2d 119, we reaffirmed our holding in Riggs v. Hill, 201 Ark. 206, 144 S. W. 2d 26, wherein we quoted with approval the text of 28 American Jurisprudence, 500, “Injunctions” § 328:

‘ ‘ ‘ The granting or refusing of injunctive relief rests within the judicial discretion of the trial court, and its action in the matter will be sustained on review by an appellate court, where the power has not been abused. Ordinarily, it is sufficient if a transaction is shown which makes a proper subject for investigation in a court of equity. The rule applies to the grant or denial of a preliminary injunction, and to rulings on motion to dissolve the injunction. Such orders will not be disturbed on review unless they are contrary to some rule of equity, or the result of improvident exercise of judicial power.’ ”

Tested by the above quoted rule, we cannot say that the Chancellor was in error in granting the temporary injunction in the case at bar.. As heretofore stated, the answer of the appellants admitted: that Cecil was an alderman of Clarksville; that a meeting of the City-Council occurred on March 13, 1961, at which meeting Cecil was elected by those present, although appellants claimed there was no quorum at the time of the election; that the Council minutes of March 13th showed the election of Cecil; that appellants proposed to have a meeting to expunge the minutes; and also that Cline was asserting that he still had the right to act as alderman. The admitted facts made a proper case for a temporary injunction to be issued by the Chancery Court to protect Cecil’s right as a de facto alderman until the title to the office could be determined by the law court — and it was stated in the oral argument before this Court that such a law action is pending.

Affirmed.

George Eose Smith, J., not participating.

       The Chancellor required the appellees to post a bond of $500.00, which was done, as a condition to the issuance of the injunction. In an opinion delivered at the conclusion of the hearing, the Chancellor, in regard to this suit, said, inter alia,: . . It’s not good for your city. You ought to get together and work together, and help each other . . . Now, then, the question is, whether or not any action should be taken by this court at all to protect the interest of all parties, pending this determination by law action. _ In that connection I am inclined to believe that a temporary restraining order should issue from interfering only; ... a temporary restraining order (is) issued only against members of the city council from interfering with Mr. Dolan Cecil performing his de facto duties as a member of the council until further order of the court.”

       The quotation is from the old volume of 28 American Jurisprudence which was published in 1940. In the new volume of 28 American Jurisprudence, published in 1959, the text is found in “Injunctions” § 332, and reads slightly different from the above quotation, but there is no variance in the rule.


source: Caselaw Access Project

author: George Eose Smith, J.

license: Public Domain

text:
    Clark v. Dillard.
    5-2424
    346 S. W. 2d 684
    Opinion delivered June 5, 1961.

      Wayne Foster, for appellant.

      J. Roy Howard, and James R. Hoivard, for appellee.
   George Eose Smith, J.

This is a suit by the appellee to quiet her title to a one-acre parcel of wild and uninclosed land in Pulaski county. The appellee and her late husband purchased the property, as tenants by the entirety, in 1945. The appellant claims title under an apparently valid tax forfeiture that occurred in 1949. The chancellor held that the appellee, despite the tax forfeiture, had regained ownership of the land by subsequently paying the taxes for seven years under the color of title represented hy the 1945 conveyance to her and her husband. Ark. Stats. 1947, § 37-102. In appealing from the decree the appellant insists that the tax sale deprived the appellee of her color of title, so that the payment of taxes for seven years did not have the effect of reinvesting her with title to the land.

In view of our decision in Pinkert v. Williamson, 225 Ark. 834, 287 S. W. 2d 8, the chancellor’s decision was correct. In that ease the title of the original owners was extinguished by an improvement district foreclosure, but they later paid the taxes upon the land, which was unimproved and uninclosed, for more than seven consecutive years. We held that the owners had thereby reacquired title. Our reasoning was that since the owners ’ original deed to the property was not expressly canceled or otherwise dealt with by the foreclosure decree it continued to constitute color of title to the land. We are unable to distinguish that case from this one.

Affirmed.


author: Sam Robinson, Associate Justice. Jim Johnson, Associate Justice,

text:
    Latimer v. Sevier County Farmers’ Cooperative, Inc.
    5-2430
    346 S. W. 2d 673
    Opinion delivered June 5, 1961.

      Ben Gore, for appellant.

      Shaver, Tackett $ Jones, for appellee.
   Sam Robinson, Associate Justice.

This is a workmen’s compensation case. Appellant is the widow of O. O. Latimer, who fell dead while at work for appellee, Sevier County Farmers’ Cooperative, Inc., and Mrs. Latimer has appealed from an order of the Workmen’s Compensation Commission denying an award of compensation. Mr. Latimer had worked for the Co-op for several years. One of his duties was to help unload freight consisting of 100 pound sacks of feed at the Co-op’s place of business at Lockesburg. The feed was shipped 600 sacks to the freight car and was then moved by truck from the cars to the Co-op’s place of business, where Mr. Latimer would help unload it. On August 17th, 19th and 20th, Latimer helped to unload cars of feed. On August 21st he opened the place of business about 7:30 a.m. There was a customer waiting to buy feed and ordered four 100 pound sacks. Mr. Latimer loaded the sacks of feed on a two-wheel truck and rolled it to the front of the store, where he and the customer loaded it into a pick-up truck. This was the same kind of work Mr. Latimer had been accustomed to doing for a long time. After the loading of the feed in the truck, Latimer returned to the inside of the store. A young lady engaged in Salvation Army work entered the store to sell a magazine. Mr. Latimer started toward her, pushing the two-wheel truck, and suddenly fell dead. Appellant contends that the work he had done that morning, coupled with the work he had been doing during the past several months, and particularly for the past several days, along with worry over an employee’s quitting and the responsibility of selecting a new employee, had a causal connection with his death.

In U. S. F. & G. Co. v. Dorman, 232 Ark. 749, 317 S. W. 2d 708, this Court quoted from Bettendorf v. Kelly, 229 Ark. 672, 317 S. W. 2d 708, as follows: “ ‘. . . an accidental injury arises out of the employment when the required exertion producing the injury is too great for the person undertaking the work, whatever the degree of exertion or the condition of his health, provided the exertion is either the sole or a contributing cause of the injury. In short, an injury is accidental when either the cause or result is unexpected or accidental, although the work being done is usual or ordinary.’ ”

The question in the case at bar is whether the Workmen’s Compensation Commission’s conclusion that appellant failed to establish a causal relation between Mr. Latimer’s employment and his death is supported by substantial evidence. McFall v. Farmers Tractor & Truck Co., 227 Ark. 985, 302 S.W. 2d 801.

Immediately preceding August 17th, Latimer had been on a two weeks’ vacation, during which time he drove a tractor, cutting brush on his 200 acre farm. He also drove a tractor on his farm until 10:00 p.m. on the night of August 19th, after having helped unload a car of feed that day. Dr. R. B. Dickinson, a witness produced by appellant, testified that the symptoms showed that Mr. Latimer “obviously” died in some “circulatory shock condition,” and “your first choice would be coronary thrombosis. There are very few things that produce sudden death in a human, and that’s one of them and the most common cause of sudden death . . . perspiration and pallor and so forth are symptoms of shock, and the cianosis, in other words, the blueness of his face, tells you the man had a severe pulmonary in the veins of the head and neck, which is a very common occurrence in coronary thrombosis. There’s no heart sufficient to pump the flow of blood and the veins color rapidly. And the lungs are full and he doesn’t aireate at all. That produces the blueness or cianosis.”

To sustain her contention that there was a causal relation between Latimer’s death and his work, appellant proved that immediately preceding his death he had been doing exactly the same kind of work that he had done for a long time; that perhaps he had not been feeling well for several months; that he complained of dizziness a few days before his. death; and that he had been under somewhat of a nervous strain because a good employee was leaving and he, Latimer, would have the responsibility of selecting a new one. In addition, appellant produced as a witness Dr. Dickinson, but the doctor did not say that in his opinion Latimer’s work contributed to his death. True, he said that physical exertion could precipitate a coronary thrombosis and that mental strain could have its effect in that respect, but when asked the direct question, “Could you say as a medical doctor, in your opinion, whether or not the fact that he [Latimer] merely unloaded this feed in the customary way was the cause of his death?”, the doctor answered, “I can’t say it is or that it isn’t.”

“Q. In other words, in your opinon he could have died with a heart attack that morning whether he had done anything or not?

“A. Yes, that’s certainly possible.

“Q. . . . It is your testimony that you can’t say the fact that he unloaded these sacks in the truck — ■ you can’t say either way whether or not that was the producing cause of his death?

“A. In my opinion, physical exertion can precipitate a coronary thrombosis. I cannot say that it did in this man’s case.”

Dr. Drew Agar, a witness produced by appellee, testified that “Assuming that he did die of a heart attack or coronary thrombosis it is my professional opinion that the work in which he was engaged at the time had no causal relationship with his death.”

We have said many times that an order of the Workmen’s Compensation Commission making or refusing an award in a workmen’s compensation case will not be disturbed if there is any substantial evidence to support it. Credibility of witnesses is something for the Commission to determine, and this Court cannot say Dr. Agar’s testimony is not substantial evidence. Appellant points out that there have been cases in this Court involving death or disability due to heart attacks where the results do not appear to be consistent. This is inevitably true Avhere questions of fact are involved, and the same thing Avould be true if the finding of facts was made by the Commission, a jury, or the court. There are hardly any cases where a jury, a court or a commission Avould find the facts to lie exactly the same and arrive at exactly the same result.

Since the finding of the Commission is supported by substantial evidence, the judgment is affirmed.

Johnson, J., dissents.

Jim Johnson, Associate Justice,

dissenting. I am unable to agree with the majority opinion because, as I see it, the proof shows that Osceola O. Latimer became the manager of the Lockesburg store on August 29,1956, and continued in that position until his death. A major item carried by the store was sack feed in 100 lb. bags, much of which was shipped to Lockesburg by rail, hauled from the depot to the store in a 1% ton truck. Shipments were in lots of 30 tons and 6 trips from the depot to the store with the truck were required to unload one car, an average of 5 tons per truck load. Osceola O. Latimer, as manager, assisted in unloading the feed, taking it into the store on a dolly and stacking it 10 sacks high.

During 1958 a total of 54 cars of feed were delivered to Loekesburg, making an average per month of 135 tons. During the first months of 1959 a total of 40 cars had already been delivered to Loekesburg, or an average of 171 tons per month and in August 1959, to and including the 20th, which was the day prior to death, 6 cars had already been delivered to Loekesburg, a total of 180 tons, with the month only two-thirds gone, and 3 of those cars, or 90 tons, had been delivered in the 4 days immediately prior to death, and the deceased had helped in the unloading of all of them. It is undisputed that the work load at the co-operative store had increased over 26 per cent in 1959 alone, to say nothing of the increase of 1958 over 1957. Wade Fisk, Mr. Latimer’s helper, testified that: “I expect there were, other four-day periods in which we unloaded three cars but I know of none offhand. ’ ’

The evidence reflected that Osceola O. Latimer, about 8 or 10 months prior to his death, became weaker and began to tire more easily; his eyes began to sink back in his head and he gave the appearance of aging faster than was necessary, and this continued until his death on August 21, 1959. On August 17 he returned to work from a vacation of 2 weeks, and assisted in the unloading of a 30-ton car of feed. On August 18 he complained to Wade Fisk that he ‘ ‘felt like a drunk man. ’ ’ (Mr. Latimer never used intoxicants.) On the evening of that same day he attended a board meeting of the Sevier County Farmers Cooperative in De Queen and learned for the first time that the responsibility for selecting a new employee to replace Wade Fisk was to be his sole responsibility; whereas, he had previously thought that the making of the actual selection and advising the unsuccessful applicants would be done by the manager at De Queen. He was emotionally disturbed by this. At approximately the same time, he learned that Wade Fisk, whom he loved as a son, was planning to quit on Thursday rather than working the full week as he had previously thought. On August 19 he helped unload another 30-ton car of feed. He did the same on August 20th. On August 21st, which was to be his first day with the new helper, he arrived at the store at 7:30 a. m. whereas it was his custom to be there at 8:00 a. m., and upon arrival he found a customer, Reese Hale, waiting for the store to open. Upon opening the store, he took a dolly back into the store and, without help, lifted 4 sacks of feed onto the dolly, each weighing 100 pounds. He then pushed the dolly some 60 feet or so to the front of the store, out the front onto the sidewalk and, with the assistance of Reese Hale, lifted the four 100 pound sacks from the dolly onto the bed of the pickup truck, the last sack being much the same as if it were lifted from the ground. He then pushed the empty dolly back into the store and within a few minutes was lying dead on the floor of the store. The witness, Phyllis Warner, says that when she entered the store he was still pushing the empty dolly toward the rear of the store, that he turned and began pushing it toward her and looked as if he were about to speak when he turned very pale, gripped the dolly handles as if in shock, fell backwards and made no further movement. He was examined almost immediately by Mr. R. D. Hart, who found him very cold and drenched with perspiration, and no pulse.

Dr. R. B. Dickinson testified that the symptoms showed that Mr. Latimer “obviously” died in some “circulatory shock condition,” and “your first choice would be coronary thrombosis. There are very few things that produce sudden death in a human, and that’s one of them and the most common cause of sudden death . . . perspiration and pallor and so forth are symptoms of shock, and the cianosis, in other words, the blueness of his face, tells you the man had a severe pulmonary in the veins of the head and neck, which is a very common occurrence in coronary thrombosis. There’s no heart sufficient to pump the flow of blood and the veins color rapidly. And the lungs are full and he doesn’t aireate at all. That produces the blueness or cianosis. ’ ’ The doctor then went on to say that in his opinion any type of physical exertion, including that in which Mr. Latimer was engaged, most certainly could precipitate a coronary thrombosis, and further, that emotional disturbances likewise could do so.

To counteract the testimony of Dr. Dickinson, Dr. Drew Agar was requested to give his opinion in the matter by the insurance carrier. Dr. Agar’s opinion is as follows:

“At your request I examined the transcript of testimony heard before Mr. Robert Diles on December 15,1959, concerning the case of Mrs. O. O. Latimer vs. the Sevier County Farmers Cooperative. The transcript was read in its entirety. In your letter you requested that I answer several questions, the first being whether or not this man died of a heart attack. Without benefit of a post mortem it would be impossible to say actually what caused his death. You also request that if he did die of a heart attack would I be able to say that the heart attack was caused by coronary thrombosis. There again the exact diagnosis could not be determined without benefit of autopsy examination. You also asked in my opinion whether or not based on this testimony his employment caused or contributed to his death. Assuming that he did die of a heart attack or a coronary thrombosis it is my professional opinion that the work in which he was engaged at the time had no causal relationship with his death. ’ ’

On appeal, the Circuit Court made the following reference to the above letter:

“Dr. Drew F. Agar, as usual, stated that in his professional opinion the work in which the deceased was engaged at the time had no causal connection with his death. ’ ’ (Emphasis added.)

Viewing the case in its entirety, it appears to me that the sole question presented for our consideration is whether Dr. Agar’s statement rises to the dignity of substantial evidence upon which the Commission could base its findings. Dr. Agar did not see the deceased; he admittedly does not know what caused Mr. Latimer’s death. Even if Mr. Latimer died of a heart attack, he could not say what caused it. Yet in the next breath after all of his uncertainty he very confidently says that the work deceased was engaged in at the time had no causal relationship with his death. Dr. Agar’s statement contains within itself its own contradiction and in my opinion the uncertainty of the statement outweighs the certainty and causes the entirety to fall far short of rising to the dignity of substantial evidence. Particularly is this true when viewed in the light of the rule re-emphasized in Johnson Auto Co. v. Kelley, 228 Ark. 364, 307 S. W. 2d 867, which is as follows:

“In determining the sufficiency of the evidence, doubts should be resolved in favor of the claimant, and the evidence should be reasonably and liberally construed in his favor.”

For the reasons stated above, I respectfully dissent.


author: Jim Johnson, Associate Justice. Ed. F. McFaddin, Associate Justice,

text:
    Leonard v. Wood.
    5-2376
    348 S. W. 2d 696
    Opinion delivered June 5, 1961.
    [Rehearing denied September 11, 1961.]

      Arnold & Arnold, for appellant.

      Shaver, Tackett $ Jones, for appellee. •
   Jim Johnson, Associate Justice.

This is an involved lawsuit seeking specific performance of a contract for the purchase of land.

The trial court made the following findings:

“That O. P. Leonard is the plaintiff; that he has considerable wealth; that he speculates in buying and selling large tracts of real estate; that J. E. Morrison is O. P. Leonard’s local agent and also a real estate broker; that he bargained for the land involved in this litigation;

“That on December 20, 1957, Jack Wood and wife, Elizabeth, entered into a contract of sale with J. E. Morrison wherein it provided that Jack Wood and wife, Elizabeth, were to sell him 1,670 acres of land for $35,000.00; that the greater portion of it was accretion land;

“That on April 16, 1956, L. L. Tanner and wife, Grace L. Tanner, et al, filed their suit against Jack Wood and wife, Elizabeth Wood, et al, in the Chancery Court of Little River County, Arkansas, Case No. 950; that the land involved in this Chancery Case included a considerable area of the land contracted to sell to J. E. Morrison and involved in this present litigation; that the L. L. Tanner case will hereafter, in this opinion, be referred to as the Tanner case and this Tanner case was tried on October 20 and 21, 1958; that on March 2, 1959, a Memorandum Opinion in the case was. filed by Judge Pilkinton, who tried the case; that on September 8, 1959, a decree was entered and filed, and on September 17,1959, a nunc pro tunc decree was entered and filed therein; that the plaintiffs, L. L. Tanner, et al, were awarded 459 acres of this land that was included in the contract of sale between Jack Wood and wife, Elizabeth, and J. E. Morrison, agent of O. P. Leonard;

“That on November 5,1959, J. E. Morrison assigned the contract of sale to purchase this land from Jack Wood and wife, Elizabeth, to his principal, O. P. Leonard; that after the opinion and the decree were entered in the Tanner case, taking 459 acres of land described in the contract of sale between Jack Wood and wife, Elizabeth, and J. E. Morrison, this left only 1,154 acres for Jack Wood and wife, Elizabeth; that Jack Wood then contacted O. P. Leonard and gave him the first opportunity to purchase this 1,154 acres left to Jack Wood after the Tanner -case was decided; that O. P. Leonard declined to purchase the land from Jack Wood on the terms offered him;

“That on Septembei 17, 1959, after having given O. P. Leonard a chance to buy this 1,154 acres of land, deeded the land to G-. T. Stewart and wife, Mrs. G-. T. Stewart, Chester Stewarl and wife, Mrs. Chester Stewart, and E. A. Patterson and wife, Mrs. E. A. Patterson, for a total consideration of $34,620.00; that the 1,154 acres was sold by Jack Wood and wife to these parties at the rate of $30.00 per acre;

“That thereafter, on November 23, 1959°, O. P. Leonard filed this suit against Jack Wood and wife, Elizabeth, G. T. Stewart and wife, Mrs. G. T. Stewart, Chester Stewart and wife, Mrs. Chester Stewart, and E. A. Patterson and wife, Mrs. E. A. Patterson; that this suit wa?¡ filed in Little Eiver County, Arkansas, and is Chancery Case No. 1120; that this was a suit in specific performance of the contract entered into by and between Jack Wood and wife.', Elizabeth, and J. E. Morrison on December 20, 1957, wherein Jack Wood was to sell to J. E. Morrison 1,670 acres of land for $35,000.00; that this suit was tried before the Court on March 14 and 15, 1960; that the question for this Court to decide is whether O. P. Leonard is entitled to have the sales contract enforced in this court against Jack Wood and wife, Elizabeth, in specific performance of the contract; that O. P. Leonard was willing to pay . $20.96 per acre for the 1,154 acres left after the court awarded the 459 acres to the plaintiffs in the Tanner case; that this would be an abatement in the price paid for said land in proportion to the number of acres diminished as a result of the outcome of the Tanner case; that this is, in brief, the theory of the plaintiff’s case; that the defendants, Jack Wood and wife, Elizabeth, argue that they were to receive $35,000.00 for 1,670 acres of land, more or less, and that the amount paid for said land should not be abated in proportion to the number of acres taken from them as a result of the 159 acres awarded to the plaintiffs in the Tanner case; that this is, in essence, the theory of the defendants, Jack Wood and wife, Elizabeth Wood, case;

“That the undisputed evidence is that both Jack Wood and wife, Elizabeth, and J. E. Morrison, agent of O. P. Leonard, had full knowledge of the fact that the Tanner case was pending on the Chancery Court docket in Little River County, Arkansas, at the time the sales contract was entered into on December 20, 1957, by and between them; that it was also well known to both of them that if the Court found in favor of Jack Wood and wife, Elizabeth, and against L. L. Tanner et al, plaintiff in the Tanner case, that he could perform the contract that he had made with J. E. Morrison and could convey to him the 1,670 acres of land for a consideration of $35,000.00; that while, on the other hand, it was just as well known by both of them that if the Court awarded a part of this land to the plaintiffs in the Tanner case, that it would be impossible for Jack Wood and wife, Elizabeth, to perform this contract by conveying 1,670 acres to O. P. Leonard for $35,000.00; that, in other words, there was a future conditional contingency existing in the performance of this contract well known to both Jack Wood and wife, Elizabeth, and J. E. Morrison, and it was as well known that this contingency existed and was out of reach and beyond the control of either one of the parties to this sales contract; that it was impossible for Jack Wood and wife, Elizabeth, to convey 1,670 acres of land, as contracted, if the Court took a part of this land and vested title to it in the plaintiffs in the Tanner case; that this contract was, in effect, and in fact, broken by the decree of the Court in the Tanner case which was beyond the control of either of the parties in this lawsuit; that since the parties to this sales contract, executed on December 20, 1957, had full knowledge of the Tanner case being filed before this contract was entered into, the plaintiff, O. P. Leonard, cannot now complain that the future conditional contingency existed, the condition being’ that the contingency might or might not come into existence, depending entirely upon the holding of the Court in the Tanner case, this was a contract that should not be enforced in this court by specific performance;

“That it will be further observed that it is not contended by either side that there was misrepresentation, or fraud, or deceit practiced upon anyone;

“That it would certainly be unfair and inequitable to say that Jack Wood and wife, Elizabeth, should not have the right to bargain on the sale of their 1,154 acres of land left remaining after the Court had taken 459 acres of their land involved in the contract and awarded it to the plaintiffs in the Tanner case; that when all of the facts and circumstances upon the whole case are considered together, the parties to this contract should not be permitted to gamble on the Court’s decision in the Tanner case and either one, thereafter, allowed to take advantage of the decision and profit thereby against the other without further bargaining; that the land awarded to plaintiffs in the Tanner case might be a different grade of land to that of Jack Wood; that it is convincing to this Court that the weight of the evidence preponderates in favor of Jack Wood and wife, Elizabeth, and, therefore, it is the holding of the Court that specific performance does not lie to enforce this contract and require Jack Wood and wife, Elizabeth, to execute a deed to O. P. Leonard to this land;

“That neither the plaintiff nor the defendants are entitled to damages against the other;

“That when the contract of sale by and between Jack Wood and wife, Elizabeth, and J. E. Morrison was entered into on December 20, 1957, or thereabout, an escrow agreement was entered into by these same parties by which O. P. Leonard placed in escrow in the State National Bank, Texarkana, Arkansas, that he would pay to Jack Wood and wife, Elizabeth, this amount if he failed, upon his part, to perform the conditions of the contract of sale; that O. P. Leonard is entitled to have this $3,500.00, placed in escrow thereunder, refunded to him; that all costs expended in and about this proceeding should be paid one-half by the plaintiff and one-half by the defendants.”

The land here in question was described in the contract as follows:

“All that fractional Southwest Quarter and all that fractional Southeast Quarter of Section 5 and all that fractional West Half of Section 8; all in Township 14 South, Range 30 West and all accretions thereto containing a total acreage of 1,670 acres more or less.”

The abstract reflected Jack Wood, et ux, to be the record owners of approximately 275 acres of deeded land. The county tax records listed the land as 281.22 acres. Even so, it is well established in this State that when you convey deeded lands they carry with them the accretions. The exact number of accreted acres was somewhat in conflict.

It is well settled that the mention of quantity of acres after a certain description of the subject by metes and bounds, or by other known specifications, is but a matter of description, and does not amount to any covenant or afford grounds for the breach of any of the usual covenants, though the quantity fall short of the given amount. When the vendor conveys for a specified price a tract of land which is described by metes and bounds or otherwise, with the words added containing a specified number of acres, more or less, this upon the face of the contract is a contract not by the acre but in gross, and does not by implication warrant the quantity. In such event, should there be a deficiency in the quantity, the right of relief for such deficiency is founded upon fraud, misrepresentation or gross mistake. See: Harrell v. Hill, 19 Ark. 103; Goodwin v. Robinson, 30 Ark. 535; Neely v. Rembert, 71 Ark. 91, 71 S. W. 259; Joseph v. Baker, 95 Ark. 150, 128 S. W. 864; Ryan v. Batchelor, 95 Ark. 375, 129 S. W. 787; Young v. Bradshaw, 224 Ark. 467, 274 S. W. 2d 466; Parker v. Whistle, 227 Ark. 731, 301 S. W. 2d 445.

Here, as found by the Chancellor, it is not contended by either side that there was fraud, misrepresentation, or deceit practiced upon anyone, nor do we find a contention of gross mistake.

Following the rule set out above, we conclude from the whole case on trial de novo that the contract here in question does not set any sum per acre basis and is a gross sale. Accordingly, since the findings of the learned Chancellor are not against the weight of the evidence, the decree is affirmed.

MoFaddin and George Eose Smith, JJ., dissent.

Ed. F. McFaddin, Associate Justice,

dissenting. The majority opinion has copied the opinion of the learned Chancellor and then cited some cases to sustain this statement in the majority opinion: ‘ ‘ When the vendor conveys for a specified price a tract of land which is described by metes and bounds or otherwise, with the words added containing a specified number of acres, more or less, this upon the face of the contract is a contract not by the acre but in gross, and does not by implication warrant the quantity. In such event, should there be a deficiency in the quantity, the right of relief for such deficiency is founded upon fraud, misrepresentation or gross mistake.”

The above quoted language from the majority opinion bears no resemblance or connection to the reason given by the Chancellor for his decision. He said that the contract here involved was based on a “future conditional contingency . . . the condition being that the contingency might or might not come into existence, depending entirely upon the holding of the Court in the Tanner case, . . .” For this reason the Chancellor concluded that the contract ‘ ‘ should not be enforced in this court by specific performance; . . .” Evidently the Majority can find no law to support tke “future conditional contingency” theory relied upon by the Chancellor, and learned counsel for the appellee stated in the oral argument that he had found no such law. So the Majority does not mention that theory, but is affirming the decree on the basis that Wood agreed to convey to Morrison 1670 acres of land and that, since Wood lost 459 acres in the Tanner case, Wood should not be required to convey what was left. The Majority’s reasoning for such is that Wood did not warrant the quantity and Leonard must either take the remaining land and pay the full purchase price or lose entirely. I submit that the majority opinion is clearly in error under the facts in this case, all of which are not stated in the majority opinion.

At the outset, I think we should clarify the parties. Morrison was the known agent of Leonard, and Morrison has assigned to Leonard; so Morrison and Leonard stand together and the use of one name is the same as the use of the other. Wood and wife conveyed to Stewart and Patterson on September 17,1959, who took with notice of the claim of Leonard; so it cannot be seriously urged that the other appellees have any rights superior to Wood and wife. The issue, then, becomes whether Leonard is entitled to specific performance against Wood and the other appellees, with abatement of the purchase price in proportion to the acres that Wood cannot convey. That is the issue really involved in this case.

It is admitted that the contract here involved was drawn by Hon. J. P. Yesey, as the attorney for Leonard; that under the contract Morrison, for Leonard, deposited $3,500.00 in escrow in the State National Bank of Texarkana ; and that the money is still in the hank in escrow. It is further admitted that the abstract and a map showing the 1670 acres, which Wood claimed to own, was delivered to Mr. Vesey; that without unreasonable delay Mr. Vesey examined the abstract and made title requirements; and that the attorney for Mr. Wood undertook to meet the title requirements. I attach considerable importance to the map which went along with the contract. The evidence disclosed that Wood delayed making the contract until he could have the land surveyed to determine the acreage, since so much of the land involved was accretions; and the map which went along with the contract showed the bank of the river and the extent of the accretions and how the total of 1670 acres had been determined. All parties knew of the Tanner suit, which had been pending for some time. The contract gave Wood until September 1,1958 to deliver possession of the 1670 acres. There was not a word in the contract that would excuse Mr. Wood from fulfilling the contract if he lost the Tanner suit. If Mr. Wood had wanted to make his entire contract contingent on the outcome of the Tanner suit, he could have written it into the contract, but he did not so elect to protect himself. He guaranteed, by the contract, that he was going to win the Tanner suit, and he kept Mr. Leonard’s money in escrow all the time.

The Tanner suit was decided by the Ch'ancery Court on September 8, 1959; and on September 12, 1959, Wood and Leonard had a conference in which Leonard stated that he was ready to pay the price of $35,000.00, less abatement for the land lost in the Tanner suit. This abatement would have amounted to more than $6,000.00; but Leonard offered $29,000.00. Wood refused to convey with any abatement as to lost acreage. He insisted that Leonard should pay the full $35,000.00, even though 459 acres had been lost in the Tanner suit. And on September 17,1959 — ■ five days later — Wood conveyed to Stewart and Patterson the 1,154 acres for $34,620.00. Leonard then filed this suit seeking specific performance of the contract of December 20,1957 and making tender of the full contract price, less the abatement for lands lost in the Tanner suit. So much for the additional facts.

The law is clear that when a vendor (as Wood in this case) makes a contract to convey land and cannot deliver the full acreage covered by his contract, the vendee (as Leonard here) can either sue for damages for breach of the contract or can sne for specific performance with abatement of the purchase price for the undelivered acres covered in the contract. Hawkins v. Lamb, 210 Ark. 1, 194 S. W. 2d 5. That is exactly what Leonard is seeking in this case. In 55 Am. Jur. 922, “Vendor and Purchaser” § 528, the rule is stated: “Moreover, even though the vendor may not be able to convey the full title or the full amount of property which he contracted to convey, the vendee may, at his election, compel the vendor to execute the contract so far as he is able with an abatement of the purchase price sufficient to compensate for the defect in title or the deficiency in quantity. ’ ’

In 49 Am. Jur. 120, “Specific Performance” § 102, the rule is stated: “Where, however, notwithstanding the vendor is unable to convey the full title or the full amount of property which he contracted to sell, the vendee elects to take that which the vendor has, the court will not permit the vendor to object that he does not have the whole estate, but will compel him, if the vendee so chooses, to execute so much of the contract as he is able, generally allowing the vendee to have an abatement of the purchase price sufficient to compensate him for the defect in title or deficiency in quantity. ’ ’

And again in 49 Am. Jur. 123, “Specific Performance” § 105, the rule is stated: “In actions by a vendee for the specific performance of a contract for the sale of real estate, where it appears that the vendor is unable to make a complete or perfect title, or that there is a deficiency in the quantity of land contracted to be sold, the general rule is that the vendee, if he so elects, is not only entitled to have the contract specifically performed to the extent of the vendor’s ability to comply therewith by requiring him to give the best title he can or convey what he has, but he may compel the vendor to convey his defective title or deficient estate, and at the same time have a just abatement ont of the purchase price for the deficiency of title, quantity, or quality of the estate to compensate for the vendor’s failure to perform the contract in full.”

We have many, many cases decided by this Court •which enunciate, reaffirm, and follow the general rule as above quoted. Some of these cases are: Vaughan v. Butterfield, 85 Ark. 289, 107 S. W. 993, 122 Am. St. Rep. 31; Hirschman v. Forehand, 114 Ark. 436, 170 S. W. 98; Osborne v. Fairley, 138 Ark. 433, 211 S. W. 917; Dial v. Honeycutt, 194 Ark. 339, 108 S. W. 2d 499; Sebold v. Williamson, 203 Ark. 741, 158 S. W. 2d 667; Hawkins v. Lamb, 210 Ark. 1, 194 S. W. 2d 5; Garner v. Horne, 219 Ark. 762, 245 S. W. 2d 229, and cases there cited. To discuss all of the Arkansas cases would unduly prolong this dissent. I have given enough facts and cited enough law to explain my views and show the reason for this dissent in which

Mr. Justice George Rose Smith joins.

       In 11 A.L.R. 2d 390, there is an annotation entitled: “Change of conditions after execution of contract or option for sale of real property as affecting right to specific performance”; and on Page 397 of that annotation cases from twenty-three jurisdictions are cited to sustain this statement: “Equity courts have frequently recognized the principle that, as a general rule, in determining the propriety of ordering specific performance of a contract involving the conveyance of land, the fairness or hardship of the contract should be determined as of the date of its execution, rather than on the basis of subsequent events.”

       Here is the entire contract that is the basis of this suit:
      “This contract made and entered into this the 20th day of December, 1957, between Jack Wood and his wife, Elizabeth Wood, hereinafter designated as grantors, and J. E. Morrison, hereinafter designated grantee, “WITNESSETH: Grantors have this day sold unto grantee for the consideration hereinafter set out and the stipulations hereinafter contained and said grantors hereby specifically agree to sell unto the said grantee the following described real estate situated in Little River County, State of Arkansas, to-wit:
      “All that fractional Southwest' Quarter and all that fractional Southeast Quarter of Section 5 and all that fractional West Half of Section 8; all in Township 14 South, Range 30 West and all accretions thereto containing a total acreage of 1,670 acres more or less, Reserving, however, unto the grantors and unto their grantees, if any, their heirs and assigns an undivided one-fourth interest in the oil, gas and other minerals for a period of 25 years from date hereof. It being expressly warranted by the grantors that they will transfer an absolute title to the grantee to a three-fourths interest in all the oil, gas and other minerals under and upon said lands.
      “It is understood and agreed by and between the parties hereto that the price to be paid by the grantee to the grantors is $35,000.00 for said lands, one-fourth of said sum of $35,000.00 to be paid at the time of the signing of the deed to said lands and one-fourth payable one year after date of said deed and one-fourth payable after two years from date of said deed and one-fourth payable after three years from date of said deed, all of said deferred payments to bear interest from date of said deed until paid at the rate of six percent per annum.
      “It is further understood and agreed by and between the parties hereto that grantors shall deliver to grantee peaceful possession of the above described lands on or before September 1, 1958. And that said grantors shall pay all taxes upon said lands until September 1, 1958.
      “It is further understood and agreed by and between the parties heretofore that on the date of the signing of this contract of sale, or within two weeks thereafter, the said grantors shall deliver to grantee a complete abstract of title to said lands, compiled by a competent abstracter and certified to date of delivery of said abstract. That said grantee shall have two weeks in which to examine the same. If, however, the said grantee is not satisfied that same shows a good title in said grantors, the said grantee will have two weeks from the receipt of said abstract, to deliver to grantors a list of requirements made by said grantee to perfect title, and said grantors shall have 30 days in which to perfect the title so as to meet all valid objections. If the title is good or if the curative work is approved by grantee, grantors will immediately deliver a warranty deed to grantee as set forth above and grantee will execute vendors lien notes as set forth above.
      “In witness whereof, the parties have hereunto set their hands and seals this the 20th day of December, 1957, in duplicate, either copy of which may be considered as the original.”

       This map is in evidence in this case.

       Wood did not appeal the Chancery decree in the Tanner case.

       The difference between 1,670 acres covered by the contract here involved and the 1,154 acres that Wood conveyed to Stewart and Patterson is 516 acres; bnt the Chancery decree herein says only 459 acres were lost in the Tanner suit. The remaining 57 acres (516 minus 459) .appear to have been accretions to lands that Wood did not own.

       There are several annotations in American Law Reports bearing on the point here involved. Some of them are: 81 A.L.R. 900, “Right of vendor to specific performance with abatement from purchase price where he is unable to perform as to part of property”; and 148 A.L.R. 563, “Purchaser’s right to specific performance as to part only of property contracted for where title fails as to rest.”


author: Jim Johnson, Associate Justice.

text:
    Jamison v. Duncan.
    5-2405
    348 S. W. 2d 709
    Opinion delivered June 5, 1961.
    [Rehearing denied September 11, 1961.]

      Botts & Botts, for appellant.

      George E. PiJce, for appellee.

      Moncrief & Moncrief, for interveners.
   Jim Johnson, Associate Justice.

This is a controversy involving title to certain real property located in Arkansas County.

William Wright acquired legal title to the land here in controversy from his father. This land had been the family home prior to his father’s death and had for a number of years prior to this controversy been the home place of William Wright and his sister, appellant Agnes Jamison. Their father had other children. These children, as well as William Wright and his sister, Agnes Jamison, had worked on the place and contributed to the support of the family and the acquisition of this 186.59 acre farm.

In 1942 William Wright and his wife sold to a niece of Wright, C. L. Wilson, 10 acres of this land and on payment of the purchase money executed and acknowledged to her a warranty deed which was recorded the same year.

In 1943 the wife of William Wright died. He thereafter continued to live on this place until taken to the home of his niece, appellee Ozella Duncan, by appellee’s husband, Alf Duncan, in September 1958. In the latter years of his life, Wright’s health seriously declined. Various relatives, his sister, Agnes Jamison, nieces and nephews and neighbors did errands and chores for him; housecleaning, cooking, hauled fuel-wood, etc. At times Wright’s memory then appeared freakish. In September 1958, appellant Agnes Jamison, was in the home of her brother, William Wright, cooking for him, keeping house, etc., at which time she suffered a light stroke and was taken to the home of her son, the brother of appellee Ozella Duncan. Appellant Agnes Jamison (appellee Ozella Duncan’s mother) appears to have had no property and had only a small welfare check. Ozella Duncan’s interest in her own mother is indicated by the following testimony:

£ £ Q. Isn ’t she your own mother ?

££A. That’s what she told me. That’s all I know.

££ Q. Just because she told you that? Didn’t she look after yon and raise you?

££A. Yes, sir, I understand she did.”

Appellee Ozella Duncan’s interest in her wealthier uncle, William Wright, was quite to the contrary. In early September 1958, she had her husband, Alf Duncan, pick up William Wright, who had a sizeable bank account which was in excess of $5,000 and involved lands valued at $12,000 to $15,000, and take him to a physician in DeWitt. From DeWitt he took William Wright to appellee’s home where he remained until his death November 10, 1958. Not long before Wright was taken to appellee’s home, he, Wright, cashed a check on his bank account for approximately $100, and while in appellee’s home checks for groceries and other things were cashed on Wright’s account. While in appellee’s home and under Ozella’s care and daily attendance, Wright’s condition was such that at times he answered Ijhe calls of nature in bed. At times he did not recognize familiar acquaintances, undressed or removed his clothes in the presence of visiting women, would leave the bed and walk out when, as appellee testified, she was afraid he could not get back in the house. His condition required constant attention, all of which resulted in the trial court’s holding that William Wright ££. . . was suffering from a mental weakness due to old age and disease . . .”

In the last three or four days before the deed now in dispute was signed by mark, appellee, who says she was acting at the request of Wright, made three trips back and forth from her house to DeWitt, a distance of 7 miles, to get Mr. J. M. Henderson to prepare a deed for Wright to herself. On one of these trips she made to obtain Mr. Henderson to make a trip to her house, Wright was asleep and was not aroused, although she claims Wright had her to go for Henderson. During these last few days appellee says she made' two trips for a Mr. McMillan to come to her house to witness the mark of Wright and on the last trip, November 8, 1958, the mark was made on the deed conveying the entire 186.59 acres of land to Ozella Duncan while Mr. McMillan witnessed the mark, it being undisputed that prior to Wright’s severe illness he had been able to sign his own name to checks and other instruments which he executed. Of this occurrence, appellee’s witness McMillan on direct examination testified:

“Q. Tell the Court the circumstances under which you witnessed the deed?

“A. They asked me to go out.

“Q. Who asked you?

“A. Alf and his wife. I went out and he was in the back room in bed. He made the mark in my presence and I witnessed the mark.”

As to the manner of making the mark, this witness of appellee said: “Ozella (this appellee) helped him with the pencil to make his mark. ’ ’

“Q. Did he touch the pencil?

“A. Yes, sir.”

This was November 8th and from the occurrence it appears, that appellee in a measure acted as both grantor and grantee in the deed to her. Wright died November 10th, less than three days after the deed was marked. The deed recited that it was “in consideration that appellee give me a home, nurse and take care of me as long as I may live Dollars.” The deed recited that “grantor reserves all rents and profits” and the record reflects that only a few days before the execution of the deed a tenant on the farm here in question had delivered a number of rental checks totaling in excess of $800 for rents due Wright. Appellee deposited these checks to her personal credit and account. That appellee knew Wright was at death’s door is shown by her own testimony :

“Q. One reason why you deposited these checks, totaling something over $800.00, on the day your uncle made his mark, or immediately afterwards, was the reason because you wanted them deposited while he was alive ?

“A. Yes, sir.

“Q. Why did you want them deposited before he died?

“A. I really don’t know.

‘‘ Q. But you wanted them deposited before he died?

“A. I really did.’’

From what we have said above, we cannot escape the conclusion that a relationship of trust and confidence between Wright and appellee existed and that from this relationship and Wright’s dependence on appellee arose a dominant influence. Appellee exercised and took advantage of this influence by making all of the arrangements and imposing her presence all during the transaction, even to the point of helping Wright with the pencil in making his mark. In effect, she helped Wright to touch the pencil used in making the mark. The conduct and acts of appellee in the circumstances surrounding this deed to land of the value of $12,000 to $15,000 speak louder and more effectively than words.

In the case of Young v. Barde, 194 Ark. 416, 108 S. W. 2d 495, we said:

“The evidence clearly establishes the most intimate and confidential relationship between appellant and Mrs. Nancy C. Hileman and her daughter, Edith Hileman. It is also undisputed that there was no consideration for the deed in money paid or service rendered. Therefore, the purported conveyance was, if anything a mere gift and, under settled rules, it was the duty of appellant to establish that the same was free and voluntary by convincing testimony. The general rule is that, where special trust and confidence exists between the parties to a deed, the gift to the party holding the dominant position is prima facie void. In Gillespie v. Holland, 40 Ark. 28, 48 Am. Rep. 1, cited by appellees, the court announces tbe doctrine from which there has been no deviation, as follows: ‘It has been the well established doctrine in equity, that contracts and most especially gifts, will be scrutinized with the most jealous care, when made between parties who occupy such a confidential relationship as to make it the duty of the person benefited by the contract or bounty to guard and protect the interests of the other and give such advice as would promote those interests. And this is not confined to cases where there is a legal control. * * * They are supposed to arise whenever there is a relation of dependence or confidence, especially that most unquestioning of all confidences which springs from affection on one side, and a trust in a reciprocal affection on the other. The cases for the application of the doctrine can not be scheduled. They pervade all social and domestic life. The application may sometimes be harsh, and one might well wish that an exception could be made, but there is a higher policy which demands that it should be universal. The language of Lord Kingsdown in Smith v. Kay, 7 H. L. Cas. 750, has been considered striking. He says that relief in equity will always be afforded against transactions in which influence has been acquired and abused, in which confidence has been reposed and betrayed.’ ”

Following the rule set out above, on trial de novo we find that appellee failed to establish by convincing testimony that the transaction between her and William Wright was free and voluntary. Accordingly, the findings of the trial court to the contrary are reversed and the cause is remanded for proceedings consistent with this opinion.

Ward and Robinson, JJ., dissent.


text:
    Glass v. Edens.
    5-2422
    346 S. W. 2d 685
    Opinion delivered June 5, 1961.

      Spencer <& Spencer, for appellant.

      Wright, Lindsey, Jennings, Lester & Shults, for appellee.
   Jim Johnson, Associate Justice.

On October 23, 1958, the appellant suffered a heart attack. In an opinion filed October 30, 1959, a referee of the Workmen’s Compensation Commission held that the heart attack was a compensable injury. There was no appeal from this decision. Subsequently, another hearing was held to determine the extent of appellant’s disability and in an opinion filed September 30, 1960, another referee found the appellant to have a permanent partial disability rating of 40% to the body as a whole. The Full Commission and the Circuit Court affirmed this decision, hence this appeal. The appellant contends that he is totally disabled within the meaning of the Arkansas Workmen’s Compensation Act.

The appellees rely on two points: 1. That there is substantial evidence to sustain the decision of the Commission; and 2. That under the Workmen’s Compensation Act, the compensation paid to appellant must be for the proportionate loss of use to the body as a whole.

Under the view we take of the case, only the second contention of appellees will he considered. Ark. Stats., § 81-1313 (d), provides:

“A permanent partial disability not scheduled in subsection (c) hereof shall be apportioned to the body as a whole, which shall have a value of 450 weeks, and there shall be paid compensation to the injured employee for the proportionate loss of use of the body as a whole resulting from the injury.”

Appellees contend that this amended section of the Workmen’s Compensation Act makes all injuries scheduled injuries and that an injured employee should only be paid for functional loss of use of his body.

We feel the Legislature’s use of the term “loss of use of the body as a whole” in Ark. Stats., § 81-1313 (d), when read in the light of other sections of the Workmen’s Compensation Law, which are not in conflict therewith, does not mean merely functional disability but includes, in varying degrees in each instance, loss of use of the body to earn substantial wages.

In Larson on Workmen’s Compensation Law, % 57.10, it is stated:

“The key to the understanding of this problem is the recognition, at the outset, that the disability concept is a blend of two ingredients, whose recurrence in different proportions gives rise to most controversial disability questions: the first ingredient is disability in the medical or physical sense, as evidenced by obvious loss of members or by medical testimony that the claimant simply cannot make the necessary muscular movements and exertions; the second ingredient is de facto inability to earn wages, as evidenced by proof that claimant has not in fact earned anything.

“The two ingredients usually occur together; but each may be found without the other; a claimant may be, in a medical sense, utterly shattered and ruined, but may by sheer determination and ingenuity contrive to make a living for himself; conversely, a claimant may be able to work, in both Ms and the doctor’s opinion, but awareness of Ms injury may lead employers to refuse Mm employment. These two illustrations will expose at once the error that results from preoccupation with either the medical or the wage-loss aspect of disability. An absolute insistence on medical disability in the abstract would produce a denial of compensation in the latter case, although the wage-loss is as real and as directly traceable to the injury as in any other instance. At the other extreme, an insistence on wage-loss as the test would deprive the claimant in the former illustration of an award, thus not only penalizing his laudable efforts to make the best of his misfortune, but also fostering the absurdity of pronouncing a man non-disabled in spite of the unanimous contrary evidence of medical experts and of common observation. The proper balancing of the medical and the wage loss factors is, then, the essence of the ‘disability’ problem in workmen’s compensation. ’ ’

The referee before whom the case was first tried stated in his opinion:

“In the case of Jesse A. DeBin v. Kaiser Engineers, reported Vol. 214, page 3 of the Opinions of the Full Commission, the Commission held that evidence other than clinical findings cannot be considered to arrive at a rating for permanent partial disability. I must therefore only consider the medical rating of disability. ’ ’

The maximum medical rating of disability in this case was 40%, which was allowed by the referee .and affirmed by the Full Commission. Apparently, they also considered only medical evidence and this we consider error. Under the rule as set out in Larson, consideration should have been given, along with the medical evidence, to the appellant’s age, education, experience, and other matters affecting wage loss.

Therefore, for the error indicated, the cause is reversed and remanded to the Circuit Court with directions to remand to the Workmen’s Compensation Commission for further proceedings consistent with this opinion.


author: Carretón Harris, Chief Justice.

text:
    Muse v. Prescott School Dist.
    5-2434
    349 S. W. 2d 329
    Opinion delivered September 11, 1961.
    [Amended October 3, 1961.]

      McMillan <& McMillan, for appellant.

      B. D. Bouse, for appellee Prescott School Dist.

      J. Frank Holt, Attorney General, by Milas H. Hale, Asst. Attorney General, for Ark. Workmen’s Compensation Commission.
   Carretón Harris, Chief Justice.

The question to he determined in this appeal is whether a teacher in the public schools falls within the general provisions of the Workmen’s Compensation Act, and if not, does such teacher come within the purview of Act 462 of 1949, which provides compensation for the employees of the State of Arkansas, its agencies, departments, and institutions, for injuries arising out of and in the course of employment.

Donald Muse was an athletic coach and instructor of physical education at Prescott High School. Muse suffered a heart attack on March 26, 1960, and died on March. 27th. The widow and dependent children contend that his death resulted from an accidental injury arising out of and in the course of his employment. After the filing of a claim for compensation, the Prescott School District petitioned the Pulaski Circuit Court for a Writ of Prohibition, wherein it alleged that the Workmen’s Compensation Commission had no jurisdiction to hear and determine the matter, and asked that the Commission be prohibited and restrained from proceeding with the cause. After a hearing, the court entered its order granting the petition, and from such order comes this appeal.

Does the Workmen’s Compensation Act provide coverage for teachers in the public schools? The answer to this question is “no”. Section 81-1302, Ark. Stats. (1947) Anno., defines the various terms used in the Compensation Act. Subsection (c) defines “employment”, and subheading (1) under (c) is pertinent to this question. This paragraph reads as follows:

“ ‘Employment’ means:

“(1) Every employment carried on in the State in which five (5) or more employees are regularly employed by the same employer in the course of business or businesses, except domestic service, agricultural farm labor, institutions maintained and operated wholly as public charities, the State of Arkansas and each of the political subdivisions thereof, any person engaged in the vending, selling or offering for sale, or delivery directly to the general public, any newspapers, magazines or periodicals, or acting as sales agent or distributor as an independent contractor of or for any such newspaper, magazine or periodical.’ ”

The italicized portion precludes the granting of any compensation under the Act, for we have held that school districts are political subdivisions. In the case of Arkansas Highway Commission v. Clayton, 226 Ark. 712, 292 S. W. 2d 77, this Court adopted the definition of a political subdivision as defined by the Supreme Court of New Jersey, stating:

“Moreover, political subdivisions have been defined as that ‘they embrace a certain territory and its inhabitants, organized for the public advantage, and not in the interest of particular individuals or classes; that their chief design is the exercise of governmental functions; and that to the electors residing within each is, to some extent, committed the power of local government, to be wielded either mediately or immediately within their territory for the peculiar benefit of the people there residing.’ ”

It is obvious that the above definition embraces school districts, and in Christenson v. Felton, 226 Ark. 985, 295 S. W. 2d 361, a school election case, this Court pointed out that a school district is a political township, stating “in governmental matters a township is a political subdivision.” In fact, as far back as 1870, this Court said: “Counties are a political division of the state government, organized as part and parcel of its machinery, like townships, school districts, and kindred subdivisions. * * # Their functions are wholly of a public nature, and their creation a matter of public convenience and governmental necessity, and in order that they may the better subserve the public interest, certain corporate powers are conferred upon them.” See Granger and Wife v. Pulaski County, 26 Ark. 37. Since our Workmen’s Compensation Act definitely excludes the State and each of its political subdivisions, it follows that a claim for compensation cannot be sustained under the provisions of this Act.

Does a public school teacher come within the purview of Act 462 of 1949? To state it differently, is a school district an agency of the State, and its employees consequently state employees? Here again, the answer to each question is “no”. The act referred to (§ 13-1407, Ark. Stats. Anno.) provides as follows:

“Effective March 16, 1949, the Workmen’s Compensation Commission shall have exclusive jurisdiction, as herein limited, of all claims against the State of Arkansas and its several agencies, departments, and institutions, for personal injuries and deaths of employees of the State of Arkansas and its agencies, departments and institutions, arising out of and in the course of employment, and occurring on or after March 16, 1949. Awards for such injuries and deaths shall be made by the Workmen’s Compensation Commission in the same amounts and on the same terms and conditions as if such injuries and deaths had arisen out of and in the course of private employment covered by the Workmen’s Compensation Act [§§ 88-1301 — 81-1349], and the procedure to be followed in the presentation, hearing and determination of such claims shall in all respects be the same as in claims for compensation for injuries and deaths arising out of and in the course of private employment covered by the Workmen’s Compensation Act. * * * The General Assembly shall at each biennial session appropriate, from such sources as it may see fit, a sum sufficient to satisfy such claims as are or probably will be payable during the following fiscal biennium under awards made under this section. The Workmen’s Compensation Commission shall direct the distribution of this fund and disburse same upon its vouchers issued against same.”

Appellant contends, that even though a school district is a governmental subdivision, it still has the status of a state agency, and public school teachers are afforded coverage by the act just quoted. Perhaps, giving the word a loose or general meaning, school districts might be termed state agencies, inasmuch as the Legislature designated to such districts the duty of educating the children of the state in elementary and secondary schools; however, we do not agree that this general term has any application, nor any pertinence, to the language of the statute under consideration. Section 80-402, referring to school districts, provides: “Each school district in the State shall be a body corporate, may contract and be contracted with, sue and be sued in its corporate name, which shall be the name it now has, unless changed by the county board of education;” this Court has likewise held that a school district is a corporation. Clarke v. School District No. 16, et al, 84 Ark. 516, 106 S. W. 677. There is nothing in the statutes creating school districts to indicate that the State has control over them. In State, Ex Rel, Attorney General v. State Board of Education, 195 Ark. 222, 112 S. W. 2d 18, this Court said:

“In Davis v. Phipps, it is correctly stated that school districts, are not, strictly speaking, a part of the State in the sense that the General Assembly must deal with them. Like levee and drainage improvement districts, counties, cities, and towns, they do not require biennial appropriations, but may function in a quasi independent manner by virtue of continuing statutes or constitutional provisions. This is not true with respect to the State Board of Education, and some other departments of the State.”

It would appear that a school district is in the same legal category as a housing authority. Both are created by the General Assembly, both are termed, and are body corporates, and both may sue and be sued. In Fagan Electric Co., Inc., v. The Housing Authority, City of Blytheville, 216 Ark. 932, 228 S. W. 2d 39, we held that these public corporations are “no more an agency of the State than is any other corporation as to which the State has done nothing except to bring into existence.” Similarly, the State’s connection with school districts has been limited to the act of bringing such districts into being. The school boards operate the schools in their respective districts, purchase the required property, hold title to the property for the district, and have complete charge of maintenance.

In determining the question of agency, it is also interesting to note that we have repeatedly held that an agency of the state cannot be sued since a suit against such an agency is, in fact, a suit against the state itself. See Jobe, et al v. Urquhart, 98 Ark. 525, 136 S. W. 663; Arkansas State Highway Commission v. Nelson Brothers, 191 Ark. 629, 87 S. W. 2d 394; Watson v. Dodge, 187 Ark. 1055, 63 S. W. 2d 993; Allen Engineering Company v. Kays, 106 Ark. 174, 152 S. W. 992. As heretofore pointed out, school districts are subject to suit, and such suits have been maintained in this state.-

We have concluded that a school district is not an agency of the state as referred to in Act 462 of 1949, and its employees are not state employees. Appellant likens the status of public school teachers, under the Act, to that of instructors in state supported colleges, but the comparison is not apt, for the latter are state employees. There are many distinctions between those employed by state institutions of learning, and those employed by school districts. The faculty of state supported colleges is employed by a board of directors, appointed by the Governor of the state. School teachers are employed by school boards whose members are elected by the people of that school district. The state supported colleges serve the people of the entire state, while the school district serves only those within its district boundaries. Funds for the university and colleges are derived from state-wide revenues, with no assistance from local taxes, whereas school districts levy millage for the support of their respective schools. However, the vital difference, heretofore mentioned, is the seat of control. For colleges, control is in the state; for high schools and grade schools, control is local, and rests in a local board, subject to the will of the people.

Appellant cites some cases from other states in support of her argument that teachers are eligible for compensation, but the coverage afforded teachers in the cases cited is authorized under the terms of the statute involved. The Idaho statute clearly includes “school districts”; the same is true of Illinois; likewise, Iowa, Nevada and Ohio, states also referred to in appellant’s citations, specifically mention school districts in defining “employer” and “employee”. Statutes of some additional states likewise specifically mention “school districts”, “political sub-divisions ”, or “public and quasi-public corporations”. Our statute, of course, does not include the language mentioned, and appellant’s argument must fail.

Based on the reasoning heretofore set out, we conclude that the Pulaski Circuit Court acted properly in granting the Petition for Prohibition.

Affirmed.

Bohlinger, J., not participating.

         Emphasis supplied.

        Allison v. Corker, 67 N.J.L. 596, 52 A. 362, 60 L.R.A. 564.

       Emphasis supplied.

       We have held that employees of a state agency are employees of the State. See Arkansas Highway Commission v. Clayton, supra.

       It might be mentioned, that under § 81-1307 of the Workmen’s Compensation Act, any employer who is exempt from the provisions of the act, or whose employment or occupation is excepted, may waive such exemption or exception, and voluntarily come under its provisions. Some school districts have done this, and have obtained workmen’s compensation insurance. This was not done in the case of the Prescott School District.


author: Ed. P. McFaddin, Associate Justice.

text:
    Helmerich v. Butt, Chancellor.
    5-2559
    348 S. W. 2d 878
    Opinion delivered September 11, 1961.

      Duty & Duty, and William R. Tlorlcey, for petitioner.

      Little & Enfield and E. J. Ball, for respondent.
   Ed. P. McFaddin, Associate Justice.

This is an original proceeding in this Court, seeking to prohibit the Benton Chancery Court from enforcing its decree.

Messrs. Simpson and Lowrance filed Suit No. 5543 in the Benton Chancery Court seeking to obtain a deed from Mrs. Helmerich. The trial of the case of Simpson and Lowrance v. Helmerich (No. 5543) was concluded on June 29, 1961; and the Chancellor announced his opinion, to the effect that the attorneys for the opposing sides would make certain calculations of interest and determine the correct amount that Simpson and Lowrance should pay; and that if such amount should be paid “on or before 20 days,” then Mrs. Helmerich should make a deed to Simpson and Lowrance. The said calculations were made, and on July 3, 1961 the Chancellor signed the decree which was entered on that date; on July 21st Simpson and Lowrance paid the stated amount into the Registry of the Court, and on July 27th the Court ordered Mrs. Helmerich to make the deed upon penalty of being in contempt. At the hearing on July 27th, it was the holding of the Chancery Court that the twenty days for tender ran from July 3rd and not from June 29th.

On July 31, 1961 Mrs. Helmerich filed this petition for Writ of Prohibition. She claims that the decree was effective on June 29, 1961; that the tender was not made until July 21st, which was more than the twenty days allowed by the decree; that the trial on June 29th was at the April Term; that the July Term of Court commenced on July 3rd; and that the Court could not, on July 3rd, extend the time of tender beyond July 20th, being the twentieth day after the trial date of June 29th; and that the tender on July 21st was one day too late.

We deny the petition for prohibition, because it is apparent that Mrs. Helmerich is attempting to use prohibition as a substitute for appeal. In H. B. Deal & Co. v. Marlin, 209 Ark. 967, 193 S. W. 2d 315, we quoted from 42 Am. Jur. 165, “Prohibition,” § 30:

“ ‘It is the universal rule that mere error, irregularity, or mistake in the proceedings of a court having jurisdiction does not justify a resort to the extraordinary remedy by prohibition, and that a writ of prohibition never issues to restrain a lower tribunal from committing mere error in deciding a question properly before it; or, as it has sometimes been said, the writ of prohibition cannot be converted into, or made to serve the purpose of an appeal, writ of error, or writ of review to undo what already has been done. This is true both because there has been no usurpation or abuse of power and because there exist other adequate remedies. Thus, when jurisdiction is clear, an erroneous decision in ruling on the sufficiency of the petition or complaint or on a motion to dismiss, or on matters of defense, or in rendering judgment, is not ground for a writ of prohibition.’ ”

In Lowery v. Steel, 215 Ark. 240, 219 S. W. 2d 932, we quoted from an earlier case:

‘ ‘ ‘ The office of the writ of prohibition is to restrain an inferior tribunal from proceeding in a matter not within its jurisdiction; that it is never granted unless the inferior tribunal has clearly exceeded its authority and the party applying for it has no other protection against the wrong that shall be done by such usurpation. Order of Railway Conductors of America v. Bandy, Judge, 177 Ark. 694, 8 S. W. 2d 448, and cases cited.’ Merchants & Planters’ Bank v. Hammock, 178 Ark. 746, 12 S. W. 2d 421, and ‘The writ is never issued to prohibit an inferior court from erroneously exercising its jurisdiction, but only where the inferior tribunal is wholly without jurisdiction, or is proposing or threatening to act in excess of its jurisdiction.’ Bassett v. Bourland, 175 Ark. 271, 299 S. W. 13.”

Prohibition is not to be used as a substitute for an adequate remedy of appeal. Whether the date of the decree was June 29th or July 3rd is a disputed question. The Trial Court held on July 27th that the twenty days for tender ran from July 3rd rather than from June 29th. If the Court was in error, such ruling may be corrected on appeal. Mrs. Helmerich’s counsel say that she must proceed by prohibition because she will be in contempt of the Benton Chancery Court if she does not execute the deed; and if she does execute the deed, she will be unable to prosecute an appeal. We see no such hardship on Mrs. Helmerich because she has an alternative course. She gave timely notice of appeal from the decree against her. The Chancery Court set the date requiring her to execute the deed far enough in advance to allow her to yet file the decree in this Court and obtain a temporary stay under § 22-200, Ark. Stats., until we may decide the appeal on its merits. That procedure should be pursued by her rather than this attempted petition for prohibition.

Therefore, the petition for prohibition is denied, without prejudice to Mrs. Helmerich’s right to prosecute her appeal.

Bohlinger, J., not participating.


author: George Rose Smith, J.

text:
    Wright v. Covey.
    5-2402
    349 S. W. 2d 344
    Opinion delivered September 11, 1961.
    [Rehearing denied October 16, 1961.]

      Mahony & Yocum, for appellant.

      F. G. Grow, George F. Eclwarcles and Shaver, Tackett <& Jones, for appellee.
   George Rose Smith, J.

This action was brought by the appellee Covey to recover for personal injuries and property damage sustained by him when his car ran into the rear end of a stalled tractor-trailer combination that was owned by the appellant Wright and was being driven by Wright’s employee, the appellant Hildebrand. The jury returned a verdict fixing Covey’s total damages at $25,000 and attributing 25 per cent of the negligence to Covey and 75 per cent to Hildebrand. In appealing from the ensuing judgment for $18,750 the defendants question a number of the court’s instructions to the jury and also complain of the size of the verdict.

The accident happened at about eight o’clock on a dark snowy night in February, 1960. The defendant Hildebrand had been driving east upon a two-lane paved highway in Lafayette county when, as a result of what the jury may have found to have been carelessness on his part, he ran out of gasoline. Before his rig came to a standstill he managed to drive it as far off the highway as he could without running into a ditch along the right-hand side of the road. The record does not support the appellants’ contention that the tractor and trailer were almost entirely off the pavement. There is an abundance of testimony, including that of Hildebrand himself, to show that the rig stopped parallel to the highway and about half on and half off the pavement.

A few minutes elapsed before the stalled vehicle was struck from behind by Covey’s car. Hildebrand, after coming to a stop, first asked a passing motorist to send help from the next town. Then, in order to borrow a flashlight, Hildebrand flagged down a lumber truck that was coming from the opposite direction (the east) and was being driven by Samuel Barney. There is a dispute about where Barney’s truck was standing at the time of the accident. Barney says that he originally stopped about 50 feet west of Hildebrand’s rig, but he backed up 150 feet or more before alighting and handing a flashlight to Hildebrand. Covey testified, and the jury may have believed, that when the collision occurred the lumber truck was west of the tractor-trailer; a distance of twenty-five feet is mentioned.

Barney testified that when he saw the Covey car approaching he warned Hildebrand that “it looks like he is not going to stop.” Barney then jumped on his own running board and blinked his headlights repeatedly in an effort to warn Covey of the danger. Covey testified that he saw the lights of the lumber truck and assumed that it was in motion “until I got right up at it.” Covey said that after passing the lumber truck he had about a tenth of a second to see the tractor-trailer blocking his path; he was unable to avoid the collision. Covey’s statement that the tractor-trailer had no lights burning is disputed by witnesses for the defendants.

I. The court submitted the case to the jury upon four special interrogatories which required the jury to determine (a) whether Hildebrand was negligent, (b) whether Covey was negligent, (c) the percentage of negligence attributable to each, and (d) Covey’s total damages. By one of the court’s general instructions the jury were told that the plaintiff’s contributory negligence “is not a bar to the right of recovery if it is of less degree than the negligence of the defendant. If contributory negligence is shown on the part of a person injured or damaged the amount of his recovery (if he is entitled to recover) is diminished in proportion to such contributory negligence.” The defendants objected to this instruction “for the reason that the jury is not concerned with, and should not be informed of, the effect that an answer to an instruction may have.” This is the first point urged for reversal.

The appellants rely upon the rule, often announced in other jurisdictions, which prohibits a trial court, in submitting a case upon special interrogatories, from informing the jury of the effect that their answers may have upon the ultimate liability of the parties. Mitchell v. Perkins, 334 Mich. 192, 54 N. W. 2d 293; Grasso v. Cannon Ball Motor Freight Lines, 125 Tex. 154, 81 S. W. 2d 482; Anderson v. Seelow, 224 Wis. 230, 271 N. W. 844. The reason for the rule is that the special interrogatories are intended to elicit the jury’s unbiassed judgment upon the issues of fact, and this purpose might he frustrated if the jurors are in a position to frame their answers with a conscious desire to aid one side or the other.

In the case at bar the court merely told the jury that contributory negligence is not a bar to recovery if it is of less degree than the defendant’s negligence and that the plaintiff’s recovery would be diminished in proportion to his contributory negligence. We do not think that the rather general language of this instruction, needless though it may have been, had the effect of telling the jurors anything which they as intelligent men might not have deduced from the wording of the special interrogatories. The jurors certainly realized that the court had a positive reason for requiring them to determine the percentage of the total negligence attributable to each of the drivers. That reason could only have been that the final judgment would be affected by the jurors’ apportionment of fault. We are confident that the jury’s action in attributing three-fourths of the blame to Hildebrand represents their unbiassed conclusion from the testimony rather than a deliberate attempt to arrive at a preconceived result.

The point has caused us much anxiety, but we think the case falls within the principle announced in such cases as Fort Worth & D. C. Ry. Co. v. Kiel, Tex. Civ. App., 195 S. W. 2d 405: “Moreover, we are not to be understood as minimizing the importance of the rule against informing the jury of the effect their answers will have on the judgment, yet it has repeatedly been held that the rule is not violated if the jury be apprised of a matter they, of necessity, already knew. Galveston H. & S. A. R. Co. v. Harling, Tex. Com. App., 260 S. W. 1016; C. W. Hahl Co. v. Burch, Tex. Civ. App., 74 S.W. 2d 1040, writ dismissed, and cases cited; Continental Oil Co. v. Barnes, Tex. Civ. App., 97 S. W. 2d 494, writ refused.

“It is a matter of common knowledge to the bench and bar that counsel may argue long and loud to the jury that a certain issue should be answered in a particular way. It would tax one’s credulity to say that a competent juror would not know from such argument that an answer as suggested by counsel would be favorable to his client and would be what counsel wanted as a basis for a judgment.” In like manner we are unable to believe that, had the challenged instruction not been given, the jurors would have been wholly unaware of the fact that their apportionment of fault would have a substantive effect upon the ultimate liability of the parties.

II. The appellants criticize three of the court’s instructions upon a ground which we may illustrate by quoting Instruction No. 22: “It is the duty of the driver of an automobile upon a public highway to exercise reasonable care, that is, such care as would be exercised by a reasonably prudent person in keeping a lookout for traffic upon the highway, and if the plaintiff failed to exercise such care, this would be evidence of negligence. ’ ’ It is insisted that the instruction should have ended with the positive statement, “then he was negligent,” instead of with the milder expression, “this would he evidence of negligence.”

The appellants’ criticism of the charge is technically correct. In many instances it is proper to say that a certain fact, such as the violation of a statute, is merely evidence of negligence rather than negligence in itself. Gill v. Whiteside-Hemby Drug Co., 197 Ark. 425, 122 S. W. 2d 597. But this instruction is not confined to a particular fact; it is concerned with the plaintiff’s failure to exercise such care as would be exercised by a reasonably prudent person. It must be obvious that the plaintiff’s failure to conform to that standard of care is negligence, simply because that is really the legal definition of negligence. Hence the instruction should have been worded as the appellants suggest.

Despite the imperfection in the court’s selection of language we are convinced that no prejudice to the appellants has been shown. The charge, as given, told the jury that certain conduct on the part of Covey would be evidence of negligence. Acting upon that instruction the jury found that Covey had in fact been negligent. In neither form did the instruction have anything to do with the extent of Covey’s negligence. The most that the appellants could hope for under either form was an actual finding of negligence. Since that finding was made the error was demonstrably harmless, for the substantial rights of the appellants cannot have been affected.

III. The court was right in instructing the jury that “a motorist has a right to assume that the driver of another vehicle will obey traffic rules and exercise due care for his own safety and the safety of others, and to proceed on that assumption until he knows, or should know in the exercise of ordinary care, that the other party will not observe the traffic regulations.” This instruction, as we pointed out in Smith v. Wittman, 227 Ark. 502, 300 S. W. 2d 600, merely stated an assumption that a motorist may rely upon in the operation of his car. Covey was entitled to assume that the paved portion of the highway would not be obstructed by an unlighted stationary vehicle, and at the trial he was entitled to an instruction to that effect.

IY. By their Instruction No. 18 the appellants requested the court to tell the jury that if the lights from the lumber truck blinded Covey or interfered with his vision to the extent that he did not see the tractor-trailer “and that such was the sole and proximate cause of the collision, then the plaintiff cannot recover and you should find that the defendants were not negligent. ’ ’ Requested Instruction No. 19 was to the same effect, except that it combined Covey’s possible negligence with the blinding effect of the lumber truck’s lights.

These instructions were properly refused. In the first place, there is no direct evidence that the lights of the lumber truck had any blinding effect whatever upon Covey. It is simply argued that the jury might have drawn this inference from the testimony as a whole, and therefore the possibility should have been covered by the court’s charge. The instructions, however, had sufficiently covered the general law of negligence, so that counsel were at liberty to make the same argument to the jury that they sought to have the court embody in its instructions.

In the second place, the requested instructions would have given undue prominence to a relatively unimportant circumstance — the rather natural effect that the lumber truck’s lights would have in obscuring Covey’s vision of conditions farther down the dark highway. At the same time the instruction made no mention of the most serious charge of negligence in the case — Hildebrand’s asserted carelessness in leaving an unlighted vehicle upon the paved portion of the highway. Such an instruction, singling out and unduly emphasizing one factor in the case, is properly refused. Rutland v. P. H. Ruebel & Co., 202 Ark. 987, 154 S. W. 2d 578.

V. In a minor contention it is argued that the court, in submitting the special interrogatories, should not have given a further explanation of what was meant by negligence. It is not argued that this particular explanation would not have been correct if it had been embodied in the court’s general charge, and we perceive no basis for the appellants to complain that the explanation was made at one time rather than at another. A related argument, that certain notations on the forms of verdict tended to inform the jury how their answers would affect the final judgment, is covered by Point I in this opinion. Moreover, this objection was not raised in the court below and cannot be urged here for the first time.

VI. The verdict is liberal, but we do not regard it as excessive. Covey’s medical expenses and property damage came to about $2,000; so he was awarded $23,000; for his injuries. His most serious injury was a brain concussion and comminuted skull fracture at the right temple. For the latter condition he was sent to Shreveport, Louisiana, for an operation by a neuro-surgeon. During this operation a metal screen was placed inside the cranium, and Covey was left with a permanent scar and a sunken area at the site of the operation. He also sustained three broken ribs, a cut on the lip, and the bruises to be expected in a violent accident. In addition to enduring extreme pain at the time of the accident Covey was still suffering severe headaches at the date of trial, some seven months later. He testified that his hearing had been half destroyed and that his vision was not nearly as good as it had been. After a careful study of the record we find no basis for saying that the verdict is so grossly excessive as to require a remittitur. Keeshan v. Hays, 197 Ark. 755, 126 S. W. 2d 105; Phillips Motor Co. v. Rouse, 202 Ark. 641, 151 S. W. 2d 994.

Affirmed.

Bohlinger, J., not participating.


author: Paul Ward, Associate Justice.

text:
    Smith v. Grandbush.
    5-2440
    348 S. W. 2d 880
    Opinion delivered September 11, 1961.

      Lester E. Dole, Jr., for appellant.

      McMillan <& McMillan, for appellee.
   Paul Ward, Associate Justice.

On July 31, 1959 Raymond E. Smith (appellant herein) filed suit No. 4268 in the Second Division of the Ouachita Chancery Court against A. J. Grandbush to recover $1,700.00 for labor (pumping and looking after one oil well and certain leasehold interests) under a written contract with Grand-bush. Appellant was given a default judgment for the said amount, and there is no further controversy over this item.

In his complaint appellant also asked to have a lien impressed (under Ark. Stats. § 51-701) : “on the oil and gas leasehold estate of the defendant (A. J. Grand-bush) covering the S.EJ/4 of S.W.% of S.EJ4 of Sec. 27, Twp. 15 S., Range 15 W., . . . (known as Grand-bush, et al — Smith Lease) the appurtenances, pipelines, buildings, and other properties located on the leasehold.” After the cause was transferred and consolidated with Cause No. 8901 then pending in the First Division Chancery Court of the same county, and after appellant (only witness) testified at length (24 pages in the record), the trial court disallowed the lien — hence this appeal.

We have concluded, for reasons hereafter set out, that the decree of the trial court denying the lien must he affirmed.

Appellant seeks to impress his lien, as before stated, under § 51-701 for labor performed. To prevail, he had to show that he filed the required affidavit within 90 days (§ 51-613) after the last work was “in good faith performed” (§ 51-708). Appellant’s affidavit was filed March 19, 1959, so he had the burden of showing the performance of work (in good faith) as late as December 19, 1958. The chancellor found that appellant had not met the above requirement, and we think the record supports that finding.

Appellant began working for Grandbush in 1956. His employment, generally speaking, was to tend the pumping of an oil well and to look after a leasehold interest owned by several people. The record discloses that suit No. 8901 was filed sometime previous to October, 1958; that appellant and Grandbush were parties to that suit; and that, on October 10, 1958, the Court found that Grandbush “no longer has any interest in said well,” and ordered Grandbush removed as operator. After that date appellant was in the position of contending he was working for Grandbush who appellant knew had no authority to employ him. It was not reversible error for the trial court to find, under the above state of the record, that appellant’s affidavit was not filed within the time required by the statute.

The receiver previously appointed by the court, H. W. McMillan, intervened to protect the interest of the leaseholders.

Affirmed.

Bohlinger, J., not participating.