author: J. SeaborN Holt, Associate Justice. Paul Ward, Associate Justice

text:
    Rebsamen Motor Company v. Phillips.
    5-948
    289 S. W. 2d 170
    Opinion delivered April 2, 1956.
    [Rehearing denied April 30, 1956.]

      Spitzberg, Mitchell & Hays, for appellant.

      Wright, Harrison, Lindsey & Upton, for appellee.

      A. F. House, amicus curiae.

   J. SeaborN Holt, Associate Justice.

By this suit appellants, for themselves and all others similarly situated, question the constitutionality and validity of Act 182 of the Acts of the 1955 Legislature, 75-1501 — 1506 Ark. Stats. 1947 Sup.

Their complaint contains these allegations: “. . . 2. Plaintiff, Rebsamen Motor Company, is a corporation organized under and existing by virtue of the laws of the State of Arkansas. It is engaged in the business of a motor vehicle dealer in the City of Little Rock, Arkansas; it holds a bona fide contract or franchise with the Ford Motor Company, manufacturer of Ford automobiles; it maintains adequate space in one of the buildings in which its business is conducted for the display of new and unused motor vehicles, the repair and servicing of motor vehicles, and the storage of new parts and accessories for motor vehicles. It is also engaged in the businesses of repairing and servicing motor vehicles and the selling of new parts and accessories for motor vehicles. Its principal place of business is located in the City of Little Rock, Arkansas. 3. The plaintiff, R. W. Morris, Jr., is employed as a salesman by the plaintiff, Rebsamen Motor Company . . . Defendants [appellees] are attempting to enforce the provisions of this act which would require the plaintiffs and other persons similarly situated as motor vehicle dealers and motor vehicle salesmen in the State of Arkansas to pay license fees. This act is void in that it violates Article I, Sections 1, 8 and 10; Article IV, Section 2; the Fifth Amendment and the Fourteenth Amendment of the Constitution of the United States; Article II, Sections 2, 3, 7, 8, 13, 18, 21, 22 and 23; . . . of the Constitution of the State of Arkansas. 5. The defendants are threatening to continue the enforcement of this Act. Unless they are restrained from enforcing the provisions of Act 182, the plaintiffs and others similarly situated as motor vehicle dealers and motor vehicle salesmen in the State of Arkansas will suffer irreparable injury for which they have no adequate remedy at law. 6. Act 182 is void because (1) it is indefinite, vague and ambiguous; (2) the license fees which are charges under its provisions are excessive for fulfilling the purposes of the act; and (3) it is discriminatory in that it requires franchised dealers and their employees to obtain a license and pay a fee, but it does not require non-franchised dealers to either obtain a license or pay a fee.” They ask that the act be declared unconstitutional.

Appellees’ answer was a general denial of all material allegations. Trial resulted in a decree upholding the constitutionality and validity of the act, in all respects; that its enactment was within the police power of the State of Arkansas; and dismissed appellants’ complaint. This appeal followed.

Act 182 attempts to set up a commission of seven members to be appointed by the Governor, one from each of the 6 Congressional Districts, and one from the State at large to be chairman. Among its provisions are the following: “SECTION 1. Necessity for regulation • — • Legislative finding. The legislature finds and declares that the distribution and sale of motor vehicles in the State of Arkansas vitally affects the general economy of the State and the public interest and the public welfare, and that in order to promote the public interest and the public welfare, and in the exercise of its police power, it is necessary to regulate and to license motor vehicle manufacturers, distributors and dealers doing business in Arkansas, in order to prevent frauds, impositions and other abuses upon its citizens . . . SECTION 2. (b) ‘Motor Vehicle Dealer’ means any person, firm, association, corporation or trust not excluded by subsection (c) of this Section who sells, solicits or advertises the sale of new and unused motor vehicles and holds a bona fide contract or franchise in effect with a manufacturer or distributor of the new or unused motor vehicle or vehicles proposed to be dealt in and who maintains adequate space in the building or structure wherein his, its or their established business is conducted for the display of new and unused motor vehicles and also provides for the repair and servicing of motor vehicles and the storage of new parts and accessories for the same . . . (d) ‘Motor Vehicle Salesman’ means any person who is employed as a salesman by a motor vehicle dealer whose duties include the selling or offering for sale of new and unused motor vehicles. (e) ‘Commission’ means the Arkansas Motor Vehicle Commission created by this Act. (f) ‘Manufacturer’ means any person, firm, association, corporation or trust, resident or nonresident, who manufactures or assembles new and unused motor vehicles, (g) ‘Distributor’ or ‘Wholesaler’ means any person, firm, association, corporation or trust, resident or nonresident who in whole or in part sells or distributes new and unused motor vehicles to motor vehicle dealers, or who maintains distributor representatives, (h) ‘Factory Branch’ means a branch office maintained by a person, firm, association, corporation or trust who manufactures or assembles motor vehicles for the sale of motor vehicles to distributors, or for the sale of motor vehicles to motor vehicle dealers, or for directing or supervising, in whole or in part, its representatives, (i) ‘Distributor Branch’ means a branch office similarly maintained by a distributor or wholesaler for the same purposes a factory branch is maintained, (j) ‘Factory Representative’ means a representative employed by a person, firm, association, corporation or trust who manufactures or assembles motor vehicles, or by a factory branch, for the purpose of making or promoting the sale of his, its or their motor vehicles, or for supervising or contracting his, its or their dealers or prospective dealers, (k) ‘Distributor Representative’ means a representative similarly employed by a distributor, distributor branch or wholesaler . . .”

Each member was required to execute a bond of $5,000 and was to receive $10.00 per diem each day required in attending meetings; provided, that such pay shall not exceed $200 per annum for any one person.

“SECTION 3 . . . (d) The Commission shall appoint a qualified person to serve as Executive Secretary thereof, to serve at the pleasure of the commission, and shall fix his salary and shall define and prescribe his duties ... (f) ... At the close of each fiscal year hereafter' said commission shall file with the Governor and the State Auditor a true and correct report of all fees and charges collected and received by it during the preceding fiscal year and shall at the same time pay into the general revenue fund of the State a sum equal to ten per centum (10%) of the gross fees and charges so collected and received . . . SECTION 4. Licenses, (a) On or after July 1, 1955, it shall be unlawful and constitute a misdemeanor for any person, firm, association, corporation or trust to engage in business as, or serve in the capacity of, or act as a motor vehicle dealer, or motor vehicle salesman, or manufacturer, distributor or wholesaler of motor vehicles, or factory branch, distributor branch, or factory representative or distributor representative, as such, in this State without first obtaining a license therefor as provided in this Section; ... (c) ... (1) For each Manufacturer, Distributor or Wholesaler, Factory Branch or Distributor Branch, One Hundred Dollars ($100.00). (2) For each Motor Vehicle Dealer, Factory Representative or Distributor Representative, Twenty-Five Dollars ($25.00). (3) For each Motor Vehicle Salesman, Five Dollars ($5.00) . . .”

Section 5 sets out numerous grounds on which the Commission may deny an application for a license or revoke or suspend a license already granted, among these grounds are: “ (c) For any willful failure to comply with any provision of this Act or with any provision of this Act or with any rule or regulation adopted and promulgated by the Commission under authority vested in it by this Act . . . (g) Being a Manufacturer of motor vehicles, Distributor, Wholesaler, Distributor Branch or Factory Branch, or officer, agent or other representative thereof, who has either induced or coerced or attempted to induce or coerce any Motor Vehicle Dealer: (1) To accept delivery of any motor vehicle or vehicles, parts or accessories therefor, or any other commodity or commodities which shall not have been ordered by said Motor Vehicle Dealer; (2) To use automobile or truck registration figures, lists or any analysis therefrom; likewise the use of any competitive sales figures of cars, trucks, parts or accessories, as a basis of conducting business; (3) To order or accept delivery of any motor vehicle with special features, appliances, accessories or equipment not included in the list price of said motor vehicles as publicly advertised by the manufacturer thereof; (4) To order for any persQn any parts, accessories, equipment, machinery, tools, appliances or any commodity whatsoever, (h) Being a Manufacturer of Motor Vehicles, Distributor, Wholesaler, Distributor Branch or Factory Branch or officer, agent or other representative thereof, who: (1) Has refused to deliver to any Motor Vehicle Dealer having a franchise or contractual arrangement for the retail sale of new and unused motor vehicles sold or distributed by such Manufacturer, Distributor, Wholesaler, Distributor Branch or Factory Branch, any motor vehicle, publicly advertised for immediate delivery, within sixty (60) days after such dealer’s order shall have been received; (2) Has attempted to induce or coerce, or has induced or coerced, any Motor Vehicle Dealer to enter into any agreement with such Manufacturer, Distributor, Wholesaler, Distributor Branch or Factory Branch or representative thereof or to do any other act unfair to said dealer by threatening to cancel any franchise or contractual agreement existing between such manufacturer, distributor, wholesaler, distributor branch or factory branch and said dealer; (3) Has unfairly, without due regard to the equities of said dealer and without just provocation, canceled the franchise of any Motor Vehicle Dealer. The non-renewal of a franchise or selling agreement without just provocation or cause shall be deemed an evasion of this paragraph and shall constitute an unfair cancellation; (4) Has refused to extend to a Motor Vehicle Dealer the privilege of determining the mode or maimer of available transportation facility which said dealer desired to be used or employed in making deliveries of new motor vehicles to him or it.” . . .

Legislative acts are presumed to be constitutional and valid until the contrary is shown, and the burden is on those who may question their constitutionality. We have concluded that appellants have met that burden here and that the trial court erred in upholding the constitutionality of Act 182.

In reading and considering this act in its entirety i^ is readily apparent that its purposes and effect, and under its terms, appellant, along with his salesmen and other franchised dealers and their salesmen, were regulated and required to pay a license fee for the privilege of engaging in the business of selling new and unused motor vehicles and on failure to pay the tax to be sub-, ject to prosecution on a misdemeanor charge, while their competitors in the same community, who are not franchised, but who may deal in both new and used cars, along with their salesmen, were not regulated or required to pay the license fee and could operate without penalty, even though they were engaged in the same business. To hold that under its police power the legislature could enact such legislation, exempting from the tax automobile dealers engaged in neiv and used cars from paying the license fee, and at the same time requiring franchised dealers in the same community, who deal only in new and unused cars to pay the tax, is clearly, we think, an arbitrary classification and in conflict with Section 18 Article 2 of the Constitution of the State of Arkansas which provides that: “The General Assembly shall not grant to any citizen or class of citizens privileges or immunities which upon the same terms shall not equally belong to all citizens.” It also contravenes the Fourteenth Amendment to the Constitution of the United States which prohibits a state from denying to “any person within its jurisdiction the equal protection of the laws.”

“The principle of equality and uniformity requires that license or privilege taxes be imposed equally and impartially on all persons pursuing the same avocation or exercising the same privileges, . . . the legislature may not, under the pretense of a license fee or tax, impose unequal taxes on persons similarly situated.” 53 C. J. S., Licenses, Sec. 22(a), pp. 533-4.

“It has been held . . . that an act or ordinance is unconstitutional if it arbitrarily and unreasonably discriminates between different modes of conducting the same business unless there is something in the one mode which makes it more dangerous to the public.” 53 C. J. S., Licenses, Sec. 22(b) (2), p. 544.

The regulation of the sale of motor vehicles under the state’s police power to prevent fraud and to promote the general public welfare, we think, is a proper subject for legislative action, however, the Legislature, under the guise of regulation, may not indulge in what in effect would be arbitrary price fixing or the interference with lawful competition.

This court in Ex Parte Deeds, 75 Ark. 542, 87 S. W. 1030, in striking down Act 136 of the Legislature of 1901, the purposes of which were similar in effect to Act 182 here, said: “ . . . Reading the act literally, it pronounces a penalty against 'any person, either as owner, manufacturer or agent,’ who, without having-first procured a license, 'shall travel over or through any county and peddle or sell any lightning rod, steel stove range, clock, pump, buggy, carriage and vehicles, or either of said articles,’ but provides that the same ' shall not apply to any resident merchant in said county. ’ In other words, it permits 'any resident merchant in said county,’ but no other person, to ‘travel over and through any county and peddle or sell’ the articles named without license so to do. It therefore falls clearly within that clause of the Fourteenth Amendment to the Federal Constitution, which prohibits a State from denying to ‘any person within its jurisdiction the equal protection of the laws,’ and is also in conflict with Section 18 of Article 2 of the Constitution of the State, which, provides that ‘the General Assembly shall not grant to any citizen or class of citizens privileges or immunities which upon the same terms shall not equally belong to all citizens.’ . . . The Supreme Court of the United States in Connelly v. Union Sewer Pipe Co., supra, [184 U. S. 540], said: ‘In prescribing regulations for the conduct of trade, it cannot divide those engaged in trade into classes and make criminals of one class if they do certain forbidden things, while allowing another and favored class engaged in the same domestic trade to do the same things with impunity. It is one thing to exert the power of taxation so as to meet the expenses of government, and at the same time, indirectly, to build up or protect particular interests or industries. It is quite a different thing for the State, under its general police power, to enter the domain of trade or commerce, and discriminate against some by declaring that particular classes within its jurisdiction shall be exempt from the operation of a general statute making it criminal to do certain things connected with domestic trade or commerce. Such a statute is not a legitimate exertion of the power of classification, rests upon no reasonable basis, is purely arbitrary, and plainly denies the equal protection of the laws to those against whom it discriminates. ’ ”

Appellees say that acts similar to Act 182 here are in force in many other states and none found to be invalid. Prom our somewhat limited search we have been unable to find any statute similar, in effect, to Act 182 in any other state which has been declared constitutional and upheld. Appellees have pointed to none. "We have, however, found that Nebraska has a statute similar, in effect, to Act 182 and in construing the provisions of that statute the Supreme Court of that state, in Nelsen v. Tilley, 137 Neb. 327, 289 N. W. 388, 126 A. L. R. 729, (1939), held: “A provision in regulatory statute limiting issuance of motor vehicle dealer’s license for sale of new automobiles to persons enfranchised by manufacturers of new motor vehicles, is an unlawful restriction on the right of a person to adopt and follow a lawful industrial pursuit, and contravenes the Fourteenth Amendment to the Federal Constitution and the sections of the State Constitution providing that all persons should have equal rights, guaranteeing due process of law, prohibiting grant of special privileges or immunities, and forbidding discrimination between citizens of the United States.”

We further point out that sub-division (d) Section 3 above which provides; ‘ ‘ The commission shall appoint a qualified person to serve as Executive Secretary thereof, to serve at the pleasure of the commission, and shall fix his salary, etc.” ... is clearly an attempt by the Legislature to delegate this power to the commission. This power to delegate is denied the Legislature under Article 16, Section 4, of our Constitution which provides: “The General Assembly shall fix the salaries and fees of all officers in the State, and no greater salary or fee than that fixed by law shall be paid to any officer, employee or other person, or at any rate other than par value; and the number and salaries of the clerks and employees of the different departments of the State shall be fixed by law.” See our recent case Gipson v. Crawfis, 225 Ark. 903, 286 S. W. 2d 336.

Considering this Act 182 in its entirety, and finding all of its material provisions, which were intended to effectuate its purposes, to contravene provisions of both our State and Federal Constitutions, we hold it unconstitutional and invalid. Accordingly, the decree is reversed and the cause remanded with directions to enter a decree consistent with this opinion.

The Chief Justice and Mr. Justice Ward dissent. Justice George Rose Smith not participating.

Paul Ward, Associate Justice

(dissenting). I find myself unable to agree with the majority opinion herein which holds Act 182 of 1955, relating to the distribution and sale of motor vehicles, unconstitutional. The majority opinion, as I understand it, assigns three reasons or grounds for the conclusion reached. They are: (a) Act 182 makes an arbitrary and therefore an unconstitutional classification; (b) A similar act was held unconstitutional by the Supreme Court of Nebraska, and; (c) Act 182 attempts au illegal delegation of legislative power to tbe Commission. I shall discuss the above reasons or grounds in the order named.

(a) The majority find that the legislature has no constitutional right to require a license fee from a franchised dealer who deals in new and used cars, and allow a used car dealer to sell new and used cars without having to pay any license fee. It seems to me that this view overlooks entirely the main features and main purpose of said Act 182. The act itself is rather lengthy and much of it is devoted to definitions and setting up the Commission and the rules and regulations governing it. It would serve no useful purpose to set out the provision of the act at any length because, as I understand the act and its purpose, the real gist of the enactment revolves around Section 5(g)(1). In effect this portion of the act is designed to prevent an automobile manufacturing company from forcing a local dealer in this state to accept and pay for more automobiles than the dealer orders, or can dispose of at the price at which he is required to sell them. It is very plain not only from the act but from common knowledge that this situation just described could exist only between a manufacturer and its authorized dealers. Consequently there is no occasion, and the act makes no attempt, to regulate used car dealers or “bootleg” new car dealers. As a matter of fact it seems clear to me that if this act is allowed to stand and its provisions are enforced there will be no more “bootleg” dealers in new cars.

The majority opinion has not discussed the purposes of the act or the evils which it is designed to eliminate, and therefore there is no point in attempting to show that there is a necessity for regulations of the kind here involved for the protection of the general economy and public welfare as set forth in Section 1 of the act.

The fact that many other states have enacted laws very similar'to Act 182 and some have gone unchallenged for 15 years or. more is itself a reason why this court should not strike down this act unless it clearly appears to be unconstitutional. The law is well settled that acts of the legislature are presumed to be constitutional and every reasonable intendment to that end should be indulged.

The following states have enactments containing the same meaning and almost the same wording as Section 5(g)(1) referred to above, see: Wisconsin Stats., 1953, Chapter 218.01 et seq. and particularly subparagraph 15 at page 2771; West’s Louisiana Stats. Annotated, Yol. 18, Sec. 32:1255(8) (b) at page 100; Colorado Rev. Stats. 1953, Section 13-11-14-(9) (a), at page 202; Code of Virginia, Yol. 7, Chapter 7, Article 3, Section 46-534(1) at page 171; Florida Stats., Chapter 320, Section 64(5); Tennessee Code Annotated, Yol. 10, Sec. 59-1714(g) (1); 47 Oklahoma Stats. Annotated, Section 565(g) (1) at page 386, and; Public Laws of Rhode Island 1949-50, Chapter 2595, Article VIII, Section 2(5), at page 1255. My limited investigation reveals that several other states have laws somewhat similar in purpose to Act 182. A few of which are Iowa, South Dakota, Michigan, Ohio and Mississippi.

While some of the regulatory acts by other states have been in force for more than 15 years no decision has been called to my attention and I have been unable to find one which has directly passed upon the constitutionality of the main features of Act 182. In the case of Kuhl Motor Co. v. Ford Motor Co., 270 Wis. 488, 71 N. W. 2d 420, the Supreme Court upheld appellee’s right to cancel a contract with its dealer, appellant. It did so upon the ground that the contract giving the right of cancellation was entered into before the Motor Vehicle Act was passed, which act had the same provision in it that is in Act 182. The Motor Vehicle Act was discussed at length and there is every indication that the Wisconsin Court considered the act constitutional, but did not think it should impair an existing contract. One of the judges dissented on the point above mentioned but no judge suggested that the act was unconstitutional as to future contracts.

(b) The majority quote a headnote from the case of Nelson, et al. v. Tilley, 137 Neb. 327, 289 N. W. 388 (1939), leaving the impression, perhaps, that the' Supreme Court of Nebraska has held unconstitutional an act like the one here under consideration. A careful reading of the decision in that case justifies no such impression. It is true that in the Nebraska statute there is the same language as that found in Act 182 and referred to particularly as Section 5(g)(1) noted above. If may be significant that the Nebraska Court found no fault with this part of the act. The court did however find objections, as shown at page 392, to certain language in the act which is not found in Act 182. That language limited a dealer to selling only the kind of an automobile that his license specified.

(c) The majority opinion concludes that the language in Section 3(d) constitutes an unlawful delegation of legislative power to the Commission to employ and pay a secretary and necessary clerical help. The expense for this help is to be paid out of the fees provided for in the act, and is not an attempt to expend state money without an appropriation. Such procedure is not at all unusual. When the legislature created the Licensing Board for Contractors it provided in Ark. Stats. § 71-706 that “The Board shall be further empowered to employ an Assistant Secretary . . . and whose salary shall not exceed $1,800 per year.” In the act regulating real estate brokers and salesmen it is provided, Ark. Stats. § 71-603 (f) that from the fees collected the Board shall pay all incident expenses including not to exceed $5.00 a day to an examiner. Other instances of similar legislation could be cited and I know of no decision by this court holding any of them unconstitutional. The payment of expenses provided for in Act 182 are merely incidental to and necessary for the effective operation of the Commission which it creates. These provisions in no way violate our holding in Gipson v. Crawfis, 225 Ark. 903, 286 S. W. 2d 336, relied on by the majority.

Chief Justice Seamsteb, joins in this dissent.


source: Caselaw Access Project

author: Ed. F. McFaddiN, Associate Justice.

license: Public Domain

text:
    Bookman v. Butler, Administratrix.
    5-899
    288 S. W. 2d 597
    Opinion delivered April 2, 1956.

      John C. Sheffield and Graeraft & Cracraft, for appellant.

      A. M. Coates, for appellee.
   Ed. F. McFaddiN, Associate Justice.

This appeal is by Dr. James Bookman from judgments against him for malpractice in the diagnosis and treatment of two little boys, each suffering from a skull fracture. The complaints alleged, the evidence showed, and the Jury found, that, as a result of such malpractice: one little boy died, the other experienced considerable pain, and the grandparents incurred expense and suffered mental anguish. This is the second appearance of this case. In Bockman v. Butler, 224 Ark. 125, 271 S. W. 2d 918, the facts are given in detail, and need not be here repeated. We remanded the cases because of errors in instructions; and on retrial there were verdicts against Dr. Bookman as discussed in Points II and III, infra. On this appeal, Dr. Boekman presents the three points now to be discussed.

I. Appellant says: “In an action for malpractice, the accused doctor has a right to have his standard of care and treatment measured and tested by the rules and principles of the particular school of medicine to which he belongs and not by those of some other school

In the course of the trial, seven physicians testified that Dr. Bookman’s diagnosis and treatment of the little boys amounted to malpractice. Six of these were practicing physicians in Phillips County, and the seventh was the neurosurgeon of Memphis who performed the operation on Willie Donald. On cross-examination of each of these doctors, it was developed that they were of the Allopathic school of medicine, and it seemed to be generally conceded, without direct question and answer to that effect, that Dr. Boekman was of the Eclectic school of medicine. Because of the fact that all of the testifying doctors were of the Allopathic school, and that Dr. Boekman was of the Eclectic school, the appellant, after having developed this distinction on cross-examination, moved to strike from the record all of the testimony of the seven doctors as incompetent, and also moved for a directed verdict because there was no testimony by any doctor of the Eclectic school. Also on the same point Dr. Bodkman complains of the giving and refusing of certain instructions.

One of the leading cases on this point is that of Swanson v. Hood, 99 Wash. 506, 170 Pac. 135, in which the Supreme Court of Washington stated:

“Appellant takes the broad position that a physician of one school is not competent to testify in a suit for malpractice or negligence of a physician of another school. Several decisions are cited which it is claimed support this view, but, as we read them, they hardly go that far. The rule is not that a physician of another school is not competent to testify, but that a defendant’s treatment is to be tested by the general doctrine of his own school, which is a very different thing; in other words, the standard of exclusion of evidence is not the school of the witness, but the premises of his testimony. If the premises from which he testifies, that is to say, the criterions by which he measures defendant’s treatment, are those of defendant’s own school, the witness is not disqualified merely because he himself belongs to another school. Bowman v. Woods, 1 G. Green (Iowa) 441; Force v. Gregory, 63 Conn. 167, 27 Atl. 1116, 22 L. R. A. 343, 38 Am. St. Rep. 371; Martin v. Courtney, 75 Minn. 255, 77 N. W. 813; Patten v. Wiggin, 51 Me. 594, 81 Am. Dec. 593; Grainger v. Still, 187 Mo. 197, 85 S. W. 1114, 70 L. R. A. 49.”

Our own case of Dorr, Gray & Johnston v. Headstream, 173 Ark. 1104, 295 S. W. 16, while dissimilar in facts from the case here, nevertheless points to the logic of the quoted language, because, in our case, doctors who did not devote their entire time to the practice of X-ray were nevertheless permitted to testify as to what would be negligence in X-ray matters. There is an annotation in 78 A. L. R. 697 entitled: “Competency of physician or surgeon of school of practice other than that to which the defendant belongs to testify in malpractice case ’ ’; and many cases are there cited in accord with the language quoted from the Washington case of Swanson v. Hood (supra).

In the case at bar, Dr. Bockman did not testify, and no doctor of the Eclectic school of medicine testified ; and Dr. Bockman did not claim, nor offer to prové, that the teachings and methods of practice of the Eclectic school of medicine were at variance from those of the Allopathic school in injuries like those here. On the other hand, several of the seven doctors testified that they had never heard of any school of medicine diagnosing and treating skull fractures like Dr. Bockman did in this case. Dr. Schultz, the neurosurgeon, testified:

“Q. You have detailed the accepted method of head injuries of the kind we have here. Do you know of any other method that is known to medical science in the treatment of such head injuries?
A. I assume you mean the treatment as of today’s modern medical science?
Q. Yes.
A. No, I don’t . . .”
Dr. McCarty, of Phillips County, testified:
“Q. You have testified what the general practice of the doctors in good standing in this vicinity is?
A. Yes, sir.
Q. Do you know of any other method known to medical science for treating injuries of this type?
A. No, sir . . .”

Dr. Bell, of Phillips County, after describing a method of diagnosis and treatment entirely at variance with that used by Dr. Bockman, testified:

“Q. Is there any other method known to medical science of treating head injuries of the type I have mentioned?
A. Not to my knowledge . . .”

So we conclude that, under the testimony of Doctors Schultz, McCarty and Bell, there was sufficient evidence to take to the Jury the question of the malpractice of Dr. Bockman; and, therefore, appellant’s first contention is without merit under the facts as shown by the record in this case.

II. The appellant says: “The verdicts of the jury were excessive and not supported by the evidence

It will be remembered that the little boys had already received the skull fractures before they were taken to Dr. Bockman and, of course, the rule is well settled that in such a situation the physician found guilty of malpractice is not chargeable for pain, suffering or anguish that arose because of the original ailment, but is chargeable only for the pain, suffering, anguish and expenses that naturally follow from the malpractice. (See 41 Am. Jur. 247 and cases cited in footnotes 12 and 13 thereof.) Because of this rule, appellant argues that the verdicts are excessive.

The verdict for Willie Donald was $250.00 for pain and suffering resulting from the malpractice; and a reading of the record in this case establishes that such amount is not excessive. But for Dr. Bookman’s malpractice, the little boy would have been promptly taken to the hospital in Helena and correctly treated. Because of Dr. Bookman’s malpractice, the little boy suffered much more and had a long hard recovery. There was a verdict for Everlina Butler for $250.00. It was shown that she was the grandmother of Willie Donald and stood in loco parentis to him, and that because of Dr. Bockman’s malpractice she was obliged to take the child to Memphis and expend considerable time and money in his recovery, all of which could have been materially reduced except for the malpractice of Dr. Bockman. So the verdict to her was not excessive.

Likewise, in the Aubrey Donald case, there is nothing excessive in the verdict of $500.00 to Lee Butler and Everlina Butler, grandparents of Aubrey Donald, for the medical and funeral expenses that they incurred. From the evidence the Jury eould have found that this little boy would not have died except for Dr. Bookman’s malpractice; and we cannot say that the $500.00 is excessive for the funeral expenses and other expenses in connection with the death of this little boy. That leaves only the question of $2,000.00 for mental anguish, which is to be discussed in the next topic.

III. The appellant says: “The jury verdict in favor of the next of kin of Aubrey Donald for mental anguish was not supported by any evidence of such mental anguish.”

The Jury verdict was for $2,000.00 for the use and benefit of the next of kin for mental anguish for the death of Aubrey Donald; and the evidence conclusively established that Lee Butler and Everlina Butler, the grandparents of Aubrey Donald, stood in loco parentis to him. Prior to Act 115 of 1949, in a case like this one, damages were not recoverable for mental anguish sustained because of the death of a loved one. Our present statute allowing recovery for mental anguish may be found in § 27-904 in the Cumulative Pocket Supplement of Ark. Stats., and a comparison of the previous law with the 1949 Act shows that in giving the items of damage there can now be compensation to the next of kin for “mental anguish”; and then there is added this clause at the end of the previous law:

“However, when mental anguish is claimed as a measure of damages under this statute, such mental anguish will be applicable only to the wife, parent, child, brother, sister or persons standing in loco parentis to the deceased at the time of the injury which caused the death of the deceased.”

That Everlina Butler and Lee Butler sustained mental anguish in the loss of the little grandchild they had raised, is clearly reflected from the evidence. The appellant claims that Everlina Butler and Lee Butler as grandparents were not the “next of kin” of the little boy, and that there is no evidence that the “next of kin” — if same be other than Everlina Butler and Lee Butler — ever sustained any mental anguish. There is nothing in the record to show that there were any next of (kin except the grandparents, Lee Butler and Everlina Butler, and Willie Donald, the little brother. There is no evidence in this record that the parents of Aubrey Donald are living. Certainly Everlina Butler and Lee Butler stood in loco parentis to the deceased at the time of the injury; and our Statute says that when mental anguish is claimed as damages, then it must have been suffered by certain persons, some of whom are those who stood in loco parentis. Everlina Butler was the Administratrix; she brought this action; she testified that she and Lee Butler stood in the relation of parents to the little hoy.

Finding no error, the judgment is affirmed.

       In 3 Ark. Law Review at page 373 there is a very good statement of the holdings prior to the Act 115 of 1949 and the effect of that Act in allowing recovery for mental anguish.

       Everlina Butler testified: “Q. Is Lee Butler your husband? A. Yes, sir. Q. What kin was Aubrey Donald and Willie Donald to you? A. Grandsons. Q. How long had they lived with you and your husband? A. All their life¡ Q. All their life they had lived in your home? A. Yes, sir. Q. You and your husband stood in the relationship of parents to them? A. Yes, sir.”
      Lee Butler testified: “Q. You are the husband of Everlina Butler? A. Yes, sir. Q. And the grandfather of these two children? A. Yes, sir. Q. Everlina testified that you have raised the two children from birth? A. Yes, sir.”


author: Minos W. Millwee, Associate Justice.

text:
    Finkbeiner v. Finkbeiner.
    5-091
    288 S. W. 2d 586
    Opinion delivered April 2, 1956.

      Terral & Rawlings and John T. Haskins, for appellant.

      Owens, McHaney, Lofton & MoHaney, for appellee.
   Minos W. Millwee, Associate Justice.

Appellee was granted a divorce from appellant on March 1, 1955. A separation agreement and property settlement previously executed by the parties was incorporated in and made a part of the decree. In accordance with said agreement the decree provided that appellant should have custody of their seven year old adopted daughter and that appellee should pay her $25.00 per week for the child’s support. Appellant had custody of the child until July 19, 1955. On that date the child was left to spend the' night in appellee’s home as she did occasionally. The next day appellee refused to surrender the child and had some sort of order served on appellant, the exact nature of which is not disclosed, restraining her from calling appellee on the telephone or going about his separate residence.

On July 29, 1955, appellee filed the instant petition to modify the original divorce decree by giving him custody of the child. After appellant responded a hearing was held September 15, 1955 resulting in a decree granting appellee’s petition because of changed conditions since rendition of the original decree, with the right of appellant to have the child on alternate Saturdays from 9 a. m. to 6 p. m. A fee of $100.00 was allowed appellant’s attorneys but her prayer for alleged arrearages in the weekly child support payments was denied. This appeal is from so much of the decree as awarded custody of the child to appellee and denied the prayer for judgment for the support payments. Appellant also asks an additional fee for the services of her attorneys on this appeal.

I. Change of Custody.

Appellant earnestly contends the chancellor erred in considering personal information not produced in the trial of the case and certain incompetent evidence elicited on the court’s own motion; and that the evidence adduced by appellee is insufficient to show such changed conditions since the original decree as to justify a change in the child’s custody. Each of these contentions might be worthy of serious consideration and entitled to merit except for the fact that appellant, by her own admissions and testimony, demonstrated that the safety and welfare of the child would be best served by a denial of custodial rights to her for the time being. It would serve no useful purpose to detail the excessive drinking, drunken driving and other indiscretions over a protracted period since the original decree which appellant frankly admitted from the witness stand. Suffice it to say that such admissions afforded sufficient basis for the chancellor’s determination that a present change of custody was for the best interest of the child.

II. Arrearage in Support Payments.

A preponderance of the evidence supports appellant’s contention that appellee voluntarily took charge of the child on July 19 without proper court order and thereafter refused to restore custody to appellant or her attorneys. If appellee felt he was entitled to immediate custody, as he now contends, he should have procured a proper court order authorizing such action. Appellant had probably made definite financial arrangements for the child’s care in reliance on a proper compliance with the decree by appellee. Appellee is a principal stockholder in a meat packing company and financially well fixed, while appellant is apparently dependent on the alimony and child support payments. Under all the circumstances, appellee was a mere volunteer in taking custody in violation of the court’s original decree and is not entitled to credit to the extent of the weekly payments for the expenses incurred between July 19 and the trial date. This is the effect of our holding in McCourtney v. McCourtney, 205 Ark. 111, 168 S. W. 2d 200.

III. Attorney Fees.

While appellee did not appeal from that part of the decree allowing a fee to appellant for her attorneys’ services in the trial court, it is insisted that she is precluded from recovering- an additional fee for such services in this court under Nelson v. Nelson, 146 Ark. 362, 225 S. W. 619. It is true that the court held outright in that case that a divorced wife is not entitled to attorney’s fees in a proceeding for change in the custody of children after rendition of a final decree of divorce. However, as appellee frankly concedes, this holding was not followed and the case has become of doubtful value as a precedent by reason of such subsequent cases as Vilas v. Vilas, 184 Ark. 352, 42 S. W. 2d 379, and Hydrick v. Hydrick, 224 Ark. 712, 275 S. W. 2d 878. In the Vilas case the mother was held entitled to additional attorney’s fee in her suit to modify a divorce decree as to child custody but the majority attempted to distinguish the Nelson case on the ground that the custody question was left open by the terms of the Vilas decree.

The Hydrick case involved a proceeding for modification of the divorce decree giving custody of children to the father, and we said: “The court may in its discretion allow an attorney’s fee in a child custody case after the parties have been divorced. In Vilas v. Vilas, 184 Ark. 352, 42 S. W. 2d 379, the court cited Spratt v. Spratt, 151 Minn. 458, 185 N. W. 509, 187 N. W. 227, and said: ‘ The opinion in that case recognized the fact that there was a division in the authorities, a number of which were there cited, but the conclusion was there announced that the chancellor had the power to make an allowance to the wife for her counsel fees in a proceeding for a modification of the judgment respecting the custody of the children, although a decree for divorce had been previously granted. Accepting this view, the majority are of the opinion that an additional fee . . . should be allowed.’ See also, Waller v. Waller, 220 Ark. 19, 245 S. W. 2d 814.

Ark. Stats. Sec. 34-1210 provides for the allowance of attorney fees to a wife during the “pendency” of an action for divorce or alimony. In most jurisdictions with similar statutes the courts have held that such provision is broad enough to include cases wherein one of the parties has petitioned for modification of that portion of the decree relating to child custody after the decree has become final on the ground that the new proceeding is merely a continuation of the original action. See cases collected in an annotation on the question in 15 A. L. R. 2d 1270. This view is in harmony with our holdings in the Vilas and Hydride cases and the general proposition that as to child custody the decree is only final on the conditions existing at the time of rendition. Where the petition for modification relates only to child custody as in the instant case, we conclude that the allowance of attorney fees to the divorced wife is a matter within sound judicial discretion and that so much of the Nelson case as holds to the contrary is overruled.

Although appellant was not entitled to custody of the child at the time of trial, it was shown that she was making a determined effort toward rehabilitation. In view of the possibility of future litigation of the custody question and in fairness to all concerned, we deem it appropriate to say that any future modification proceedings may he maintained in either division of the Pulaski Chancery Court. See Robinson v. Robinson, 218 Ark. 526, 237 S. W. 2d 20.

That part of the decree relieving appellee of the child support payments for the period from July 19 to the trial date is reversed and judgment will he entered here for appellant in the sum of $211.00 for such ar-rearage and for an attorney’s fee of $250.00 in addition to the fee of $100.00 awarded by the chancellor. Ap-pellee will pay all court costs and his motion to require appellant to pay cost of his supplemental abstract is denied. In other respects the decree is affirmed.


author: George Rose Smith, J.

text:
    Lawson v. State.
    5-903
    288 S. W. 2d 585
    Opinion delivered April 2, 1956.

      Ovid T. Switzer and W. P. Switzer, for appellant.

      Tom Gentry, Attorney General and Thorp Thomas, Asst. Atty. General, for appellee.
   George Rose Smith, J.

This is a civil action brought by the prosecuting attorney to have the appellant’s place of business declared to be a public nuisance. Ark. Stats. 1947, §§ 34-111 et seq. The trial court found the place to be a nuisance and entered an order directing that it be closed and that Lawson and all other persons be enjoined “from operating the said place for any purposes whatsoever for a period of one year from this date.”

The establishment in question, known as Sam Lawson’s Cafe, is situated on a highway west of Cróssett. It is shown that Lawson keeps a music machine and permits couples to dance, which brings the cafe within the statutory definition of a dance hall. Ark. Stats., § 34-111. The State’s evidence shows that the establishment is noisy, that it is frequented by intoxicated persons although the county is dry, that empty whiskey bottles accumulate outside the building, that Lawson has been convicted for the possession of liquor for sale in his home nearby, that male patrons have been guilty of indecent exposure on the public road, that one girl was shot in the cafe, that fights have occurred there, and that it is the kind of place that breeds law violations. The defense testimony tends to show that Lawson has attempted in good faith to conduct an orderly place of business, that he is unable to control the actions of his patrons as strictly as-he would like to, and that the cafe is no more objectionable than similar establishments in the vicinity. Upon reviewing the proof we do not find the circuit court’s conclusions to be contrary to the preponderance of the evidence, which is the test to be applied in this proceeding. Alston v. State, 216 Ark. 604, 226 S. W. 2d 988.

In one respect, however, the court’s order is too broad. The statute contemplates that the initial order shall merely abate the nuisance. Ark. Stats., § 34-117. The more severe course of closing the establishment for a year is authorized only in a contempt proceeding for a violation of the initial injunctive order. Ark. Stats., § 34-118; Futrell v. State, 207 Ark. 452, 181 S. W. 2d 680; State ex rel. Atty. Gen. v. Williams, 222 Ark. 966, 264 S. W. 2d 417. The order will therefore be modified, in accordance with the Williams case, to enjoin Lawson from using the property or permitting it to be used for dancing or for the sale of intoxicants for a period of one year from the date of the trial court’s order. The Attorney General concedes that the order should be modified but asks that the limited injunction be made perpetual, citing the Williams case. Here, however, the State did not appeal and therefore is not entitled to affirmative relief going beyond the scope of the circuit court’s judgment.

Affirmed, as modified.


author: Paul Ward, Associate Justice.

text:
    Windsor Audit Company v. Thornbrough, Commissioner of Labor.
    5-906
    288 S. W. 2d 594
    Opinion delivered April 2, 1956

      Gayle Windsor, Jr., for appellant.

      Sam M. Bains and Luke Arnett, for appellee.
   Paul Ward, Associate Justice.

Appellant, the Windsor Audit Company, a corporation, as an employer in 1947 became subject to the Arkansas Employment Security Act (Ark. Stats. § 81-1101 et seq.). As such employer it paid to the state 2.7 per cent of its annual payroll each year. The 2.7 percentage just mentioned was fixed by Ark. Stats. § 81-1108 (c) (3) (I). Appellant did not make payments to the state for all the calendar year 1951 and the first three quarters of 1952. Under the law as it then existed and prior to 1955 if appellant had not failed to make payments as stated above then it would have been entitled [in case of a favorable experience rating] to have its percentage of payment reduced under subsections 81-1108(c) (3) (II) (A) (B) (C) (D). Appellant would have been entitled to this chance for a reduction in percentage because it would have been continually making payments for three years or more under the subsection (I) above mentioned.

However in 1955 the legislature passed Act 395 .amending portions of the Employment Security Act. Section 22 of said Act re-enacted subsection (I) mentioned above and made an addition thereto, which amendment or addition is the basis of the controversy causing this appeal. Set out below we copy in full the original subsection (I) and tbe amendatory section. The original subsection will be in small print and the amend-atory portion will be set out in capitals.

“(I) Each employer’s rate shall be 2.7 per centum except as otherwise provided in the following provisions. No employer’s rate shall be less than 2.7 per centum unless and until there shall have been three years throughout which any individual in his employ could have received benefits if eligible. PROVIDED THAT, FOR THE TWELVE (12) MONTH PERIOD COMMENCING APRIL 1,1955, AND FOR EACH TWELVE (12) MONTH PERIOD THEREAFTER, AN EMPLOYER WHO HAS NOT BEEN SUBJECT TO THE LAW FOR A SUFFICIENT PERIOD TO MEET THIS REQUIREMENT MAY QUALIFY FOR A RATE LESS THAN 2.7 PER CENTUM IF HIS ACCOUNT HAS BEEN CHARGEABLE THROUGHOUT A LESSER PERIOD BUT, IN NO EVENT, LESS THAN THE ONE-YEAR PERIOD ENDING ON DECEMBER 31 OF THE PREVIOUS CALENDAR YEAR.”

It is the contention of appellant that it is now entitled to have the percentage of its payments reduced [having been making payments for more than a year] under the provisions of the amendment which, appellant says, shortens the experience rating period from three years to one year. It is the contention of ap-pellees that the old law, as it is set out in small print above, applies to appellant, and that appellant is not entitled to take advantage of the one year period.

After a careful examination of the applicable provisions of the statutes we have concluded that appellees’ interpretation is correct. It will be noted from the amendatory act copied above that the one year period applies to “an employer who has not been subject to the law, etc.,” referring to the law existing previous to the 1955 amendment. The one year -period therefore cannot apply to appellant because it has since 1947 been subject to the Employment Security Act.

To hold in accordance with appellant’s contention would be to hold that the portion of the statute quoted in small type is surplusage and a nullity. This would be true because any employer, whether a new one who had been in business for less than three years or an old employer who was in the status that appellant now occupies, would be eligible to qualify under the one year provision, and consequently there would be no case in which the old law would be applicable.

Affirmed.


author:
Sam RobiNsoN, Associate Justice.
      George Bose Smith, J.,

text:
    Boyd Excelsior Fuel Company v. McKown.
    5-865
    288 S. W. 2d 614
    Opinion delivered April 2, 1956.

      Rose, Holland & Holland, for appellant.

      Kincannon & Kineannon, for appellee.
   Sam RobiNsoN, Associate Justice.

The appellant operates a coal mine where the appellee worked as a miner for about 10 or 12 years. In 1951, appellee quit work and made a claim for workmen’s compensation, contending that he is disabled because of silicosis. The first hearing was conducted by Mr. C. L. Farish, Chairman of the Workmen’s Compensation Commission, who made a finding that the claimant contracted silicosis within the meaning of the statute while in the employ of the respondent, and awarded compensation. On appeal to the full Commission, compensation was denied by a majority of the three member Commission. Mr. Farish was no longer Chairman; but Mr. Arnold B. Sikes, who was then a member of the Commission, dissented, stating it is his opinion that the claimant has Grade 2 Silicosis, and is totally and permanently disabled. The claimant appealed to the Circuit Court and there, after a very careful study of the case by the court, the finding of the Commission was reversed and the claimant was awarded compensation. The employer is the appellant here.

The Commission made a finding of fact, as follows: “Claimant has been a coal miner for more than forty years. From about 1939 to 1951, claimant was, except for a period of one or two years during World War II, employed in some capacity in the coal mine of respondent employer. Claimant resigned his employment with respondent employer on June 25, 1951, and the reason given for resignation is that some misunderstandings arose when effort was made to assign claimant to a lighter job involving the transfer of another employee. Claimant had requested lighter work, or a few months’ leave from the mine, because he felt worked down and needed a rest. A day or two after resigning from employment with respondent employer claimant went to a doctor. This led to a series of examinations by various doctors in an effort to diagnose and treat claimant’s ailment. Claimant was then complaining of extreme shortness of breath and rapid fatigue upon exertion. As early as July 1951, a diagnosis of emphysema was made by the Arkansas Tuberculosis Sanatorium and the opinion was advanced that claimant was totally and permanently disabled at that time on account of emphysema. Claimant was examined on several other occasions by the Arkansas Tuberculosis Sanatorium, and also by several other medical authorities. Eventually the Arkansas Tuberculosis Sanatorium, through Dr. J. D. Riley, ventured an opinion that claimant suffered ‘Silicosis, Grade II, Advanced Emphysema.’

“Dr. Charles T. Chamberlain, Ft. Smith, Arkansas, examined claimant at least twice and concluded that ‘The cause of his (claimant’s) total and permanent disability is chronic pulmonary fibrosis and silicosis, grade one.’ Dr. Chamberlain’s findings are practically the same as those of Dr. Herbert C. Sweet, of St. Louis, Missouri. Other doctors, notably Dr. O. A. Sanders, of Milwaukee, Wisconsin, and Dr. Jesse E. Douglass, of Webb City, Missouri, make a diagnosis of no finding of silicosis. Dr. Douglass finds ‘severe emphysema,’ and Dr. Sanders finds, ‘Possible emphysema.’
“Dr. Harley Darnall, of Ft. Smith, Arkansas, called as a witness by respondent, testified at length and in detail, and though he found no silicosis as a result of his examination of claimant, he did find ‘Severe emphysema,’ and stated on cross-examination that he could not make a diagnosis of silicosis because of the absence of nodules appearing on X-ray of the lungs, but that some recognized medical authorities did maike findings of silicosis in the absence of such nodules upon X-ray examination.
“Dr. E. Z. Hornberger, Jr., of Ft. Smith, Arkansas, also called to testify by respondents, stated that Grade I Silicosis could well be present in a patient and no nodules sIíoav up on X-ray examination. Dr. Hornberger was then asked: ‘Grade I would not make a person 100 per cent disabled?’ The doctor replied: ‘That’s a hard question to answer.’ Dr. Hornberger was next asked: ‘Well, it wouldn’t ordinarily disable?’ He answered: ‘In the average case it shouldn’t.’
“The primary question for decision here is whether or not this claimant’s disability derives from silicosis.”

According to the Commission’s finding of fact, Dr. Riley, who examined the claimant on three different occasions over a period of about eight months, Dr. Charles T. Chamberlain, who actually treated the claimant for a long period of time, and Dr. Herbert C. Sweet, of St. Louis, Missouri, who had ample opportunity to examine claimant while in a hospital, all gave a positive diagnosis of silicosis. In making a finding against silicosis, the Commission appears to rely upon the testimony of Dr. O. A. Sander, of Milwaukee, Wisconsin, Dr. Jesse E. Douglass, of Webb City, Missouri, Dr. Harley Darnall and Dr. E. Z. Hornberger, of Fort Smith. If there is any substantial testimony to support the Commission’s finding, it must be found in the testimony of the four doctors just mentioned. There is no other testimony in the record indicating that the claimant does not have silicosis. In fact, circumstantial evidence of silicosis is very strong.

Silicosis is a disabling condition of the lungs caused by inhaling dust of stone, sand, or flint; among other manifestations is the formation of fibrous tissue in the lungs. See Maloy’s Medical Dictionary. The claimant had worked as a miner for more than 40 years. Conditions in appellant’s mine were such as to give rise to silicosis; others besides claimant had become disabled from silicosis while working in the mine. Although there is evidence to the effect that the appellant used precautions to keep down dust and the mine was known as a wet mine, still, there is no substantial evidence in the record that silicosis could not be contracted in the mine, hut there is substantial testimony to the contrary. A careful examination of the evidence in this case leaves no doubt but that the claimant is permanently and totally disabled due to a lung condition; according to the undisputed evidence, he has emphysema. There is no substantial evidence that emphysema of the lungs is not caused by silicosis.

Now as to whether the testimony of Drs. Sander, Douglass, Darnall and Hornberger is substantial evidence to the effect that the claimant does not have silicosis : There appears to be a report in the record signed Jesse E. Douglass, who, judging from the report, we assume is a doctor. It does not appear that he testified in the case and it does not appear that there was any opportunity for cross-examination. The record does not show the qualifications of the doctor or identify him in any manner other than the report signed, as indicated. The report deals with appellee McKown, and states: “Three years ago developed progressive dysp-neoa and weakness. For the past two years has had cough with some expectoration. Has difficulty in laying down to sleep. In 1951 had three examinations with Chest X’Bay Films at Arkansas State Sanatorium and on last examination was told he had Silicosis and Emphysema. Has had two subsequent examinations by doctors in Fort Smith, with Chest X’Bay Films and was apparently given the same diagnosis. Diagnosis: Marked Emphysem... with no Silicosis or Tuberculosis. Opinion: This man has severe Emphysem... which is totally and permawily disabeiing but I do not know that it is compensable. It did not occur as the result of his occupation. I do not know the cause of this man’s Emphysema.” The undisputed evidence in the record is that silicosis will cause emphysema. Dr. Douglass states: “I do not know the cause of this man’s Emphysema.” If he does not know the cause of the emphysema, it can hardly be said that his testimony to the effect that it is not caused by silicosis is substantial evidence. It is not clear as to how he arrived at his conclusion; there does not appear to have been any opportunity for cross-examination. Ark. Stats. § 81-1323 (c) provides that evidence before the Commission may “include verified medical reports which shall be accorded such weight as may be warranted from all of the evidence in the case.” Dr. Douglass’ report was not verified, as required by statute, however no objection was made to it; but, nevertheless, the report is only entitled to “such weight as may be warranted from all of the evidence in the case.” In view of all of the other evidence in the case, and, considering that Dr. Douglass’ qualifications are not shown; that there is no evidence of the extent of the examination he made; that there was no opportunity to cross-examine; and that the report is not verified, it cannot be said that his report warrants a finding that the claimant does not have silicosis.

Now, as to Dr. O. A. Sander, of Milwaukee, Wisconsin: There is no showing as to his qualifications except that one of the local doctors at Fort Smith testified that he knew Dr. Sander. Dr. Sander’s report is not verified, as required by statute, nor was there any opportunity for cross-examination. Even if his report had been verified, it would only be entitled to such weight as may be warranted from all of the evidence in the case. When his entire report is considered in the light of the other evidence, it is not entitled to much weight. The evidence is overwhelming to the effect that the claimant is totally and permanently disabled; the only real issue is whether the emphysema is caused by silicosis or something else. But, according to Dr. Sander’s report, there is not much wrong with the man. Of course, Dr. Sander had no opportunity to examine claimant, and merely gave his opinion on information furnished by others. He states: “There is no evidence of Silicosis. Possible emphysema, but a high grade emphysema is not suggested by the X-ray appearance •. . .” The doctor then says that emphysema does not cause disability unless extreme, and then adds: ‘ ‘ Such extreme emphysema is not suggested by this man’s X-ray films.”

Next, the Commission’s finding deals with the testimony of Dr. Harley Darnall, Fort Smith. Dr. Darnall, called as a witness by respondent, merely testified that X-ray shows no evidence of silicosis, but states that the claimant has severe emphysema, and there is scarring in the chest, and he could give no definite reason for it. The sum and substance of Dr. Darnall’s testimony is to the effect that from an X-ray he cannot find silicosis.

The next doctor giving testimony upon which the Commission based its finding, is Dr. E. Z. Hornberger. This witness, introduced on behalf of respondent, states that the claimant has all of the symptoms of silicosis except the nodules and that he does not have an asthmatic chest. The doctor further states that Silicosis, G-rade I, is not demonstrable by X-ray. On direct examination, the doctor was asked:

‘ ‘ Q. Grade I would not make a person one hundred percent disabled?
A. That’s a hard question to answer.
Q. Well, it wouldn’t ordinarily disable?
A. In the average case it shouldn’t.
Q. That is the only criterion of silicosis, from your studies and experience, that is missing — the nodules?
A. That’s right. Silicosis could be the cause of what he has in his disability at the moment as far as the examination of the individual.”
It certainly cannot be said that Dr. Hornberger’s testimony is substantial evidence to the effect that the claimant does not have silicosis. In fact, according to Dr. Hornberger, Grade I Silicosis will not show in an X-ray, and when asked whether Grade I would render a person 100 per cent disabled, he said: “That’s a hard question to answer.”

There is other medical testimony in the record, produced by respondent, that the Commission does not mention in its finding. Dr. Mendelsohn, who is an X-ray expert for the Holt-Krock Clinic, states there is no evidence of tuberculosis or pneumoconiosis, but there is marked emphysema. Although Dr. A. B. Martin, of the Holt-Krock Clinic, states that X-ray does not show sili-cotic nodules, and notwithstanding Dr. Mendelsohn’s report, the Clinic made a diagnosis of silicosis.

Dr. W. F. Rose testified that Grade I Silicosis is not disabling and that there must be nodules in the lungs before a diagnosis of silicosis can be made. He does not know whether the claimant has silicosis and has not examined him. All this doctor can say is that probably, from the reports, McKown is not disabled from silicosis, and his opinion is partially based on the report of Dr. Riley, who says silicosis is present.

It is apparent from the Commission’s finding that the reports of Dr. O. A. Sander, of Milwaukee, Wisconsin, and Dr. Jesse E. Douglass of Webb City, Missouri, were largely relied on as a basis for the finding that claimant does not have silicosis. But, as heretofore pointed out, the reports ofJ these doctors were not verified, as required by statute; there was no opportunity to cross-examine; and although the statute makes the reports admissible in evidence, if verified, they are only entitled to such weight as is warranted from all of the evidence in the case.

Many times, we have held that the finding of the Commission will be sustained if supported by any substantial evidence. Duke v. Pekin Wood Products Company, 223 Ark. 182, 264 S. W. 2d 834; Springdale Monument Company v. Allen, 216 Ark. 426, 226 S. W. 2d 42; Tri-States Construction Company v. Worthen, 224 Ark. 418, 274 S. W. 2d 352; American Casualty Company v. Jones, 224 Ark. 731, 276 S. W. 2d 41. Here, it does not appear that there is any substantial evidence to support the Commission’s finding. The evidence in this case is overwhelming to the effect that the claimant is permanently and totally disabled, and that his disability is due to the condition of his lungs; circumstantial evidence points to silicosis as the cause of the disability. All of the doctors who examined the claimant over a period of time stated that his disability is due to silicosis; evidence to the contrary is very weajk and not substantial. Whether there is substantial evidence is a matter of law. Arkansas State Highway Commission v. Byars, 221 Ark. 845, 256 S. W. 2d 738.

The law of this State is that workmen’s compensation cases should be broadly and liberally construed, and that doubtful cases should be resolved in favor of the claimant. Arkansas National Bank of Hot Springs v. Colbert, 209 Ark. 1070, 193 S. W. 2d 806; Elm Springs Canning Company v. Sullins, 207 Ark. 257, 180 S. W. 2d 113; Williams Manufacturing Company v. Walker, 206 Ark. 392, 175 S. W. 2d 380; Peerless Coal Company v. Jones, 219 Ark. 181, 240 S. W. 2d 647.

If this law has any meaning or force or effect, it should be applied here. The judgment of the Circuit Court is affirmed.

Justices Holt, McFaddiN and George Rose Smith dissent.

George Bose Smith, J.,

dissenting. Contrary to every pertinent decision of this court the majority opinion views the evidence in this case in the light least favorable to the findings of the Commission. The abundance of substantial evidence supporting the denial of this claim is minimized, characterized as weak, or ignored altogether. Before discussing the evidence I should like to review the rules that govern us in the consideration of appeals like this one.

It was settled by the early case of J. L. Williams & Sons, Inc. v. Smith, 205 Ark. 604, 170 S. W. 2d 82, that the finding's of the Workmen’s Compensation Commission are entitled to the same weight as the verdict of a jury. The substantial evidence rule was adopted in that case and has been uniformly followed ever since.

When the findings of the Commission are given the same effect as a jury verdict certain other rules applicable to the review of jury trials come into play and have been invariably followed in the past. One is that the evidence must be viewed in the strongest light in favor of the Commission’s findings. Hughes v. Tapley, 206 Ark. 739, 177 S. W. 2d 429; Ozan Lbr. Co. v. Garner, 208 Ark. 645, 187 S. W. 2d 181; Campbell v. Athletic etc. Co., 215 Ark. 773, 223 S. W. 2d 499. The rule is the same whether the Commission allows or denies the claim. As we said in Springdale Monument Co. v. Allen, 216 Ark. 426, 226 S. W. 2d 42, where the Commission had rejected the claim: “When we give to the testimony its strongest probative force in favor of the action of the full Commission denying the award, as we must do, we are unable to say that such action was not based on some substantial testimony. ’ ’

As in the case of a jury, it is for the Commission and not this court to draw inferences and reach conclusions from the facts. Wren v. D. F. Jones Const. Co., 210 Ark. 40, 194 S. W. 2d 896. It is likewise the Commission’s sole province to arrive at a conclusion of fact when medical testimony is in conflict. It was said in Ark. Workmen’s Comp. Com’n v. Sandy, 217 Ark. 821, 233 S. W. 2d 382: “In the instant case, the medical testimony as to the extent of the claimant’s disability was conflicting, and the Commission evidently chose to accept the report of Dr. Cheairs. The courts are without authority to reverse the conclusion of the Commission in this regard.”

A more detailed statement of the rule as to conflicting medical evidence was made in Burdine v. Partee Flooring Mill, 218 Ark. 60, 234 S. W. 2d 193: “ We do not have here a case wherein the expert testimony can be held to be uncontradicted: ‘ “Moreover, were it conceded that all the expert witnesses introduced in the case agreed upon conclusions as argued by appellant, the jury would not necessarily have to so find the facts to be, because such testimony may be controverted by any other competent evidence.” St. Paul Fire & Marine Ins. Co. v. Green, 181 Ark. 1096, 29 S. W. 2d 304. Not only this, but, were it conceded that all the expert testimony offered by both parties was in full accord and agreement and not contradicted by any other expert evidence, yet the jury would not be bound by such testimony. 11 B. C. L., 586, states the rule as follows: “Even if several competent experts concur in their opinion, and no opposing expert evidence is offered, the jury are still bound to decide the issues upon their own fair judgment.” ’ Ark. Power & Light Co. v. Bollen, 199 Ark. 566, 134 S. W. 2d 585.”

The pertinent evidence, considered in accordance with the binding rules referred to above, may be divided into two categories: first, the proof relating to the silica hazard to which McKown was exposed, and, second, the medical testimony.

There is direct and positive evidence that McKown was not injuriously exposed to a silica hazard in the Boyd mine. When he went to work for that company in 1938 or 1939 he stated, according to the uncontradicted proof in the record, that his asthma was so bad that he could not work inside the mine. He was therefore given an outside job, at which he worked until 1942.

It was in 1942 that McKown began to work inside the mine. He was, for at least 90% of his time, employed as a pumper, his duty being to tend the pumps that expel water from the mine. There is proof that as a pumper McKown worked in the wettest, most dust-free parts of the mine, and in addition he was in the indraft of fresh air that was continuously circulated through the mine. The Boyd mine was the first one in the state to be fully equipped with water, which was constantly sprayed upon the cutting machines to keep down harmful dust. The mine was subject to surprise inspections by state, federal, and insurance company representatives; all the reports were commendatory.

Three men, it is true, were awarded compensation benefits for silicosis after having been last employed in the Boyd mine. These men, however, worked in the dusty areas of the mine and may have acquired silicosis before the mine was equipped with water. They were not pumpers and did not work in the favorable conditions that attended McKown’s job. The principal testimony indicating that McKown worked for any substantial time where rock was being cut is given by McKown himself. His credibility is open to question. When he resigned his job in 1951 he applied for unemployment compensation, stating (a) that he had been discharged, (b) that he had been replaced by a machine, and (c) that he had applied for work at Camp Chaffee. McKown admitted at a hearing below that all three statements were false and had resulted in fraud charges being brought against him. The Commission was certainly free to discredit McKown’s testimony about his exposure to dust and to believe the contrary proof given by unimpeached witnesses.

The foregoing was the background of proof that the Commission had before it in weighing the medical testimony. At the outset I would lay aside the majority’s remarks about the qualifications of the doctors, the verification .of their reports, and the lack of cross-examination. None of these matters have been or could be raised by the appellee. The procedure before the Commission is informal. Hardly any of the many physicians who testified were asked about their qualifications. Had there been any desire on the part of the claimant to examine the witnesses about their qualifications, to demand that their reports be verified, or to exercise the right of cross-examination, the issue should have been raised before the Commission. The supposed defect could then have been readily remedied. It is elementary that a litigant, by failing to object, waives irregularities that could be corrected at once if a timely objection were made.

Upon the record only a few positive statements can be made about McKown’s condition. He is undoubtedly disabled by reason of shortness of breath and rapid exhaustion upon exertion. He undoubtedly has emphysema of the lungs, which is a condition characterized by a thickening in the walls of the air spaces through which oxygen is absorbed into the blood stream. It is undoubtedly true that repeated N-rays do not show in McKown’s lungs the nodules that ordinarily accompany a disabling grade of silicosis.

Emphysema is not itself a disease; it is a secondary result of something else. The pivotal medical issue is whether MeKown’s emphysema is the result of silicosis or of some other condition. On this point the medical testimony is in irreconcilable conflict; the witnesses themselves concede that certainty is impossible. Dr. Riley summed up the matter by saying that the only absolute method of determining the presence of silicosis is a postmortem examination.

There are two medical theories concerning the diagnosis of grade II silicosis, which, according to much of the proof, is the lowest disabling grade of the disease. Some authorities believe that this grade can exist even though X-ray films reveal no silicotic nodules. Other authorities, equally respected, believe that such nodules are invariably present when the disease has progressed to the point of disability.

Neither school of thought professes absolute certainty in the matter. Here, for example, even the physicians on whose testimony the majority opinion rests are not nearly so positive as the majority members of this court. Dr. Chamberlain is perhaps as sure of his position as any of the doctors diagnosing McKown’s malady as silicosis. He says that grade II can be eliminated, because the nodules are absent. He is unable to attribute tbe emphysema to any particular cause; grade I silicosis can, or cannot be present. Dr. Riley made a diagnosis of silicosis, grade II, in April 1952, after having found no evidence of silicosis upon two examinations of McKown in 1951. Both his diagnoses cannot be correct, as it is shown without dispute that the disease could not have originated or progressed between his examinations without continued exposure to silica. A careful study of the record shows that the testimony favoring McKown’s claim is just as “weak” as the majority have termed the testimony upon which the Commission chose to rely. Mc-Kown, of course, had the burden of proof.

The testimony which the majority dismiss as insubstantial includes the opinions of five physicians, some of whom are unquestionably experts in the field. Dr. Sander, according to the evidence, is a recognized authority. In obtaining his expert opinion the Commission submitted for his consideration the X-rays, the reports of the other doctors pro and con, and all other available material. Upon the basis of all the data in the case Dr. Sander says: “In conclusion, it is my opinion that this man has no evidence of silicosis.”

Other testimony supporting the findings of the Commission includes the following: Dr. Rose, a Fort Smith physician who has had forty years of experience with coal miners, states that nodules must be present before a determination of silicosis can be made; he rules out silicosis in McKown’s case. Dr. Douglas states that Mc-Kown has marked emphysema with no silicosis. Dr. Dar-nall, who is the only thoracic surgeon in Fort Smith, and who was cross-examined, testified: “I cannot see evidence of silicosis by X-ray and I cannot make a diagnosis of silicosis.” Dr. Hornberger is of a similar opinion.

The majority’s implication that McKown’s emphysema can be explained only upon the assumption that he has silicosis is not supported by the record. Both Dr. Sander and Dr. Hornberger say that the emphysema could be caused by asthma. As Dr. Sander puts it: “ The causes of emphysema are numerous. They include not only long-standing asthma and chronic bronchitis. . . . Every internist sees many cases of severe emphysema in persons who have never had dust exposure in a mine or factory and who have never had the diseases which one commonly thinks of as causes of emphysema.” No witness disputes this testimony. For several years prior to 1942 McKown’s asthma was so severe that he could not work inside the mine. He admits that he was treated for asthma immediately after he became disabled in 1951. The Commission was at liberty to conclude, on the basis of uncontradicted substantial evidence, that McKown’s emphysema is of asthmatic origin. In any event the question is one of fact for the Commission alone.

The majority pay lip-service to the substantial evidence rule by citing some of the cases in which it has been applied. But in this record there is unquestionably substantial proof to show that McKown does not have silicosis. The evidence of exposure preponderates in favor of the appellants. Five skilled physicians affirmatively state that McKown does not have the disease. There are admittedly other causes for the development of emphysema, one of which is shown to exist in McKown’s case.

What, then, can be the explanation for the reversal of the Commission’s decision upon a question of fact? The answer apparently lies in the final words of the majority opinion, where it is said that compensation cases should be liberally construed and that doubtful cases should be resolved in favor of the claimant. It is undoubtedly true that the compensation law itself should be liberally construed in favor of the workman. It may also be true that the commissioners, within the limits of their consciences, should construe the evidence liberally in the claimant’s favor. But if the majority mean that it is reversible error for the Commission to fail to take a liberal view of the evidence in favor of the claim, the decision is demonstrably wrong for several reasons.

First, the authorities elsewhere (we have not passed directly on the point) sensibly reject the view that the Commission commits reversible error when it does not view the evidence favorably to .the employee. To quote a few cases:

“ It is of course the settled rule everywhere that these acts are to be liberally construed in favor of the workman; but this does not mean, as counsel seem to argue, that the rule as to the measure of proof, of the sufficiency of evidence, is different from the rule in ordinary cases. The burden is on the plaintiff to reasonably satisfy the trial court that the accident arose out of and in the course of the workman’s employment, and where there is any substantial legal evidence in support of the findings of the trial court, the judgment, whether affirmative or negative, will not be disturbed on appeal.” Ex parte Goleman, 211 Ala. 248, 100 So. 114.
“The act ... is of course to be liberally construed in furtherance of a legislative purpose to provide compensation for accidental injuries sustained within the scope of its provisions, but the rule of liberal construction has nothing to do with the function of the commission in weighing evidence or in resolving conflicts in the testimony.” Staten v. Long-Turner Const. Co., Mo. App., 185 S. W. 2d 375.
“The liberality of construction of the Workmen’s Compensation Act extends only to the provisions thereof and not to the proof required upon the trial on the merits.” Hinton v. Louisiana Central Lbr. Co., La. App., 148 So. 478.
“In the case at bar, it must be remembered that workmen’s compensation statutes shall be liberally construed, and, also, that that rule does not apply to questions of fact but to matters concerning the construction of the statute, and that the principle does not dispense with the requirement that those who claim benefits under the act must, by competent evidence, prove the facts upon which they rely.” Ehman v. Dept. of Labor & Industries, 33 Wash. 2d 584, 206 P. 2d 787.

Second, the notion that the Commission’s findings should be set aside for its failure to view the evidence with, indulgence toward the claimant cannot be reconciled with the long-settled rule that the findings must be upheld if supported by substantial evidence. This case is a perfect illustration. There is undoubtedly substantial evidence to sustain the Commission’s decision, but that decision is nevertheless being set aside. Obviously the two theories cannot be harmonized. To enforce the majority’s view is to read something into the statute that is not there: a requirement that a double standard of review be applied in the compensation cases. The substantial evidence rule is apparently to be applied when the Commission makes an award; all doubts are then to be resolved in favor of its findings. But when the Commission denies the award — a result that seems to be implied as one reason for having a hearing — the substantial evidence rule no longer applies; all doubts are to be resolved against the Commission’s findings. There is no support in the statute or in the cases for such a rule.

Third, and most important, it is clearly wrong to require the Commission to take a biased view of the evidence. If the commissioners are to be responsible for determining the facts they must be free to decide issues of credibility and other controverted points of fact in accordance with their own consciences. If they sincerely believe that witness A is lying and that witness B is telling the truth, they must be free to accept B’s testimony, whether it is favorable or adverse to the claimant. No self-respecting man would continue to sit upon a tribunal which was required by a higher court to take a prejudicéd view of the evidence. Yet that must be the result if this court holds that the commissioners commit reversible error when they fail to show sympathy for the claimant. In the administration of justice it is certainly a new doctrine for a court to declare that the finders of the facts must not be fair and impartial, that they must, under penalty of reversal, tip the scales in favor of one of the litigants. I regret that I cannot put into stronger language my conviction that the decision in this case is wrong.

Holt and McFaddik, JJ., join in this dissent.


author: Sam Robinson, Associate Justice.

text:
    Washington v. Jolliff.
    5-928
    288 S. W. 2d 600
    Opinion delivered April 2, 1956.

      Frank G. Douglas, for appellant.

      Percy A. Wright, for appellee.
   Sam Robinson, Associate Justice.

Appellee, C. A. Jolliff, has a judgment against appellant, Joseph Washington, in the sum of $2,090.00. Jolliff procured a writ of garnishment against the Caldwell & Still Gin Company and George Thompson, alleging that the garnishees were indebted to Washington. The garnishment was sustained by the Chancery Court, and Washington has appealed.

Appellant, Joseph Washington, is one of eight sons and daughters of Tom Washington, who died in 1944, leaving a 40 acre farm. The status of Joseph’s interest in the farm is the issue here. The garnishee, George Thompson, leases the place, and pays $1,000.00 per year rent. In accordance with an agreement between the parties, he pays the rent to the other garnishee, Caldwell & Still Gin Company. The money is then used to pay the taxes, and the balance is used for the benefit of Mat T. Washington, a minor son of Tom, and a brother of Joseph.

On appeal, Joseph Washington contends: First, that the property is the homestead left by his father, Tom Washington, and that the minor, Mat T., is entitled to the nse of the property as a homestead, or the income therefrom until he becomes of age. See Arikansas Constitution, Article 9, Section 6. Appellant’s contention in this respect cannot be sustained, because there has been a judicial determination that the property is not the homestead of the minor children of Tom Washington. The decree was entered by the Mississippi Chancery Court, Osceola District, July 24, 1950. Mat T., represented by a guardian, was a party to that case, and there was no appeal from the decree.

Next, Joseph says that his part of the income is exempt from garnishment because his part of the property constitutes a homestead. Also, he has filed a schedule claiming as exempt his part of the rent because he is a married man, and does not own property of the value of $500.00. See Arkansas Constitution, Article 9, Section 2. On July 17, 1952, the Mississippi Chancery Court made a finding that the property did constitute the homestead of Joseph. But, the question is, has he since that time abandoned the property as his homestead? In our opinion, the evidence sustains the finding of the Chancellor that there has been such an abandonment. Joseph moved to Detroit in 1952; has lived and worked in that city since that time, and the circumstances indicate that he does not intend to return to Arkansas. And, as to his claim of exemption under Article 9, Section 2 of the Constitution of Arkansas, he cannot claim benefit of the exemption laws of this State, since he is a non-resident. Person v. Williams-Echols Dry Goods Company, 113 Ark. 467, 169 S. W. 223.

The decree is affirmed.


author: Lee Seamster, Chief Justice.

text:
    Dorsey v. Dorsey.
    5-933
    289 S. W. 2d 190
    Opinion delivered April 9, 1956.

      J. E. Brasil and Clay Brasil, for appellant.

      Gordon & Gordon, for appellee.
   Lee Seamster, Chief Justice.

The appellant, J. L. Dorsey, and the appellee, Dorothy T. Dorsey, were married in G-eorgia on the 20th day of July, 1951, and lived together as husband and wife until the 14th day of January, 1955, when the appellant left Georgia and moved to Morrilton, Arkansas. On the 18th day of March, 1955, the appellant filed suit for divorce in the Chancery Court of Conway County, Arkansas. On the same day an Attorney Ad Litem was appointed for the appellee and a warning order was issued by the Chancery Clerk.

On June 10,1955, appellee filed an answer and cross-complaint in which she prayed for a divorce, temporary and permanent alimony, attorney’s fees, adjudication of certain property rights, and other relief. On July 11, 1955, the appellee filed an amendment to the cross-complaint asking for a lien on certain property owned by appellant, which was located in Morrilton, Arkansas. The appellee requested the appointment of a receiver to collect rents on the property. The appellee also filed a Lis Pendens notice on the same date.

Thereafter, on July 14, 1955, the appellant filed a motion to dismiss the action on the grounds that he had not completed residence and domicile requirements in Arkansas and the appellee was not a resident of Arkansas, therefore, the Conway Chancery Court did not have jurisdiction over the action. The appellant insisted that there was pending in the State of Georgia an action involving substantially the same issues between the parties. The trial court denied the action to dismiss and this appeal follows.

Under our Statutes (Sec. 27-1405 and Sec. 27-1406, Ark. Stats., Anno. 1947), the appellant has the right to dismiss his complaint, but he has no right to a dismissal of the appellee’s cross-complaint. In the instant case, the motion of the appellant was to dismiss both the complaint and cross-complaint.

The trial court was correct in refusing the appellant’s motion to dismiss the appellee’s cross-complaint. In divorce cases, the court having jurisdiction, the defendant may proceed to a final decree on the cross-complaint, where the plaintiff either dismisses his complaint or is denied relief. See Rowell v. Rowell, 184 Ark. 643, 43 S. W. 2d 243; McDougal v. McDougal, 205 Ark. 945, 171 S. W. 2d 942; and the Annotation in 89 A. L. R. 1203.

Section 27-1407, Ark. Stats. Anno., 1947, provides that in any case where a set off or counter-claim has been presented, the defendant shall have the right of proceeding to the trial of his claim, although the plaintiff may have dismissed his action or failed to appear. See also Dillon v. Hawkins, 147 Ark. 1, 227 S. W. 758; Church v. Jones, 167 Ark. 326, 268 S. W. 7. We have also held that a dismissal of a complaint by the plaintiff after a cross-complaint has been filed will leave the cross-complaint pending for such disposition by the court as the law and facts may justify. Dailey v. Allen, 222 Ark. 402, 259 S. W. 2d 516; Tarr v. Tarr, 207 Ark. 622, 182 S. W. 2d 348; Zurich General Accident and Liability Ins. Co. Ltd. v. Smith, 209 Ark. 135, 189 S. W. 2d 718.

Should the appellant dismiss his complaint the case would stand for trial on the cross-complaint of the ap-pellee. The appellant would be in court on the cross-complaint by reason of initially filing his complaint and seeking relief against appellee.

Decree affirmed.


author: J. SeaborN Holt, Associate Justice.

text:
    Roberts v. Roberts.
    5-914
    288 S. W. 2d 948
    Opinion delivered April 9, 1956.

      Bethell & Pearce, for appellant.

      White & Martin, for appellee.
   J. SeaborN Holt, Associate Justice.

January 19, 1954, appellant, Martin M. Roberts, was granted a divorce from Peggy Roberts (now Jerome) on the grounds of indignities and mental cruelty. There was a voluntary property settlement, approved by the court and incorporated in the decree. The parties had three children born to them, a boy 8 years of age and two little girls, one 6 and the other 4, at the time the decree was granted. The trial court found that appellee was a fit and proper person to have their custody and awarded their custody to her, conditioned, “that she shall not remove the residence of said children from the Fort Smith District of Sebastian County, Arkansas, and subject to the right of reasonable visitation and temporary custody by the plaintiff ; . . . ” Appellee, the mother, was awarded $300 per month for the support of herself and the children.

Thereafter, August 24,1955, appellee married Major George W. Jerome, of the regular army, who was stationed at El Paso, Texas. Major Jerome had previously been married and divorced and has the custody of a 7-year-old daughter. Appellant, Roberts, remarried in July, 1955, and is a dentist living in Fort Smith. On August 29, 1955, appellee, mother of the three children involved, filed a motion to modify the January 19, 1954, decree to permit her to take the children to El Paso, Texas, where she intended to reside with her new husband in his home there, and she also asked that the amount for support be reduced to a reasonable sum. Appellant resisted this motion at a hearing and asked the court to change the custody of the children to him. There was a decree granting appellee’s request to be allowed to remove the children to her new husband’s home in El Paso, Texas, and denying appellant’s request that their custody be given to him. The decree contained a provision that appellant “shall be and he is hereby given the right to have said children to visit him during the summer vacation, following each school term, for a period of from one (1) to three (3) months as agreed upon by the parties herein; that plaintiff shall and he is hereby ordered to pay into the registry of this court the monthly sum of $100 for the support and maintenance of said children and the further sum of $50 in a federal savings and loan association, acceptable to both parties hereto, in trust for the use and benefit of each of said children during his or her minority, ,and that no withdrawals of the corpus or interest of said trust shall be made except over the joint signatures of the parties herein; that defendant shall and she is hereby ordered to notify the clerk of this court and the plaintiff herein of any change in her present address .or. residence at 7721 Matamoros, El Paso, Texas.” This appeal followed.

For reversal appellant says: ‘ ‘ The issue in this case is simple to state, viz., will the welfare of the children involved be best served by permitting the mother to retain custody and remove them from the supervising care of their father, or will it be better served by granting custody to the father?”

Our rule in child custody cases is well established and is as re-announced in the case of Blake v. Smith, 209 Ark. 304, 190 S. W. 2d 455, in this language: “In determining the custody of a minor child, the welfare of the child is the supreme and controlling consideration. . . . It is the well-settled doctrine in this state that the chancellor, in awarding the custody of an infant child, or in modifying such award thereafter, must keep in view primarily the welfare of the child, and should confide its custody to the parent most suitable therefor; the right of each parent to its custody being of equal dignity. . . . A decree fixing the custody of a child is, however, final on the conditions then existing, and should not be changed afterwards unless on altered conditions since the decree, or on material facts existing at the time of the decree, but unknown to the court, and then only for the welfare of the child. . . . The party seeking a modification of a divorce decree awarding custody of a minor child assumes the burden of showing such a change in conditions as to justify such modification.” After a review of all the testimony, we are unable to say that the preponderance thereof does not support the findings of the trial court, to the effect that there had been no such changes or altered conditions, since the original divorce decree, to warrant changing the custody of these children from their natural mother to their father. In fact, appellant, when questioned by the court, in effect, so admitted when he testified: ‘ THE COURT : You still say that shé is taking care of them about the same as she was before you got your divorce? A. Yes, sir.” There is no showing that the mother is not a fit and proper person. Obviously, the natural mother, in the absence of evidence of moral or general unfitness, should always be preferred over a step-mother. We said in the recent case of Cushman v. Lane, 224 Ark. 934, 277 S. W. 2d 72, “It is true that the rights and feelings of a natural parent are to be considered and his preferential right to custody will be recognized unless circumstances are such as to render such custody inimicable to the best interests of the child. Griffen v. Newcom, 219 Ark. 146, 240 S. W. 2d 648,” and in Massey v. Flinn, 198 Ark. 279, 128 S. W. 2d 1008, “The infant needs female care and guidance of that patient, ever-watchful nature which is better insured by the natural affection of a grandmother than by the inexperienced efforts of a father or the sense of duty of the second wife. ’ ’

It appears that the court conditioned appellant’s right to appeal, on his first paying an attorney’s fee of $250 to appellee, and appellant insists that this was beyond the power of the court. We agree with this contention of appellant, since the right of appeal is guaranteed to everyone. It was, however, within the sound discretion of the court to allow an attorney’s fee and it is not argued that the court abused its discretion in allowing a fee in the amount of $250 here. In fact, the trial court is in a much better position to determine a reasonable fee than this court could be. We think no prejudice resulted to appellant’s rights since an appeal has in fact been properly prosecuted by him to this court.

Appellant also argues that the court erred in rejecting his suggestion of the desirability of the Court’s talking to the children. The record reflects the following: “MR. BETHELL: If the Court please, I believe that’s all unless the Court desires to talk to the children. THE COURT: Now, Mr. Bethell, I don’t believe it’s necessary, and I don’t think that it would do any good.” There was no error here. The court acted within its sound discretion and no abuse thereof appears.

Affirmed.