author: Sam: Robinson, Associate Justice.

text:
    Limberg v. Lutz.
    5-2924
    365 S. W. 2d 713
    Opinion delivered March 11, 1963.
    [Rehearing denied April 8, 1963.]

      White é Martin, for appellant.

      Warner, Warner & Rag on, for appellee.
   Sam: Robinson, Associate Justice.

Appellants, Mary Limberg, and ber son-in-law, Hugh. Connor, filed suit against Herman A. Lutz and Fred A. Lutz, conducting a plumbing business as a partnership under the firm name of Lutz Brothers. The Complaint alleges that the defendants negligently set appellant Limberg’s dwelling-house on fire while doing some plumbing.

Mrs. Limberg- alleged damages in the sum of $11,046.57. Hugh Connor alleged that some personal property he had in the house was damaged in the sum of $824.88. Bertha Connor, wife of Hugh, filed an Intervention in which she alleged personal property damages to the extent of $116.70. The defendants, appellees herein, filed an Answer and Motion to Dismiss the Complaint and Intervention, alleging that Mrs. Limberg and the Connors were not the real parties in interest; that they had insurance which covered the loss sustained by reason of the fire; that the insurance company had paid the loss and had been subrogated to the rights of the plaintiff.

Mrs. Limberg and the Connors filed a response to the motion, stating that they were the real parties in interest and pointing out that the insurance company had not requested that it be made a party and had not intervened. The trial court entered an order holding that the Providence-Washington Insurance Company was a necessary party and directing that the complaint be dismissed unless the insurance company was made a party plaintiff. The insurance company filed a motion to set aside the order requiring it to become a party plaintiff, and alleged that it was not a necessary party, and further, that it waived any cause of action it might have a l> a Inst, the defendant Lutz by reason of the assignment. Cíe motion was overruled. The insurance company filed a complaint and the case proceeded to trial.

During the trial it developed that Mrs. Limberg had fire insurance covering damages -to the property to the extent of $6,500.00 and that the full amount of the insurance had been paid to her. The trial resulted in a verdict for the defendants. All the plaintiffs and the intervenor in the Circuit Court have appealed.

The principal contention by appellants is that the trial court erred in forcing the insurance company to become a party plaintiff by ordering a dismissal of the ease unless the insurance company joined as a plaintiff.

The first question is whether the insurance company was a necessary party to the maintenance of the suit. Mrs. Limberg’s claim against the Lutz Brothers up to $6,500.00 had been assigned to the insurance company; therefore, of course, that company was a proper party, but was it a necessary party? Appellees cite as sustaining their position, the case of National Fire Ins. Co. v. Pettit-Galloway Co., 157 Ark. 333, 248 S. W. 262, but that case merely holds that since the cause of action was not assignable by law, the assured was the real party in interest and a necessary party plaintiff. The question of whether the insurance company, the assignee, was a necessary party was not an issue. Appellees also rely on the case of Home Ins. Co. v. Lack, 196 Ark. 888, 120 S. W. 2d 355, There, the insurer and the assured had joined as plaintiffs in a case similar to the case at bar, and this court held that the insurance company was a proper party. There was no issue of whether it was a necessary party.

Another case relied on by appellees is Chicago R.I. & P. R. Co. v. Colls, 151 Ark. 207, 235 S. W. 995. Cobbs, the owner of property destroyed by fire, and the insurance company insuring against the loss, and assignee, filed suit against the railroad company alleging that the fire was caused by the negligence of that company. Both the insurer and the assured were parties plaintiff. The issue on the joinder of parties question was whether the insurance company was a proper party. There was no issue of whether it was a necessary party, but by way of oliter dictum the court said the insurance company was a necessary party. In Motors Insurance Corp. v. Coker, 218 Ark. 653, 238 S. W. 2d 491, we pointed out that the issue in the Cobb case was whether the insurance company was a proper party. In McGeorge Contracting Co. v. Mizell, 216 Ark. 509, 226 S. W. 2d 566, the court said; “Where the loss exceeds the amount of the insurance, so that payment under the insurance contract constitutes but a partial satisfaction of the damages sustained, leaving a residue to be made good by the wrongdoer, it has been held that insured may maintain in his own name the action against the tort-feasor, which may be for his own benefit-and for the benefit of the insurer. In such case insured may recover the full amount of the loss for which the tortfeasor is liable and insurer is not a necessary party.” In Dowell, Inc. v. Patton, 221 Ark. 947, 257 S. W. 2d 364, the court not only held that the insurance company was not a necessary party, but also held that evidence of its payment to the. assured was not admissible. The rule in the McGeorge and Dowell cases was approved in Summerhill v. Shannon, 235 Ark. 617, (October 29, 1962).

Our conclusion is that the insurance company was not a necessary party to the litigation. Having reached that determination, the next question is whether the plaintiffs and intervenor were prejudiced by the trial court’s action in compelling the insurance company to become a party plaintiff by ordering that the action be dismissed unless the company joined as plaintiff.

The insurance company objected to being made a party at its own risk, because it could not have maintained a separate suit against Lutz Brothers. Motors Insurance Corp. v. Coker, supra. Mrs. Limberg and the Connors did not want the insurance company in the case as a party plaintiff, and the insurance company did not want to be a party. In these circumstances, we feel it was prejudicial to the plaintiffs’ interest to have the ease confused by injecting the subject of insurance. In both the Dowell and Summerhill cases, above mentioned, we held that evidence was not admissible to show plaintiff’s loss was partially covered by insurance. In addition, a plaintiff has the right to plan his trial and course of action according to his own views so long as his procedure is valid. He should not be compelled to have another party associated with him when such other party is not necessary to the action and when neither he nor the other party desire such association.

There can be differences of opinion on the selection of the jury and other procedures, and the bringing of such a party into the case may confuse the jury. This very thing appears to have occurred in the case at bar. When the jury returned the verdict for the defendants, the foreman of the jury said to the court: “I would like to make a little comment following this verdict, if I may ... and I’d like to state on behalf of the jury that we took several ballots before making this decision and it was the feeling of the jury that although there may have been some indication of negligence, there was enough improvement, and on the basis of this they returned this unanimous verdict.” Apparently, the foreman was talking about the repairs to Mrs. Limberg’s house exceeding in value the $6,500.00 in insurance. Of course, the Connors were also in the case.

Appellants also argue that the court erred in refusing to permit counsel to examine veniremen on the doctrine of res ipsa loquitur. This was a matter of discretion with the trial court.

For the errctr in compelling the insurance company to become a party plaintiff, the judgment is reversed and the cause remanded.


source: Caselaw Access Project

author: Jim Johnson, Associate Justice.

license: Public Domain

text:
    Southern Farm Bureau Casualty Ins. Co. v. Robinson.
    5-2885
    365 S. W. 2d 454
    Opinion delivered March 11, 1963.

      Cochrill, Laser, McGehee £ Sharp, for appellant.

      Murphy £ Arnold, for appellee.
   Jim Johnson, Associate Justice.

On August 22,1956, appellant Southern Farm Bureau Casualty Insurance Company issued its automobile liability policy to Forrest B. Booth. The policy was in effect on May 28,1958, when Booth had an automobile accident in Illinois. At the time Booth was driving the car and appellee Bartis Robinson was a passenger. Robinson was injured and hospitalized. Booth returned to Arkansas.

On June 30, 1958, Robinson filed suit against Booth in Illinois and on July 15,1958, Booth received in Arkansas by registered mail a notice of the action and a copy of the process. There is evidence, controverted, that Booth did not forward the suit papers to appellant until October 10, 1958, and that it was not until September 16, 1958, that appellant learned of the Illinois action as a result of a telephone call from Robinson’s attorneys. Appellant took a non-waiver agreement from Booth on October 9, 1958, and then answered, entering his appearance in the Illinois action. Thereafter on October 21,1958, appellant filed a declaratory judgment action against Booth in the United States District Court, Eastern District of Arkansas, Northern Division, in which action appellant alleged that Booth did not deliver the suit papers to appellant as required by his policy and therefore it was not liable under the policy.

Booth did not answer appellant’s complaint, and on January 6, 1959, a judgment by default was entered against Booth. On February 1-, 1959, appellee filed a motion in the United States District Court to set aside the judgment and allow him to defend, which was denied.

On February 13,1959, appellant obtained permission of the Illinois court to withdraw the answer its Illinois attorneys had filed for Booth, and Booth was given notice thereof and time in which to employ counsel and defend the action if he so desired. Booth did not file an answer, and on September 13, 1960, Robinson took a default judgment against Booth in the amount of $20,-000.00 in the Illinois action. Thereafter on January 2, 1961, appellee reduced his Illinois judgment against Booth to an Arkansas judgment and an execution was issued against Booth which was returned unsatisfied.

Having exhausted his remedies against Booth, appellee then filed this suit directly against appellant in the Independence Circuit Court under the authority of Ark. Stats. § 66-526.

At trial the jury awarded appellee $5,000.00 damages, $818.94 medical expenses, no interest, and costs of $71.90. The trial court entered its judgment on October 27, 1961, for the amount of the jury award, together with interest on the Illinois judgment until it was reduced to an Arkansas judgment, interest on the Arkansas judgment, the statutory penalty, attorneys fees and costs against appellant. For reversal of that judgment, appellant relies on four points, each of which we shall consider separately.

I

“The trial court erred in holding that the judgment of the United States District Court was not conclusive of the single factual issue in the instant action.”

Restated, this question is, “Can a default declaratory judgment between an insurer and an insured, instituted while suit is pending in a foreign jurisdiction between the insured and an injured person, which suit the insurer is defending, destroy the rights of the injured person who was not a party to the declaratory judgment proceedings?”

When the United States District Court denied appellee’s motion to set aside the judgment and allow appellee to intervene and answer, the District Court filed a Memorandum Opinion denying the motion for lack of timeliness, in which the Court stated in part:

“Aside from that, however, I would give serious consideration to granting the motion, notwithstanding the movant’s lack of diligence if I felt that there was any real likelihood of his being seriously prejudiced in a subsequent action against the company on account of the entry of the default judgment. I do not believe, however, that there is any substantial danger of such prejudice. The movant has never been a party to this action and is not bound by the judgment; in my opinion he will be perfectly free, should he ultimately obtain a judgment against the insured, to litigate with the company the question of whether the insured complied with the requirements of the policy. Allstate Insurance Co. v. Thompson, D. C., Ark., 121 F. Supp. 696, 702-3.”

The manifest purpose of the “direct action statute” (Ark. Stats. § 66-526) is to protect the rights of the injured and not the rights of the insurer or the insured. The rights of the injured arose at the time of the injury, 46 C.J. S., § 1191, p. 122, and are antagonistic to the rights of both the insurer and the insured. Under the facts here presented, it cannot be said that the insured and appellee were in privity with each other either in law or in fact.

On the specific point here in question, Professor Appleman in his comprehensive works, Insurance Law and Practice, vol. 20, § 11371, states what appears to be the general rule as follows:

“Persons who have been injured in an automobile accident are certainly proper parties to a suit by the liability insurer to determine coverage of its policy and the better rule would seem to be that they are both proper and necessary parties to the maintenance of the suit. Hence, it would be error to dismiss such person from the declaratory judgment suit. . . However, if the court does not or cannot secure jurisdiction over them their rights cannot be destroyed by their non-appearance; nor can ^such rights be determined where they are not made parties to the suit.”

The rationale of this rule is sound and since the specific question here presented appears to be a case of first impression in this jurisdiction, we adopt it as our own.

Applying the rule as adopted to our consistent literal construction of the Arkansas Declaratory Judgment Act (Ark. Stats. § 34-2501, et seq.), “When the declaratory relief is sought, all persons shall be made parties who have or claim any interest which would be affected by the declaration, and no declaration shall prejudice the rights of persons not parties to the proceeding,” Johnson v. Robbins, 223 Ark. 150, 264 S. W. 2d 640; Laman, Mayor, v. Martin, 235 Ark. 938, 362 S. W. 2d 711; we conclude that the U. S. District Court’s declaratory judgment was not res judicata as to appellee who was not a party to the action.

II.

“The trial court erred in refusing to grant appellant’s motion for a directed verdict on the ground that there was no substantial evidence that insured Booth complied with the policy provisions requiring immediate delivery to the company of suit papers.”

The policy provision here referred to is Section 3 of the Conditions of the policy:

“3. Insured’s Duties. The insured, or someone on his behalf, shall as soon as practicable after an accident or loss:
(a) give written notice to the Company containing all particulars;
# * #
(c) immediately deliver to the Company all papers in connection with any claims or suits; . . . ”

Appellant forcefully argues that Booth’s own testimony relative to delivery of the suit papers to the company in compliance with the policy provision was such as to fall short of fulfilling the requirement that it be substantial in nature. It is true that Booth’s testimony was generally contradictory, however he consistently maintained that he “showed” the papers to appellant’s agent shortly after receiving them. Be that as it may, the policy provides that notice shall be given by the insured, or someone on his behalf. There is substantial evidence that appellant received notice of the suit and that it was not prejudiced by delay in receiving such notice. Appellee’s Illinois attorney, William C. Murphy, testified that he was retained by appellee on June 8, 1958, and that on June 16,1958, he wrote appellant’s .agent about appellee’s claim. He exhibited a copy of his letter and the signed receipt. Suit Avas filed in Illinois on June 30th and service perfected on July 7th. In the meantime appellant employed, on June 24th, an Illinois claims adjusting-agency, who called on appellee’s attorney on June 26, 1958. Right after Labor Day, 1958, Mr. Murphy called appellant’s agent about the pending suit and at his suggestion called the Little Rock office of appellant. He followed up this conversation with a letter to the Little Rock office dated September 17, 1958. On October 1, 1958, Mr. Murphy sent appellant a notice that he would present the matter for default judgment on October 11, 1958. On October 8,1958, Edwards Streit, also an Illinois attorney, contacted Mr. Murphy stating that he represented appellant, and on that same date Mr. Murphy wrote Mr. Streit that he would do nothing further on the case until he was advised whether appellant was declining coverage or Avas accepting coverage. On November 1, 1958, Mr. Streit called Mr. Murphy and advised bim that appellant was in the case all the way.

Thereafter on November 17, 1958, appellant filed an answer, but then on February 13, 1959, appellant withdrew its answer.

In M. F. A. Mutual Ins. Co. v. White, 232 Ark. 28, 334 S. W. 2d 686, concerning a similar policy provision,, this court held:

“The purpose of the stipulation in the policy Avas. to afford the insurance company an opportunity to control the litigation and interpose a defense against the claim on the merits of the case. Since the first action Avas dismissed without prejudice there was no judgment,. no payment, and no liability against appellant was sought; hence, it is clear that there was no breach of the conditions of the policy by failure of appellee to give notice of the first suit. ’ ’

In that case, the first suit brought by the injured party was dismissed voluntarily and without prejudice even though she was entitled to a default judgment when she discovered that the insured had not given the insurer notice of the suit, and then immediately filed an identical suit. The insured complied with policy provisions on the second suit. In the case at bar, appellant had ample opportunity to investigate the case and interpose a defense, and the testimony is uncontroverted that appellant did both investigate the claim and interpose a defense. The state of the record being thus, we find that the trial court properly denied appellant’s motion for a directed verdict and properly submitted the question of compliance with the policy provisions to the jury.

m.

“The trial court erred in refusing to instruct the jury that appellee’s rights under appellant’s policy were no greater than the rights of its insured, Forrest B. Booth.”

Appellant objected to the trial court’s deletion of the following words from an offered instruction: “You are further instructed that the rights of the plaintiff are no greater than the rights of Booth.”

The record reveals that in the first and second paragraphs of appelant’s answer, appellant admitted that appellee “is entitled to recover in Ms own rigM for all medical expenses incurred within one, year after the date of the accident, ’ ’ and then denied that it is indebted to appellee in any manner under the policy except for the medical payments. This is inconsistent with the offered instruction. Appellant’s answer concedes that appellee’s' rights were greater than Booth’s, if only for the medical expense coverage, which disposes of the necessity of our reaching the question of whether Booth had, at the time of the present trial, lost his rights by the default judgment rendered against him in the TJ. S. District Court.

IV.

“The trial court erred in rendering judgment for appellee for certain interest despite the verdict of the jury refusing to award interest.”

Before retiring, the jury was instructed in part as follows :

“I will hand you three forms of verdict; the first one reads: ‘We, the jury, find for the plaintiff, Bartis Robinson, and fix his recovery as follows: Coverage A, $5,-000.00; Coverage C, $818.94; Interest, ’ and there you will find a dollar sign and a blank where you .would insert whatever amount you agreed upon, “Costs, $71.90.’
“The second form of verdict reads: ‘We, the jury, find for the plaintiff, Bartis Robinson, for his medical expenses only under Coverage C'and in the amount of $818.94.”
“The third form of verdict: ‘We, the jury, find for the defendant, Southern Farm Bureau Casualty Insurance Company.’ ”

The jury returned with the first verdict, signed by nine jurors, but with the interest left blank. In response to a question, the court advised the jury that they did not have to include interest. The attorneys for both parties objected to this instruction, on different grounds. The jury retired and then returned with the verdict form marked, “No. int.”, signed by all twelve jurors.

Appellee’s complaint prayed for interest on the full $20,000.00, in accordance with Paragraph 3 of the policy under its “insuring agreement” which provides:

“(b) All expenses of the company, all costs taxed against the insured in any suit and all interest accruing after entry of judgment and until the company has paid or tendered or deposited in court such part of such judgment as does not exceed the limit of the company’s liability thereon. ’ ’

In onr view, this provision provides for interest on the entire judgment until tender has been made of an amount up to the policy limits. 76 A.L.R. 2d 983. There is no showing that tender has ever been made even of the medical payments which appellant admits it owes.

Arkansas Statutes § 29-121 provides as follows:

‘ ‘ Creditors shall be allowed to receive interest at the rate of six [6] per cent per annum on any judgment before any court or magistrate authorized to enter up the same from the day of signing judgment until the effects are sold or satisfaction be made; ...”

From the mandatory wording of this statute, it is apparent that as a matter of law appellee was entitled to interest if he was entitled to a judgment. The jury having found that appellee was entitled to judgment, the awarding of interest then becomes a matter of simple computation “of six per cent per annum from the date of signing judgment.” On motion of appellee, after briefs and argument of counsel, the court found that appellee was entitled to interest on the Illinois judgment until it was reduced to an Arkansas judgment, and interest on the Arkansas judgment from the date of its entry to the date of the trial. We find no error in the trial court’s correction of its own error in submitting the question of interest to the jury. After careful consideration of all points urged for reversal, we find no error and the judgment is therefore affirmed.

Counsel for appellee have moved for additional attorneys’ fee because of services rendered on this appeal. We are of the opinion that the motion should. be granted, and the fee is fixed at $500.00.

It is so ordered.


author: Frank Holt, Associate Justice.

text:
    Lytton v. Johnson.
    5-2930
    365 S. W. 2d 461
    Opinion delivered March 11, 1963.

      Gentry <& Gentry, for appellant.

      Richard W. Hobbs, for appellee.
   Frank Holt, Associate Justice.

The appellant, Dag-mar Joy Johnson Lytton, brought this suit against the appellee, Lewis P. Johnson, individually and as executor, to have a recorded deed declared void on the allegation of it being a forgery. The original deed was not produced in evidence.

The chancery court dismissed appelant’s complaint “for lack of proper proof and evidence and for want of equity.” On appeal, for reversal appellant relies on the following points: (1) The legal presumption given to a recorded deed, properly acknowledged, was overcome by appellant’s proof and (2) the preponderance of the testimony shows that the deed and acknowledgment was a forgery.

Appellant is the daughter of Mabel F. Johnson and Charles H. Johnson, both deceased, the mother and father having been divorced in 1924. Subsequent to the divorce, the father of appellant conveyed several lots of property to her and had the deed recorded on April 13, 1926. Appellant testified that she did not know of the conveyance by her father to her until the death of her mother in April, 1961.

A deed, dated November 12, 1929, from appellant to Mabel F. Johnson reflects that it was acknowledged before a notary public on November 15, 1929. The deed was recorded in 1938. The deed recited consideration of $500.00 and love and affection. Appellant, also, claims no knowledge of this deed from her to her mother. It is this deed that appellant alleges to be a forgery.

Mabel Johnson married the appellee, Lewis P. Johnson, a nephew of her former husband who was Dagmar’s father, in May, 1930. Appellee testified that his wife kept the deed in the safe in her flower shop and gave it to him to have recorded in 1938 so that a loan could be procured by them for the purpose of building a residence on such property which they did. He testified that he has not been able to find the original deed.

Appellant testified that the purported date of the acknowledgment of the deed, November 15, 1929, was the date on which she married a previous husband. She testified that she did see a notary public that day but that it was for the purpose of transferring some traveler’s checks. Appellant asserts that the failure of appellee to produce the original deed created the presumption that if such deed were produced it would be favorable to appellant’s claim. The failure or inability of the appellee to produce the original deed, under the facts in this case, raised only suspicions against the validity of the duly recorded instrument. Temple, Administrator v. Smith, et al, 222 Ark. 834, 262 S. W. 2d 898.

Although we do not have the original deed before us, we have held:

“A certificate of acknowledgment was appended to the mortgage, and it was duly placed of record, and this made a prima facie case of the proper execution of the deed. Crawford & Moses’ Digest, § 1532 [Ark. Stat. 28-921]; Polk v. Brown, 117 Ark. 321, 174 S. W. 562; Nevada County Bank v. Gee, 130 Ark. 312, 197 S. W. 680.” Straughan v. Bennett, 153 Ark. 254.

See also Lynn v. Quillen, 178 Ark. 1150, 13 S. W. 2d 624.

The burden is upon appellant, therefore, to disprove the authenticity of the acknowledgment. In the case of Miles v. Jerry, 158 Ark. 314, 250 S. W. 34, we said:

“ * * * This court has uniformly held that where a grantor appears and makes some kind of acknowledgment before an officer authorized by law to take such acknowledgment, the recitals of the certificate of such officer, regular on its face, are, in the absence of fraud or duress, conclusive of the facts therein stated. Bell v. Castleberry, 96 Ark. 564, 132 S. W. 649.

A different question presents itself in the case of a certificate of acknowledgment alleged to have been forged. A proper acknowledgment is an essential part of the execution of a conveyance of land, and it is competent for the grantor to show the falsity of a certificate of acknowledgment. Where the grantor never appears before an officer to acknowledge the deed and the officer makes a false certificate that the grantor did appear, his act is wholly without authority of law, and void. Every one must be subject to the risk of forgery by officers authorized to take acknowledgments. No one can claim that an estate in land should be divested by forgery, and the forgery need only be established by a preponderance of the evidence.”

Whether it be contended that the acknowledgment was wrongfully made by the notary or that the notary’s acknowledgment was forged, we feel that from a review of the record appellant has failed to sustain her burden of proof. This court was faced with a similar situation in O’Kane v. First National Bank of Paris, 189 Ark. 396, 72 S. W. 2d 537, where we said:

“ * * * Appellant stands alone in denying that she appeared and acknowledged the instrument. She is contradicted, not only by her interest in the result of this lawsuit, but by the certificate of the officer and two officers and employees of the bank, and by her admission that she actually signed her name to it. The burden was upon her to establish the falsity of the certificate of the notary, and this she has failed to'meet.”

In the instant case, appellant admitted that she appeared before a notary on November 15, 1929, for the purpose of transferring some traveler’s checks. We cannot think of a situation in which it would be necessary for a notary to acknowledge such a transaction and there is no such proof offered. This statement, that she appeared before a notary, along with the fact of appellant’s interest in the lawsuit, plus several inconsistencies in her testimony, warranted the chancellor in ruling that she had not sustained her burden of proof. We cannot say that the chancellor’s finding was against the preponderance of the evidence.

The decree is, therefore, affirmed.

       At the time this deed was recorded in 1938, nine years after its date, facilities for photostating such instruments were not available in the recorder’s office.


author: Carretón Harris, Chief Justice.

text:
    Abel of Ark. v. Richards.
    5-2945
    365 S. W. 2d 705
    Opinion delivered March 18, 1963.

      Milham & Cummins, for appellant.

      Ben M. McCray, for appellee.
   Carretón Harris, Chief Justice.

Appellant, Abel of Arkansas, Inc., is an Arkansas corporation engaged in the business of processing sand and gravel into aggregate for construction use, and its plant is located on the Saline River near Benton. Appellee, Mike Richards, is a resident of Benton engaged in contracting, and hauling gravel and other products. On August 27,1960, appellant and appellee entered into a -written contract, whereby the company agreed to pay Richards “the sum of 55 cents per cubic yard of raw gravel and aggregate taken from the Airport lands and removed and placed on the grounds in the plant of Abel;” appellant also agreed to pay to Richards an additional sum of 10 cents per cubic yard for an easement across Richards’ lands. Richards agreed to “put at least 500 cubic yards of aggregate in the plant per day,” except Sundays, and unless prevented by high water. Abel agreed to pay Richards for the gravel at the time of sale, or collection, but not later than 60 days after the sale. The contract was to run for one year.

On February 1, 1962, appellant instituted its complaint against Richards alleging that the latter had breached the contract by failing to deliver the 500 cubic yards per day, and that the company had been damaged in the sum of $42,753.50. Judgment was sought in that amount. Following the filing of a demurrer by appellee, a substituted complaint was filed by appellant, seeking-identical relief, but specifically setting up the manner in which the figure of $42,753.50. had been reached. Richards answered with a general denial, and filed his cross complaint against appellant seeking- judgment in the sum of $5,825.45. It was alleged that no payments had been made to appellee since February 28, 1961, though appellant had sold a substantial amount of gravel since that time. Judgment was sought for alleged amounts due because of such sales, and the balance of appellee’s claim was predicated upon alleged rent due from the company for the use of certain equipment belonging to Richards, and for alleged conversion of, and damage to, other equipment owned by appellee. After the filing of other pleadings and interrogatories, the cause proceeded to trial, and the jury returned a verdict for Richards on his cross complaint in the sum of $6,712.00. The amount was reduced by the court to $5,825.45, inasmuch as Richards had only sought that sum in the cross complaint. From the judgment entered by the court in the last amount, appellant brings this appeal. Several points are urged for reversal which we proceed to discuss.

It is first asserted that the court erred in permitting counsel for appellee to cross-examine J. P. Brumbelow, Secretary and Treasurer of appellant company, relative to certain matters that had not been included in the interrogation on direct examination, and which (according to appellant) related only to the cross complaint filed by appellee. In the first place, the examination appears mainly to enlarge upon questions which were touched upon in the direct examination, and in the next place, though the general rule is that cross-examination must be confined to only those facts and circumstances connected with the matters actually stated by the witness during direct examination, we have also recognized the discretionary power of the trial court to allow variations from the customary order. Ordinarily we decline to consider as error any variation sanctioned by the trial court unless there is an abuse of discretion. St. Louis, I. M. & S. Ry. Co. v. Raines, 90 Ark. 398, 119 S. W. 665; Hightower v. Sholes, 128 Ark. 88, 193 S. W. 257. See also article entitled “Cross Examination and Impeachment ” by Jeróme K. Heilbron, attorney of Fort Smith, at Page 41, Volume 15, Arkansas Law Review. We find no abuse of discretion in the present instance, particularly inasmuch as the subject matter was covered by later witnesses.

In making his opening statement to the jury, counsel for appellee remarked that the litigants “threw this contract out the window and made an oral contract. ’ ’ Appellant objected to the statement on the ground that no oral agreement had been pleaded. The objection was overruled. It is true that the answer and cross complaint do not assert any agreement made subsequent to the original contract, but we are unable to see that any prejudice resulted to appellant from the statement made by counsel in his opening remarks. After all, this was merely a statement — not evidence. A more proper moment for this objection to have been made was at the time the proof of a new agreement was offered. Richards offered this proof during his testimony — and no objection of any nature was made by appellant.

It is asserted that the judgment is contrary to the evidence, but the duty of passing upon the evidence was a proper prerogative of the jury, and not this court. The testimony was quite conflicting, constituting what is sometimes referred to as a “swearing match” between the litigants and their respective witnesses, and presented the questions of whether the parties proceeded entirely under the original agreement or under a subsequent agreement, which party first violated the contract under which they were operating, or whether, possibly, both abandoned any agreement that had been made. The company contended that Richards did not deliver the gravel in the quantities, nor manner, called for by the contract, and evidence was offered in support of that contention, and to explain the amount of damages sought ($42,753.50) in the complaint. From the testimony of Brumbelow:

“The total number of days should have been 365, but we started with October 26th, which is 295 — I beg your pardon — 294 days, and we — and I counted them by the calendar — it was 42 Sundays taken from that 294 which would leave 252 days. Of course, the contract had a high water clause, it would necessarily have a bad weather clause, and the added high water clause by most stated contracts will give a twenty-five percent leverage for high water on their contract, which we gave to him in determining the number of days of operation. So we took twenty-five percent off the 252 which would have been 63 days that we were allowing him for high water, would have been a total of 189 operating days at the plant. Now, 189 days times five hundred yards per day would have been 94,500 yards of material that should have been put to the plant in the 189 days of operation. Now, he actually put to the plant in those days a total of 8,993 yards. That figure I gave you while ago was correct. He actually put 8,993 yards to the plant, which, incidentally was only sixteen days of operation for the plant ont of that particular year forfeiting the contract, which would leave the amount under the contract of 85,507 yards, and that times fifty cents would be $42,753.50.”

Several other witnesses testified that Richards never did deliver as much as 500 cubic yards in any one day, and gravel was not delivered in sufficient amounts to permit full operation of the plant.

Appellee disputed these statements, testifying that he started hauling gravel as soon as the plant was ready for operation (some time in October). Richards stated,

‘ ‘ They had some gravel on the ground in the stockpile at all times, except one time when Mr. Ament asked me to shut off hauling for one week. There was so much stuff there, we had him covered up on the ground, so he could not get around with his loader, and it was one week there that we did not haul any gravel for him at his request. * * * Well, we would back up there with a load of gravel and nine dimes out of ten we would have to sit there and wait anywhere from ten minutes to an hour, and then when we did get a chance to dump it out we would have to raise the bed at least three times, because it would run over on the belt and it would shut down, and we would sit there. Every load we put in it was like that. They would ask us to do that because the conveyor belt would break. And on several occasions they would have to stop hauling and clean that hopper out with a shovel. ’ ’ Other witnesses also testified substantially to the same facts. Appellee testified that he finally quit hauling because £‘they went broke and didn’t have any money to operate on. ’ ’

Certainly, there was evidence under which the jury could find that a supplemental agreement was entered into. The testimony reflects that it became necessary to enter into a further contract relative to obtaining gravel to supplement the amount of gravel being hauled from the river. An agreement was entered into to pay Richards $1.05 per yard for gravel hauled from another location. While Brumbelow testified “that was all Mike’s idea,” the company did accept the gravel, and paid Richards for part of it. Admittedly, appellant still owes Richards $618.40.

Appellant complains that Richards should not have been permitted to present the proof just mentioned, since his pleadings did not assert this agreement; however, as heretofore pointed out, this evidence was offered without objection. In Fairbanks-Morse & Company v. Hogan, 201 Ark. 1114, 148 S. W. 2d 162, we said:

“Where the plaintiff acquiesced in the method of examining witnesses and did not contend trend of the testimony thus adduced was outside the scope of the pleading's, the answer will be treated as having been amended to conform.”

See also R.C.A. Victor Co., Inc. v. Daugherty, 191 Ark. 401, 86, S. W. 2d 559.

There ivas likewise testimony under which the jury could have found that appellant company was not in sufficient operating condition to use 500 cubic yards of aggregate each day. While this was stoutly denied by witnesses for appellant, the question was, as heretofore stated, entirely one for the jury to determine. Appellant frequently reiterates in its brief that appellee did not start hauling gravel until October, whereas Richards ivas supposed to start hauling in the latter part of August. Appellee’s answer to this contention was simply that the plant was not, at that time, operating in a manner that Avould enable it to handle the loads called for in the original agreement. In addition, it will also be noted from the testimony of BrumbeloAv (heretofore quoted) that the company, in figuring up the amount of damages in the complaint, used the commencement date of October 26. In other AA’ords, it Avould appear that, in effect, appellaiit abandoned the contention that appellee first violated the contract by not starting in August, and waived appellee ’s failure to do so, for in seeking damages, it relied on events that occurred subsequent to the 26th day of October.

Appellant also complains that the evidence (upon which the verdict for appellee was based) does not constitute substantial evidence. This objection primarily refers to various items mentioned by Richards in his testimony, which related to damage to his equipment. For instance, Richards testified that the company used a loader belonging to him and damaged it to the extent that he had to “tear it down and completely overhaul it” at a cost of $2,300. Appellee testified that he was not present at the time this was done and had acquired the information from his operator. Appellant says this evidence was inadmissible because it was hearsay evidence. Of course, it is hearsay evidence, but an examination of the record reflects that no objection was made at the time this testimony was given. In New Empire Ins. Co. v. Taylor, 235 Ark. 758 (Law Reporter of Nov. 26, 1962), 362 S. W. 2d 4, this court, quoting McCormick on Evidence, said:

“A failure to make a sufficient objection to evidence which is incompetent waives as we have seen any ground of complaint of the admission of the evidence. But it has another effect, equally important. -If the evidence is received without objection, it becomes part of the evidence in the case, and is usable as proof to the extent of whatever rational persuasive power it may have. The fact that it was inadmissible does not prevent its use as proof so far as it has probative value. Such incompetent evidence, unobjected to, may be relied on in argument, and alone or in part may support a verdict or finding. This principle is almost universally accepted and it applies to any ground of ineompeteney under the exclusionary rules.”

■ Appellant also asserts that the cost of repair was not the proper method to prove damage to secondhand equipment, but, as stated, no objection was made when the testimony was introduced. This same holding likewise applies to various other items of damage offered by-Richards that are now questioned by appellant, but to which no objection was made at the time of the introduction.

Appellant contends that inasmuch as the jury returned a verdict in an amount greater than that sought by appellee in his cross complaint, the court erred in not setting the verdict aside rather than reducing the judgment in the amount of $876.55. No motion to set aside the judgment was made, but at any rate, we cannot see how appellant was prejudiced by the court’s action; the reduction inured to the benefit of the company, and, in fact, a failure to have reduced the judgment to the amount sued for, would have constituted error. Cohn v. Hoffman, 45 Ark. 376; Turner v. Smith, 217 Ark. 441, 231 S. W. 2d 110.

Appellant asserts that the court erred in failing to instruct the jury on behalf of the plaintiff (appellant) as orally requested by plaintiff’s attorney, and that the court’s Instruction No. 1 failed to apprise the jury of the company’s rights. The objections which were made to this particular instruction are not well grounded, and appellant did not offer any instructions in its own behalf.

Appellant complains about certain instructions that were given to the jury by the court at the request of appellee. Appellee’s Instruction No. 2, which dealt with the burden of proof on the part of the plaintiff, is challenged by appellant, but we find no error in the instruction. Complaint is made of appellee’s Instructions No. 4 and No. 6, which are similar to each other. No. 4 reads as follows:

“You are instructed that the failure of one party to a contract to comply with its terms releases the other party from complying with it, so if you find from the evidence in this case that the plaintiff, Abel of Arkansas, did not comply with the terms of the contract sued on herein, then there was no further obligation on the part of the defendant, Mike Richards, to comply with the terms of said contract. ’ ’

An objection was made to this instruction on the basis that there was no evidence upon which to base it, and it was therefore abstract and “it is admitted by the defendant in his evidence that he did not deliver any aggregate to the plant until October 28.” We have already in onr prior discussion answered the quoted statement, and, as previously pointed out, there was evidence that Abel had not complied with the contract, so the objection is not well taken. Appellee’s Instruction No. 6 reads as follows :

“You are instructed that one breaking a contract cannot recover on said contract, so if you find from the evidence in this case that the plaintiff, Abel of Arkansas, first breached the contract sued on herein, then your verdict should be for the defendant, Mike Richards, on the complaint of the plaintiff.”

Objection was made that this instruction ‘ ‘is not a correct declaration of the law.” Of course, this objection is no more than a general objection, which is only good if an instruction is inherently erroneous, i.e., the instruction could not be correct under any circumstances. A general objection was not sufficient to challenge this instruction, and appellant failed to point out specific errors.

Appellant asserts some other alleged errors, but these are either not argued in the brief, or are found to be without merit.

No reversible error appearing, the judgment is affirmed.

       The object was to install a washing- plant, for the purpose of stockpiling sand, gravel, and other aggregate at Abel’s plant.

       According to the pleadings, “The $42,753.50 sued for herein is the amount or difference between what plaintiff was to pay defendant, plus the expense of processing the materials into finished products under the contract and the market value of the number of yards which defendant failed to deliver to plaintiff’s plant under said contract.”

       Testimony was also offered by appellant that Richards entered into a federal contract and moved to Sheridan to service a gravel haul from Sheridan to Redfield; appellee offered testimony that appellant company entered into a contract with the Burks Company to haul gravel to the premises without his (Richards’) knowledge.

       This was occasioned by the condition of the gravel hauled from the river. “It had so much polution of dirt and shale that they stopped me. It looked like a lot of gravel but when you reached down and picked it up there was this old black mud in it and it wasn’t altogether in the strippings either.”

       While there are several cases that seem to support these instructions (Mo. Pac. Railway Co. v. Yarnell, 65 Ark. 320, 46 S. W. 943, Nakdimen v. Baker, 111 F. 2d 778, and some others), the statement that the one who first breaches a contract cannot recover on the contract, is generally qualified by other language. In St. Louis - S. F. Ry. Co. v. Mo. Pac. Rd. Co., 176 Ark. 1016, 5 S. W. 2d 364, this court pointed out, “There are exceptions to this general rule, growing out of the nature of the thing to be done and the conduct of the parties.” In Griffin v. Chesney, 168 Ark. 240, 269 S. W. 582, we said, “There is more uncertainty about who committed the first breach, and this appears to be the principal question of fact in the case. Cases are cited holding that the party who commits the first substantial (our emphasis) breach of a contract cannot maintain an action against the other contracting party for a subsequent failure to perform. This is, of course, a well settled principle of the law.” A pertinent discussion is found in Corbin on Contracts, Volume 6, Chapter 68, Sections 1253 and 1254. Without necessarily indicating our full approval or acceptance of the language therein used, we quote portions of those sections as interesting observations on the subject. From Section 1253 (Page 7) : “It is not always that a breach of contractual duty by one party to a bilateral contract discharges the duty of performance on the part of the other. As the term “breach” is used, a contractor who has committed a breach is guilty of a wrong for which some remedy is available, the remedy varying with the case. Being guilty of a wrong does not make him an outlaw or deprive him of all rights, even the rights that were created by the very contract that he breaks. This is true, in spite of many a contrary dictum, even when his breach is ‘wilful.’ Indeed, it seems best to say that breach by one party never discharges the other party, regarding breach merely as a wrong without regard to the extent and quality of its ill effects.’’ From Section 1254 (Page 17): “There is an often repeated doctrine to the effect that any wilful breach by one contractor discharges the other from further duty, without regard to the extent or materiality of the performance that is wilfully refused or withheld. The harshness^ with which such a rule as this would often operate, grossly penalizing the one party for a comparatively slight harm to the other, has generally been avoided, either by making no reference to the doctrine at all or by strained interpretations of the word ‘wilful.’ It is generally true that, in cases where the doctrine is expressly relied on, the breach is not only wilful but is also material in character and extent; frequently the breach that the court has in mind is a wilful and total abandonment.
      But if the doctrine is strictly and honestly applied, in a case where one party wilfully commits a slight and immaterial breach, then there is a discharge by wilful breach, even though the nonperformance is one that would not in itself have been of the essence and there is no discharge by failure of consideration or by nonperformance of a condition. This is not justice.”


author: Ed. E. McFaddin, Associate Justice.

text:
    Rook v. Moseley.
    5-2879
    365 S. W. 2d 718
    Opinion delivered March 18, 1963.

      Barber, Henry, Thurman & McCaskill, for appellant.

      L. Weems Truss ell, DuVal L. Burkins, for appellee.
   Ed. E. McFaddin, Associate Justice.

This cause stems from a traffic mishap which occurred in Fordyce on October 19, 1961. Mrs. Milner, accompanied by Mrs. Moseley, was driving north on U. S. Highway No. 67 and gave a signal and proceeded to turn right. The other car, driven by R. T. Livingston and proceeding in the same direction, was behind the Milner car, and crashed into the Milner car, causing property damage and personal injuries to the ladies (appellees here), who filed this action for damages against both R. T. Livingston and C. C. Rook.

It was alleged, and is urged here, that Rook was the owner of the vehicle Livingston was driving; that Rook allowed Livingston to drive the car, either as bailee or agent; that Rook knew, or should have known by the exercise of ordinary care, that Livingston was a careless and reckless driver and drove while intoxicated; and that Livingston’s driving while intoxicated was the cause of the traffic mishap in this case. Livingston filed general denial; Rook denied ownership of the ear, alleging a sale to Livingston; and also claimed no knowledge or reason to suspect that Livingston was other than a fine and competent driver at all times. Jury verdict was in favor of the plaintiffs and against both defendants. Rook alone prosecutes this appeal, and urges four points. ¥e group these in suitable topic headings.

I. Ownership Of The Car Livingston Was Driving. Appellant Rook insists that all the evidence shows that he did not own the vehicle Livingston was driving; and that the Trial Court should have given an instructed verdict in favor of Book. The evidence shows that the Livingston vehicle was registered under the Motor Vehicle Title Certificate Law (§ 75-101 et seq. Ark. Stats.) in the name of “C. C. Book or Mrs. C. C. Book.” Book and Livingston both testified: that on October 16, 1961 (three days before the traffic mishap here involved) Book sold the automobile to Livingston for an agreed price of $200.00; and that Livingston paid $50.00 in cash at the time, and was to pay the balance at the rate of $50.00 per m mth. There was no contemporaneous writing to evidence this alleged sale to Livingston; but Book and Livingston both testified that some time about November 1, 1961 (after the mishap) they went before a Justice of the Peace and executed a title certificate assignment, and that by May 1, 1962, Livingston had paid Book the full $200.00 for the car.

On the other hand, the Chief of Police of Fordyce testified that immediately after the collision Livingston told him that he (Livingston) did not own the car and was only trying it. This testimony of the Chief of Police was admissible to contradict the testimony of Livingston, which was to the effect that he had bought the car. Livingston and Book are both parties in the case, so their testimony is not undisputed as a matter of law. Ball v. Hail, 196 Ark. 491, 118 S. W. 2d 668. The fact that the car was, at the time of the mishap, registered in the name of C. C. Book or Mrs. C. C. Book, is evidence of title in them. Robinson v. Martin, 231 Ark. 43, 328 S. W. 2d 260. There is nothing to show that Mrs. Book, prior to the traffic mishap, made any sale; and so the only testimony of the sale is that of Book and Livingston; and, as aforesaid, their testimony is disputed.

Section 75-157 Ark. Stats., which is a part of the Certificate of Title Law governing vehicles, provides:

“The owner of a motor vehicle who has made a bona fide sale or transfer of his title or interest and who has delivered possession of such vehicle and the certificate of title thereto properly indorsed to the purchaser or transferee shall not be liable for any damages thereafter resulting from negligent operation of such vehicle by another. ’ ’

It is not claimed that Rook ever properly endorsed the title certificate to the purchaser or transferee so as to be exempted from liability under this section. Of course, if he had made a bona fide sale to Livingston before the traffic mishap such could have avoided his liability. House v. Hodges, 227 Ark. 458, 299 S. W. 2d 201; but the question of a bona fide sale to Livingston was the question in dispute; and we think a case was made for the jury as to the ownership of the car at the time of the traffic mishap. By its verdict, the jury found Rook to have been the owner; and there was evidence to support such finding.

II. Book’s Liability For Livingston’s Mishap. The plaintiffs-appellees sought to hold Rook liable for the damages caused by Livingston on the theory that Rook had entrusted his automobile to Livingston, who he knew, or with the exercise of ordinary care should have known, was a person who drove an automobile while intoxicated; and that Livingston did drive the automobile while intoxicated, and caused damages to the plaintiffs. We have a number of cases which recognize that liability may be imposed on an owner under such circumstances. See Chaney v. Duncan, 194 Ark. 1076, 110 S. W. 2d 21; Ozan Lbr. Co. v. McNeely, 214 Ark. 657, 217 S. W. 2d 341; Ark. La. Lbr. Co. v. Causey, 228 Ark. 1130, 312 S. W. 2d 909; and Waller v. Yarbrough, 232 Ark. 258, 337 S. W. 2d 641. See also Am. Jur. Vol. 5A, page 590 et seq., “Automobiles and Highway Traffic,” § 580 et seq. In Vol. 5A of American Jurisprudence, at page 592, in discussing the owner’s knowledge of the driver’s unfitness, the holdings are summarized:

“In order to hold the owner of an automobile liable under the common law rule charging him with liability for the'negligence of an incompetent, reckless, or unfit driver to whom he entrusted his car, the plaintiff must establish by competent evidence that the owner had knowledge of the driver’s incompetent, inexperience, or reckless tendency as an operator, or that, in the exercise of ordinary care, he should have known this from facts and circumstances with which he was acquainted. That knowledge may be established by the fact that he knew of specific instances of carelessness or recklessness or by the proof that the driver’s incompetence was generally known in the community.” (Emphasis our own.)

It is practically undisputed that Livingston was thoroughly intoxicated at the time of the traffic mishap, which occurred on October 19, 1961; and Livingston has not even appealed from the judgment against him. It was also thoroughly established that Livingston had been guilty of driving while intoxicated on other occasions. But Book stoutly denied that he had any knowledge, or reason to suspect, that Livingston would drive a car while intoxicated. The plaintiffs-appellees were unable to show that anyone had ever informed Book that Livingston was a person who drove a car while intoxicated; so the plaintiffs-appellees undertook to show that Book, by the exercise of ordinary care, should have known that Livingston was a person who drove a car while intoxicated because such was Livingston’s general reputation in the community in which he and Book resided. We come then to the general reputation of Livingston as being a drunken driver.

Rook and Livingston both lived in or near Pine Bluff in Jefferson County, Arkansas; both worked for the Cotton Belt Railroad; and belonged to the same Union. Obviously, the evidence as to Livingston’s general reputation of being a drunken driver should have been directed to, and confined to, his general reputation in that regard in Pine Bluff and Jefferson County, because that is where he and Rook lived and resided; and Rook is the person sought to be charged with such general reputation. There were two witnesses who undertook to testify as to the general reputation of Livingston as being a drunken driver in Dallas County, Arkansas, and in South Arkansas, as distinguished from the general reputation of Livingston in Pine Bluff and Jefferson County, Arkansas. One of these witnesses was Kenneth Rogers, a member of the State Highway Patrol stationed in Fordyce, Arkansas. Over the objection of Rook’s attorney, Rogers was permitted to state that the reputation of Livingston in South Arkansas was that of a drunken driver. The other witness was Clary Atkinson, Sheriff of Dallas County, who was permitted, over the objection of Rook, to make like answer.

The Court was in error in allowing this testimony of general reputation to be presented to the jury. The question was what was Livingston’s general reputation as being a drunken driver in Pine Bluff and Jefferson County. That is where Rook resided, and that is the only location to which the question should have been addressed regarding Livingston’s general reputation as being a drunken driver. The Court committed reversible error in allowing the testimony of Kenneth Rogers and Clary Atkinson in the particulars herein detailed; and because of such error the judgment must be reversed and the cause remanded for a new trial.

III. Other Errors. We need not call attention to other errors, as they may not occur again; but there is one matter of instructions that should be called to the attention of the parties in the event of a new trial. Plaintiffs’ Instruction No. 6 read:

“You are instructed that if anyone permits another to drive his car, knowing that such person is in the habit of becoming intoxicated and driving a car in this condition, or, by the exercise of ordinary care should have known that such person is in the habit of becoming intoxicated and driving a car in this condition, the owner of the automobile is liable for any injury caused by the negligence of such driver.”

Of course, the instruction should also have concluded with these words: “that may have resulted from drunken driving.” The italicized language should be added to the instruction.

For the admission of the incompetent evidence relating to the general reputation, the judgments of Mrs. Moseley and Mrs. Milner against C. O. Rook are reversed, and their causes of action against C. C. Rook are remanded for a new trial on all issues; but the judgments of Mrs. Moseley and Mrs. Milner against R. T. Livingston have been settled by the original verdict and judgment, since Livingston is not a party to this appeal. See Calloway v. Cherry, 229 Ark. 297, 314 S. W. 2d 506.

       Here is the question which was admitted over the objection of Rook: “Q. State what your investigation developed as to the ownership of the car as stated by the driver of the 1950 Plymouth.” “A. I asked him did the car belong to him and he said no. Said he was just trying the car out.”

       In Chaney v. Duncan, 194 Ark. 1076, 110 S. W. 2d 21, we quoted from Berry on Automobiles, 7th edition:
      “ ‘Aside from the relation of master and servant, the owner of an automobile may be rendered liable for injuries inflicted by its operation by one whom he has permitted to drive the same on the ground that such person, by reason of his want of age or experience, or his physical or mental condition, or his known habit of recklessness, is incompetent to safely operate the machine ... if the person permitted to operate the car is known to be incompetent and incapable of properly running it . . . the owner will be held accountable for the damage done because his negligence in entrusting the car to an incompetent person is deemed to be the proximate cause of the damage. In such a case of mere permissive use, the liability of the owner would rest, not alone upon the fact of ownership, but upon the combined negligence of the owner in entrusting the machine to an incompetent driver, and of the driver in its operation.’ ”

       There are Annotations in American Law Reports on various phases of such situations. See 36 A.L.R. 1148; 68 A.L.R. 1013; 100 A.L.R. 923, 168 A.L.R. 1375; 120 A.L.R. 1311; 112 A.L.R. 1020; and 20 A.L.R. 2d 1210.

       Of course, the correct terminology is the general reputation of Livingston “as being a person who drove a car while he was intoxicated,” but for brevity we use the expression “drunken driver” to mean the same as the language just quoted.

       There was one witness, Bill Gober, Chief of Police of Fordyce (whose testimony seems to have been admitted without objection) as to Livingston’s general reputation in Pine Bluff and Jefferson County. If objection had been made to this testimony it might have been excluded as hearsay or subsequently acquired; but since there was such testimony, we think the cause should be remanded for a new trial.


author: G-eorge Rose Smith, J.

text:
    Jones v. Jones.
    5-2940
    365 S. W. 2d 716
    Opinion delivered March 18, 1963.

      Mehaffy, Smith, Williams, Friday & Bowen and Jerry T. Light, for appellant.

      Wright, Lindsey, Jennings, Lester & Shults, for appellee.
   G-eorge Rose Smith, J.

This appeal is from a supplemental order in a divorce case. The original decree approved a settlement agreement which provided in substance that the family home would be sold and the net proceeds paid to the wife. The house was duly sold on March 1, 1961, but a dispute arose about whether two items (an accrued mortgage payment and certain outstanding taxes) should be deducted from the proceeds of sale or be charged independently against the husband. The matter was submitted to the chancellor, who decided both points in favor of the husband.

We attach no importance to the manner in which these two items were treated in the contract of sale, which was prepared upon a real estate broker’s printed form. It was evidently immaterial to the purchaser whether the two items were deducted from the purchase money or were paid from the sellers’ pockets, for presumably the gross price would have been adjusted to reflect either the inclusion or the exclusion of the two deductions. The really controlling question is that of determining the intention of the husband and wife, as expressed in their written contract of settlement.

This is the pertinent language in the settlement agreement: “The real property held jointly by the Husband and the Wife as an estate by the entirety, located at 12 Blue Ridge Circle, Little Rock . . . shall be sold in the immediate future . . . The Wife shall continue to reside in the property until she purchases a new home in accordance with the conditions and terms subsequently set forth herein. Pending sale of the property at 12 Blue Ridge Circle, the Husband shall pay all taxes and special assessments against the property, shall continue to pay the monthly mortgage payments thereon as well as all premiums on insurance policies providing coverage on the property. The Wife shall not be required to pay rent while she is in possession of 12 Blue Ridge Circle. Control of the sale . . . shall be exclusively in the hands of the Husband, and the Wife agrees to execute any and all deeds . . . After the property has been sold, the proceeds obtained thereby are to be used first to pay commissions incurred in the sale and to satisfy in full the mortgage on the property, with the remainder of the proceeds of the sale to be paid to the Wife for the purchase of a new residence; but in no event shall the sum paid by the Husband to the Wife as the net proceeds of the sale be less than Twenty-five Thousand ($25,000.00) Dollars. If the net proceeds of the sale shall exceed Twenty-five Thous- and ($25,000.00) Dollars the Wife shall be entitled to the full proceeds. ’ ’

We consider first the mortgage payment. The entire mortgage debt was not actually satisfied in the course of the sale, because the purchaser did not pay all the purchase price in cash. Instead, the contract required the sellers to pay an annual mortgage installment, consisting of $1,500.00 in principal and $832.50 in accrued interest, that fell due on March 1, 1961 (which happened also to be the closing date for the sale of the house). The purchaser assumed the mortgage balance of $17,000 that remained after the application of this annual payment.

We hold the mortgage payment to be chargeable to the husband. The settlement agreement required him to “continue to pay the monthly mortgage payments” until the property was sold. This language plainly cast upon the husband the duty of keeping the mortgage payments current, so that the wife might receive the entire equity-in the home.

The fact that the mortgage installment in controversy happened to fall due on the exact date of the sale does not really alter the case. To begin with, this payment, with interest, had accrued during the preceding year. It was therefore a mature obligation, fairly chargeable to the husband under the terms of the settlement agreement. Moreover, even though all the mortgage payments were actually annual installments, the parties elected to provide in their contract that the husband should pay the monthly mortgage payments. The written contract evidences careful draftsmanship; there is no good reason to suppose that the reference to monthly payments was other than deliberate. We think it reasonable to conclude that the parties meant for the husband’s obligation to be treated as accruing from month to month; for otherwise he might reduce his wife’s equity in the property by more than two thousand dollars simply by closing the sale a day or two before March the first.

We are also of the opinion that the husband should be charged with the 1960 general taxes, amounting to $630.16. These taxes were payable, though not delinquent, upon the day of sale and were a lien as between the sellers and the buyer. Ark. Stats. 1947, §§ 84-913, 84-107, and 84-807. The settlement agreement provided that, pending the sale, the husband should pay all taxes and special assessments upon the property. Later on there is a clause directing that the proceeds of sale be applied to pay real estate commissions and the mortgage debt, but there is no mention of using the money to pay current taxes. Reading the agreement as a whole, we can discover nothing to indicate that the burden of paying the taxes was ever to fall upon the wife. To the contrary, that responsibility was explicitly placed upon the husband. This reasoning also applies to that part of a 1961 special assessment, amounting to $13.81, that was charged against the sellers by the sales contract. This assessment was apparently due and payable, and a lien as between the grantors and the grantee. Ark. Stats., §§ 20-412 and 50-401. It was therefore an obligation of the husband.

Reversed,


author: Paul Ward, Associate Justice.

text:
    Thompson v. Fields.
    5-2923
    365 S. W. 2d 862
    Opinion delivered March 18, 1963.
    [Reheading denied April 15, 1963.]

      Spears & Sloan, for appellant.

      Sieves & Smith, By: Elton A. Bieves 111, for appellee.
   Paul Ward, Associate Justice.

Appellant, James Thompson, owns a farm which he rented to appellee, Bill Fields, for the year 1960. The agreed rental was $20 per acre, or a total of $2,320, which amount was evidenced by a note signed by appellee and delivered to appellant.

It is not disputed that appellee took over the land (largely through an employee named James Ward) about the first of 1960, that he put it into cultivation (mostly cotton and soybeans), that he cultivated it until about the middle of July, 1960 when appellant took over the operation by cultivating, harvesting, and marketing the crops. This litigation arises out of a dispute as to whether appellee abandoned the crops and, if not, what accounting, if any, should appellant make to appellee.

On February 14, 1961 appellee filed a complaint in circuit court alleging that appellant “wrongfully assumed control of the entire crops.” He asked for the market value of the crops (at the time they were taken over), less the agreed rental and less certain other items about which there is no dispute.

In answer to the above, appellant admitted taking over the crops, but says he did so after appellee had abandoned the same, and then only to ‘ ‘ recoup his loss ’ ’ which (he says) would have resulted from the failure of appellee to properly cultivate the crops, and from the abandonment. Appellant also alleged that an accurate accounting of his expenses and income showed a deficit of $804.82 for which he asked judgment against appellee.

A jury trial resalted in a verdict against appellant and in favor of appellee in the amount of $3,465.10 for which judgment was rendered. For reasons hereafter set out, we have reached the conclusion the judgment of the trial court must be affirmed.

Since appellant, on appeal, raises no objection to any of the court’s instructions or to the admissibility of any testimony or to the size of the verdict, only one question is presented for our consideration. It is: Does the record reflect substantial evidence to support the jury’s verdict? In deciding this question we are holding, in view of the size of the verdict, that the jury had to find appellee did not abandon the crops and that appellant wrongfully took them over.

Appellee testified, in substance, that he rented the farm for the year 1960 for $2300, and gave a note to appellant in that amount; that on February 2 or 3 he moved James Ward on the place who, with the help of Joe Murphy and his (appellee’s) brother, planted the land in cotton and beans — using three tractors; that they planted all the land; that he farmed land in Missouri but also looked after the operation on appellant’s land; that they cultivated the crops, which looked fine, until about the middle of July when appellant told him he was taking over the crops, and that he did take over and proceeded to cultivate, harvest, and market the same. Appellee further testified he did not abandon the crops and never had any intention of doing so. In substance, James Ward said: I have worked the land for appellee; the crops were in good shape, still growing, and ready to “lay by” when appellant told me I was working for him and started paying me some time in July.

Appellant admitted he rented the land to appellee on the terms previously stated; that appellee placed it in cultivation; and, that he took over the crops. His defense was that the crops were not being worked properly, and that his action was necessary to prevent a loss to him. Several other witnesses testified concerning the conditions of the crops and the manner in which they were handled and marketed by appellant, but it throws very little, if any, light on the real issues previously mentioned. We have carefully examined the entire record and we find it contains substantial evidence, when viewed in the light most favorable to appellee, to sustain the jury’s verdict. See: Missouri Pacific Railroad Co. v. Hampton, 195 Ark. 335, 112 S. W. 2d 428, and Talley v. Morphis, 232 Ark. 91, 334 S. W. 2d 652.

Accordingly, the judgment of the trial court is affirmed.

Affirmed.


text:
    Continental Casualty Co. v. Hawkins.
    5-2941
    365 S. W. 2d 722
    Opinion delivered March 18, 1963.

      John H. Joyce and Glen Wing, for appellant.

      E. J. Ball, for appellee.
   Jim Johnson, Associate Justice.

This is a suit to collect the proceeds of an accident insurance policy brought by the estate of the insured who drowned in a swollen river some distance from her stalled car.

On Saturday night, May 8, 1961, shortly before 11:00 p.m., the insured, Miss Carmelia Irene Hilliard, left the residence of Dr. Howell E. Leming to go to her home which was about five miles from Fayetteville. During that day there had been heavy storms and rainfall, and when the insured left the residence of Dr. Leming, it was very stormy with heavy rain. Earlier in the evening the insured’s automobile had stalled in water near her residence, which caused her to have the automobile removed by a wrecker. On Sunday morning, the automobile was found with the right rear wheel off the side of the road on the western approach to the White River bridge. The sheriff, upon notification, had the automobile removed to Fayetteville. The insured was missing. A search ensued, and the next day her body was found about one-eighth of a mile downstream on White River from where the automobile was found.

It is undisputed that the White River was out of its banks and that there was considerable high water across the road on the eastern approach to the bridge. Some water had crossed the road on the western approach behind the deceased’s automobile, however there was no showing that there had been any accumulated or overflow water in, under or around the parked automobile, nor was there a showing that the automobile was found to be parked or located in a position of peril..

Suit was brought by Catherine Hilliard Hawkins and Helen Hilliard Bestle, co-executrixes of the insured’s estate, appellees, against appellant, Continental Casualty Company, on its accident insurance policy issued to the ■decedent February 6,1961, which was admittedly in force at the time of her death. Appellant denied liability, contending that the death was not caused in a manner described in the schedule of accidents contained in the insurance policy. The policy provision sued on reads, “Section C. Injury sustained in consequence of (a) and while riding as a passenger or a driver in a private pleasure type (1) automobile ...”

The trial court sitting as a jury heard the evidence and personally inspected the scene where the automobile and insured’s body were found. The court concluded that the policy was in force, that decedent died of accidental drowning, that the accidental death was in consequence of and while driving a private pleasure type automobile and that the stalling of the automobile on the bridge abutment in the proximity of high flood waters of the river was the proximate cause of her drowning, and granted judgment for the amount sued for, statutory penalty and attorneys fee.

The principal question presented for our consideration is whether the accident occurred within the rule laid down in Walden v. Automobile Owners Safety Insurance Co., 228 Ark. 983, 311 S. W. 2d 780.

In the Walden case the insured, between one and four o’clock a.m., drove his automobile into a bauxite mining pit filled with water. There were no witnesses to the accident, but the next morning the insured’s automobile was found partly submerged in the water, and the insured’s body was found in 12 or 15 feet of water about 75 to 100 feet away from the automobile. The autopsy showed that the insured came to his death by drowning. The beneficiary of the insurance policy sought to recover under a clause which provided:

“Insurance Company . . . does hereby insure Dan E. Walden . . . against loss from accidental bodily injury sustained while driving or riding within any automobile, truck or bus for business or pleasure dm lug the term of this policy, provided such bodily injuries are caused solely by reason of an automobile, truck or "' us accident. ”

In commenting on the facts in that case, this court said,.“ [T]he insured accidentally drove his car into the water; that it was dark, and the insured suddenly found himself in water that came up into the seat of the car; that in an attempt to escape from his very hazardous predicament he went out the window of the car and was drowned ...” and concluded with approval , of the case of Wright v. Aetna Life Ins. Co., 10 F. 2d 281, saying, “ ‘In the present case [Wright] the real accident Avas not when Wright’s head struck the road, but when car control was lost. Such lost car control Avas the critical accident time, and the dominating factor which subjected the riding passenger to present peril and later death.’ The same is true in the case at bar [Walden]. The real accident was when Walden drove into the water in the mining pit, and that Avas the thing that subjected him to danger and brought about his death. ’ ’

In the case at bar the physical facts can lead only to the conclusion that deceased approached the bridge, and if any water over the road was evident at the time, it was a small flow which she crossed at the low end of the bridge approach; that she drove onto the bridge approach which raised her safely above the water level; that she saAV deeper water on the other side at the low end of the approach across the bridge; that she backed her car and the right rear wheel became stuck off the shoulder of the road, in a perfectly unimperiled location; that instead of remaining in the car safe and dry, she opened the door, removed herself from the car and closed the door.

Notwithstanding the trial court’s personal inspection of the scene of the tragedy,, under the virtually undisputed facts here presented we have no choice but to conclude that the insured was not impelled to escape from her predicament by thoughts of peril or emergency induced by accidental loss of control of her car in water, AAThich is the rule laid down by the Walden case.

We consider the liberal rule in the Walden case to be sound, 6 Blash. Auto. Pt. 2, § 4125, however to. broaden the rule to the extent here urged would be to interpret the policy beyond its clear terms and would effectively result in a rewriting of the policy between the parties, a province which is not ours. State Farm Mutual Automobile Ins. Co. v. Belshe, 195 Ark. 460, 112 S. W. 2d 954; St. Paul Fire & Marine Ins. Co. v. Kell, 231 Ark. 193, 328 S. W. 2d 510.

Reversed and dismissed.


text:
    Mabry v. Corley.
    5-2943
    365 S. W. 2d 711
    Opinion delivered March 18, 1963.

      Milham £ Cummins, for appellant.
    No brief filed for Appellee.
   Frank Holt, Associate Justice.

This is an appeal from a decree of the Saline Probate Court disallowing the claims of the appellants against their father’s estate.

In September of 1949, Maud E. Covington acquired 25 acres of ancestral land by partition action in the Saline Chancery Court. On February 15, 1956 she and her husband, J. W. Covington, conveyed, by warranty deed, the said property for the consideration of $7,500.00 cash. Mrs. Covington died about a year later, in January of 1957. She was survived by her husband and their three adult children, Charles Covington, Geraldine Covington Mabry and Sarah Covington Coocher. Mr. Covington died on April 17, 1961, at the age of 85, leaving as his heirs the three above named children and another daughter, Trebie Corley, by a previous marriage. Trebie Corley was duly appointed executrix of her father’s, estate pursuant to the terms of his will.

Mrs. Mabry, Mrs. Coocher and Charles Covington, appellants, filed separate claims against the estate of their deceased father, J. W. Covington, in the amount of $2,500.00 each. These claims were based on a purported oral agreement with their father that during his lifetime he would have the use of the $7,500.00 and upon his death each of them would receive, by the terms of his will, one-third of this amount, or $2,500.00. We do not have before us the provisions of the will. In due time the executrix, the half sister of appellants, filed her accounting to the effect that she had personally paid all debts of the estate; that the total value of the estate was $896.43; that the claims of her two half sisters and half brother, each in the amount of $2,500.00, had been filed against the estate; that she had not approved them, and asked that they be disallowed by the court. This appeal comes from a decree of the court disallowing each of appellants’' claims.

For reversal appellants urge, in effect, that the order of the probate court disallowing their claims was against the preponderance of the evidence.

The appellants, Geraldine Mabry and Charles Covington, were allowed to testify, over the objections of appellee, about this alleged oral agreement with their father. The appellant, Sarah Coocher, did not appear to. testify. Appellee contends that the testimony of appellants as to any transaction or conversation between themselves and their deceased father was incompetent and in violation of the Constitution of Arkansas, Schedule, § 2, which provides:

"In civil actions no witness shall be excluded because he is a party to the suit or interested in the issue to be tried. Provided, that in actions by or against executors, administrators, or guardians in which judgment may be rendered for or against them, neither party shall be allowed to testify against the other as to any transactions with or statements of the testator, interstate or ward, unless called to testify thereto by the opposite party. Provided, further, that this section may be amended or repealed by the General Assembly.”

The probate court overruled appellee’s objection on the ground that he considered the three claims separately and that each claimant could testify as to the decedent’s transactions or conversations with the other claimants. This was a correct ruling on the law as announced in Bush, Admx. v. Evans, 218 Ark. 470, 236 S. W. 2d 1013, wherein we held that the probate court could consider a husband and wife’s claim as separate claims and allow each claimant to testify as to the decedent’s transaction with the other claimant. It is a well defined principle of law that appeals from a probate court decree are heard de novo just as appeals from chancery and, further, that the burden is upon the claimant to prove the claim by a preponderance of the competent evidence. Credit Industrial Co., et al v. Blankinship, 230 Ark. 371, 323 S. W. 2d 198; Harris v. Harris, 225 Ark. 958, 286 S. W. 2d 849.

Mrs. Mabry testified, in substance, that some time after the death of her mother she took her father to Pine Bluff, where her sister, Sarah Coocher, resided, and these three discussed disposition of the $7,500.00. It appears that Mrs. Mabry, Mrs. Coocher and their father then proceeded to Dermott and further discussed the problem with Charles Covington, whereupon it was agreed that their father could have the use and benefit of the $7,500.00 and upon his death it would be divided between Geraldine, Sarah and Charles. She further testified that she, her sister and her brother, before the Pine Bluff-Dermott trip, had never contacted each other about such an ‘ arrangement ’ ’ and that they just ‘ ‘ automatically had the same opinion”. Charles Covington testified in support of his sisters’ claims.

The testimony supports the alleged oral agreement between claimants and their father but other circumstances belie the validity of their claims. The three claims in this case are based solely upon the testimony of two of the claimants. The third claimant, for some reason, did not appear to testify. Although technically claimants are not parties to each other’s claims, it cannot be said that they are disinterested witnesses.

Some mention is made of a loan of $2,500.00 of this money, and of the placing of some money in a bank account, but we do not have the benefit of any records of such transactions. There is no proof in this record, other than appellants’ testimony, how much, if any, of the $7,500.00 was in existence at the time their mother died which was about a year after she received this sum.

The Probate Judge was in a position to observe the demeanor of the witnesses when they testified, their manner of speech and their willing or unwilling answers to questions propounded to them. The probate Judge had the opportunity to observe more than printed words which is all we have before this court. Murphy v. Osborne, 211 Ark. 319, 200 S. W. 2d 517.

After a careful review of the record de novo we cannot say that the trial court erred in disallowing the three claims. The decree is therefore affirmed.

       Commonly known as “The Dead Man’s Statute”.

       Claimant, Charles Covington, complains that he was not allowed to testify fully about his sisters’ claims. After reviewing his testimony we find no merit in this contention.