author: Ernie E. Wright, Chief Judge.

text:
    SEARCY COUNTY, Arkansas v. Roy S. HORTON
    CA 80-137
    603 S.W. 2d 437
    Court of Appeals of Arkansas
    Opinion delivered August 27, 1980

      William. Clay Brazil, Pros. Atty., by: Charles Edward Claw-son, Jr., Deputy Pros. Atty., for appellant.

      Mattheivs & Sanders, by: Roy Gene Sanders, for appellee.
   Ernie E. Wright, Chief Judge.

Searcy County brings this appeal from a judgment of the circuit court reversing the Searcy County Court in disallowing appellee’s claim for rent in the amount of $180.00 for April, 1979, under a building lease agreement between the appellee as lessor and Searcy County as lessee.

The undisputed evidence shows the appellee, at the instance of Searcy County Judge, constructed an office building in 1975 to house the county extension office for Searcy County and a written lease agreement dated July 2, 1975, was executed by the appellee and by Searcy County acting through the judge of the county court. The lease was for a term of 12 years, called for monthly rental payments of $180.00 per month and was recorded in the clerk’s office. The county extension agent occupied the office from completion of the building in 1975 through March 1979, and then vacated the property. During the period of almost four years the county utilized the building the quorum court appropriated funds for the monthly rental and rental claims were regularly allowed by the county court and paid by the county. Upon the removal of the extension office the county court disallowed the April, 1979 rent claim in the amount of $180.00. On appeal the circuit court held the county was bound by the lease and reversed the county court order disallowing the claim.

For reversal of the circuit court judgment appellant first contends the lease was unconscionable, oppressive and should be deemed unenforceable.

Appellant argues the lease is oppressive and unfair, and by inference we assume appellant contends the lease should not be enforced, because it contains a provisions relieving the lessor of any obligation to rebuild the office building at its option if the building should be destroyed by some casualty, and contains no specific provision that would relieve appellant of the duty to pay rent if the building were destroyed and not restored. Appellant argues the lease would require the county to continue to pay rent under such circumstances.

The lease was prepared by the county attorney at the direction of the county judge. The lessor testified he understood the lease would terminate if the building were destroyed by casualty and he elected not to restore it. When the lease is read as a whole we conclude it does not evidence any intent of the parties that the county would be bound to pay the rent if the building were destroyed by some casualty and the lessor elected not to rebuild. The paragraph of the lease in question reads: “Destruction of the property in whole or part by fire, windstorm, flood or other cause shall be deemed a termination of the obligation of lessor hereunder and it shall not be obliged to rebuild or replace the property except as [sic] its own option.” However, the immediate preceding paragraph of the lease obligates the lessor to maintain the building in good repair. The only reasonable interpretation of the lease is that if the building were destroyed by casualty and the lessor elected not to restore the lessee would have no further obligation to pay rent. If the lessor elected not to restore the building there would no longer be consideration to support the rental payments. We find no merit in appellant’s contention the lease is unconscionable.

Secondly, appellant contends the lease is void because the agreement violates Amendment 10, Article 12, § 4 to the Constitution which prohibits a county from making a contract or incurring an obligation in excess of its revenues for a fiscal year in which the contract or obligation is made.

Appellant argues there was no showing the revenues of the county would be sufficient to support the lease payments over a twelve year period and cites City of Little Rock v. The White Co., 193 Ark. 837, 103 S.W. 2d 58 (1937). The burden was upon appellant to prove that the contract incurred an obligation on the part of the county in excess of the revenues for a fiscal year, and no such proof appears in the record. Under the lease the county became obligated to pay rental only currently as the office space is available for use, there is no showing such obligation would exceed revenues for any fiscal year, and the quorum court in 1979 appropriated sufficient funds to pay the rent on the office for all of 1979-

Finally, appellant argues the county judge lacks authority to bind the county by the lease agreement.

The lease is headed as follows: “In the County Court of Searcy County, Arkansas’’, and is executed by the lessor and executed by the lessee as follows:

/s/ John A. Griffith

Searcy County Court

By: John A. Griffith, Judge

It appears the judge was acting in his capacity as judge of the county court in entering into the lease agreement although the formality of the action of the county court was not in the usual form of an order. However, even if it be said that the lease was not properly approved by the county court the use of the building by the county, the allowance of the monthly rental claims by the county court over a period of years and payment of rent by the county operated to ratify the lease and make it binding upon the county. Watts & Sanders v. Myatt, County Treasurer v. Searcy County, 216 Ark. 660, 226 S.W. 2d 800 (1950).

In City of Little Rock v. The White Co., 193 Ark. 837, 103 S.W. 2d 58 (1937), the court affirmed the circuit court in holding the city was liable for equipment the city purchasing agent contracted for and which the city accepted and used for 18 months even though the board of public affairs for the city had not authorized the contract. In holding the city liable the court quoted from Yaffe Iron & Metal Co. v. Pulaski County, 188 Ark. 808, 67 S.W. 2d 1017 (1934) as follows:

It is immaterial that the contract was void. Appellee cannot accept and hold appellant’s money, also retain the bridges, and at the same time plead the invalidity of the contract in bar of recovery. This contention has been definitely and certainly determined by this court in a number of cases.

It is true the county cannot pay if the payment would be in excess of the revenue for the year. The record does not show this to be the case.

Affirmed.


source: Caselaw Access Project

license: Public Domain

text:
    Fannie VANHOOK v. Dennis VANHOOK et al
    CA 80-152
    603 S.W. 2d 434
    Court of Appeals of Arkansas
    Opinion delivered August 27, 1980

      R. D. Rouse, for appellant.

      Joe M. Fore, for appellees.
   Ernie E. Wright, Chief Judge.

The appellant Fannie VanHook, a former wife of appellee Lewis N. VanHook, filed a complaint in the chancery court for partition sale of 180 acres of timber land in which she had upon divorce been awarded dower in Lewis’ one-sixth undivided interest. Appellees Dennis VanHook, who owns a one-third interest, Samuel VanHook, who owns a one-third interest and Lewis N. VanHook, who owns a one-sixth interest filed an answer alleging the lands were susceptible of division in kind and requested that if a partition weré granted commissioners be appointed to accomplish such a division. The defendant Mary Crafton, also former wife of Lewis, who owns an undivided one-sixth interest by virtue of a deed from her former husband filed no pleading.

The court appointed three commissioners and with the aid of a surveyor and forester, who they employed for technical assistance, filed a report showing the land was susceptible of division in kind into three parcels of equal value. Two of the parcels containing 55 acres each were allocated to Dennis VanHook and Sam VanHook, Jr., and one parcel of 70 acres was allocated to Lewis N. VanHook and Mary Crafton with the appellant Fannie VanHook owning a dower interest in Lewis’ one-half interest. The commissioners reported that none of the three tracts could be further equitably partitioned.

After commissioners’ report was filed a hearing was had at appellant’s request, the testimony of the three commissioners was heard along with testimony of the forester employed by the commissioners and another forester called by appellant. Appellant contended the entire tract should be sold and her life interest in a one-eighteenth share distributed to her. There was opinion testimony by the two foresters that the land would sell for more enmasse than it would for in smaller tracts. There was no testimony that any differential in the sale proceeds would be in a substantial amount. There was testimony that a larger number of prospective buyers would be interested in smaller tracts.

After the hearing the court approved the commissioners’ report but modified it to take five acres from the land awarded Dennis and Samuel VanHook, giving them jointly 105 acres, and adding the five acres to the parcel awarded to Lewis VanHook and Mary Crafton with Lewis’ interest being subjéct to the dower interest of appellant. The latter tract containing 75 acres was ordered sold. No issue is raised on appeal as to the modification of the commissioners’ report by adding five acres to the portion of the land in which appellant has a dower interest.

For reversal appellant argues first, that the chancellor was biased in favor of Dennis and Samuel VanHook.

We find nothing in the record to support the contention the chancellor was biased in favor of any of the parties. Appellant filed no motion to disqualify the trial judge, and there is no indication of any circumstances disqualifying the trial judge under Article 7, § 20 of the Constitution or Ark. Stat. Ann. § 22-113. The fact that a judge may have an opinion as to the merits of the case does not constitute prejudicial bias. 46 Am. Jur. 2d, Judges § 168-169. The point is not supported by convincing argument or authority and it is not apparent how the appellant was prejudiced by asserted bias on the part of the trial judge. The court on appeal accepts as correct the decisions of the trial court which the appealing party does not show to be wrong. Hazen v. City of Booneville, 260 Ark. 871, 545 SW 2d 614 (1977).

The decree was in keeping with the commissioners’ report except for the slight modification which inured to appellant’s benefit, and there was no evidence warranting rejection of the commissioners’ report.

Secondly, the appellant contends the lands are not subject to partition in the manner decreed, and that the entire tract must be sold.

The chancellor found the land could be equitably divided into three parcels as described by the commissioners’ report, with the slight addition to the parcel in which appellant was allocated her interest, but that the 75 acre parcel assigned to Lewis N. VanHook and Mary Crafton with dower interest to appellant in Lewis’ one-half interest, could not be further equitably divided. The commissioners’ report and substantial oral testimony support the finding of the chancellor, and we cannot say the finding of the chancellor was clearly erroneous. Rule 52, Rules of Civil Procedure.

The court was correct in appointing commissioners to determine whether the property could be divided and if so to make appropriate allocation of the land. Alston v. Alston, 242 Ark. 804, 415 S.W. 2d 578 (1967), Ark. Stat. Ann. (Repl. 1962) § 34-1815.

No owner of a fee interest in the land sought sale of the entire tract, and such a sale was opposed by all of the free owners who filed a pleading. The court found it would be inequitable to the major fee owners to force a sale of all of the land in view of the commissioners’ report that the lands could be divided in kind into three separate parcels of equal value, but that the parcel awarded to Lewis VanHook, Jr. and his two former wives could not be further divided in kind. The commissioners’ report and evidence support the findings of the court. In O’Mary v. Dunn, 261 Ark. 323, 547 SW 2d 758 (1977), the court quoted with approval from 59 Am. Jur. 2d, Partition, § 116 (p. 861) as follows:

The well settled rule is that the action of commissioners in partition will not be set aside on the ground of unequal allotments except in extreme cases, as where the partition appears to have been made upon wrong principles, or where it is shown by very clear and decided preponderance of evidence that the partition is grossly unequal.

While there may well be difference of opinion as to the division made by the commissioners and confirmed by the court, with a small modification in favor of appellant, the commissioners and trial court were in a better position to make the determination than is this court and we cannot say the record reflects error prejudicial to appellant. O’Mary v. Dunn, supra.

Affirmed.


author: Ernie E. Wright, Chief Judge. David Newbern, Judge,

text:
    Edith H. MORROW v. Robert O. MORROW
    CA 80-200
    603 S.W. 2d 431
    Court of Appeals of Arkansas
    Opinion delivered August 27, 1980

      Hardin, Jesson & Dawson, for appellant.

      Nathan Gordon, for appellee.
   Ernie E. Wright, Chief Judge.

Mrs. Morrow appeals from a decree of the chancery court granting a divorce to her husband, the appellee.

The appellee filed complaint for divorce on the grounds of general indignities and appellant filed an answer denying plaintiff had grounds for divorce and also filed a counterclaim seeking separate maintenance, child support and other relief.

At trial appellee gave testimony tending to show appellant had treated him with indignities. He offered no evidence corroborating his testimony. At close of appellee’s case appellant moved for dismissal of the complaint on the ground appellee had failed to prove any ground for divorce. The court deferred ruling on the motion, and appellant presented evidence tending to rebut appellee’s testimony as to grounds for divorce. She called no other witness and appellee presented no further evidence as to grounds for divorce. After the close of evidence the court granted appellee a divorce, awarded custody of the two minor children to appellant, awarded her possession of a car and possession of the household furnishings and home, ordered appellee to make child support and home mortgage payments. The decree awarded other incidental relief.

For reversal appellant contends the court erred in granting appellee an absolute divorce absent corroborating evidence of any ground for divorce. We agree.

The law has long been settled that divorce shall not be granted upon the uncorroborated testimony of a party to the suit except in an uncontested case. Ark. Stat.Ann. § 34-1207 (Repl.), eliminates the requirement of corroboration of ground in uncontested cases.

The Arkansas Supreme Court has consistently adhered to the rule announced in Rie v. Rie, 34 Ark. 37 (1879) that a divorce will not be granted unless the grounds are corroborated by evidence other than the testimony of the parties. The rule was modified in 1969 by the enactment of § 34-1207 which eliminates the requirement of corroboration in uncontested divorce cases. It is significant the legislature did not see fit to make the 1969 amendment applicable to the establishment of grounds in contested cases, but specifically limited the application to uncontested cases. As recently as Dunn v. Dunn, 255 Ark. 764, 503 SW 2d 168 (1973) and McNew v. McNew, 262 Ark. 567, 559 SW 2d 155 (1977) the court reiterated the requirement of corroboration of grounds for divorce.

We find no merit in appellee’s contention that appellant’s point for reversal for lack of corroboration of grounds cannot be considered on appeal because the issue was not raised at trial. Appellee cites Rule 46, ARCP. The rule delineates certain responsibilities. of a party to object to actions of the court but is specifically limited in application to purposes for which an exception has heretofore been necessary. It is identical to superceded Ark. Stat. Ann. § 27-1762 (Repl. 1962), and introduced no change in practice and procedure. Traditionally appeals from the chancery court are reviewed de novo and there is no requirement of objections to the findings, conclusions and decree of the court to obtain review on appeal.

To adopt the argument of appellee that the finding and decree granting appellee a divorce is not subject to review on appeal for failure to make objections below, would permit parties seeking a divorce to circumvent the rule requiring corrobation of grounds by the simple device of failing to object to the trial court’s finding that ground was established.

The pulic has an interest in a divorce proceeding, and the parties can waive no essential requirement. Widders v. Widders, 207 Ark. 596, 182 SW 2d 209 (1944).

Secondly, appellant contends the trial court erred in the decree with reference to her property rights in the event of sale of the home and in denying her an interest in appellee’s retirement benefits.

Since the decree as to divorce must be reversed, the portions of the decree relating to sale of the home and making a determination of appellant’s claim to an interest in appellee’s retirement benefits as an employee of the University of Central Arkansas is also reversed. Such property rights can properly be dealt with should either party later obtain a divorce.

Appellant contends the court erred in failing to award adequate child support and in failing to award her alimony.

Appellant is employed as a public school teacher and appellee is a college dean. His income is much larger than appellant’s. The decree rquires appellee to pay $80.50 weekly child support for the two minor children, pay the mortgage payments in the sum of $245.00 monthly on the home occupied by appellant and minor children, continue hospital insurance for the children, pay the substantial family debts and pay the higher education expenses of two of the children in college. From the record as a whole we cannot say the award is insufficient other than the decree should be modified to require appellee to carry hospital insurance upon appellant, as well as the children, and to pay the dues for the country club membership which the family was accustomed to enjoy.

The costs of this appeal are assessed against appellee and appellant is awarded an attorney fee to be paid by appellee in the sum of $1000.00 for legal services in this appeal.

Affirmed in part, as modified, and reversed in part.

Newbern, J., dissents.

David Newbern, Judge,

dissenting. Prior to 1969, corroboration of grounds for divorce was required in all cases. In that year, the General Assembly enacted Ark. Stat. Ann., § 34-1207.1 (Supp. 1979), which does away with the need for corroboration of grounds in all but contested cases with the further exception of cases in which the ground is based upon proof of separation and continuity of separation without cohabitation. The statute left intact the requirement of corroboration with respect to testimony of residency for all divorce cases.

I agree with the majority opinion to the extent it says corroboration of grounds for divorce is required in contested cases. I disagree with the majority’s apparent conclusion that the requirement cannot be waived by lack of objection at the trial level by the litigant who asserts lack of corroboration as a defect on appeal. The precise issue in this case is whether a party who has failed to make a specific objection to lack of corroboration may assert it on appeal. The majority has cited no Arkansas case which deals with that issue, and I know of none.

The majority says “there is no requirement of objection to the findings, conclusions and decree of the court to obtain review on appeal.” Ark. Stat. Ann. § 27-2154 (Repl. 1979), provides “[a] judgment or final order shall not be reversed for an error which can be corrected on motion in the inferior courts until such motion has been made there and overruled.” Regardless of the conflict between this statute and the majority opinion, it is clear that the question before us is not whether an appellant must have objected to the judgment. It is, rather, whether she should have objected to a specific defect in the plaintiffs proof. As the majority notes, after the plaintiffs case in chief the appellant made a motion that the complaint be dismissed because the plaintiff had “not sustained the burden of proof being the grounds for divorce.” Thus, we are not dealing here with failure to object to a judgment, rather, we are dealing with failure to make a specific objection to the failure of the plaintiff to comply with the corroboration requirement.

On numerous occasions, our supreme court has held it would not review on appeal a question arising from an error which the trial court had not been given an opportunity to correct. See, e.g., Turkey Express, Inc. v. Skelton Motor Co., 246 Ark. 739, 439 S.W. 2d 923 (1967). Further, our supreme court has made it clear that a litigant must be sufficiently specific in apprising the trial court of his objection to permit the trial court to correct the error. Arkansas State Highway Commission v. Newton et al, 253 Ark. 903, 489 S.W. 2d 804 (1973). In the Neivton case, which was a condemnation suit, the error alleged was the failure of the trial court to strike the testimony of an expert witness with respect to the after-condemnation value of land because he. gave no fair and reasonable basis for his figures. On appeal the appellant pointed to deficiencies in the testimony of the expert having to do with his understanding of the amount of land to be taken and his lack of knowledge of change in the land planned by the condemnor. In affirming the decision, our supreme court said:

The actual objection, that the witness had given no fair and reasonable basis for his valuation, did not bring to the trial court’s attention either of the deficiencies now being urged. Had the omissions been pinpointed, the witness could have been examined further in the light of the true facts, which were readily available. It is not our practice to reverse the action of the trial court when the error could have been easily remedied upon a proper objection.

Although it does not say so directly, the majority appears to attribute to the corroboration requirement a sacredness which I find unjustifiable. I agree that divorces may not be granted by default because the state has an interest in divorce proceedings. I think, however, that policy is satisfied by the requirement that there be testimony presented, at least by the complaining party, to establish the ground for divorce. Ark. Stat. Ann., § 34-1207 (Repl. 1962). Where the divorce is contested, and both parties are present and able to defend themselves, the corroboration requirement should be one which may be waived. In neither Dunn v. Dunn, 255 Ark. 764, 503 S.W. 2d 168 (1973), nor McNew v. McNew, 262 Ark. 567, 559 S.W. 2d 155 (1977), cited by the majority, does our supreme court mention whether lack of corroboration had become an issue below. Thus, as noted earlier these cases cannot be said to be precisely in point.

Lastly, the majority opinion suggests that if we were to permit waiver of the corroboration requirement, we “would permit parties seeking a divorce to circumvent the rule requiring corroboration of grounds by the simple device of failing to object to the trial court’s finding that ground was established.” To observe the fallacy of that argument one need only consider that the corroboration of grounds requirement may be circumvented by simple failure to contest in a case such as the one before us. I suggest that if the sanctity of the corroboration requirement were as the majority proposes, the General Assembly would not have done away with it for most uncontested divorce cases.

For these reasons, I respectfully dissent.


author: Steele Hays, Judge.

text:
    Earl T. BUSSEY et al v. BANK OF MALVERN
    CA 80-139
    603 S.W. 2d 426
    Court of Appeals of Arkansas
    Opinion delivered August 27, 1980

      James C. Cole and Glover, Glover & Walthall, for appellants.

      Hall, Tucker, Lovell, Alsobrook & Moudy, for appellee.
   Steele Hays, Judge.

This case began as an action by the appellee, Bank of Malvern, against the appellants, William A. Wingo and Frances Wingo, William E. Fenter and Louise Fenter and Earl T. Bussey, on a promissory note seeking judgment in the amount of $77,532.50 plus interest. By their answer to the complaint, the appellants admitted that they had signed the promissory note but denied liability under the note on the grounds of failure of consideration and misrepresentations perpetrated upon them by an officer of the bank.

Appellants requested a jury trial. A jury was impanelled, and the case proceeded to trial on October 16, 1979- At the close of all the evidence, the plaintiff bank moved for a directed verdict which the trial court denied. The defendants then moved for a directed verdict and the trial, court proceeded to announce that both parties having moved for a directed verdict, he was taking the case from the jury and finding in favor of appellee bank. Appellants filed a motion for judgment N.O.V. and a motion for a new trial, both of which were denied and judgment in the amount of $103,105.44 was entered in favor of appellee. Appellants seek reversal on a number of points of error, and argue initially that the court erred in taking the case from the jury.

Prior to July 1, 1979, the rule in Arkansas was that where both parties moved for a directed verdict and no other instructions were requested by either party, the parties were regarded as having agreed that the issues could be decided by the court rather than the jury. American Colonial Insurance Company v. Mabrey Company, 245 Ark. 288, 432 S.W. 2d 15 (1968):

Of course, it is well settled that when each litigant asks for an instructed verdict, and no other instructions are requested by either side, they, in effect, agree that the issue may be decided by the court.

There can be no question but that the trial court was proceeding with this rule in mind when it acted to decide the case on its own, as the record makes it clear that while the court and counsel were in chambers, just prior to announcing its judgment in behalf of the appellee with the reasons for its decision, the court stated:

The Court, in its discretion, takes the case away from the jury, both parties having moved for a directed verdict at the close of all the evidence.

The Rules of Civil Procedures of Arkansas became effective July 1, 1979. Rule 50 (a) expressly abolishes the rule recited in American Colonial Insurance Company, supra:

Rule 50.
- MOTION FOR DIRECTED VERDICT AND FOR JUDGMENT NOTWITHSTANDING VERDICT
(a) Motion for Directed Verdict; When Made; Effect. A party may move for a directed verdict at the close of the evidence offered by an opponent and may offer evidence in the event that the motion is not granted, without having reserved the right to do so and to the extent as if the motion had not been made. A party may also move for a directed verdict at the close of all of the evidence. A motion for a directed verdict which is not granted is not a ivaiver of trial by jury even though all parties to the action have moved for directed verdicts. (Emphasis supplied.)

Note 2 of the report notes to Rule 50 (a) states that the rule of American Colonial Insurance Company is abolished by the enactment of Rule 50 (a).

Furthermore, even under the old rule it was necessary that both motions be before the court at the same' time, not just in sequence, in order for the rule to apply and, therefore, the error was manifold.' In Aetna Insurance Company, Inc. v. Warren, Admx., 231 Ark. 405, 329 S.W. 2d 536 (1959), the Supreme Court of Arkansas, speaking through Mr. Justice Ward, examined the rule in some depth and recognized that the rationale supporting the rule was lacking where the motion for a directed verdict by one side had been denied at the time the other party moved for a directed verdict. The opinion states:

Moreover, a careful analysis of the cases cited above shows that the above mentioned rule is founded on the nature of an agreement between the parties themselves that the trial court shall sit as a jury and try issues of fact. It would seem necessary, therefore, that the trial court should have both requests for an instructed verdict before it at the same time. In this case, of course, appellant’s request had already been denied and disposed of by the trial court before appellee’s motion was made. It is not unusual, we think, for a defendant to request an instructed verdict at the close of the plaintiffs testimony. After doing so, such defendant would have the choice of putting on its own testimony or to rest its case and go to the jury on the testimony developed by the plaintiff. It would seem only fair that the appellant should have this choice in the case under consideration. Therefore, if any question of fact which raises a jury question is presented in the case under consideration appellant should not be denied to have such question presented to the jury.

Thus, the error in taking this case from the jury is conspicuous whether examined under the law either before the effective date of the Rules of Civil Procedure or after. Clearly appellants were deprived of a right guaranteed to them in the Constitution of the State of Arkansas.

The appellee does not dispute the error with respect to Rule 50 (a), arguing rather that appellants waived presentation of the case to the jury, citing Zaks v. Eliott, 106 F. 2d 425 (1939). The record does reflect that in a rather lengthy dialogue between the court and the attorneys, counsel for appellants appeared to speak of waiving all further submission of the case to the jury, but a careful reading of the portion of the record in its entirety makes it clear that the parties were discussing the mechanics of formalizing a judgment the court had already announced and counsel’s “waiver” related to procedure respecting the judgment and not to a waiver of trial by jury as contemplated by Rule 39 (a).

Nor does the decision in Zaks v. Eliott, supra, provide support for appellee’s argument. In Zaks, plaintiff bank brought an action against the defendant to recover the balance on two promissory notes. At the close of all the evidence, the defendant moved for a directed verdict. The court dismissed the jury on the grounds that there was no question for it to decide. The judge subsequently heard argument on appellant’s motion for a directed verdict and afterwards found for the plaintiff bank and entered judgment to that effect. The opinion itself supplies its own distinguishing aspects from the case before us:

[1-3] In an opinion subsequently filed, the court found both the facts and the law and stated that the case had been withdrawn from the jury under Rule 50 (b) of the Rules of Civil Procedure, 28 U.S.C.A. following section 723 c. That rule permits the trial court to reserve its decision on a motion for a directed verdict until after the jury has returned its verdict, but does not authorize withdrawing the case from the jury when both parties move for a directed verdict. There was, however, no material error in the instant case for both parties not only consented to the court’s action, but were anxious to have the case decided as a question of law by court. The case may properly be treated as one in which the parties agreed at the outset not to have a jury. (Emphasis added.)

By analogy, appellee argues that appellant waived his right to jury trial by not objecting to the court’s erroneous procedure and specifically calling to the court’s attention the changes made by Rule 50. Appellee cites three cases for the rule that where a party does not object to a procedural defect or an erroneous ruling so that the trial judge has the opportunity to cure his mistake, it will not be reviewed on appeal. Smith v. Union National Bank, 241 Ark. 821, 410 S.W. 2d 599 (1967); Arkansas State Highway Commission v. Newton, 253 Ark. 903, 489 S.W. 2d 804 (1973); Turkey Express, Inc. v. Skelton Motor Company, 246 Ark. 739, 439 S.W. 2d 923 (1969). Appellants counter this argument by stating that the denial of a trial by jury is a substantive defect, and not procedural. Appellants also cite DeGioia v. United States Line Company, 304 F. 2d 421 (1962), for the rule that subsequent conduct of a party did not waive trial by jury- for which he had made a proper demand where there was no stipulation consenting to trial by the court as required by Rule 39 (a). In this case, Sergio DeGioia was injured while unloading a sea vessel. Alleging that his injuries were caused by the negligence of the shipowner, he brought an action against the ship’s owner, United States Line Company. In turn, United States Line Company. impleaded DeGioia’s employer, American Stevedores, Inc. and Imparato Stevedoring Corp., a firm responsible for loading the vessel. United. States Line Company asserted that if it were held liable, to plaintiff, it was entitled to indemnification from the stevedoring firms. Both actions were tried to the jury. Verdicts were returned for DeGioia and for United States Line Company on the third party complaint. On the appeal by the stevedoring companies, the United States Court of Appeals affirmed'. The pertinent proceedings áre set out below:

[6-8] Both American Stevedores, and Imparato argue that the trial judge erred in the manner in which he submitted the third-party complaint to the jury. Their contentions, however, are - very different. American Stevedores asserts that it was improperly denied trial by jury, while Imparato claims- that it was forced improperly to trial to a jury. Each of these contrary claims derives a slight measure of plausibility from, the uncertain course followed by the trial judge, but we find no definite prejudice resulting to either party. The judge early determined that he would try the issue of indemnity separately from DeGioia’s original claim; and he told the parties that he would accept an advisory .verdict on. that issue, since a jury trial was not required. So after the jury had found liability to DeGioia by the United States Lines Company the trial of the indemnity issue proceeded before the jury. Only after the verdict against -the stevedores was rendered did. the court indicate to the jury that the - verdict would be Considered advisory. Subsequently . it was discovered that -American Stevedores had endorsed a claim .for jury trial on - its answer, as provided in F.R. 38 (b). The court then reversed its position and accepted the jury.’s determination as binding.
In his last ruling the judge was quite clearly correct. .American Stevedores had never, withdrawn its claim for jury trial and was therefore entitled to such trial. F.R. 38 (d), 39 (a).1 That is what it got. Its present contention that it was denied jury trial is quite specious.
1The principle of waiver by failure to make timely claim, F.R. 38 '(d), is limited by the explicit provision of F.R. 39 (a), that once a demand for jury trial has been properly made it can be waived only by án oral stipulation made in open court and entered in the record, or by written stipulation.

We believe that the trial court erred in taking the case away from the jury and that this case should be reversed irrespective of the fact that counsel for appellant failed to object to the error. We agree with appellants contention that the right to jury trial is a constitutional right which is so fundamental that the rule that cures error where-counsel fails to object ought not to be readily applied to the denial of rights protected in the Constitution of Arkansas and described therein as “inviolate.” (Ark Con. Art. 2, Section 7) Procedural rules governing jury trials are not intended ..to diminish the right to a jury trial. These rules should be interpreted so as not- to give effect to dubious waivers of rights. In re Zweibon, 565 F. 2d 605 (D.C. 1977). In the case of United States v. Fred A. Arnold, Inc., 573 F. 2d 605 (9th-Cir. 1977), the United States brought an action against Fred A. Arnold, Inc., a general contractor, seeking to collect FJLC.A. taxes which its subcontractor failed to pay on behalf of its employees. The defendant demanded a jury trial. After discovery proceedings, the United States filed a motion for summary judgment. The defendant responded and filed a cross-motion for summary judgment. The district court then aborted the jury and granted the government’s motion.

On appeal, the United States Court of Appeals for the Ninth Circuit reversed, stating that although the defendant filed a cross-motion for summary judgment, he did not thereby waive his right to a jury trial. The court stated:

Under proper circumstances a hearing on a complete record under cross-motions for summary judgment may amount to a stipulation by the parties to a court trial on an agreed written record. In the instant case, however, neither party, explicitly or inferentially, stipulated to a court trial. To the contrary, defendant demanded a jury trial. Indeed, the jury had already been impanelled when the government moved for summary judgment. We cannot find a waiver of the right to jury trial under these circumstances.

Similarly, in the instant case, appellant never explicitly nor inferentially stipulated to a court trial. The court’s action in taking the case from the jury and immediately announcing its judgment was a substantive error, and a failure to object does not preclude appellant from alleging it on appeal. This decision is not intended to relax the rule requiring a timely and proper objection to error by the trial court, particularly where such objections provide the opportunity for correction. Rather, because the Rules of Civil Procedure are new and inasmuch as they set forth a process by which the right to trial by jury once demanded, is waived, that process must be followed with reasonable rectitude.

The Rules of Civil Procedure in Arkansas are patterned after the Federal Rules of Civil Procedure and have been in effect slightly over a year. Hence, there is virtually no case law yet in this state on the interpretation of these rules. Nevertheless, but for minor exceptions, the new rules are very similar to the Federal Rules, and we regard the interpretation of these rules by federal courts to be of significant precedential value and we are constrained to follow those which are convincing.

Since the case is remanded on the first issue, we do not reach the other issues discussed by appellant.

Reversed and remanded.


author: Steele Hays, Judge. David Newbern, Judge,

text:
    Joe B. REED, Executor of the Estate of Ollie BEAVER, Deceased v. Kenyon WRIGHT
    CA 80-154
    603 S.W. 2d 422
    Court of Appeals of Arkansas
    Opinion delivered August 27, 1980

      James R. Jackson, for appellant.

      Evans, Ludwig & Evans, by: James E. Evans, Sr., for appellee.
   Steele Hays, Judge.

Before üs is the question of whether the trial court properly granted a motion for summary judgment to the.buyer in an action by the seller to recover the purchase price of land. We have come to the conclusion, with some difficulty, that.the court erred in'ruling as a matter of law that the seller could not recover under the contract. -

In reviewing the propriety of granting summary judgment, we must view the allegations of the complaint and the plaintiffs affidavit in the light most favorable to the plaintiff, resolving all doubts and inferences in his favor. Deltic Farm and Timber Company v. Manning, Adm’x., 239 Ark. 264, 389 S.W. 2d 435 (1965), Russell v. City of Rogers, 236 Ark. 713, 368 S.W. 2d 89 (1963). In the light of these cases, and others of similar vein, the following statement of facts is deliberately stated in accordance with appellant’s view of the case. Indeed, the defendant (appellee) has not controverted any part of the complaint of affidavit, notwithstanding the rule that summary judgment is an extreme remedy and the burden of demonstrating the non-existence of a genuine fact issue is his. Wirges v. Hawkins, 238 Ark. 100, 378 S.W. 2d 646 (1964).

Mrs. Ollie Beaver owned a life estate in one hundred acres in Benton County, which she acquired by surviving her husband, who died many years earlier. The remainder belonged to other heirs, one or more’ of whom contacted Mrs. Beaver in early 1977 regarding a sale to the remaindermen or proposing that she join with them in a sale of the entire fee. No sale materialized and subsequently Mrs. Beaver was contacted by Kenyon Wright. Mr. Wright informed-her that he had purchased the remainder interest and wanted to acquire her life estate. She declined his offer to lease the land or to obtain its use during her life in some other fashion, although she did reduce her asking price,, and in early 1978 a verbal agreement was reached for the sale of her life estate for,$6,000.00, payable with interest in three annual installments. The contract was prepared by the buyer’s, attorney and signed on January 24, 1978. It provided that the seller agreed to sell “all her interest” in the land to the buyer upon the following conditions:

1. The buyer agrees to pay to the seller for her interest in the above lands the sum of $6,000.00. plus interest in the sum of $600.00, making a total sum of $6,-600.00 to be paid as follows:
$2,200.00 on 1st- day of March 1978, and the remaining sums to be paid as follows: $2,200.00 one year after the down payment above stated, and $2,-200.00 two years after the above date of the down payment.
2. Buyer is to get full possession of the lands on March 1, 1978.
3. In the event the buyer fails or refuses to pay any payment above stated, or the interest as due, due to the difficulty and uncertainty of determining .the actual damages sustained by the seller, it is agreed that seller shall retain all sums paid to her as liquidated damages, and this contract shall terminate and end, and seller shall be entitled to immediate possession of the lands, and it is understood that time is of essence in this agreement.

The first installment was paid on March 1, 1978, and possession taken by the buyer. In August, the seller died and the buyer refused to pay the installment which became due on March 1, 1979. The buyer knew at all times (so plaintiffs affidavit asserts) that he was required to pay the sum of $6,-600.00 to the seller or her estate if she did not live until the purchase price was fully paid. Suit was filed by the plaintiff as executor under the will of Mrs. Beaver, to recover the balance of $4,400.00 under the contract.

The defendant’s response to the complaint was a motion for summary judgment, which the court granted, stating that there was no issue of material fact and that the defendant was entitled to judgment as a matter of law. We hold that it was error to dispose of the case by summary judgment. Only if the plaintiff could not recover under any possible theory of the law or the facts should summary judgment be granted and we are unable to eliminate all such possibilities. Indeed, one rather obvious possibility is that these parties simply agreed that the buyer would pay the sum of $6,000.00, plus interest, for seller’s interest in the land and that buyer would pay the purchase price in three installments. If this is what the parties agreed on, the plaintiff has been deprived of the opportunity of making proof to that effect by the granting of summary judgment. The opinion in Deltic Farm and Timber Company v. Manning, supra, citing Winter Park Telephone Company v. Southern Bell Telephone and Telegraph Company, 181 F. 2nd 341 (5th Cir. 1950) states:

Further, where the evidence, although in no material dispute as to actuality, reveals aspects from which inconsistent hypothesis might reasonably be drawn and reasonable men might differ, then a motion for a summary judgment is not proper. (Emphasis supplied.)

The appellee argues that paragraph 3 provides a clear remedy in the event of default and the courts should not rewrite contracts that parties of sound mind have freely entered into, citing a number of decisions supporting that view. [Rector, Et Al v. Droman, 253 Ark. 751, 489 S.W. 2d 1 (1973); Petree v. Petree, 211 Ark. 654, 201 S.W. 2d 1009 (1947); McCargo v. Steel, 160 F. Supp. 7 1958).] But that argument ignores the fact that this contract also unequivocally obligates the purchaser to pay the sum of $6,600.00, which is as much a part of the contract as paragraph 3. The obligation to pay the purchase price is entirely unconditional and is not limited in any manner. It recites in clear and simple language that the purchaser will pay $6,600.00 for all the seller’s interest in the land. It does not say she must be alive on the installment due dates, or otherwise restrict the obligation to pay the purchase price. Hence, the argument that the trial court was simply enforcing what the parties themselves agreed upon is not persuasive. It would have been a simple matter for the contract to recite that should the seller die before full payment, no further payments would be due, if that had been the intent. One must examine paragraph 3 not only from the standpoint of its own language but from the standpoint of the entire contract. Dent, Adm’r v. Industrial Oil and Gas Company, 197 Ark. 95, 122 S.W. 2d 162 (1938). We conclude that paragraph 3 and the rest of the contract cannot be reconciled for the reason that what it gives at one point, it takes away at another, and we are left with a strong and lingering doubt as to what was the true intention of these parties.

The difficulty in construing this contract, we believe, lies in the fact that on the surface paragraph 3 gives the innocent impression of being clear and explicit and, hence, the reader is beguiled to conclude that the applicable rule of law should be, as appellee so strenuously argues, that contracts are to be construed according their plan meaning. On the surface paragraph 3 appears to bestow a benefit upon the seller in the event the buyer defaults in any payment of principle or interest by giving the seller the remedy of recovering the land. But below the surface lies the unspoken aspect that if the seller is dead when buyer defaults she can recover nothing — neither the land nor the purchaes price and, thus, an apparent benefit becomes in reality a bane. We should add that there is nothing objectionable to such an arrangement where the parties so intended, but such an intention should bemade clear in the contract or established by extraneous evidence if the contract permits a doubt that this was the intent. Where the payment of the purchase price for an interest in land is unconditional, then a cause of action for its recovery ought not to be denied the seller by summary judgment, absent anything to suggest that the parties intended that the seller’s only remedy would be in accordance with paragraph 3.

This contract must be construed not simply in accordance with paragraph 3 but from its “four corners” and when the entire contract is construed we are satisfied that enough doubt and ambiguity arises to make it inappropriate to summary judgment. Schnitt v. McKellar, Et Al, 244 Ark. 377, 427 S.W. 2d 202 (1968); Wynn v. Skear & Phillips Oil Company, 254 Ark. 332, 493 S.W. 2d 439 (1973). In Stoops v. Bank of Brinkley, 146 Ark. 127, 225 S.W. 593 (1920), Mr. Justice Hart stated:

Where the meaning of the language of the contract is doubtful, or is susceptible of more than one meaning, parol evidence may be resorted to to show the real nature of the agreement. The admission of such testimony is, within the meaning of the terms employed in the written contract, to render certain that which is uncertain and to determine just what in fact the writing was intended to express.

Our view in this respect is strengthened by the fact that it was the buyer’s attorney, not the seller’s, who drafted this contract and all doubts are to be resolved against the buyer. Stevenson v. Marques, 241 Ark. 321, 407 S.W. 2d 321 (1966). Stevens v. Cherry Hill Special School District No. 10, 206 Ark. 832, 177 S.W. 2d 722 (1944).

Appellee relies upon the case of Edwards v. Perdue, 177 Ark. 241, 6 S.W. 2d 20 (1928), as the “sole substantive question presented by this appeal.” In Edwards, the parties placed a lease agreement in escrow, providing that it would be delivered to the prospective lessee after he had completed several installment payments. Not all the installments were paid and the prospective lessor brought suit to recover the balance. The trial court construed the agreement in a manner favorable to the plaintiff and defendant appealed. The Supreme Court reversed, stating that the contract was not ambiguous and that the prospective lessor’s remedy in the case of default was recovery of the lease with'no further obligation or liability on the part of either. The distinguishing element between the decision of Edwards v. Perdue and the case before us it at in Edwards -the agreement was held in escrow and the leasehold remained in escrow, as opposed to the prospective lessee having obtained possession of the leasehold. Here, the buyer came- into full and completé possession of the land under the contract, the objective he sought and for which he bargained. ■

Finally, we decline to pass on whether paragraph-3 is a penalty or a valid liquidiated damage clause for several reasons: first, it is not clear whether the trial court considered paragraph 3 in that light and reached the conclusion that it was valid, or merely accepted what it took to be the clear language of the paragraph; moreover, this issue, as in contracts generally, turns on the question of intention of the parties and that has not yet been developed in this record. The decision in Lasater v. Western Clay Drainage District, 177 Ark. 997, 8 S.W. 2d 502 (1928), citing a number of cases, states that:

As a very general rule, the intention of the parties will control as to whether a provision in a contract is for a penalty or liquidated damaages. The primary rule in the construction of contracts requires the court to ascertain and give effect, where possible, to the mutual intention of the parties.

See also, McIlvenny v. Horton, 227 Ark. 826, 302 S.W. 2d 70 (1957). As appellee points out, the mere fact that .the words “liquidated damages” are used in the contract is not controlling. In re LAMMERS, Bankrupt, 211 F. Sup. 448 (W.D. Ark. 1962).

The case is reversed and remanded for further proceedings, and since the case is to be retried, both parties are entitled to the opportunity of developing those facts and circumstances they believe are relevant.

Howard and Newbern, J.J., dissent.

David Newbern, Judge,

dissenting. There is no remaining issue of fact to be resolved in this case, and thus summary judgment was appropriate. A. R. Civ. P., 56. The intention of the parties is very clearly expressed in their contract. I cannot understand the unwillingness of the majority to recognize that paragraph 3 is no more than a condition subsequent attached to paragraphs 1 and 2. Followed to its logical conclusion the majority opinion would make every contract containing a conditon “ambiguous.”

The contract is not ambiguous. The condition made it aleatory, but that does not affect its validity. If it did, we could no longer have insurance contracts. See generally, Cor-bin, Contracts, § 728 (I960). The fact that the parties used the term “liquidated damages” is irrelevant. Rest. Contracts, Comment (b.) to § 325 (1932).

Although I could dwell upon the majority opinion’s hint that the judgment rendered below was somehow unfair, I prefer to point up what I believe to be its more concrete and central fallacy. The majority opinion would permit the trial court to ignore paragraph 3 of the contract. As noted above, I see no need to choose between paragraph 3 and the remainder of the instrument, and I find particularly troublesome the suggestion that this court might stand still for the enforcement of all but a portion of a contract when there is not even a suggestion that the part thus to be excluded is for any reason unenforceable.

Had this contract been interpreted below as presenting a question of intent and a jury, let us say, had ascertained the intent of the parties was to be bound by paragraphs 1 and 2 but not 3, the judgment based on such a decision would have been reversible for the reason stated by the majority here, i.e., interpretation must be “from the standpoint of the entire contract.”

For the reasons stated, I respectfully dissent.

Judge Howard joins in this dissenting opinion.


author: James H. Pilkinton, Judge.

text:
    BANK OF QUITMAN v. Vernon L. PHILLIPS
    CA 80-146
    603 S.W. 2d 450
    Court of Appeals of Arkansas
    Opinion delivered August 27, 1980

      Stephen E. James, P.A., for appellant.

      Jack M. Lewis, for appellee.
   James H. Pilkinton, Judge.

This litigation began as a foreclosure action filed on April 16, 1979, by Vernon L. Phillips, appellee, against Jean W. Travis, et al. Mr. Phillips claimed a first lien on certain real property then belonging to Mrs. Travis as security' for a past-due note. Appellee as plaintiff below joined certain additional parties as defendants in order to foreclose any interest they might have in the property. The Bank of Quitman, appellant, held a mortgage on this property which was then second in priority to the Phillips lien. However, the bank was not made a party to the Phillips foreclosure action although its mortgage had been properly recorded on October 10,__ 1977. On July \ 12, 1979, the Chancery Court of Van Burén County "rendered a foreclosure decree which awarded judgment in favor of ^hillips against the defendant Jean W. Travis in the sum of $7,017.14, plus interest, court costs and attorney’s fees. A\ co-defendant, Emma J. Austin, was given judgment against Mrs. Travis for $1,360.97 and a second lien was declared in favor of Mrs. Austin. Another defendant, J.- L. Davis, was found to have an undivided one-half equitable interest in the property, subject to the first lien of Phillips and the second lien of Mrs. Austin. Foreclosure of the liens was ordered, and sale was set for August'17, 1979. The foreclosure decree was dated July 12, but was entered nunc pro tunc on July 26, 1979.

The Commissioner’s sale was held as ordered, and Vernon L. Phillips, plaintiff-appellee, bought the property for $8,300. The sale was duly reported and was confirmed by the court on August 17, 1979. The Commissioner’s deed was executed and approved on the same day.

On October 16, 1979, the bank filed a separate action against Mrs. Travis and the other defendants to foreclose its mortgage. Vernon L. Phillips was joined as a party defendant in that action.

On November 14, 1979, Phillips filed a motion in the case now before us seeking to vacate the decree and judgment of July 12, 1979, to set aside the sale held on August 17, 1979, and to vacate and set aside the order approving sale which had been entered by the Chancery Court on August 17, 1979. In this pleading Phillips set out that at the time this case was filed the bank held a second mortgage on the lands involved. This pleading stated that the bank was a necessary party to this action. However, the motion alleged that after the filing of the original petition certain negotiations were had on behalf of Phillips with the bank looking to the possible purchase by the bank of the note and lien held by Phillips; but those negotiations were alleged to have been terminated upon denial by the bank that it had any security interest in the property. Phillips claimed in his motion that because of such alleged verbal denial, the bank was not made a party. This motion to vacate was served on the bank and all subsequent pleadings in this case were likewise served. The original defendants acquiesced in the efforts of Phillips to have the decree and orders set aside, but the bank responded to all pleadings served upon it and sought to resist the motion to vacate.

Phillips also filed a motion asking the court to strike all responses and pleadings of the bank on the ground that the bank was not a party to this action. Upon this motion to strike being filed, the bank on December 4, 1979, filed a formal motion to intervene. The bank claimed it was entitled to be heard as a matter of right, and had been treated as a necessary party by Mr. Phillips as evidenced by the pleadings, and his service of them upon the bank.

On December 13, 1979, over the objection of the appellant bank, the court denied the motion of the bank to intervene, granted Phillips’s motion to strike the bank’s pleadings; and, without hearing any testimony or receiving any evidence in support of the motion, granted Mr. Phillips’s motion and set aside the decree of July 12, 1979, and the subsequent orders relating to the sale. The bank appeals from those actions, and from an additional order dated January 10, 1980, granting Phillips a new trial.

Appellant contends that the trial court erred in refusing to allow the bank to intervene and to be heard on Phillips’s motion to vacate, and in striking the bank’s response to that motion. Prior to the adoption of the Arkansas Rules of Civil Procedure, our court had followed the general rule that only necessary parties could intervene as a matter of right, while-permitting the trial court to exercise its discretion' in deciding whether others could intervene. Pulaski County Board of Equalization v. American Republic Life Insurance Company, 233 Ark. 124, 342 S.W. 2d 660 (1961). The matter is now covered by Rule 24, Arkansas Rules of Civil Procedure, which reads as follows insofar as the right to intervene is concerned:

[a] Intervention of Right. Upon timely application anyone shall be permitted to intervene in an action: (1) when a statute of this state confers an unconditional right to intervene; or (2) when the applicant claims an interest relating to the property or transaction which is the subject of the action and he is so situated that the disposition of the action may as a practical matter impair or impede his ability to protect that interest, unless the applicant’s interest is adequately represented by existing parties.

Thus Section [a] (2) of this rule has expanded the privilege to intervene as a matter of right. This privilege is now not limited to those persons who have been traditionally considered as “necessary” parties.

Arkansas Rule 24 is patterned after Federal Rule 24. Our Rule 24(a) does not, of course, give an absolute right to intervene unless the application is timely. Timeliness is a matter within the sound discretion of the trial court whether the intervention is allowed or denied. The trial court’s action is subject to reversal only where discretion has been abused. See 3B Moore’s Federal Practice, § 24.13[1] (2d ed. 1980). The case before us involves an attempt to intervene after a final judgment. There is considerable reluctance on the part of the federal courts to allow intervention after the action has gone to judgment, absent extraordinary and unusual circumstances. See 7 A Wright and Miller, Federal Practice and Procedure: Civil §1916 (1972). We believe that to be sound policy and, absent extraordinary and unusual circumstances, intervention, by a party who did not participate in the litigation giving rise to the judgment sought to be vacated, should not be permitted. The record in this case shows that the bank was fully aware of this action from its inception and chose not to intervene before the decree although it had a right to do so.

Rule 52, A.R.C.P. provides, among other things, that the findings of fact made by the trial court shall not be set aside unless clearly erroneous (clearly against the preponderance of the evidence). In the case before us the chancellor found that the bank’s motion to intervene was not timely. Under the circumstances shown by this record, we are unable to say that the chancellor abused his discretion or that the decision was clearly erroneous. Thus we need not reach the other points raised by appellant since the bank had no standing.

Affirmed.


text:
    Donald C. SHOCK v. WHEELING PIPE LINE, INC., and CARRIERS INSURANCE COMPANY
    CA 80-181
    603 S.W. 2d 446
    Court of Appeals of Arkansas
    Opinion deliverd August 27, 1980

      Denver L. Thornton, for appellant.

      Shackleford, Shackleford & Phillips, P.A., for appellees.
   James H. Pilkinton, Judge.

The appellant, Donald Shock, sustained an accidental injury arising out of and in the course of his employment while driving a truck for Wheeling Pipe Line, Inc.

Three separate hearings were held, the first on November 2, 1977, the second on October 3, 1978, and the last on August 24, 1979. The administrative law judge entered a decision finding that the claimant was barred from recovery of benefits under the Workers’ Compensation Act under the doctrine of Shippers Transport of Georgia v. Stepp, 265 Ark. 365, 578 S.W. 2d 232 (1979). It was held in Shippers Transport that should an employee knowingly make a false representation as to a physcial condition while applying for employment, which was relied upon by the employer and was substantial factor in the employment, then the employee involved was precluded from benefits if there was a causal connection between the false representation and the injury. On appeal to the full Commission, the decision of the administrative law judge was affirmed and the Commission adopted the administrative law judge’s opinion as its own. This appeal comes from the decision of the full Commission. -

I

The appellant first argues that - the rule of Shippers Transport of Georgia v. Stepp, supra, is a new rule and consequently not applicable to the case at bar. Appellant cites certain cases dealing with situations where a new statute- is passed which is substantive in nature, and the courts have held such statute applies only prospectively. Such cases are not in point here. There is no new statute involved in this case. To the contrary, the Supreme Court of Arkansas has recognized that the Workers’ Compensation statutes are silent on the effect of false representation. In Shippers Transport of Georgia, supra, the court said:

We think public policy requires an. obligation on the part of an employee, upon inquiry; to be truthful to an employer about pre-employment health conditions ... we are of the view that public policy, in the absence of a clear legislative intent to the contrary, requires the application here of the test as stated in IB Larson’s Workmen’s Compensation Law § 47-53. . . .

Thus the application of the doctrine of Shippers Transport of Georgia v. Stepp, supra, is premised upon a finding of the public policy in this state and not upon any legislative enactment. The exact issue was never before the Arkansas Supreme Court until the Shippers Transport of Georgia case. We hold that the doctrine stated thérein applies to all cases where the employer relied and where there is a causal connection between the false representation and the injury. We find no merit in the árgument of appellant under Point I.

The parties stipulated that appellant sustained an accidental injury arising out of and in the course of his employment with Wheeling Pipe Line on October 1, 1976. Appellant argues as his second point that this stipulation precludes appellees from attempting to invoke the doctrine of Shippers Transport of Georgia v. Stepp, supra. We find no merit in this argument because we are unable to find in the stipulation, or anywhere else in the record, where appellees agreed that the appellant was due any benefits under the Workers’ Compensation Act of Arkansas. Appellant overlooks the fact that the reason he was denied benefits was not because he did not sustain an accidental injury arising out of and in the course of his employment but rather he was denied benefits because of the false representation made by him which the Commission found came under the doctrine of Shippers Transport of Georgia v. Stepp, supra.

The evidence in this case presents a disputed issue of fact relative to a false representation at the time of application for employment as to appellant’s physical condition. On appeal, our inquiry is limited to determining whether, when viewing the evidence in the light most favorable to the decision of the Commission, such decision is supported by substantial evidence. Saint Michael Hospital v. Wright, 250 Ark. 539, 465 S.W. 2d 904 (1971). In reviewing a matter of this kind, the court does not determine whether the testimony would have supported a contrary finding but, rather, whether the evidence supports the findings that were made. Dillaha Fruit Company v. LaTourrette, 262 Ark. 434, 557 S.W. 2d 397 (1977).

A careful review of the evidence on this point convinces us that there is substantial evidence to support the findings of the Arkansas Workers’ Compensation Commission. The record shows that the appellant responded to the following inquiry made by the employer before he was employed, "Were you ever injured on the job?” in the negative. Later the appellant himself admitted having received Workers’ Compensation benefits for an injury received while employed by Harter Concrete in Oklahoma City. The claimant further admitted having been involved in an accident which occurred while he was employed by International Paper Company when a tractor-trailer rig overturned. The Commission, as a trier of fact, obviously found that appellant had previously suffered an injury, not only to his knee (for which appellant admits having received compensation benefits) but also to his back as a result of a vehicle accident in which he was previously involved. Although appellant denied that he deliberately withheld this information with the intent to mislead the employer, under the law the Commission was not bound to accept a claimant’s testimony at face value. May v. Crompton-Arkansas Mills, Inc., 253 Ark. 1080, 490 S.W. 2d 794 (1973).

IV

Appellant argues the doctrine of waiver and estoppel and seeks to have this court apply them to the facts in this case. We have carefully considered this argument and find no merit in it. From its very definition, the doctrine of waiver is not applicable and there is no testimony to show that appellant has changed his position to his detriment. Likewise, there is no proof of any good faith reliance on the part of the appellant or any wrongful conduct on the part of the appellees. See Continental Insurance Companies v. Stanley, 263 Ark. 638, 569 S.W. 2d 653 (1978) and Christmas v. Raley, 260 Ark. 150, 539 S.W. 2d 405 (1976) at page 410.

V

Appellant finally argues that the Commission incorrectly applied the rule of Shippers Transport of Georgia v. Stepp, supra, to this case. There are three requirements which must be present before a denial of benefits is proper under the doctrine of Shippers Transport of Georgia. These are:

(1) It must be shown that the employee knowingly and willingly made false application as to his physical condition.
(2) The employer relied upon such false representation, which was a substantial factor in the employment.
(3) There was a causal connection between the false representation and the injury.

In the case at bar Mr. Chuck King, the director of personnel and safety for Wheeling Pipe Line, Inc., testified from the personnel file relative to this matter. When it was learned that appellant had in fact suffered prior injuries, contrary to what the- application for employment contained, his employment was- terminated. Appellant argues here that Wheeling did not rely upon the false representation but the evidence shows that the company, upon learning of the true facts, immediately terminated his employment. This termination was later upheld in the face of a grievance complaint filed by appellant. The appellant points to the fact that the claimant passed a DOT physical before he was employed. The crucial question, however, is not whether the claimant could pass a physical or not, but whether he, under the doctrine of Shippers Transport of Georgia v. Stepp, supra, made a false representation about pre-employment health conditions. However, the doctrine of Shippers Transport of Georgia v. Stepp, supra, could not properly be applied to this case unless there was a causal connection between the false representation made by appelland and his.subsequent injury. The Commission found there was such a causal connection, but we can find no evidence in the record to support that conclusion. To say the least, the testimony on this crucial point is incomplete and has not been fully developed. In view of this situation we conclude, in the interest of fairness to all concerned, this case must be reversed and remanded for the sole purpose of developing the factual question of whether or not there was a causal connection between the false representation and the injury.

Reversed and remanded. .


author: Marian F. Penix, Judge.

text:
    BRUCE-ROGERS SUPPLY COMPANY v. PETTY PLUMBING, INC. and Robert A. PERRY and Jean PERRY
    CA 80-35
    603 S.W. 2d 445
    Court of Appeals of Arkansas
    Opinion delivered August 27, 1980

      Croxton & Boyer, for appellant.

      Little, McCollum. & Mixoñ, by: James G. Mixon, for appellees.
   Marian F. Penix, Judge.

This is an appeal from thé granting of a Summary Judgment which denied the constitutionality of the Arkansas Materialmen’s Lien Law and refused to impose such a lien on the property owned by Robert A. and Jean Perry.

Appellant, Bruce-Rogers Supply Company filed a complaint against Petty Plumbing and the Perry on January 7, 1977 alleging a delinquent account of $2,516.35. The complaint further alleged the materials had been furnished for an improvement of the residence of Robert A. Perry and Jean Perry. The complaint prayed for judgment in the amount of $2,516.35 against Petty Plumbing and for a materialmen’s lien against the property of the Perrys in the amount of $2,-516.35 Appellees, Robert A. and Jean Perry filed a general denial on January 26, 1977. The appellant amended its complaint and attached an itemized list of all of the materials furnished. The Perrys further amended their answer to the amended complaint and raised as a defense, the constitutionality of Ark. Stat. Ann. § 51-601.

Appellees, Robert A. and Jean Perry, filed a motion for Summary Judgment on December 4, 1978. The motion was granted in favor of the Perrys on October 3, 1979. The memorandum opinon of Judge Enfield stated the motion was granted because the Arkansas Materialmen’s Lien Law permits a deprivation of property without due process of law and is therefore unconstitutional. Bruce-Rogers Supply Company appeals.

Both the appellant’s and appellees’ briefs are replete with cases from other jurisdictions which discuss the constitutionality of the materialmen’s liens. Both briefs are very informative and contain good discussions of the issues. These briefs, however, were filed prior to the June 2, 1980 decision of South Central District Pentecostal Church of God of America, Inc. v. Bruce-Rogers Supply Co., 269 Ark. 130, 599 S.W. 2d 702 (1980). In that case, Chief Justice Fogleman writing for the majority, upheld the constitutionality of the Arkansas Materialmen’s Lien Statute. The Supreme Court determined that the “property interests affected are not of such a nature that minimum due process standards require more than our statutes afford in the way of notice and and hearing.” At page 146. The constitutionality of the statute was determined by weighing the necessity against the competing interests of property owners.

. . . The general public interest in affording protection to laborers, mechanics and materialmen against deprivation of compensation for their contributions to enhancement of the value of an owner’s property is certainly a factor to be considered in determining the necessity for notice and a hearing prior to imposition of the lien. (Cites omitted) Clearly, the laborer, mechanic or supplier would suffer the danger of a grave deprivation, if an owner could dispose of property made valuable by labor done or materials supplied by the holder of the lien conferred by our statute. (Cites omitted) For this reason, the creditor seeking to establish a lien has an interest in the property which deserves consideration in the resolution of the due process question. South Central District Pentecostal Church of God of America, Inc., supra, at page 141.

Finding South Central District Pentecostal Church of God of America, Inc. v. Bruce-Rogers Company to be controlling of the sole issue involved in this appeal, we must reverse. This case is reversed and remanded for a determination not inconsistent with this opinion.

Reversed and remanded.


text:
    EMERSON ELECTRIC COMPANY, Rogers, Arkansas v. Iona Mae WILLIAMS
    CA 80-151
    603 S.W. 2d 443
    Court of Appeals of Arkansas
    Opinion delivered August 27, 1980

      Croxton & Boyer, for appellant.

      Davis, Bracey & Heuer, by: Charles E. Davis, for appellee.
   Marian F. Penix, Judge.

Iona Mae Williams claims to have suffered total temporary disability from November 23, 1978 through December 29, 1978 resulting from a back injury incurred while working at Emerson Electric. The injury allegedly occurred November 22, 1978. The Administrative Law Judge held the claim to be compensable. The Workers’ Compensation Commission affirmed. Emerson Electric (self-insured) brings this appeal.

Emerson Electric contends the evidence before the Commission was not sufficient to support the award and was so nearly undisputed that fair-minded men could not reach the conclusion arrived at by the Commission. Emerson contends claimant’s ailments were ovary infection, hemorrhoids and not work related.

Claimant Williams testified she was picking up a box of end shields when the back injury occurred. She stated she told her subforeman, Ron Self, she had hurt her back. Self testified she said, “My back hurts.” Claimant testified after she reported to Self she had hurt her back, he replied, “I’ve hurt mine many times.” Claimant continued to work although at the time of her back injury she began to bleed from a hemorrhoid. She reported the bleeding and the back discomfort to George Elders, supervisor in packing. This was about halfway through the 3:00 p.m. to 12:00 midnight shift. She reported to Elders she didn’t know whether or not Ron Self had made a written report of the incident. Claimant testified she went to Bentonville Hospital that same night and saw the emergency nurse. The next day was Thanksgiving. The plant did not operate on Friday. The following Monday Claimant saw Dave Poff, the personnel manager, who advised her not to come in to work. She was examined by Dr. Arkins. In a December 11, 1978 letter, Dr. Arkins wrote to Emerson’s personnel manager Poff:

' This is a follow-up of our conversation of December 7, 1978, concerning the questionable Workmen’s Compensation claim on Mrs. Williams. According to the history she now gives me, she hurt her back in mid-September while lifting there at Emerson. She did not report this to anyone and states that she merely thought it was back pain from a kidney infection. However, she has continued to have back pain which is relieved with bed rest. My first exam on 11-27-78 confirmed findings compatible with low back strain with questionable disc involvement and she was started on bed rest, and given pain mediciation which improved her symptoms. . .

Dr. Arkins referred her to Dr. Carl M. Kendrick, an orthopedic surgeon. Dr. Kendrick, in a letter dated December 28, 1978 reported that in his December 12, 1978 examination of claimant “It was my diagnosis at that point that she had resolving strain to her back. . . I have recommended she resume her work in light duty and asked her to return to see me in two weeks.”

The evidence is undisputed. Claimant was lifting heavy boxes in the end shield department- when she complained of back pain. She was forced to go to Dr. Arkins on Christmas Day to receive a shot for back pain. Although. Dr. Kendrick released her to go back to work on December 12, 1978 — he specified the release was for “light duty”. On December 26, 1978, the claimant was suffering back pain and leg numbness and was again forced to seek Dr. Kendrick’s medical attention.

The Commission had before it the Claimant’s testimony and the reports of the two treating physicians. The Commission found sufficient evidence to support its finding the Claimant’s injury was work-related.

In review of this case, it is the duty of this court to draw every legitimate inference possible in favor of the appellee.

In Continental Insurance Co. v. Richard, 267 Ark. 673, 596 S.W. 2d 332 (1980) our court stated: ‘

. . . The Court on Appeal is required to review the evidence in the light most favorable to the finding of the Commission, and give the testimony its strongest probative value in favor of the order of the Arkansas Workers’ Compensation Commission. The issue on appeal is not whether this coúrt would have reached the same results as the Commission on' this - record, or whether'the testimony would have supported a finding contrary to the one made; the question ... is whether the evidence supports the finding which the Commission made.

We - find sufficient evidence to support the Commission’s determination the Claimant suffered a compensable, job-related injury and was temporarily totally disabled from November 23, 1978 through December 29, 1978. We agree with the Commission the Claimant has successfully carried her burden of proof in showing she received a compensable injury. Therefore we affirm.

The Claimant asks for $59.25 printers fees for the appeal brief and $250.00 attorney’s fees for services rendered in connection with this appeal. These requests are granted.

Affirmed.


author: George Howard, Jr., Judge.

text:
    ODELL WEBB BUILDERS, INC. v. Faye AVINGTON
    CA 80-132
    603 S.W. 2d 440
    Court of Appeals of Arkansas
    Opinion delivered August 27, 1980

      Donald M. Spears, for appellant.

      Arnold & DeMott, by: W. H. (Dub) Arnold, for appellee.
   George Howard, Jr., Judge.

On March 23, 1978, appellant agreed to construct a dwelling house for appellee, in accordance with certain plans and specifications, for $32,350.00, which included the cost of materials and labor.

Appellee was advised in August, 1978, that the structure was ready for occupancy, but appellee refused to pay the balance due contending that the structure was defective, among other things, in the following particulars: (a) the brickwork was not performed in a workmanship manner, (b) the roof contained swags, (c) the water pressure was extremely low and (d) that the plumbing was defective causing water leakage from the foundation, and elsewhere.

Appellant instituted his action seeking recovery of the unpaid balance under the contract or in the alternative, a materialmen’s lien for $5,870.34.

Appellee filed her answer and counterclaim for $26,-000.00 for the damages sustained because of poor workmanship.

The trial court awarded appellant a judgment for $11,-850.00, but found that appellee was entitled to the following set-offs:

1. $4,500.00 to correct the plumbing defects;
2. $2,800.00 to rebrick the house;
3. $1,500.00 to replace the floor covering;
4. $500.00 to repair the swags in the roof; and
5. $500.00 to replace a gas line connected to the central heating at the proper depths.

After carefully reviewing the record, we are unable to say that the trial court’s findings are clearly erroneous or clearly against the preponderance of the evidence. Nor has the appellant demonstrated that the court’s findings are clearly against the preponderance of the evidence, and we, accordingly, affirm.

In Campbell v. Richardson, 250 Ark. 1130, 468 S.W. 2d 248 (1971), the Arkansas Supreme Court reemphasized that while an appeal from a chancery court is reviewed de novo, the decision of the chancellor will be affirmed unless it is clearly against the preponderance of the evidence.

Rule 52 of the Rules of Civil Procedure, which became' effective July 1, 1979, provides in relevant part:'

“. . . Findings of fact shall not be set aside unless clearly erroneous (clearly against the preponderance of the evidence), and due regard shall be given to the opportunity of the trial court to judge the credibility of the witnesses. . . .”

After the foundation for appellee’s house had been laid-, appellant’s bricklayer, Buddy Lemons, was replaced- by one Russell Furr to finish all of the brickwork. While both parties agree that the brickwork was performed in a substandard manner, neither accepts responsibility for the employment of Mr. Furr. Appellant contends that the appellee procured Mr. Furr to complete the brickwork. On the other hand, appellee contends that after appellant advised her that Buddy Lemons was unable to complete the job because he “was tied up”, appellant asked appellee is she knew anyone “that laid brick.” Appellee testified that she simply supplied a list of names of bricklayers, including the name of Mr. Furr, whom she knew from which appellant could select a replacement and denied that she had hired Mr. Furr.

It is plain that the trial court was presented a fact question in seeking to determine who hired Mr-Furr. It is clear that the appellant agreed to supply and supervise the labor. Moreover, it is undisputed that appellant paid the wages due Mr. Furr for the brickwork. We are not persuaded that the conclusion of the trial court that Mr. Furr was engaged by appellant is clearly against a preponderance of the evidence.

Butch McCallum, a building contractor and a witness called for appellee, estimated the cost for remedying the defects as: $6,000.00 for repairing the plumbing defects; $6,-000.00 for replacing the bricks; $3,000.00 for replacing the floor covering; and $1,000.00 for miscellaneous work.

Calvin Efrid, a licensed plumber who performed the initial plumbing, testified that if he were required to replumb the entire house by going overhead, he could make the repairs for $1,500.00.

Appellant estimated the cost involved as $2,000.00 to remedy the brickwork, $1,000.00 to install new plumbing overhead and $1,900.00 for extra fixtures.

We hold that the trial court was confronted with a fact question in seeking to determine the necessary costs involved in repairing the defects to appellee’s house. The testimony regarding the essential costs involved is conflicting, to say the very least. It is well settled that it is the prerogative of the trial court to determine credibility and resolve conflicts in the testimony. Moreover, the record reflects that the trial court made a personal inspection of the premises and we are unable to state that his findings are clearly against the preponderance of the evidence.

Finally, appellant and his witnesses testified that while it is unknown what is actually causing the water leaks around the foundation of appellee’s house, the evidence adduced in its behalf absolves appellant of any inferior workmanship in the installation of the copper tubing before the concrete foundation was poured; and that the testimony of its witness, Calvin Efrid, that in his opinion the water leaks are attributable to a frozen water line behind the kitchen sink that was exposed to outside atmosphere relieves appellant of any responsibility for the leaks.

On the other hand, Harold Shepherd, President of Arkadelphia Plumbing and Heating Company, testified that while it was impossible to tell what caused the leakage under the concrete foundation, it was his opinion that the leaks were either due to loose joints in the copper tubing or the tubing was damaged prior to the pouring of the concrete foundation. Again, the trial court was faced with a fact question and we are unable to say that the trial court’s findings that appellant is responsible for the defects is not clearly supported by a preponderance of the evidence.

Affirmed.


author: David Newbern, Judge.

text:
    William J. CARLISLE and Eunice C. CARLISLE v. LITTLE ROCK NEWSPAPERS, INC.
    CA 80-134
    603 S.W. 2d 439
    Court of Appeals of Arkansas
    Opinion delivered August 27, 1980

      Stuart Vess and Bob Dawson, for appellants.

      Friday, Eldredge & Clark, by: William H. Sutton, for appellee.
   David Newbern, Judge.

The appellants are husband and wife. The husband was seated in his truck, which was stopped, when his truck was struck from the rear by a vehicle driven by the appellee’s employee. The husband claimed injury to his back, which he had previously injured, and aggravation of a heart condition and sought damages of $1,-000 to his vehicle and $300,000 for personal injuries. The wife claimed loss of consortium and sought damages of $40,000. A jury awarded the husband $6,784.00 and the wife $250.00. The appellants seek a new trial as they contend these damages were inadequate. The appellants 'also seek reversal and a new trial on the ground that irrelevant and prejudicial questions were asked of the appellant husband. No objections were made by the appellants to the questions at the time they were asked. Because we cannot say the damages awarded were so grossly and demonstrably inadequate as to warrant a new trial, and because no objections were made to the allegedly irrelevant and prejudicial questions, we affirm.

1. Inadequacy of damages.

A factual question was presented by the medical testimony on both sides of this case of the extent, if any, to which the appellant husband’s preeixsting heart problem was aggravated by the collision. The appellant husband was also shown to have had a previous, disabling injury to his back. There was a factual issue of the extent of injury to his back which was caused by the collision.

Unlike the case of Dunbar v. Cowger, 68 Ark. 444, 59 S.W. 951 (1900), cited by the appellants, the jury here awarded more than nominal damages. Nor are we presented with a case of an inadequate, precisely calculable award for injury to property, and thus the appellants’ citation of Law v. Collins, 242 Ark. 83, 411 S.W. 2d 877 (1967), is also misguided.

Our supreme court has held it will not consider a question of inadequacy of damages of the kind claimed by these appellants unless a substantial and prejudicial error was committed in the case. Wadsworth v. Gathright, 231 Ark. 254, 330 S.W. 2d 94 (1959). This brings us to only allegation of error, i.e., irrelevant and prejudicial cross examination.

2. Irrelevant and prejudicial questions.

It would serve no purpose to set forth the questions and answers of which the appellant complain. They argue that an appellate court may consider reversal despite lack of objection below to prejudicial questions. Their only citations are to two sections of a legal encyclopedia, one of which addresses failure to raise an objection to “sufficiency of the evidence,” and the other addresses lack of objection to “improper argument.” These citations are in no way persuasive on the issue presented here.

We see no reason for the appellants’ failure to object below to the questions of which they complain on this appeal. We decline to consider objections of this nature raised for the first time on appeal. Fuller v. Fuller, 240 Ark. 475, 400 S.W. 2d 283 (1966); Missouri Pac. Railroad Co., Thompson, Trustee v. Clements, 225 Ark. 268, 281 S.W. 2d 936 (1955); Sandidge v. Sandidge, 212 Ark. 608, 206 S.W. 2d 755 (1947).

Affirmed.


author: George Rose Smith, Justice.

text:
    Bobby Lynn CHANDLER and Frank RAMSEY v. Lonnie KIRKPATRICK
    79-343
    603 S.W. 2d 406
    Supreme Court of Arkansas
    Opinion delivered September 2, 1980

      Arnold, Arnold, Lavender & Rochelle, by: E. Ben Franks and Frank J. Gamble, III, for appellants.

      Dowd, Harrelson & Moore, for appellee.
   George Rose Smith, Justice.

In September, 1975, the appellant Frank Ramsey was doing business in DeQueen as the Ramsey Insurance Agency. Ramsey and the appellee, Lonnie Kirkpatrick, borrowed $35,000 from a DeQueen bank, executing a joint note as evidence of the debt. The money was put into the business, the name being changed to Ramsey-Kirkpatrick Insurance Agency. Kirkpatrick, who was a pulpwood dealer, testified that by the transaction he acquired a half interest in the agency. Just how the note was to be paid is not shown by the testimony.

A year later the parties paid $7,000 on the debt and gave the bank a new note for $28,000. The failed to pay that note. The bank brought this action upon the note and obtained a summary judgment, subject to a counterclaim that was eventually decided in favor of the bank. See Kirkpatrick v. First State Bank of DeQueen, 265 Ark. 285, 578 S.W. 2d 28 (1979).

By the time this suit was filed, Kirkpatrick had discontinued his active participation in the agency, and Ramsey had raised additional money by selling an interest in the agency to the other appellant, Chandler, the name of the agency being changed to Chandler-Gann Insurance Agency. There was testimony, not undisputed, that Chandler agreed to assume liability for the $28,000 debt to the bank.

In response to the complaint Kirkpatrick filed a counterclaim against the bank for $75,000, asserting that he had been defrauded of his half interest in the agency, which was allegedly worth that amount. Kirkpatrick filed similar claims for $75,000 against Ramsey and Chandler, again asserting fraud. The jury rejected Kirkpatrick’s counterclaim against the bank, but awarded him a $38,000 verdict against Chandler and a $19,000 verdict against Ramsey. Both have appealed, arguing separate grounds for reversal.

As to Ramsey, we agree with his contention that there is no substantial evidence to support Kirkpatrick’s claim against him, so that his motion for a directed verdict should have been granted. On the issue of Ramsey’s liability to Kirkpatrick, the court submitted to the jury only the question whether Ramsey had made fraudulent misrepresentations to Kirkpatrick. We find no such testimony in the appellants’ abstract of the record, nor does Kirkpatrick refer us to such proof in his brief. Essentially, all that is argued is that Ramsey promised to pay the debt to the bank and failed to do so. That is what he promised in the first place, and reiterated later on, but such statements as to the future are not actionable fraud. Pierce v. Sicard, 176 Ark. 511, 3 S.W. 2d 337 (1928); Harriage v. Daley, 121 Ark. 23, 180 S.W. 333 (1915).

In setting aside Kirkpatrick’s judgment against Ramsey, we make it clear that we not passing upon any claim that Kirkpatrick might have against Ramsey by way of subrogation or contribution. Such a claim is not before us, as it would depend upon the original agreement between Ramsey and Kirkpatrick and could not have arisen until Kirkpatrick satisfied the bank’s judgment on May 11, 1979- That payment was three days after the trial and does not present any issue on this appeal.

The other appellant, Chandler, argues four points for reversal, in none of which we find merit.

First, it is insisted that the court should have striken a remark made by Kirkpatrick on cross-examination, that a judge in a separate suit in Pulaski county had asked why Kirkpatrick was even involved in that suit. The court’s ruling was right, not only because the remark was invited by counsel’s question, but also because the remark could not have been really prejudicial, as the jury was told practically nothing about the Pulaski county case.

Second, it is argued that the court should have instructed the jury that Kirkpatrick, as a partner in the insurance agency, was liable to Chandler upon notes for $54,-540 that Ramsey eventually executed to Chandler. Whether Kirkpatrick was still a partner when the notes were given was a question of fact. That issue of fact was submitted to the jury at Chandler’s request and was decided adversely to him; so he is in no position to argue that all the proof shows the verdict to be wrong. Home Co. v. Lammers, 221 Ark. 311, 254 S.W. 2d 65 (1952).

Third, Chandler’s counsel made only a general objection to the court’s instruction on the measure of damages, saying that “it did not set out the proper measure of damages for the case at bar.” Such a broad statement did not tell the trial court exactly why the instruction was wrong and therefore was not sufficiently specific to present any question for review. Civil Procedure Rule 51 (1979).

Fourth, it is argued that the $38,00 judgment against Chandler is excessive, because the underlying judgment in favor of the bank was for only $28,000, plus attorney’s fees of $3,000. The judgment, however, recited that it bore interest of $7.77 a day, which for some 616 days would put the total past the $38,000 verdict. Moreover, the record of satisfaction of the judgment recites that Kirkpatrick actually paid the bank $38,618.20, which included costs.

Affirmed as to Chandler and reversed and dismissed as to Ramsey, without affecting possible issues of contribution and subrogation as between Kirkpatrick and Ramsey.