text:
    Williams v. Girrord-Hill & Co., Inc.
    5-1159
    298 S. W. 2d 323
    Opinion delivered February 11, 1957.

      R. D. Rouse; and Richardson & Gavanagh, Law-ton, Okla., for appellant.

      Shaver, Tackett, Jones & Lowe, for appellee.
   Minor W. Millwee, Associate Justice.

This is an appeal from a judgment of the Miller Circuit Court reversing and dismissing an award of the Workmen’s Compensation Commission. The sole issue is the sufficiency of the evidence to sustain the Commission’s finding that the accidental injury and death of Willie Williams arose out of and in the course of his employment with the appellee, Grifford-Hill & Company, Inc.

Appellee owns and operates a sand and gravel plant at Hoot, Arkansas, near Texarkana. Appellants are the widow and minor child, respectively, of Willie Williams, deceased, who was working at appellee’s plant on July 24, 1955. The plant consists of several railroad tracks, a washing plant, a tunnel and a conveyor belt running from the washing plant to a filter plant where the cars of sand or gravel are made ready for shipment. On the date in question Williams and three other employees reported for work on the night shift which ran from 6:30 P. M. to 6:30 A. M. The duties of Williams required him to stay in the tunnel of the washing plant and feed the conveyor belt carrying gravel to the filter plant. After a car located beneath the filter plant was filled he was required to come up from the tunnel and help level the gravel therein. Mack Pierce, a fellow employee, operated a bulldozer in pushing the gravel up to the tunnel where it passed through hoppers onto the conveyor belt.

About 8:15 P. M. it was discovered that gravel was not moving through the hoppers to the conveyor belt as it should. The formation of large mud balls made it necessary that a door in the tunnel be raised to permit the gravel to pass through. When Pierce went down to the tunnel to investigate he saw Williams standing either in a daze or asleep. After 30 to 45 seconds Williams aroused, opened the doors and restored proper operation of the conveyor belt. After the car being loaded at the filter plant was filled Williams went there to assist in the leveling process about 8:30 P. M. He complained of a headache and told Pierce he was going for some aspirin at a commissary or boarding house maintained on the premises by appellee several hundred feet northwest of the filter plant. After purchasing a box of aspirin and a Coca Cola at the commissary he returned to the filter plant a few minutes later but from a southerly direction where appellee’s employees usually answered calls of nature in a wooded area on appellee’s property. When he returned to the car at the filter plant he was not wearing his cap and E. W. Cain, his foreman, asked him where it was. Williams replied: “I guess I left it out in the bushes, ’ ’ and left in that direction.

Williams had not returned about 10:00 P. M. when it became necessary to move loaded cars off and empties onto the loading track leading to the tunnel. Cain was operating the “dinkey” and Pierce was acting as switch-man. When they began moving a string of empty cars on a spur track they heard Williams yell. They went to a point near the south end of the string of cars where they found Williams had been struck and run over by one of the cars. He had been dragged about 31 feet from the point where he was struck and died within a few minutes. His cap and vomitus were found near the point where the wheels of the car first struck him.

The track upon which Williams was struck was located south of the track leading to the filter plant which is about 105 feet from the point where the body was found. While he had no specific duties to perform on this track, it was necessary that deceased cross it in order to reach the bushes where he went to get his cap and where appellee’s employees customarily went to answer calls of nature. An officer who made an investigation of the accident examined the body and the vomitus and found no evidence of intoxication. Cain stated deceased had been gone about an hour before he was killed.

In awarding compensation on the foregoing facts, the Commission found: “There are certain inferences that can be drawn from the evidence. One inference is that deceased had answered a call of nature and had gone to the woods for such purpose and was on his way back to his place of work. Another inference is that deceased became ill and lay down by the railroad track, while yet another inference is that deceased had possibly gone to sleep by the track. It appears that no one will ever know for a certainty why deceased was where he was at the time of his accidental injury and death.

“We have conscientiously considered all of the evidence of record herein, and we are of the opinion that when reasonable inferences are drawn from all of the facts and circumstances surrounding the entire scope of deceased’s employment, and those facts and inferences are viewed in the light most favorable to claimants by resolving all doubts in their favor, it must be found that deceased’s accidental injury and death on the night of July 24, 1955 arose out of and during the course of his employment with Gifford-Hill & Company, Inc.”

In our opinion there is sufficient competent evidence to support the Commission’s conclusion that deceased’s accidental injury and death arose out of and in the course of his employment. Our compensation statute covers every injury to an employee arising out of and in the course of his employment except those injuries caused by his intoxication or by his willful intention to bring about the injury or death of himself or another. (Ark. Stats., Secs. 81-1302 (d) and 81-1305). The word “employment,” as used in the statute, does not have reference alone to actual manual or physical labor, but to the whole period of time or sphere of activities, regardless of whether the employee is actually doing the thing he was employed to do. Hunter v. Summerville, 205 Ark. 463, 169 S. W. 2d 579. We have also said that circumstantial evidence is sufficient to support an award of the Commission, and it may be based upon the reasonable inferences that arise from the reasonable probabilities flowing from the evidence; and that neither absolute certainty nor demonstration is required. Herron Lumber Co. v. Neal, 205 Ark. 1093, 172 S. W. 2d 252. Under our settled rule the findings of fact by the Commission are, on appeal, given the same verity that would attach to a jury’s verdict and will be sustained if supported by any substantial evidence.

The facts here are somewhat similar to those in-Cox Bros. Lumber Co. v. Jones, 220 Ark. 431, 248 S. W. 2d 91. In that case a night watchman at a sawmill was. permitted by his employer to cross railway tracks adjacent to the mill property for the purpose of making-purchases for his evening meal at a nearby store. The-Commission’s disallowance of an award was reversed' and we held there was no such deviation from the work as to take the watchman out of his course of employment where he had journeyed across the tracks to the store-owners ’s home to procure food and was returning to the mill when he was struck and killed by a train. Also in. Tinsman Mfg. Co. v. Sparks, 211 Ark. 554, 201 S. W. 2d. 573, we approved the rule that acts of personal ministration are recognized as incidents of the. employment and injuries sustained in the performance thereof are as well protected as the injuries on the main job when such acts are done with the consent or acquiescence of the employer. See also, 58 Am. Jur., Workmen’s Compensation,. Secs. 236 and 240; Larson, Workmen’s Compensation Law, Secs. 21:00 & 21:53.

In the case at bar there is no evidence of intoxication and there is a prima facie presumption against suicide. Ark. Stats., Sec. 81-1324. It is certain that the deceased was ill and that his first mission to the commissarji and bushes was reasonably necessary for the relief of his illness and in accordance with the usual custom. His return to the bushes for his cap was made with the tacit consent of his foreman. He was killed during working hours on company property and his body was found at a place where he might properly have been in the performance of acts which, though personal, were nevertheless incidental to the employment. When all reasonable inferences that may be drawn from the circumstances are considered the Commission was justified in concluding that, upon his return for his cap, the deceased became seized by the illness and either unconsciously fell upon the tracks or unintentionally went to sleep on or near the tracks.

Under the rules of liberal construction accorded to an award made by the Commission, we hold the evidence substantial and sufficient to establish the fact that deceased’s fatal injury arose out of and in the course of his employment. The judgment is accordingly reversed and the cause remanded with directions to reinstate the order of the Commission.


source: Caselaw Access Project

author: George Rose Smith, J.

license: Public Domain

text:
    Edwards v. Johnson.
    5-1161
    298 S. W. 2d 336
    Opinion delivered February 11, 1957.

      Don Steel and Shaver, Tackett, Jones & Jjowe, for appellant.

      G. E. Blackburn, for appellee.
   George Rose Smith, J.

In 1951 the three appellees sold to the appellants, W. B. Edwards and his wife, certain lots and blocks in the city of Nashville, a vendor’s lien being retained to secure the unpaid balance of the purchase price. Upon the' buyers’ failure to make the last two payments, totaling $1,000, this suit was brought by the sellers for the foreclosure of their lien. By answer and cross-complaint the defendants sought damages on the ground that the sellers had misrepresented the quantity of land being sold. The chancellor found the proof insufficient to establish the charge of fraud and accordingly entered a decree for the plaintiffs.

One of the three appellees, James P. Johnson, and their real estate agent, Oscar J. Pate, acted for the sellers in making the sale. Pate had attempted to sell the tract for a former owner and was under the impression that it comprised thirteen acres. It is clear enough that he so described the land to Edwards, although the tract actually contains only about four acres. We are not convinced that Johnson himself misrepresented the acreage, but of course the sellers are responsible for misstatements on the part of their agent.

After examining the land Edwards agreed to pay $3,400 for it. He made a down payment of $400 on August 4 and moved into the house on the tract three days later. The deed had to be sent away for a grant- or’s signature and was not delivered until six or eight weeks later. Edwards says that he then complained of the deficiency in acreage and was assured by Johnson that the matter would be corrected. He indicates that he relied upon similar assurances in paying the first installment of $2,000 upon the purchase money debt. Johnson insists that he merely promised to verify the fact that the deed described all the land that the sellers owned and meant to convey. Both Edwards and Johnson seem to have testified with candor; their controversy is really due to Pate’s misunderstanding of the true acreage.

In trying the case de novo we find two obstacles in the way of the appellants’ insistence that they are entitled to a reversal. First, we cannot say with confidence that Edwards ’ reliance upon Pate’s misrepresentation has been established by the weight of the evidence. Edwards makes the statement that he did not discover the deficiency until the deed was delivered some weeks after the sale was concluded, but elsewliere in his testimony he concedes that before making the initial payment on August 4 he knew there weren’t thirteen acres in the tract. The latter view is pretty well confirmed by the fact that Edwards looked at the land before buying it. As an experienced farmer he doubtless knew the difference between four acres and thirteen acres. Although Edwards denies having seen all the boundaries during his inspection, his witness Pate testified that the trip was made so that Johnson could point out the boundaries, which Johnson says he did. When the purchaser learns of the shortage before entering into the sale and knows how much land he is buying, he no longer has a legal right to rely upon the seller’s misrepresentations. Gilbertson v. Clark, 175 Ark. 1118, 1 S. W. 2d 823.

Second, even if it could be said that a cause of action bas been shown to exist, the requisite proof of the appellants’ loss is lacking*. More is involved than a simple computation of the proportionate damage resulting from a deficiency of nine acres. The dwelling house upon this small parcel of ground unquestionably enhanced its value. There is nothing to indicate that the parties dealt in terms of a fixed price per acre without reference to the improvements. In these circumstances the purchaser’s loss is equitably determined by first deducting the value of the improvements from the purchase price and then calculating the damage attributable to the shortage of acreage. Sutherland on Damages (4th Ed.), § 590; Lichtenthaler v. Clow, 109 Ore. 381, 220 P. 567. Here the only testimony touching upon values is Edwards’ bare statement that the property was hardly worth half what he paid for it. There is no basis for a determination of the extent to which the purchasers may have been hurt by the deficiency in quantity. It is suggested that the cause be remanded for additional proof, but the record discloses no circumstances justifying* a piecemeal trial of the issues. Upshaw v. Wilson, 222 Ark. 78, 257 S. W. 2d 279.

Affirmed.


author: Paul Ward, Associate Justice.

text:
    Adams, Commr. v. Cockrill, Judge.
    5-1242
    298 S. W. 2d 322
    Opinion delivered February 11, 1957.

      Ivcm H. Smith and Fred E. Henne, for petitioner.

      Virginia H. Ham, Robert C. Downie, and Edivin E. Runaway, for appellee.
   Paul Ward, Associate Justice.

Dr. Prances E. Brennecke, as Director of the Crippled Children’s Division of the Arkansas State Department of Public Welfare, was relieved of her employment by the petitioner, Carl Adams, Commissioner of said Welfare Department. She appealed to the Merit System Council (sometimes referred to as Council) which upheld her dismissal by the Commissioner.

Dr. Brennecke applied to the respondent court (Pulaski Circuit Court, Third Division) for a Writ of Certiorari to bring up the record of the proceedings before the Council for review. The petitioner moved the trial court to dismiss the Certiorari proceedings on the ground of lack of jurisdiction. The respondent refused to grant the said motion but suspended further proceedings until the matter could be presented to this court for determination on the present petition for a Writ of Prohibition.

In petitioner’s own words, there is ‘ ‘ only one question for determination by this court, that question is whether or not the Circuit Court can take jurisdiction to review the administrative action of the Commissioner of Public Welfare in terminating the employment of a Welfare Department employee?” The question for decision is briefly and, we think, more properly stated this way: Does the Circuit Court have jurisdiction to review by Certiorari the proceedings before the Merit System Council in this instance?

A consideration of the language and the holding in the case of McCain, Labor Commissioner, v. Collins, 204 Ark. 521, 164 S. W. 2d 448, forces us to answer the above question in the affirmative and, consequently, against the contention of petitioner. The essential facts in the cited case, insofar as they bear on the jurisdiction of the Circuit Court to review the proceedings before the Merit System Council, are the same as in the case we are here considering. The same Council was involved in both cases, and in each ease the Commissioner (who did the firing) was the head of a State Department participating in the same merit system. In each case the action of the Commissioner was upheld by the Council. In the cited ease the Circuit Court, on a Writ of Certiorari, reversed the Council, and on appeal, we reversed the Circuit Court and upheld the actions of the Council. In doing so, however, we distinctly asserted the jurisdiction of the Circuit Court to review, on Certiorari, the proceedings before the Council. In speaking of the Writ of Certiorari, the court said: “The office of the writ is merely to review the '.errors of law, one of ivhich may be the legal sufficiency of the evidence” (emphasis supplied). In other words, we held in the Collins case, supra, that the courts have jurisdiction to determine “whether the council acted arbitrarily and without legally sufficient evidence” when (as here) it approved the dismissal of Dr. Brennecke.

We cannot agree with petitioner’s view that the Council’s actions are purely administrative (as opposed to quasi judicial) and therefo.re not subject to review by the courts. As stated by petitioner, the Merit System and the Council have been authorized by the State of Arkansas pursuant to a requirement of the Federal Social Security Act (42 U. S. C. A., § 1202 (a)(5)). From this it is obvious that it was the intent of the State and the Federal Government that employees (such as Dr. Brennecke) should have some measure of security in their employment, and not be subject to dismissal at the whim of an employer. From this it naturally follows that every employee (in a State Department participating in the Merit System) has certain rights which may be enforced in the courts. Since there is no provision in the statutes for an appeal from a decision of the Merit Council to the Circuit Court or any other court, Certiorari is the proper and only remedy for review. Hall v. Bledsoe, 126 Ark. 125, 189 S. W. 1041.

Section 6 of Act 280 of 1939 (Ark. Stats. § 83-107) gives the Welfare Commissioner the authority to select and discharge employees “subject to the provisions of the rules and regulations established.” The above section was amended by Section 1, Act 228 of 1951 (Ark. Stats. Supp. § 83-107) and the language strengthened by an addition to the effect that the Commissioner could only discharge for cause.

It is our conclusion, therefore, that the petition for a Writ of Prohibition must be, and it is hereby, denied.


author:
Sam Robinson, Associate Justice. J. Seaborn Holt, J.,
      Ed. P. McFaddin, Associate Justice,

text:
    Mo. Pac. Trans. Co. v. Miller.
    5-1142
    299 S. W. 2d 41
    Opinion delivered February 11, 1957.
    [Rehearing denied March 11, 1957.]

      Cracraft <& Cracraft and Barber, Henry & Thurman, for appellant.

      McMath, Leatherman S Woods and John L. Anderson, for appellee.
   Sam Robinson, Associate Justice.

The appellant, Missouri Pacific Transportation Company, appeals from a judgment in the sum of $100,000 awarded Y. W. Miller for personal injuries sustained by Miller while a passenger on one of appellant’s busses; appellant also appeals from a judgment in the sum of $25,000 in favor of appellee, Mrs. Y. "W. Miller, for the loss of consortium. Judgment in like amounts were also returned against Rube Oxner, the other party involved in the collision, but he has not appealed.

The first question to be considered is whether there is any substantial evidence of negligence on the part of the bus driver. On November 16, 1955, at about 8:00 P. M., appellant’s bus, while being driven by its employee, Thomas M. Hopkins, was traveling in a southerly direction between Marianna and Helena, Arkansas. The bus collided with a truck operated by Oxner. Appellee, V. W. Miller, was a passenger on the bus. He alleges the collision was due to negligence on the part of both Hopkins and Oxner, and that he received injuries as a result of the collision which render him permanently and totally disabled. It is appellant’s contention that there is no substantial evidence of negligence on the part of its driver that would carry the case to the jury; that the collision was due entirely to the negligence of Oxner; that Oxner was drunk and, while driving his truck in a northerly direction, meeting the bus, suddenly, without warning, cut across the highway in front of the bus, and that the collision was unavoidable on the part of appellant’s driver. On the other hand, appellees contend that the truck driven by Oxner could be seen by the bus driver for a distance of 600 feet, and that it was obvious or should have been obvious to the bus driver that the truck was out of control; and, in the circumstances, the bus driver was negligent in not reducing the speed of the bus to such an extent that it could be stopped absolutely, if necessary, to avoid the collision.

We must view the evidence in the light most favorable to appellees, and when that is done, if there is any substantial evidence of negligence on the part of the bus driver, then the trial court did not err in letting the case go to the jury on the issue of liability on the part of appellant. When viewed in the light most favorable to the appellees it can be said that the evidence shows the bus driver saw that Oxner was on the wrong side of the road while they were a considerable distance apart; that the bus driver could see that the Oxner truck was traveling in an abnormal manner; that the bus driver realized this, and blew his horn and blinked his lights, and reduced his speed to 45 or 50 miles an hour, but applied his brakes no further; that Oxner was drunk and his truck was out of control, and lie cut across the highway-in front of the bus; that the bus driver, although he had seen the truck weaving down the highway for a distance of some 200 yards, had not taken the necessary precautions to avoid a collision; that the bus, while traveling at about 55 miles an hour, hit the truck broadside; that the bus, after hitting the truck, traveled 123 feet, pushing the truck sideways; that the truck wheels, while being pushed sideways by the bus, dug a trench about 4 inches deep in the ground; that there were no skid marks indicating there was any attempt to stop the bus; that if a person were alert and anticipating that a stop might be necessary, the bus could have been stopped in 43 feet if it were making not more than 40 miles an hour. When all of the evidence is viewed in the most favorable light to the appellees, it cannot be said that there is no evidence to the effect that the bus driver was negligent in failing to observe that the truck was out of control, or in failing to act accordingly and reduce the speed of the bus to the point where it could be stopped absolutely to avoid the collision.

Appellant says the court erred in giving appellees’ requested Instruction No. 2:

“You are instructed that in the exercise of the care required by the operator of the bus of the defendant Missouri Pacific Transportation Company, when such operator sees danger ahead or it is reasonably apparent if he is keeping a proper lookout, or if he is warned of approaching imminent danger, then the duty is imposed upon him and a reasonable control of the bus requires that he immediately bring his bus under such control as to be able to check the speed or stop it absolutely if necessary in the threatened emergency.

“Therefore, if you find from the evidence in this case that the driver of defendant Missouri Pacific Transportation Company’s bus at the time of the alleged collision was aware of or had been advised of impending danger and negligently failed to bring his bus under such control as to be able to check its speed or stop it absolutely, if necessary, after such danger came within his line of vision then in that event he would he guilty of negligence and if such negligence, if any, proximately caused the injuries to the plaintiff, V. W. Miller, then your verdict in this case will be for the plaintiffs, V. W. Miller and Mrs. V. W. Miller.”

It is contended that the first part of the instruction is erroneous because it states that in the face of imminent peril the bus driver is required to bring the vehicle under such control that it can be stopped absolutely to avoid the threatened danger. This is a correct statement of the law. In Lockhart v. Ross, 191 Ark. 743, 87 S. W. 2d 73, the court approved an instruction which contained the following language: “And it is the duty of such a driver to keep his automobile under such control as to be able to check the speed or stop it if necessary to avoid injury to others when danger is apparent. ’ ’ And, in Craighead v. Missouri Pacific Transportation Company, 195 F. 2d 652, the Circuit Court of Appeals for the Eighth Circuit said: “But it does not offend against the rule announced in Fort Smith Gas Company v. Cloud (8th Cir., 75 F. 2d 413, 416, 97 A. L. R. 833) and Coca Cola Bottling Co. of Blytheville v. Doud, 189 Ark. 986, 76 S. W. 2d 87, 90, to require that when the driver of the motor vehicle sees danger ahead, or it is reasonably apparent if he is keeping a proper lookout, or if he is warned of approaching imminent danger, then the duty is imposed upon him and the reasonable control of the car requires that he immediately bring his automobile under such control as to be able to check the speed or stop it absolutely, if necessary, in the threatened emergency.” Citing Livingston v. Baker, 202 Ark. 1097, 155 S. W. 2d 340. Appellant complains of the second part of the instruction, contending that it tells the jury that in certain circumstances the appellant would be negligent as a matter of law. However, it will be observed that the instruction states: ‘ ‘ Therefore, if you find from the evidence in this case that the driver of defendant Missouri Pacific Transportation Company’s bus at the time of the alleged collision was aware of or had been advised of impending danger and negligently failed to bring his bus under such control, ... ” The instruction, was approved, practically verbatim, in Livingston v. Baker, supra.

Appellant argues that the court erred in giving appellees’ Instruction No. 5, which tells the jury that, in determining whether the bus driver was negligent, the question of whether he violated the law with reference to speed could be taken into consideration. This instruction was justified by the evidence.

It is also maintained by appellant that there is no competent medical testimony showing that Mr. Miller’s disability is the result of the collision. Miller was riding on one of the front seats of the bus; there was a metal railing in front of him. The evidence shows that at the time of the collision the bus was traveling at a speed of somewhere between 45 and 60 miles an hour. It struck the Oxner truck broadside with such force that it pushed the truck in front of the bus sideways for a distance of 123 feet before the truck became disengaged from the bus. The wheels on the truck were in contact with the ground to such an extent that, although going sideways, they dug a trench about 4 inches deep. All of this goes to show that the impact of the bus striking the truck was terrific; Miller was thrown from his seat violently, and after the bus came to a stop he was on the floor, unable to move his lower extremities. His legs felt cool and numb and he could not get up; an ambulance took him to Marianna, then he was removed to the hospital in Memphis. He lost consciousness; he was paralyzed from his waist down and could not move his legs or body; he could not control his kidneys or his bowels and it was necessary to insert a catheter and colon tube.

Dr. Bland W. Cannon, of Memphis, qualified as an expert. He is a neuro-surgeon, having received training in neurology at Mayo’s Clinic, and received his Master’s Degree in neurological surgery at the University of Minnesota. He is a member of the Board of Neurology and a Fellow of the American Surgical College. Dr. Cannon testified that, in his opinion, Miller is unable to do physical work, and that this condition is permanent. He further testified that Miller’s condition is complicated by multiple sclerosis; that about 15% of the cases of multiple sclerosis are traced to trauma and in this instance the multiple sclerosis cannot be .separated from the injury. He was asked:

“Q. In your opinion, is there a causal connection between this patient’s accident and his present condition?

A. Yes, sir. I would like, for a second, to draw, to dovetail what I think about his present condition. I think he had an injury to the cord in his back and that he never completely recovered from that injury, because within the period we expected him to recover, as I told you, I expected him to get better and he didn’t, he reached a plateau and then he went backwards. I would have to assume that the trauma he had was the initial cause of it and that the multiple sclerosis has now complicated the picture and is contributing to the trouble.”

Dr. Louis P. Britt, of the Campbell Clinic, at Memphis, gave evidence to the effect that, in his opinion, Miller is permanently disabled and will never be able to carry on his former occupation. Dr. C. M. T. Kirkman, of Helena, also testified on behalf of appellee, V. W. Miller. The appellant produced no medical testimony.

The evidence is substantial to the effect that when Miller was thrown from his seat by the collision he received an injury to the spinal cord, from which his disability has developed, and that he is permanently and totally disabled.

The next point made by appellant is that the judgments are excessive. At the time of his injury, Miller had an expectancy of future life of 27 years; he was a lumber mill worker and earned $2,860 a year. According to the evidence, the total amount that Miller could be expected to earn in the future is $77,220. When that sum is reduced to its present value, it is materially decreased, and after adding to that reduced sum his expenses growing out of the injury, there remains a large portion of the verdict that must have been for pain and suffering and mental anguish. Of course, it is hard to measure physical pain and mental anguish in dollars and cents; and there is no amount of money that would entirely relieve the pain and mental anguish which a person in Miller’s condition must suffer. But, he should be relieved of such pain and mental anguish so far as money will do it. In the circumstances presented here, we believe that by allowing the present value of Miller’s earning capacity for the 27 years of his future expectancy, plus his expenses growing out of the accident, and add to that sum a sufficient amount to make a total of $75,-000, would be allowing an ample sum to compensate him for his physical pain and mental anguish insofar as money will serve that purpose.

As pointed out in Southern National Insurance Co. v. Williams, 224 Ark. 938, 277 S. W. 2d 487, “Precedents are of scant value in a case like this.” In that case, a $95,000 verdict for the pecuniary loss to the family of Knabe, who was killed, was reduced to $75,000. He had a life expectancy of 33.44 years; he earned $8,000 a year, of which he contributed more than one half to the family. Here, Miller has an expectancy of only 27 years and an earning capacity of not quite $2,900 a year.

Mrs. Miller was awarded a $25,000 judgment for loss of consortium. We now come to a consideration of her case. Consortium has been defined as: “the comfort and the decent and proper enjoyment of the affection of her husband”; “comfort and society”; “society and service”; “conjugal society”; “the society of her husband”; “society and affection”; “the mass of indefinable duties and rights are conveniently gathered under the word consortium.” Appellant stoutly asserts an action of this kind cannot be maintained by the wife, that it is not authorized by statute or the common law. Admittedly, we have no statute specifically giving the wife a cause of action for loss of consortium. If she has such a right, it must be found in the principles of the common law. In defining the common law, it is stated, in 11 Am. Jur. 154:

“It is the system of rules and declarations of principles from which our judicial ideas and legal definitions are derived. The common law is not a codification of exact or inflexible rules for human conduct, for the redress of injuries, or for protection against wrongs; on the contrary, it is the embodiment of broad and comprehensive unwritten principles, inspired by natural reason and an innate sense of justice, and adopted by common consent for the regulation and government of the affairs of men. Its development has been determined by the social needs of the community which it serves. In other words, the common law is the legal embodiment of practical sense. It is a comprehensive enumeration of principles sufficiently elastic to meet the social development of the people. Its guiding star has always been the rule of right and wrong, and in this country its principles demonstrate that there is in fact, as well as in theory, a remedy for all wrongs. The capacity of common law for growth and adaptation to new conditions is one of its most admirable features. It is constantly expanding and developing in keeping with advancing civilization and the new conditions and progress of society and adapting itself to the gradual change of trade, commerce, arts, inventions, and the needs of the country. Whenever an old rule is found unsuited to present conditions or unsound, it should be set aside and a rule declared which is in harmony with those conditions and meets the demands of justice.”

As a result of his injuries, Miller was completely paralyzed for two weeks; however, he has recovered to some extent but has not regained the use of his legs, kidneys or stomach muscles, and he is not able to have sexual relations with his wife. Before he was injured, he attended church services and PTA meetings with his wife, also picnics and “singings,” and he is not now able to do those things. He was the superintendent of a Sunday School, and his wife was a teacher in the School; he helped his wife with the children, of whom there are four ■— ages 21, 16, 11 and 8; he helped her cook, and made a garden. And now, about the only thing he is able to do is to look at TY. It appears that Mrs. Miller has suffered the complete loss of consortium; Miller is not able to furnish any companionship; it does not appear that he has sufficient mental attainments that would enable him to be an enjoyable companion notwithstanding his present pain and mental anguish and his physical disabilities. Prior to Mr. Miller’s injuries, Mrs. Miller led a happy life, enjoyed her husband, his companionship and marital relation. And now, instead of a mate with whom she can mutually enjoy life, she has a burden to bear by the loss of consortium. Undoubtedly, she has been damaged heavily. The question is: Does the law give her a remedy for the damage that she has suffered?

Prior to the case of Hitaffer v. Argonne Company, Inc., 183 F. 2d 811 (1950), all the courts of this country and England, having occasion to pass on the question, held that the wife had no cause of action for the loss of consortium due to injuries to the husband. It does appear in Hipp v. E. I. DuPont de Nemours & Co., 182 N. C. 9, 108 S. E. 318 (1921), in an action of this kind, the wife was allowed to recover, but, later, in Hinnant v. Tide Water Power Co., 189 N. C. 120, 126 S. E. 307 (1925), the Hipp case was overruled. Another case that departed from the traditional rule, Griffen v. Cincinnati Realty Company, 27 Ohio Dec. 585, lost its force by the later case of Smith v. Nicholas Building Company, 93 Ohio St. 101, 112 N. E. 204. But the husband has the right of such a cause of action. Bernhardt v. Perry, 276 Mo. 612, 208 S. W. 462, 13 A. L. R. 1320.

In Hitaffer v. Argonne Company, Inc., supra, the court held outright that the wife can recover for the loss of consortium because of negligent injuries of the husband. There, the court said: “The modern rule is thus well stated by the Court of Appeals of New York: ‘The actual injury to the wife from loss of consortium, which is the basis of the action, is the same as the actual injury to the husband from that cause. His right to the conjugal society of his wife is no greater than her right to the conjugal society of her husband. Marriage gives each the same rights in that regard. Each is entitled to the comfort, companionship, and affection of the other. The rights of the one and the obligations of the other spring from the marriage contract, are mutual in character, and attach to the husband as husband and to the wife as wife. Any interference with these rights, whether of the husband or of the wife, is a violation, not only of natural right, but also of a legal right arising out of the marriage relation. * * * As the wrongs of the wife are the same in principle, and are caused by acts of the same nature, as those of the husband, the remedy should be the same.’ Bennett v. Bennett, 116 N. Y. 584, 590, 23 N. E. 17, 6 L. R. A. 553. * * *

“The underlying ground of the common-law rule of discrimination between husband and wife in respect of this right, namely, the incapacity of the wife to maintain a separate action for a tort, has been swept away by the modern legislation that has so generally relieved the wife of the ordinary disabilities of coverture.”

Bennett v. Bennett, supra, was an enticement case. There is no doubt about the wife having a cause of action for loss of consortium, where a willful act gives rise to such action. Actually, there is no sound reason for allowing a recovery where the act complained of is willful and not allowing a recovery where the action is based on negligence.

Since the decision in the Hitaffer case, the rule therein announced has been rejected by several courts. Jeune, et al. v. Del E. Webb Const. Co., 77 Ariz. 226, 269 P. 2d 723; Franzen v. Zimmerman, 127 Col. 381, 256 P. 2d 897; Ripley, et al. v. Ewell, (Fla.) 61 So. 2d 420; La Eacse v. Cincinnati, Newport & Covington Ry., (Ky.) 249 S. W. 2d 534; Coastal Tank Lines, Inc. v. Canoles, 207 Md. 37, 113 A. 2d 82; Danek v. Hommer, 9 N. J. 56, 87 A. 2d 5; Larocca v. American Chain & Cable Co., 23 N. J. Super. 195, 92 A. 2d 811; Passalacqua v. Draper, 279 App. Div. 660, 107 N. Y. S. 2d 812; Lurie v. Mammone, 107 N. Y. S. 2d 182; Nelson v. A. M. Lockett & Co., 206 Okla. 334, 243 P. 2d 719; Weng v. Schleiger, 130 Col. 90, 273 P. 2d 356; Garrett v. Reno Oil Co., (Tex.) 271 S. W. 2d 764; Nickel v. Hardware Mutual Casualty Co., 269 Wis. 647, 70 N. W. 2d 205; Ash v. S. S. Mullen, Inc., 43 Wash. 2d 345, 261 P. 2d 118; Werthan Bag Corp. v. Agnew, 202 Fed. 2d 119; Filice v. United States, 217 Fed. 2d 515; O'Neil v. United States, 202 Fed. 2d 366 ; Seymour v. Union News Co., 217 Fed. 2d 168; Josewski v. Midland Constructors, 117 Fed. Supp. 681.

But, on the other hand, the Hitaffer decision has been approved. In Cooney v. Moomaw, 109 Fed. Supp. 448 (1953), the right of the wife to recover for the loss of consortium as decided in the Hitaffer ease was recognized and the language of that case was quoted extensively. In Delta Chevrolet Company v. Waid, 211 Miss. 256, 51 So. 2d 443 (1951), the court sustained a large judgment to the wife for the loss of her husband. The court used this language: “In fixing the amount of damages to be awarded, the jury was warranted in taking these matters into consideration, as well as the element of damages resulting from the loss of society and companionship, * * *” In Gist v. French, 136 Cal. App. 2d 247, 288 P. 2d 1003 (1955), the court said: “The parties to a marriage are each entitled to the comfort, companionship and affection of the other. Any interference with the right of either spouse to the enjoyment of the other is a violation of a natural right as well as a legal right arising from the marriage relation.” Citing Hitaffer v. Argonne Company, Inc., supra.

Acuff v. Schmit, (Iowa) 78 N. W. 2d 480 (1956), was a suit by the wife for damages for loss of consortium due to defendant’s negligent injury of her husband through the operation of an automobile. It is directly in point with the case at bar. The court discusses all angles of the question, including the history of the old rule that the wife could not recover for loss of consortium, and holds that the wife may now recover in an action of this kind, and this is also the holding in Brown v. Georgia-Tennessee Coaches, 88 Ga. App. 519, 77 S. E. 2d 24. The Hitaffer decision is cited with approval in both cases.

Both appellant and Mrs. Miller rely on the case of Best v. Samuel Fox & Company, as reported in the All England Law Reports, 1951, Volume 2. There, the Hitaffer case is cited, and Mrs. Best was denied the right of recovery, not because she could not recover for a total loss of consortium but because she could not recover for a partial loss of consortium as existed in that case. As we construe it, the Best case holds that for a total loss of consortium, as in the case at bar, the wife may recover.

In this country, for many years, experts in the law have criticised the old rule that the wife could not recover for the loss of consortium. Prosser, in his work on Torts published in 1941, at page 948, says:

“In spite of almost universal condemnation on the part of legal writers, there is little indication of any change in the rule. Obviously it can have no other justification than that of history, or the fear of an undue extension of liability of the defendant or a double recovery by wife and husband for the same damages. The loss of ‘ services ’ is an outworn fiction, and the wife’s interest in the undisturbed relation with her consort is no less worthy of protection than that of the husband. Nor is any valid reason apparent for allowing her recovery for a direct interference by alienation of affections, and denying it for more indirect harm through personal injury to the husband, where no such distinction is made in his action. There remains of course the important fact that the husband is under the duty to support his wife, so that any compensation for loss of earning power paid to him goes indirectly to benefit her, while the wife is under no corresponding duty. This must necessarily be taken into account in any determination of her damages. But such elements of damage as her loss of the husband’s society and affection, and in some cases even the expenses to which she has been put in caring for him, remain uncompensated.”

See also discussion of the subject in Harvard Law Review, Volume XXXV, Page 343.

This court has not heretofore passed on the question, and the course we think is dictated by reason and justice is that the wife should be allowed to recover for loss of consortium caused by injuries to the husband. Mrs. Miller was awarded a judgment of $25,000. Again, this is something hard to measure in dollars and cents; but, even in this day and time $25,000 is a considerable amount of money, and we believe that a judgment for $15,000 would be more in line with the damage that Mrs. Miller has sustained.

The judgments are affirmed upon condition that remittiturs are entered as indicated, within seventeen (17) calendar days; otherwise the judgments will be reversed and the cause remanded for new trial.

Justice Ward concurs.

Justices Holt and Millwee dissent in part.

Justice McFaddin concurs in part and dissents in part.

J. Seaborn Holt, J.,

dissenting in part. I dissent from that part of the judgment which allowed the wife to recover for the loss of consortium, for the very simple reason that I can find no Arkansas law that would allow it. While it may be, as the majority points out, that “reason and justice” dictate that we allow it, however, courts have nothing to do with the wisdom and expediency of statutes and if a law appears to operate harshly, the remedy lies with the Legislature and not with us. “Until the Legislature has seen fit to designate the redress which, under Article 2, Sec. 13 of the Constitution, it has a right to do, the judiciary should not transgress the coordinate boundary established by Article 4, Section 1 of the Constitution,” Lucas v. Bishop, 224 Ark. 353, 273 S. W. 2d 397. This court has never had occasion to pass on this issue, however, in the recent Lucas case above, we had occasion to pass on the question of the father, Lucas, as next friend of his minor son, suing Bishop for allegedly alienating the child’s home life and parental affections. In denying right to recover in the circumstances we there said: “The creation of a right of action for a child’s benefit to compensate for loss of the intangible elements set out in the complaint here is a subject that addresses itself to the State’s policy forming department. Until the legislature has seen fit to designate the redress which, under Art. 2, § 13 of the Constitution, it has a right to do, the judiciary should not transgress the coordinate boundary established by Art. 4, § 1 of the Constitution. ‘The power of the government of the State of Arkansas shall be divided into three distinct departments, each of them to be confined to a separate body of magistracy, to-wit: Those which are legislative to one; those which are executive to another, and those which are judicial to another; (and, Sec. 2) no person or collection of persons, being of one of these departments, shall exercise any power belonging to either of the others.’

“But we do hold that in the case at bar Lucas as next friend has not shown that financial compensation for the things complained of has been authorized by any law, and we are not persuaded that judicial empiricism is the answer. ’ ’

The principle announced in the above case [Lucas v. Bishop] applies with equal force here. Diligence of counsel has pointed to but one case, Werthan Bag Corp. v. Agnew, 202 Fed. 2d 119, involving an accident which occurred near Forrest City, Arkansas, which resulted in injuries to the husband, and wherein the husband sued for his injuries and the wife sued for loss of consortium. The Circuit Court of Appeals for the Sixth Circuit rejected the wife’s claim for loss of consortium, refused to follow the Hitaffer case [Hitaffer v. Argonne Co., Inc., 183 F. 2d 811 (1950] strongly relied upon by the majority here, and dismissed her cause of action, and the court said: “None of these (Arkansas) cases, in our judgment, even intimates that a wife possesses the right to sue for damages for the loss of her husband’s consortium resulting from an injury negligently inflicted upon him. ¶ Being bound as we think we are to look to the common law as declared by the state courts of our country, where the Arkansas courts have not spoken upon the subject, we find the decisions, as heretofore indicated, to be overwhelmingly against the contention of appellant.” Leading text books generally appear to be against recovery for loss of consortium on the part of the wife unless statutory authority therefor exists. In 27 Am. Jur., § 514, p. 114, it is said: “Whatever right a wife may have, by virtue of statutes removing her common law disabilities, to recover for loss of consortium of her husband as a result of injuries inflicted by a third person, does not extend to loss of consortium caused by a mere negligent injury inflicted upon the husband. At least in the absence of any statute expressly conferring it, a wife, even though able to sue and be sued as a femme sole, has no right or cause of action, as a general rule, for loss of consortium due to injuries negligently inflicted on her husband. She has no such cause of action even under a statute preserving to her all rights of action growing-out of violation of her personal rights. Her loss of consortium resulting from negligence is too remote and indirect to permit her to recover therefor, and hence, it is distinguishable from loss of consortium resulting directly from a wrongful act, as where her husband is wrongfully enticed, seduced or forced away from her. Furthermore, damages to which the husband is entitled, in a suit for his injuries sustained through another’s negligence, are supposed to be full compensation for his injuries, in which compensation the wife has a benefit, with the consequence that if the wife is permitted a separate recovery for her loss of consortium resulting from such injuries, there is, in effect, a double recovery from the same matter.” In 41 C. J. S., § 404, p. 900, we find this language: “In the absence of statute, a wife has no cause of action for any loss sustained by her, including loss of consortium, in consequence of personal injuries inflicted on the husband.” The same rule is set forth in Restatement of Torts, Yol. 3, § 695, p. 496: “A married woman is not entitled to recover from one who, by his tortious conduct against her husband has become liable to him for illness or other bodily harm, for harm thereby caused to any of her marital interests or for any expense incurred in providing medical treatment for her husband.

“Comment: a. Although a husband is entitled to recover for the loss of his wife’s services and society and any expense which he incurs as a result of illness or bodily harm caused to her by the tortious conduct of another, a wife is not entitled to a recovery under similar circumstances. The wife is not, nor has she ever been, entitled to the services of her husband. Moreover, she is not deprived of the support to which she is entitled by any tort committed against him. The husband is still legally bound to provide support for her, and the tortfeasor is liable to the husband for any loss of earning-power which he may suffer. This the husband himself may recover, and were his wife permitted to recover for the loss of support, a double recovery would result. The wife has a similar interest in the society and sexual relations with her husband as he has in such relations with her. However, the law has not recognized her right to recover against one who has caused harm to such inter-, ests by conduct which is not intended to harm them. One who has negligently injured the husband, or has intentionally caused him harm, by conduct directed toward him personally rather than toward the wife’s interest, is not liable to the wife. . . .”

It is conceded here that we have no statute in Arkansas allowing for such a recovery. It appears that the right of the wife to recover for the loss of consortium has been denied in at least 29 of our states and in England. It also appears that since the decision in the Hitaffer case, supra, in 1950 the common law courts in 13 of our states, 3 Federal courts and in England have been asked to review again the question in the light of that decision and with the exception of Georgia the doctrine in the Hitaffer case has been unanimously repudiated and the common law rule adhered to and reaffirmed. Accordingly, until our own legislature acts and provides for the wife to recover for the loss of consortium, I cannot go along- with the majority opinion in this case.

Mr. Justice Millwee joins in this dissent.

Ed. P. McFaddin, Associate Justice,

(concurring- and dissenting). I agree with all of the majority opinion except that part which relates to the damages; and on the matter of damages I entertain these views:

I. Consortium. I cannot agree to Mrs. Miller’s recovering for loss of consortium. We have no statute in Arkansas allowing for such a recovery. The majority concedes that it is proceeding under the judge-made law in the case of Hitaffer v. Argonne Co., 183 P. 2d 811. Until the Legislature of Arkansas passes a statute allowing for consortium, then I cannot agree to the consortium portion of the majority opinion. Judge Holt has gone into the matter in detail in his dissent, and I concur in his conclusions.

II. Excessiveness of Miller Verdict. The majority has seen fit to reduce from $100,000.00 to $75,000.00 the jury verdict awarded Mr. Miller. I cannot say that the verdict is excessive. This Court should reduce a jury verdict only when the amount is so grossly excessive as to shock the conscience of the Court. When we take the testimony supporting Mr. Miller’s recovery at its strongest probative force, I maintain that the award is not excessive. The majority says that Mr. Miller is totally and permanently disabled. He has 27 years of expectancy and could have earned in that period of time $77,200.00, even at his present earning capacity; and there is nothing to show that he could not have earned much more in the years to come. In addition to his earning capacity, he has had conscious pain and suffering of a tremendous amount. I quote this portion of the majority opinion:

“As a result of his injuries, Miller was completely paralyzed for two weeks; however he has recovered to some extent but has not regained the use of his legs, kidneys or stomach muscles, and he is not able to have sexual relations with Ms wife. Before he was injured, he attended church services and PTA meetings with his wife, also picnics and “singings,” and he is not now able to do those things. He was the superintendent of a Sunday School, and his wife was a teacher in the School; he helped his wife with the children, of whom there are four, ages 21, 16, 11 and 8; he helped her cook, and made a garden. And now, about the only thing he is able to do is to look at TV.”

Medical experts testified that Mr. Miller’s condition is permanent. In view of all of the foregoing, I certainly cannot say that the verdict to Mr. Miller for $100,000.00 was so grossly excessive as to shock the conscience. What young man with 27 years of expectancy would exchange for $100,000.00 a happy and useful life like Miller had in prospect for what Miller now has before him?

So to summarize: I would reverse and dismiss the judgment that Mrs. Miller recovered for consortium; and I would affirm the judgment in full for Mr. Miller.


author: Carleton Harris, Chief Justice.

text:
    Kelker v. Payton.
    5-1164
    298 S. W. 2d 704
    Opinion delivered February 18, 1957.

      Paul E. Gutensohn, for appellant.

      Hardin, Barton, Hardin & Garner, for appellee.
   Carleton Harris, Chief Justice.

Appellant, Andy J. Kelker, and appellee, W. W. Payton, entered into a partnership in January, 1952, for the purpose of constructing homes in the city of Fort Smith, Arkansas. In February, 1953, the Kelker-Payton Construction Company, Inc., was organized as a corporation doing the same type of construction work, and still in existence at the time of this litigation, though it had ceased actual construction operations, and had only potential assets. The corporate stock was owned by Kelker and Payton equally. On May 14, 1954, Kelker loaned to the corporation (Kelker-Payton Construction Company, Inc.) the sum of $10,000. This was deposited in the First National Bank of Fort Smith to the corporation account. It was entered in the books of the corporation at that time, and has been carried as a debt owed Kelker by said corporation.

During the period of time in which they were actively associated together a loan of $17,500 was obtained from the United Building and Loan Association on five houses which were constructed in Fort Smith ($3,500 each), which, after loan expenses, netted $17,-041.45. A check was made payable to Kelker and wife and Payton and wife for said amount, and after being endorsed by all parties, was cashed at the Merchants National Bank of Fort Smith by Payton. Appellants contend that this money was divided equally between the two men in cash, while appellee Payton contends that Kelker was first repaid the $10,000 which he had loaned the corporation, and that the balance of $7,041.45 was then divided equally.

On June 9, 1955, appellee filed suit seeking an accounting of the affairs of Kelker-Payton Construction Co., and an accounting by appellant and wife, Loretta, for credit of Kelker-Payton Construction Co., Inc., covering funds used for labor and materials in the construction and repair of homes (three in number) owned individually by the wife, Loretta Kelker, and further asking that a constructive trust be declared by the Court upon these properties ’ in favor of the corporation; that after an accounting by the said Kelker, he should be required to pay into the corporation all sums “which, he had wrongfully, unlawfully, and fraudulently appropriated. ’ ’

Thereafter, Kelker-Payton Construction Company, Inc., filed its separate answer asking that the Court direct an accounting of the affairs of the corporation to determine whether either appellant (Andy Kelker) or appellee Payton profited to the detriment of said corporation, and that after an accounting, judgment be given the construction company against either or both stockholders for any diversion or misapplication of funds. Later, appellants filed their answer denying the allegations and joined with the construction company in asking for an accounting. Still later, appellant, Andy Kelker, filed a cross complaint, together with amendments alleging that he was due the sum of $6,080.91, representing advances that he had made to the partnership. Subsequently, amendments were filed to the pleadings by the parties alleging additional items, and on March 28th and 29th, the cause proceeded to trial.

On April 4th, the Court filed its findings of fact, and (after the filing of various motions and stipulations by the several parties pertaining to debits and credits between the individuals and the corporation) entered its decree on May 3, 1956. Kelker received judgment against Payton in the sum of $1,000; Payton received judgment against Kelker-Payton Construction Co., Inc., in the amount of $3,385.10; and the corporation received judgment against Kelker in the sum of $5,717.77. The Court further impressed a constructive trust against part of the properties held by Loretta Kelker to secure the judgment given to the corporation. Prom such decree appellants bring this appeal. Appellants rely upon several points to reverse the decision of the Chancellor, though the principal one argued is that the Court was in error in finding that appellant Kelker was repaid the $10,000 which he loaned to the corporation.

About May 14, 1954, the corporation was in need of funds to meet corporation payrolls, and Kelker agreed to deposit ten thousand dollars in the corporation account with the understanding that he was to be repaid from the loan which would he received from the United Building and Loan Association. He directed that this repayment he made in cash and did accordingly make such deposit to the corporation account; three days later the loan from the United Building and Loan Association was processed, and check in the amount of $17,041.45, payable to Kelker and wife, and Payton and wife, was delivered to the parties. The two men then drove by their respective homes and the wife of each endorsed the check. They then proceeded to the bank, at which time Kelker let Payton out of the car to cash the check, advising that he would meet him at the Wide-Awake cafe. Appellee cashed the check, receiving the full amount in cash, and then went to the Wide-Awake cafe to meet Kelker.

So much is in agreement, but from this point on, the evidence was in conflict. Payton stated that as he went in the front door of the cafe, Kelker was standing talking with an acquaintance, and on observing Payton, walked over. They left together, got in the car, and drove to Kelker’s house. It was time for lunch, and Kelker was let out at his home; however, before he left the car, the money was divided between the two of them in the following manner. First, Kelker counted out to himself the $10,000 which he had loaned the corporation, leaving a balance of $7,041.45, which was then divided equally between the parties ($3,520.73 to each). Payton took his money home, leaving it with his wife for safe keeping. According to Payton, Kelker advised he would see that an entry was made on the corporation’s books to show the item had been paid back to him. Mrs. Payton, wife of appellee, testified that her husband brought home the $3,520.73, and thereafter she had occasion to talk to Andy Kelker in her home relative to the matter; that she had not been satisfied with the manner in which it had been handled, as she felt the check should have been deposited. Kelker told her there was nothing to worry about, and that he would make an entry on the books to take care of it.

Kelker’s version is as follows: He was sitting in a booth, with L. D. Moran (associated with Kelker in the construction of a furniture building) when Payton came to the booth with the $17,041.45; that this money was divided equally between the parties in the booth, and in the presence of Moran ($8,520.73 to each). Moran corroborated Kelker’s testimony to the effect that several bundles of money were counted out, but stated that in his opinion, the amount divided amounted to seven or eight thousand dollars. This last, of course, would be a circumstances corroborating Payton’s version. Additional circumstances tend to corroborate either version. In appellee’s favor, it is noted that Kelker, from the time of making the loan, made no demand for repayment of the $10,000; on the other hand, there was no release of the debt, nor receipt obtained by Payton, nor was any demand made on the bookkeeper to show that the loan had been paid. Payton’s answer is that he trusted Kelker implicitly.

The Court found as follows: “The Court further finds that in regard to the $10,000 loan by Kelker to the corporation being repaid, the following: That plaintiff ’s testimony was undisputed by defendant Kelker that Kelker made said loan to the corporation in cash on May 14, 1954, upon condition that said loan would be repaid on or about May 17, 1954, in cash. That Kelker did not want said sum deposited in his account, and did not want any check from said corporation. That on May 17, 1954, $17,041.45 was received in one check from a local loan company payable to defendant corporation, and said check was cashed, and all of the money was received by plaintiff and Kelker. The Court further finds that the only dispute was that Kelker claims he did not receive his $10,000 loan before the balance of the proceeds was divided equally between these two men.

“The Court further finds that since that date until the audit made on and by said corporation, Kelker made no demand for repayment of said loan. The Court further finds that plaintiff’s testimony that Kelker did receive his $10,000 loan back is supported by the testimony of plaintiff’s wife. The Court further finds that Kelker’s witness to the meeting between plaintiff and Kelker, at which time said witness stated a large sum of money was divided equally between these two men, specifically stated that the sum divided equally was “between seven and eight thousand dollars,” and that fact corroborates plaintiff’s statement that Kelker got his $10,000 first and the balance, to-wit: $7,041.45 was divided equally between the two men.”

Appellants contend that the check for $10,000 was payable to the partnership rather than to the corporation; that the corporation did not pay the indebtedness, and even if Payton’s version is taken as correct, Kelker was repaid the loan from partnership funds. Since the men had been equal partners, this would leave Kelker paying to himself, in repayment of the loan, $5,000 of his own money, which a man of Kelker’s business experience would not be likely to do. While confusing statements were made by counsel as to their position on the question of whether the partnership assets and liabilities were merged and assumed by the corporation at the time of its creation, the record reveals that appellants’ counsel (R. 25) made the remark during the trial, “Tour Honor, to simplify things, we will agree that the corporation started by taking over the partnership assets, and there is no question between the parties as to that.”

The Court found, after hearing the evidence, “That upon the formation of the corporation the partnership assets and liabilities were merged and assumed by the corporation. That said corporation was formed with the assets of said partnership.”

Following the Court’s entering of its finding of fact, further motions clarifying the various items of indebtedness owed to the corporation and to the individuals were filed by the respective parties and certain stipulations were entered into pertaining to credits and debits between the individuals and the corporation. This had the effect of amending the court’s findings. It is noticeable that appellants, though they filed several motions adjusting the rights of the parties, never raised the question at all that the Court had erred in refusing to recognize the separate identities of the partnership and the corporation.

It is contended that the Court erred in holding that a constructive trust should he impressed upon the property held under the name of Loretta Kelker; however, this contention is based upon the fact that the $10,000 item had not been repaid to her husband; further, it does not appear that she invested any of her own money in the construction of the homes upon which the trust was impressed.

It is further contended that the Court erred in granting appellee judgment against Kelker-Payton Construction Company, in granting the company judgment against Kelker, and in failing to render judgment for the corporation against Payton for corporate funds which he was alleged to have used personally.

This brings us to our conclusions in the entire matter. This case is almost entirely a question of fact, and if the lower court construed the facts correctly, there could be no contention that the law was erroneously applied. The Chancellor heard the case, had the opportunity to observe the demeanor of the witnesses, and evidently paid close attention to the evidence. On April 4,1956, he rendered his findings of fact composed of seven and one-half pages. The rule, so many times reiterated, is to the effect that while this court tries Chancery cases de novo, still it will not reverse a Chancellor’s decree unless his findings are against the weight of the evidence. Lupton v. Lupton, 210 Ark. 140, 194 S. W. 2d 686 (1946); Little v. Farm Bureau Co-Operative Mill and Supply Co., 224 Ark. 289, 272 S. W. 2d 818. We cannot say, in this case, that the findings of the court are against the weight of the evidence. The decree, accordingly, is in all things affirmed.

       The complaint alleges that the wife paid no consideration, but “fraudulently, unlawfully, and wrongfully conspired with the defendant, Andy J. Kelker, her husband, to acquire title to said property. * * *”

       The record does not reflect who received the odd cent.

       The corporation did not appeal from the findings of the Chancellor.


author: J. Seaborn Holt, Associate Justice.

text:
    Dudley v. Adams.
    5-1165
    298 S. W. 2d 701
    Opinion delivered February 18, 1957.

      Denver L. Dudley, pro se, and Claude B. Brinton, for appellant.

      Arthur L. Adams, pro se, and W. B. Howard, for appellee.
   J. Seaborn Holt, Associate Justice.

This suit involves a dispute between two attorneys over the division of an attorney’s fee. February 13, 1956, appellee, Adams, filed suit against appellant, Dudley, in which he (Adams) alleged that appellant, who had previously been employed by E. L. Garris to prosecute a tort action for him (Garris) against the Greyhound Bus Lines on a contract of 50% of any recovery, employed appellee to assist him in the prosecution of the claim and that appellant agreed to pay appellee one-half of Dudley’s fee under Dudley’s contract with Garris. He further alleged that he assisted Dudley in making the settlement for $5,000, and that he, Adams, was entitled to- one-lialf of Dudley’s fee of $2,500 or $1,250. He further alleged that Dudley offered to pay him only $750 which he refused to accept. Appellant answered with a general denial and specifically pleaded accord and satisfaction. Trial before the court sitting as a jury resulted in a judgment in favor of appellee, Adams. This appeal followed.

For reversal appellant relies on the following points: “1. The evidence was insufficient to sustain the judgment; 2. There was accord and satisfaction, compromise and settlement or novation; 3. The deposition of Roy Garris should not have been considered. ’ ’

Considering the third point above first, it appears from the record that the deposition complained of was read and admitted at the tidal without objection, therefore, any objection now comes too late.

Primarily, points 1 and 2 are questions of fact. Under our long standing rule of procedure the duty rests upon the jury, or the trial court sitting as a jury, to determine from all the evidence presented whether the preponderance thereof supports the plaintiff (appellee here) or the defendant (appellant). When the cause reaches us on appeal we do not concern ourselves with determining where the preponderance of the evidence lay but only whether there was any substantial evidence to support the verdict and judgment rendered. In other words, if we find any substantial evidence to support the verdict we must affirm, even though it might appear to us that the preponderance was against the verdict. The testimony was in sharp conflict, however, after a careful review of it all, we cannot say the evidence on behalf of appellee when given its strongest probative force, as we must, was not substantial, and, therefore, the judgment must be affirmed. Humphries v. Kendall, 195 Ark. 45, 111 S. W. 2d 492.

Appellee’s testimony was to the following effect. About December 1, 1954, appellant called him, Adams, to his office and told him that he, Dudley, was employed by E. L. Garris, in a tort action, on a contract for a fee of 50% of the recovery; that he wanted me to assist him in the matter and he would divide any fee that might subsequently be paid in the case, and that he, Adams, accepted the employment. He further testified that after considerable work and effort on the part of Mr. Dudley and himself, offers and counter-offers by the parties, a settlement for $5,000 was finally agreed upon before a trial of the case. That a draft for $5,000 in settlement was sent to him (Adams) and he so informed Dudley. Shortly thereafter Dudley telephoned Adams to bring the draft over that Garris was in his office. Appellee further testified: “Denver (Dudley) came back, Roy was not with him, never did come back. When Denver walked in the door he motioned me in his inner office, I had been in the outer office. He went in, sat in a chair, I sat in a chair in front of the desk. He got his checkbook out, put it on the desk, leaned back, said finally, ‘Hard Case.’ Said finally, ‘Hard Case, if we had tried it we might have gotten a lot more money out of this thing. Now, since you and I did not have any fee arrangement, I think $750 would be about right.’ I was amazed, looked at Mr. Dudley, I said, ‘Denver, that was not the way it was. We agreed when I came in the case, any fee received would be divided 50-50.’ Sat and looked at each other for five seconds. Not another word was spoken. Denver wrote a check, handed it to me. I looked at it, amount of the check was $750.00. Also noted there was no notation on the check ‘payment in full’ nor had any oral import. I was mad, concluded there was only one of two things to do; one, get in a fight with Mr. Dudley; or, get up and walk out ... I got up, walked out, not a word was spoken. Since there was no oral or verbal condition imposed, it was my idea I could deposit the check and it would have no legal significance other than payment on account. I would legally collect the other $500 by bringing suit, as was done, or talk with Mr. Dudley. That is just about the history of the thing. ’ ’ E. L. Garris testified: (appellant’s abstract) “I went to the defendant’s (Dudley’s) office. Mr. Adams came later. Conversation was about the lawsuit. Mr. Dudley would get half the other lawyer would get half. That was my understanding (Tr. p. 43). He said lie would have to split one-half with the other lawyer. We were discussing Arthur Adams. This was before he came to the office ... It was Mr. Dudley who told me of the 50-50 split between the lawyer . . . Afterwards Mr. Dudley was offered $5,000 and he was told to hold out for $6,000. At that time, Mr. Dudley said he would split it three ways, $2,500 to me, $1,250 to each of them. The case was settled for $5,000.” Mrs. E. L. Garris’ testimony tended to corroborate that of appellee.

On the issue of accord and satisfaction, which appellant pleads as a defense, his testimony was to the effect that when appellee accepted and later cashed the check for $750, which he Dudley tendered to him, that this amounted to a settlement or accord and satisfaction. Appellee testified that he accepted the check not in full payment but, in effect, to be applied upon the $1,250, which he claimed appellant agreed to pay him as his division of the fee. In the circumstances here whether appellee accepted the check in full settlement of his claim against appellant was a question of fact for the trial court to determine. The evidence shows there was nothing on the check to indicate that it was payment in full. In one of our cases, Rose v. Lilly et al., 170 S. W. 483 (not reported in the Arkansas Reports) there was conflicting testimony as to whether a check in question had been accepted by a creditor in full payment of a note sued on. We there said: “A check given in payment of a debt does not amount to an extinguishment of the debt unless accepted in absolute payment thereof. Sharp v. Fleming, 75 Ark. 556, 88 S. W. 305; 7 Cyc. 1007 . . . The appellant denied having accepted the check in payment of the note, but the question whether he accepted it in absolute payment was fairly presented to the jury . . .” The textwriter in 1 C. J. p. 561, § 84, on Accord and Satisfaction, says: “The mere fact that the creditor receives less than the amount of his claim, with knowledge that the debtor claims to be indebted to him only to the extent of the payment made, does not necessarily establish an accord and satisfaction.” In Collier Comm. Co. v. Wright, 165 Ark. 338, 264 S. W. 942, we said: “Accord and Satisfaction — Jury Question. — Where statements were furnished showing the net balance due on the purchase of carloads of peaches with check accompanying the statements, but neither the statements nor the check showed on their faces that the check was tendered in full, it was a question for the jury to determine whether, under the circumstances, the tender was conditioned on its acceptance in full.” And, in Alling v. John V. Lee & Sons, 148 Ark. 655, 230, S. W. 1, we said: “The next and last insistence of appellant for reversal is that the acceptance and collection of the $82.83 check constituted an accord and satisfaction . . . An acceptance by a creditor of a tender or remittance made by his debtor on a disputed claim does not constitute an accord and satisfaction of the claim, unless clearly indicated by the facts and circumstances to be in full payment thereof. There must be a meeting of the minds of the debtor and creditor before there can be an accord and satisfaction. The debtor must impose the condition of full payment on the disputed claim on the tender or remittance, and the creditor must accept the tender or remittance with such condition attached . . . No condition was imposed in the face of the check, or in any instrument or letter accompanying it, or in any subsequent communication between the parties, to the effect that it was tendered in full settlement of the controversy between them . . . Nowhere does it appear that the check was offered by appellant or received by appellees in full settlement of the disputed claim. ’ ’

Finding no error, the judgment is affirmed.


author: Ed. F. McFaddin, Associate Justice.

text:
    Mangrum v. State.
    4856
    299 S. W. 2d 80
    Opinion delivered February 18, 1957.
    [Rehearing denied March 18, 1957.]

      McGourtney, Brinton, Gibbons & Segars, for appellant.

      Tom Gentry, Attorney General, and Roy Finch, Jr., Assistant Attorney General, for appellee.
   Ed. F. McFaddin, Associate Justice.

Appellant, Clyde Mangrum, was convicted of the crime of sodomy (% 41-813 Ark. Stats.); and prosecutes this appeal. The motion for new trial contains twenty-tbree assignments wbicb we group and discuss in topic headings.

I. Sufficiency Of The Evidence. The act of sodomy charged by the information in this case was, £ £ unnatural sexual relations with Edward Brasshire, another male, being aged 9 years old, by forceably placing his sex organ in the mouth of said child. ’ ’ Such information charged an offense denounced by § 41-813 Ark. Stats. See Woolford v. State, 202 Ark. 1010, 155 S. W. 2d 339; Havens v. State, 217 Ark. 153, 228 S. W. 2d 1003; and Hummel v. State, 210 Ark. 471, 196 S. W. 2d 594.

The testimony of Edward Brasskire (hereinafter referred to as “the boy”) was: that he was at the home of Mr. Harbin, along with Mangrnm, Byrd Ashbnrn (the boy’s nncle), and several other people; that Mangrnm lured the boy to a place in the back yard behind the chicken-house, and there committed the filthy act, as charged in the information. Byrd Ashbnrn, the boy’s uncle, testified that when he went in search of the boy he saw the entire performance. The testimony of either the boy or his uncle was sufficient to take the case to the jury. Giving the testimony of the State its full force and effect, as we do on appeal in cases like this one, the evidence is sufficient to support the verdict.

II. Competency Of The Boy To Testify. The boy was blind and only nine years old; and appellant urges that the Trial Court failed and refused to make sufficient interrogation of the boy before allowing him to testify on original examination. Appellant relies most strongly on some of our language in Crosby v. State, 93 Ark. 156, 124 S. W. 781, 137 Am. St. Rep. 80, reading as follows:

“In the present case we do not think the examination of the witness by the circuit judge was sufficiently comprehensive. The child must not only have intelligence enough to understand what he is called upon to testify about, and the capacity to tell what he knows, but he must also have a due sense of the obligation of an oath, by which is meant, as we deduce from the authorities, supra, that the promise to tell the truth must be made under ‘an immediate sense of the witness’ responsibility to God, and with a conscientious sense of the wickedness of falsehood.’ ”

Our cases recognize that the determination of the competency of a child, of such years as the one here involved, to testify at all is a question for decision by the Trial Judge. In Paxton v. State, 114 Ark. 393, 170 S. W. 80, we said:

“It is the province of the judge to pass upon any question involving the competency of the witness and the admissibility of the evidence offered; . . .”

We have many times reaffirmed what we said in the early case of Flanagin v. State, 25 Ark. 92:

“As to children, there is no precise age within which they are absolutely excluded, or the presumption that they have not sufficient understanding. At the age of 14 all persons are presumed to have common discretion and understanding, until the contrary appears; but under that age it is not presumed; hence inquiry should be made as to the degree of understanding which the child, offered as a witness, possesses; and, if he appears to have sufficient natural intelligence, and to have been so instructed as to comprehend the nature and effect of an oath, he should be permitted to testify, no matter what his age may be.”

The questions asked the boy by the Court ■ — • to determine his competency as a witness — consumed two pages in the transcript. At the conclusion of such examination, the Court held that the boy was competent to testify — adding, of course, that the credibility of the boy’s testimony was entirely a matter for the jury to decide. We hold that the Court ruled correctly in the matter of the competency of the boy as a witness. Here is the Court’s summary:

“This witness has stated he believes in G-od and he has stated that it is wrong to tell a lie and he has further stated, when asked what would happen to him if he told a lie, that he would be in serious trouble. He stated the Bible has been read to him and his answers have been clear and concise other than he has had a little difficulty in hearing. He has demonstrated to the court that he has an intelligent appreciation of the English language for a child of his age.”

III. Refusal Of The Court To Allow The Witness, Russell Baxter, To Testify As To The Competency Of The Boy As A Witness. When the State first offered the boy as a witness, the appellant not only (a) objected as to Ms competency, as shown in Topic II, supra, but also (b) sought permission to call Bussell Baxter to testify against the competency of the boy. This request was refused; and then later, after the State had rested its case in chief, the appellant again sought to call Russell Baxter to testify to the boy’s competency as a witness. This request was also refused. Appellant saved his exceptions to each adverse ruling and in the proper manner has brought into the record the offered and refused testimony of Russell Baxter on the boy’s competency. Here is a summary of the proffered testimony: Mr. Baxter is a Counsellor of Vocational Rehabilitation for the Blind, where the boy has been a pupil. In the early part of 1956, Mr. Baxter had occasion, in his official duties, to give intelligence tests to the boy. Such counselling continued for some time and in the course of it, Mr. Baxter tested the boy by the Wexler Intelligence Scale for Children, which Mr. Baxter says is an accepted test for handicapped children. Under this test a grade of 69 and below shows a mental defective; from 70 to 79 is a borderline case; from 80 to 89 is dull normal; and from 90 to 100 is normal. Mr. Baxter says that in this test the boy made 70, which is above the mental defective range, but is a “borderline case.” From the Wexler test and from Mr. Baxter’s personal observation of the boy, Mr. Baxter gave as his professional opinion regarding the mental status of the boy:

“He is easily dominated, highly over-protected by those close to him. If this person is close enough to him, he could be made to believe (anything told him by such person) . . . He doesn’t thiMc fast, because of this emotional immaturity. He doesn’t think fast because of a low intelligence quotient sometimes mistaken for hard of hearing ... I feel that Eddie cannot give a comprehensive detailed description of any eight hour period regardless of lapse of time involved without a certain amount of instruction . . .”

Appellant most earnestly insists that the Court committed error in refusing to allow the jury to hear the foregoing testimony of Russell Baxter; and appellant cites Thrash v. State, 146 Ark. 547, 226 S. W. 130; and Mell v. State, 133 Ark. 197, 202 S. W. 33. In the last cited case, we said of a witness who had testified for the State and against whom offered testimony as to mental competency was rejected:

“It is not contended by the defendant that the prosecuting witness was mentally incompetent to testify in the case. His contention was that she was subject to insane delusions at times and it was admissible, in order to affect her credibility as a witness and to explain her conduct, to prove this fact by witnesses who had personal knowledge of her condition of mind or mental delusions as well as by her acts and conduct on the occasion in question.”

We understand that the insanity or the mental delusions of a witness may be shown by the testimony of another witness. But that is not the situation in the case at bar: here it is not claimed that the boy was insane or suffered mental delusions — it is only claimed that he was dull of comprehension and could be easily imposed on. The Court asked the witness, Baxter, as to the insanity of the boy:

“Court: Do you say Edward is insane? A. No, sir, not at all.”

And the Trial Court in its ruling summed up the entire situation as follows:

“. . . it appears to me that the nine year old blind boy made a very bright witness. You have asked highly technical questions here with regard to whether these things could have been suggested or not. The undisputed evidence shows here that the nine year old boy was taken immediately to an officer and shortly thereafter repeated this story to the Constable and deputy Sheriff shortly after the occurrence of it. If there is no contention here that this witness is insane, then the court does not believe this testimony is competent. If you could introduce testimony of this type, you could introduce it with reference to any person ... I believe the credibility of the witness is entirely a matter for the jury, and I think the nine year old hoy has demonstrated that he is aware, he believes in God, he is taught the Bible regularly, and that he is aware he must tell the truth. ’ ’

The eases and the textbook writers are sharply divided on this matter of offering testimony to impeach a witness on the basis of low mentality. To review all of the authorities would constitute a treatise. In Isler v. Dewey (1876), 75 N. C. 466, the Supreme Court of North Carolina held that it was proper to allow one witness — a layman • — ■ to testify that an opposing witness has a memory “below medium.’’ Again, in the later case of State v. Armstrong (1950), 232 N. C. 727, 62 S. E. 2d 50, a doctor was not allowed to testify to the jury concerning a witness: “I would classify her as a low class moron, equivalent of a nine-year-old child.” The North Carolina Court held such evidence should have gone to the jury, saying:

“What could be more effective for the purpose than to impeach the mentality or the intellectual grasp of the witness? If his interest, bias, indelicate way of life, insobriety and general bad reputation in the community may be shown as bearing upon his unworthiness of belief, why not his imbecility, want of understanding, or moronic comprehension, which go more directly to the point?”

Many courts hold directly opposite from the holdings above mentioned. In Bell v. Rinner (1864), 16 Ohio State 45, the Ohio Supreme Court held that it was reversible error to permit witnesses to testify of an opposing witness, that she was not of ordinary intelligence. The Ohio Supreme Court said:

“The question presented by the record is, whether the credibility of a competent witness may be impeached by general evidence that the witness is not possessed of ordinary intelligence or powers of mind. It would not only be novel in practice, but would be entirely impracticable, to permit the parties, on the trial of a case, to go into general proof as to the strength of the mental capacity of the several witnesses. It might lead to as many collateral issues as there are witnesses, and thus divert the minds of the triers from the substantial issues of the case. Litigation would become more uncertain and interminable than ever. Moreover, if it be conceded that the credibility of a witness is to be graded in proportion to his strength of intellect, the tribunal before which he testifies can better estimate his capacity, and the weight to which his testimony is entitled, by his manner, and by his statements on cross-examination, than can, ordinarily, be done by the testimony and conflicting opinions of other witnesses, as to the extent of his mental powers, or the degree of his intelligence.”

The Supreme Court of Colorado, in Blanchard v. People (1922), 70 Colo. 555, 203 Pac. 662, followed the holding of the Ohio Court. Witnesses were allowed to say of opposing witness that he was of a “low order of intelligence.” In holding the admission of such testimony to be reversible error, the Colorado Court said:

“Men differ in grades of intelligence as blades of grass in appearance. The utter unreliability of such testimony is at once apparent, when we remember that every man’s opinion of the intelligence of others is largely controlled by the quality of his own. To his neighbors John Smith may have seemed a man of average intelligence, though Herbert Spencer may have deemed him a fool.”

In Wigmore on “Evidence,” 3rd Ed. Yol. 3, § 935, the arguments are listed on this question of admissibility of evidence to dispute competency; and cases are cited to sustain each side. Also in McCormick on ‘ ‘ Evidence, ’ ’ page 97, et seq., this matter is discussed:

“Manifestly, however, the fact of insanity or mental ‘abnormality’ either at the time of observing the facts or at the time of testifying will be provable, on cross or by extrinsic evidence, as bearing on credibility. What of defects of mind within the range of normality, such as a slower than average mind or a poorer than nsusal memory? These qualities reveal themselves in a testing cross-examination by a skilled questioner. May they be proved by other witnesses? The decisions are divided. It seems eminently a case for discretion. The trial judge would determine whether the crucial character of the testimony attacked and the evaluative light shed by the impeaching evidence over-balance the time and distraction involved in opening this side-dispute.”

Without further laboring the point, we think our own case of Criglow v. State, 183 Ark. 407, 36 S. W. 2d 400, indicates the course that our holding should take in the case at bar. In the Criglow case, Judge Frank G-. Smith stated the issue and the holding in this language:

“E. E. Brooks was called as an expert by appellant, and a hypothetical question was submitted upon which his opinion was asked. This question would have called for the opinion of the witness as to the powers of observation and recollection of Allen and Jones in the matter of their identification of appellant as one of the robbers, they never having seen him prior to the robbery. The court properly excluded this testimony. There was no contention that these witnesses were of unsound mind. It was, of course, proper to inquire how badly the witnesses themselves were frightened by the robbery, and this information might have been elicited by the examination of the witnesses themselves on that subject. It would not have been improper to have asked other witnesses present what opportunity Allen and Jones had to observe the robbers, also what their conduct was during the robbery. But the question whether these witnesses were mistaken in their identification, whether from fright or other cause, was one which the jury, and not an expert witness, should answer. This was a question upon which one man as well as another might form an opinion, and the function of passing upon the credibility and weight of testimony could not be taken from the jury. Dickerson v. State, 121 Ark. 564, 181 S. W. 920; Mitchell v. Lindley, 148 Ark. 37, 228 S. W. 728.”

We agree that evidence may be offered to the jury regarding the insanity of a witness or mental delusions that a witness may suffer. This is because a witness may testify ever so brilliantly to the jury, and yet his insanity or mental delusions may not appear. But, when we come to the question of whether a witness has low mental comprehension — absent, as here, any claim of insanity or mental delusions — it seems that the trial judge should have discretion to decide whether the trial should be prolonged by calling witnesses to give their opinions to the jury, or whether the matter is sufficiently clear for the jury to intelligently determine credibility without the trial being prolonged by such testimony as to the mental comprehension of another witness. We hold that the trial judge has discretion in this matter; and we cannot say that he abused his discretion in the case at bar.

IV. Other Assignments. We have examined all the other assignments urged by the appellant and find none to constitute reversible error.

Affirmed.

       See Allgood v. State, 206 Ark. 699, 177 S. W. 2d 928, and eases there cited.

       See also Annotation in 15 A. L. R. 932: “Impeachment of witness by expert evidence tending to show mental or moral defects.”


author: Minor W. Millwee, Associate Justice.

text:
    Cunningham v. Chamblin.
    5-1167
    299 S. W. 2d 89
    Opinion delivered February 18, 1957.

      Omar F. Greene and Douglas Bradley, for appellant.

      Elbert 8. Johnson, for appellee.
   Minor W. Millwee, Associate Justice.

Appellant is an illiterate Negro farm laborer who lives at Dell, Arkansas. He filed this suit against appellee, W. D. Chamblin, doing business as Chamblin Sales Company, to cancel a note and conditional sales contract as usurious and for damages allegedly resulting from the unlawful conversion of the automobile involved in the transaction.

At the trial it was agreed that the question of usury would first be determined., Appellant presented proof to the effect that he and his wife went to appellee’s place of business in Blytheville, Arkansas, on October 29, 1955, when appellant purchased a 1949 model'Packard automobile from appellee. Appellant and his wife both testified that a purchase price of $395.00 with a down payment of $100.00 was then and there agreed upon and that a written memorandum introduced by appellant to that effect was furnished by appellee. Either on the same date or a week later, when appellant made a payment of $25.00 on the balance, he executed a conditional sales contract showing a “Time differential Price (credit purchase price)” of $493.00. After credit of the $100.00 down payment the contract provided for payment of the $393.00 balance in 19 weekly installments of $20.00 and one payment of $13.00, beginning November 5, 1955.

In addition to the down payment appellant had paid $190.00 of the balance on December 14,1955, when he and his family stopped near appellee’s place of business and appellant’s 14 year old son was sent to make a payment of $14.00 on the contract. After accepting the payment appellee sent an employee to the car where appellant and other members of his family were waiting. The employee directed that the car be driven on appellee’s lot and left there and this was done.

At the conclusion of the foregoing proof by appellant the appellee moved for a “directed verdict” on the ground that appellant had not shown sufficient proof of usury. Appellant also moved for a “directed verdict,” whereupon, the court entered a decree finding there was no proof of usury and dismissing the complaint.

We have held that a motion by the defendant for a “directed verdict” at the close of plaintiff’s proof in a chancery case may be treated as one challenging the sufficiency of the evidence under Ark. Stats., Sec. 27-1729; and that the requirement that such motion be in writing may be waived by plaintiff’s failure to object on that ground. Thompson v. Murdock Acceptance Corp., 223 Ark. 483, 267 S. W. 2d 11; Karoley v. Reid, 223 Ark. 737, 269 S. W. 2d 322. It is also settled that, in passing-on a demurrer to the evidence filed by a defendant under the statute, the chancellor must view the testimony in the light most favorable to the plaintiff, and if so viewed a prima facie. case has been made then the demurrer should be overruled. Werbe v. Holt, 217 Ark. 198, 229 S. W. 2d 225.

According to appellant’s proof the parties agreed on a purchase price of $395.00 for the automobile without regard to whether the sale was for cash or on credit, and a down payment of $100.00 was made leaving a balance of $295.00. But under the conditional sales contract appellant was required to pay $393.00 over a period of 21 weeks without any indication that any part of the $98.00 differential was for anything- other than interest. In Hare v. General Contract Purchase Corp., 220 Ark. 601, 249 S. W. 2d 973, we reaffirmed the following statement of the court in Ford v. Hancock, 36 Ark. 248: “It is not usury for one who sells a piece of property on credit, to contract for a higher price than he would have sold it at for cash. If the intention be, in fact, to sell on credit, he has the right to fix a price greater than the cash price, with legal interest added; but if the sale be really made on a cash estimate, and time be given to pay the same, and an amount is assumed to be paid greater than the cash price, with legal interest, would amount to, this is an agreement for forbearance that is usurious. Therefore, where the intention is not apparent, it is a question for the jury to determine, whether it was a tona fide, credit sale, or a device to cover usury. Tyler on Usury, 92.” In the Hare case we also condemned the practice of using the credit price rule as a means of obtaining more than a 10% return upon what is in form a sale but is in substance a loan, saying: “Buying at a credit price, as distinguished from a cash price, has largely disappeared in fact, but is being used as a cloak for usury in many cases by such words as “time price differential,” or some other such language.” See also, Crisco v. Murdoch Acceptance Corp., 222 Ark. 127, 258 S. W. 2d 551.

When viewed in the manner required under the statute, the appellant’s proof was sufficient to make a prima facie case of usury and the cause should be reversed for further development unless appellant forfeited his right to insist on such procedure by himself moving for a “directed verdict.” Sec. 27-1729, supra, provides only for a demurrer to the plaintiff’s evidence by the defendant in a chancery case and did not contemplate the filing of a counter demurrer or motion by the plaintiff, as is sometimes done in law cases at the conclusion of all the evidence. As we view the situation, appellant’s counter motion for a “directed verdict” was simply out of order and should be ignored. The decree is accordingly reversed and the cause remanded for further proceedings.