author: Paul Ward, Associate Justice. Sam Robinson, Associate Justice,

text:
    Citizens Coach Co. v. Collier.
    5-2425
    348 S. W. 2d 873
    Original opinion delivered June 5, 1961.
    [Rehearing denied and substituted opinion delivered October 2, 1961.]

      Rose, Meek, House, Barron, Nash & Williamson, for appellant.

      J. Harrod Berry, for appellee.
   Paul Ward, Associate Justice.

This opinion is substituted for the opinion in this same cause delivered June 5, 1961.

This is the second appeal involving the same cause of action. At the first trial a judgment was rendered in favor of the Citizens Coacb Company and on appeal we reversed the judgment on the ground (among others) that the Coach Company had not been held to the high degree of care required by law. For further information relative to our holdings in that case, and also for a full statement of the facts, reference is made to Ralph Collier v. Citizens Coach Company, 231 Ark. 489, 330 S. W. 2d 74. The second trial, from which comes this appeal, resulted in a judgment in favor of Collier in the amount of $5,040 based on the jury’s findings that Collier was 28% negligent and the Coach Company was 72% negligent.

Collier was a passenger on appellant’s bus, sitting at the rear on the right side. The bus had stopped at the corner of Main and Markham Streets headed north, close to the curb. Collier’s elbow, which was protruding through the window some 1% inches, was struck and injured by a light pole (or a sign attached to the light pole), as the bus began to move forward. The overall questions involved are whether the Coach Company was negligent and whether Collier was guilty of contributory negligence.

Appellant, for reversal, relies upon six separate assignments of error. First, we discuss Assignment No. 3 which questions the correctness of Appellee’s Instruction No. 2-B given by the trial court. We have concluded that the judgment in favor of Collier must be reversed because of error contained in said instruction. It reads as follows:

“You are instructed that if you find from a preponderance of the evidence that defendant Citizens Coach Company failed to provide adequate safeguards in the form of bars, metal screens or other protective devices to protect their passengers from injury generally, and particularly plaintiff, and you further find that the windows of the bus were open and that they were customarily so with the knowledge and acquiescence, of Citizens Coach Company, and if you further find that the outside seats were without arm rests, and it was the frequent custom of passengers on said seats, with the knowledge and acquiescence of the company, through its employees, to rest their arms on the open window sills, and if you further find that the company’s failure to so provide bars, screens or other protective devices on the windows, was a failure to exercise the highest degree of care that a prudent and cautious man would exercise reasonably consistent with the practical operation of its buses, and if you further find that such failure or omission, if any was a proximate cause of injuries and damages to plaintiff, if any, then your answer to Interrogatory No. 1 would be in the affirmative. ’ ’

Interrogatory No. 1 reads:

“Do yon find from a preponderance of the evidence in the case that the bus company was guilty of negligence in the operation of the bus and that such negligence, if any, contributed to proximately cause Ralph Collier’s injury?”

A careful analysis of the above Instruction reveals cleverly concealed vices which render it erroneous and call for a reversal. First, it will be noted that the Instruction is confined essentially to the kind and use of equipment furnished by appellant in transporting passengers, and that there is no contention that this particular bus differed from other buses used by appellant or another common carrier.

The Instruction allows the jury to set the standard for equipment to be used by appellant without any showing, by testimony, statute, or decision, that the bus in question was different in any respect from those commonly used by common carriers of passengers. In the case of Missouri Pacific Transportation Company v. Robinson, 191 Ark. 428, 86 S. W. 2d 913, this Court said: “It is true there are many statutes regulating railroads that do not apply to buses and other common carriers, but the law with reference to the duty of common carriers to passengers is the same as to all common carriers.”

The several elements on which the Instruction allows negligence to be predicated are that appellant allowed the windows to remain open, that appellant did not provide screens and bars for the windows, and that appellant did not provide arm rests. None of the above acts or omissions constitute negligence. In the case of Wade v. Brocato, 192 Ark. 826, 95 S. W. 2d 94, appellant, while riding by an open window on a bus being operated by appellee (a common carrier) was injured by a stone or gravel thrown by a passing automobile. The bus and the automobile were being driven on a gravel road which appellant alleged appellee knew to be dangerous to bus passengers. It was further alleged that appellee was negligent in (a) leaving the windows open and (h) failing to place screens and guards over the windows. The trial court sustained a demurrer to the complaint. This court, in sustaining the trial court, made these statements: “Appellant, however, does not state that the hus was going at an excessive rate of speed, or that it was violating the law in any way. . . . There is no allegation in the complaint that the operator of the bus was negligent in any manner except in leaving the window open.” Following this we said: “There is no law requiring bus companies to screen their windows. . . . It was not negligence on the part of the bus company to have the window open. . . .”

From the above we must conclude here that the jury could not find appellant negligent because it did not screen the windows or because it left the windows open even though they were aware of the fact. The only other basis contained in the Instruction upon which negligence could be predicated was the omission of appellant to provide arm rests, but by no stretch of the imagination can we conceive this to be more indicative of negligence than the other things mentioned above. The error in the Instruction is emphasized by the use of the word 1 ‘ adequate ’ ’ in the third line which left the jury to form its own definition of what the word meant.

The unescapable conclusion then is that Instruction 2-B permitted the jury to find negligence from certain acts and omissions which we have said do not constitute negligence. In other words the instruction permitted the jury to formulate its own standards by which appellant should equip and maintain its buses.

Appellant requests this court, in the event the cause is remanded, to discuss separately each assignment of error in order to facilitate an early conclusion of this litigation. This appears to be a reasonable request under the circumstances and we will comply with it, but only in a summary manner.

First, we direct further attention to Instruction No. 2-B. This instruction is in the nature, at least, of a binding instruction in that, in effect, it directs the jury to find for appellee, and it also omits the defense of contributory negligence. These matters are discussed in Reynolds v. Ashabranner, 212 Ark. 718, 207 S. W. 2d 304, and in Davis v. Self, 220 Ark. 129, 246 S. W. 2d 426.

Assignment No. 1. We find no error in the trial court’s refusal to give Appellant’s Instruction No. 4 wherein appellant sought to raise the issue of assumed risk on the part of appellee. Appellant’s contention is based largely upon the decision of this court in the case of Bugh v. Webb, 231 Ark. 27, 328 S. W. 2d 379, but we do not think that case is applicable to the case under consideration. In the Webb case we said, in effect, that a person who chose to ride in a drag race did so at his own risk. That was because it is common knowledge that certain risks are involved in such an undertaking. It cannot be said that Collier realized that he was taking any known risk when he boarded appellant’s bus. It might be said that he, in a manner, assumed some risk when he placed his elbow out of the window, but that feature of the case was amply covered by the instruction on contributory negligence.

Assignment No. 2. This assignment concerns certain testimony relative to marks on the bus which were supposed to have been caused when it scraped against the light pole. The bus was not examined until some days after the incident. On the whole we see no objection to the testimony because the record reveals that the scratches on the bus and on the light pole were of the same height from the ground, and also that the driver of the bus admits that he saw certain dents on the bus that same day. Any possible error we think was cured by the trial court when it stated: “We will leave it (referring to such testimony) in and will let the jury evaluate the testimony as they have heard it.”

Assignment No. 4. Appellant objected generally to the court’s giving Instruction No. 4-A and objected specifically because “. . . it doesn’t make sense and I don’t know what it means.” It would serve no useful purpose to set out in full the instruction which is somewhat lengthy and perhaps somewhat confusing. To support its contention appellant relies on the case of Bates v. Ford, 110 Ark. 567, 162 S. W. 1097. There the court considered a long and confusing instruction but did not find it to contain reversible error. "We agree with former decisions of this court that long and involved instructions are not to be favored, and since the case is being remanded it is suggested that upon another hearing this instruction be rephrased and clarified.

Assignment No. 5. Here it is contended that there is no substantial evidence of negligence and proximate cause on the part of appellant upon which to base a finding and judgment in favor of appellee. On that basis appellant argues that instructions 1, 1-A, 2, and 2-A were erroneous in that they did not require appellee to show the bus driver had actual knowledge of appellee’s arm extending out of the window at the time he started the bus in motion. In support of this argument appellant relies heavily on the case of Fisher v. Louisville Transit Company, 303 S. W. 2d 272 (Ky., 1957) which is copied in full in the brief. The facts, in almost every detail, in the cited case are surprisingly similar to the facts in the case under consideration, and the court there held that there was no liability on the bus company principally on the ground that ‘ ‘ there is no evidence that the driver of the bus knew the appellant’s arm protruded beyond the body of the bus.” However, we find in the cited opinion one sentence which we think makes the decision inapplicable to the ease under consideration. That sentence is: “We find no evidence suggesting that the movement of the bus as it pulled away from the curb was in any way unusual, nor that the bus had pulled in too close to the curb and pole in the first place.” In contrast to that statement there is evidence in the case under consideration (when treated in the light most favorable to appellee) from which the jury could have made the following findings: First, that appellant’s bus was driven straight forward instead of pulling to the left and thereby, perhaps, avoided injury to appellee’s arm; secondly, that the bus pulled closer to the curb and the light pole than was necessary under the circumstances. One of the basic questions, as heretofore mentioned, is whether appellant was guilty of negligence. The answer to that question depends upon all of the facts and circumstances shown by the testimony. Therefore, we are unwilling to say as a matter of law, that appellant could not, in any circumstances, be guilty of negligence without having first been informed of the position of appellee’s arm.

Assignment No. 6. Instruction No. 5 deals with the extent of appellee’s injury and his compensation for “doctor, hospital, and other medical expenses he has incurred to date, if any, and will incur in the future,” etc. Appellant’s objection to the above instruction was “. . . there is no evidence in the record to indicate (a) he will incur medical expenses in the future, and (b) there is no evidence to show loss of earnings as may be reasonably expected to arise as a result of his continued disability in the future.” We'do not agree with appellant in this contention. We have carefully searched the record and in it we find testimony (when viewed in the light most favorable to appellee) from which the jury could find that appellee will incur medical expenses in the future and that he will suffer a loss of earnings in the future. The medical testimony was to the effect that appellee was permanently injured and would continue to need medical treatment, and there was substantial evidence to show that his ability to work has been diminished.

For the error heretofore indicated we conclude that the judgment of the trial court must be reversed and the cause remanded for a new trial, and it is so ordered.

Robinson, J., concurs; George Rose Smith, J., not participating.

Sam Robinson, Associate Justice,

concurring. I think the original opinion handed down in this case on June 5,1961, was correct and that the substituted opinion is erroneous. By instruction No. 2-B, coupled with interrogatory No. 1, the court told the jury to find for the plaintiff if the defendant did or did not do certain things. The error was in telling the jury in effect that certain acts, or the failure to do certain things, constituted negligence. Whether a person has acted in a negligent manner, that is to say, whether a person has done something that an ordinarily prudent person would not do under the circumstances or has failed to do something that an ordinarily prudent person would have done under the circumstances, is a question for the jury. The error was in taking the question away from the jury.

The majority is now saying that as a matter of law the bus company was not negligent in allowing windows to remain open when the bus was driven so close to a sign that a passenger’s elbow was struck by the sign and seriously injured; that as a matter of law there was no negligence in failing to provide screens or bars on the windows, even though it is shown conclusively that the bus was driven very close to the sign; and that the bus company as a matter of law was not negligent in failing to provide arm rests, thereby giving rise to a condition whereby the passenger was likely to rest his arm on the window sill, which could result in the very injury that the plaintiff received. In the case at bar I think it was for the jury to say whether there was negligence in the doing or the failure to do the things mentioned. Wade v. Brocato, 192 Ark. 826, 95 S. W. 2d 94, cited by the majority, is not controlling. There the Court said it could be determined from the complaint that the injury to the passenger on the bus was due to the unlawful act of a third party in driving at a high rate of speed as alleged in the complaint. The Court did not say that never in any circumstances would a bus company be negligent in leaving windows open.

I think the correct rule of law was stated by the Court in the original opinion. In quoting from the case of Aluminum Company of North America v. Ramsey, 89 Ark. 522, 117 S. W. 568, the Court said: “ ‘ “The existence of negligence should be passed upon by the jury as any other fact, and it is improper to instruct them that a certain fact or group of facts amounts to negligence per se, unless such acts are declared by law to be negligence per se, or are such as to induce an inference of negligence in all reasonable minds.” ’ ” First the case was reversed because the court told the jury that certain acts amounted to negligence. Now the case is being reversed because the court did not tell the jury that certain acts did not amount to negligence. I think the Court was right in the first instance. The question of negligence should be passed upon by the jury as any other fact. For the reason mentioned, I concur.


source: Caselaw Access Project

license: Public Domain

text:
    Brown v. Cheney, Commissioner.
    5-2446
    350 S. W. 2d 184
    Opinion delivered October 2, 1961.
    [Rehearing denied November 6, 1961.]

      D. D. Panich, for appellant.

      Lyle Williams and Glenn F. Walther, for appellee.
   Paul Ward, Associate Justice.

Appellant Brown, a citizen and resident of this state, owns and operates a supper club in Little Bock. Appellant Parr, a citizen and resident of Texas, owns and operates the Central Music Company in Texarkana, Arkansas. Brown owns, and operates in connection with his business, one “juke box” or record playing machine into which the customers insert a coin. Parr owns several “juke boxes” and pinball machines which he leases to different persons for use in this state. In this litigation we are concerned only with “juke boxes” or music vending machines. Ark. Stats. § 84-2604 imposes a “privilege tax” of $5 on “each music vending phonograph” to be paid annually by the owner to the Commissioner of Bevenues. This tax is not here challenged by appellants.

In 1959 the legislature passed Act 120 (Ark. Stats. 84-2622 to 84-2632). Section 84-2622 declares the owning, operating or leasing of “coin operated amusement devices” to be a privilege, and that such owners, operators or lessors shall pay a fee for such privilege in addition to the $5 on each machine mentioned above. Section 84-2623 provides that no one can secure such a privilege license unless, among other things, he has been a resident of this state for at least one year. The section following fixes an annual license fee of $250. Section 84-2628 requires the licensee to keep certain records (available to the Commissioner) relative to a determination of sales taxes. Section 84-2632 requires a $3,000 bond by each applicant “to insure the faithful and prompt payment of all sales tax . . .” etc.

When Appellee, Commissioner of Bevenues, let it be known that the tax would be imposed on appellants, they filed suit in Chancery Court for a declaratory judgment to invalidate said Act 120 on the grounds that it is unconstitutional and “in violation of constitutional rights of plaintiffs and other taxpayers similarly situated. . . . ”

Appealing from an adverse decree, appellants urge a reversal on the grounds that: (a) The Act is arbitrary, discriminatory, confiscatory, and against the police powers of the state; and (b) The Act is in violation of certain provisions of the State and Federal Constitutions.

(a) In trying to determine whether Act 120 is arbitrary and confiscatory, etc., the first interesting question presented is whether owning and operating a coin-operated music machine is a privilege — i. e. whether the legislature can so declare it. In their brief appellants make this statement: “It is admitted the operation of music vending machines falls within the class commonly referred to as a privilege, that reasonable taxes can be imposed, but not such taxes and regulations as will be oppressive, arbitrary, discriminatory or confiscatory, such as are included in Act 120.” (Emphasis added.)

Despite the above admission, we think the question should be examined further. On first impression it might appear that a “juke box” is harmless, and that its owner should be allowed to play it as a common right, but there are other things to be considered. It is common knowledge that coin operated “juke boxes” are not usually placed in the home, but are frequently used in dance halls, drinking places, and amusement' spots. Pinball machines, the operation of which is conceded to be a privilege and so declared by statute and this Court, can also be used and operated in a perfectly harmless way, but by association and abuse they often lead to unwholesome results. The legislature, in regulating “juke boxes” had a right to take all these things into consideration. In the case of White, County Treasurer v. Adams, 233 Ark. 241, 343 S. W. 2d 793, which upheld Act 48 of 1945 placing a tax of $100 a week on fortune tellers, we said:

“The lawmakers are entitled to believe that no human being has the power of foretelling future events and that therefore fortune telling may be a fraudulent means of preying upon the ignorant, the superstitious, and the gullible. Consequently it has been uniformly held that the state, in the exercise of its police power, may constitutionally prohibit fortune telling altogether. ’ ’

One of the best definitions of police power of which we are aware is found in Hinebaugh v. James, Tax Commr., 119 W. Va. 162, 192 S. E. 177. It reads :

“The police power of a state is an attribute of sovereignty, co-extensive therewith, difficult of definition because it cannot be circumscribed by mere words, latent in its nature, yet, nevertheless, perennially existing as a vast reservoir of authority to be drawn on by the law-making branch of the government for the public good. Within constitutional limits, the police power may be exercised to promote the safety, health, morals, and general welfare of society.”

We are inclined to the view that in the case before us the legislature did not exceed constitutional limitations in its effort to protect the morals and general welfare of society. This view is strengthened by the presumption that said Act 120 is constitutional. See State v. Hurlock, 185 Ark. 807, 49 S. W. 2d 611, and Miller Levee District No. 2 v. Evers, Collector, 200 Ark. 53, 137 S. W. 2d 915.

Having concluded that we are here dealing with a privilege, it must be concluded that the legislature has great latitude in regulating it. Article 16, § 5 of the State Constitution first deals with uniformity of taxation and then says: “. . . the General Assembly shall have power from time to time to tax . . . privileges, in such manner as may be deemed proper.”

Conceding, as contended by appellants, that the legislature under the above quoted section cannot impose a tax that is arbitrary or confiscatory, we still think Act 120 must be sustained. The Act is not arbitrary because there are good reasons, mentioned in the Act, why the legislature needed the required information for the purpose of collecting sales taxes and use taxes. Nor do we find the Act to be confiscatory. Although Brown owns only one “juke box” on which he must pay $250 each year, he is free to own as many as he likes without further charge. Also, the record reflects that Brown’s income from the one box is in excess of $2,000 annually.

(b) As heretofore noted, Act 120 provides that no person can secure a license unless he has resided in Arkansas for at least one year. Farr is not a resident of Arkansas. It is appellants’ contention that the residence requirement violates that part of Amendment 14 of the Constitution of the United States which states: “No state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States. . . .” We think this contention is without merit. In the first place the Amendment deals with citizenship while Act 120 deals only with residency, and the two words have entirely different meanings. Under the Act a citizen of this state would not be eligible for a license unless he had a residency of one year. The great weight of authority supports the validity of similar residence requirements where only a privilege is involved.

In the Hinebaugh case supra, the Court said: “The purpose of the quoted language of the fourteenth amendment [same as heretofore] is to protect citizenship of the United States as distinguished from citizenship of the several states.” Further, in the same case, the Court said the language in the Amendment furnished an 1 ‘ additional guaranty against encroachment by the states on those fundamental rights which belong to citizenship.” (Emphasis added.) In the cited case the Court upheld a residency requirement to distribute nonintoxicating beer in West Virginia. Also, in the cited case, the Court noted that: “A West Virginia citizen residing beyond the state is not eligible. . . . Under this regulation citizens of other states are entitled to exactly the same privileges and immunities as are citizens of West Virginia.” (Emphasis added.) Numerous decisions point out the difference between “resident” and “citizen”. See Ullman v. State, 1 Tex. Ct. App. R. 220, 28 Am. Rep. 405; Wyman v. Wyman (Nev.), 49 F. Supp. 952; Jeffcott v. Donovan (Ariz.), 135 F. 2d 213; Philip La Tourette v. Fitz Hugh McMaster (S. C.), 248 U. S. 465, 39 Sup. Ct. 160, 63 L. Ed. 362, and C. N. Hankins v. Spaulding, Com’r., 78 Ida. 533, 307 Pac. 2d 222.

It is significant we think that onr legislature, without successful challenge, has many times favored residents over nonresidents in regulating certain privileges, such as: The manufacture and sale of wine (Ark. Stats., § 48-110); Retail beer dealers (§ 48-515); Fur dealers (§ 47-202); The taking of mussels (§ 47-601, C.), and The practice of optometry (§ 72-806).

Appellants’ contention that Act 120 violates Article 2, §§ 2, 3, 18, 19 and 29 of the State Constitution has been examined and found without merit. Section 2 deals with inalienable rights — not with privileges; Section 3 refers to discrimination based on race or color; Section 18 refers to discriminations between citizens or class of citizens; Section 19 refers to monopolies, and; Section 29 deals with rights retained by the people. We are unable to see how any of the above sections are related to or are violated by Act 120.

It is our conclusion, therefore, that the decree of the trial court must be, and it is hereby affirmed.

Robinson and Johnson, JJ., dissent.

Sam Robinson, Associate Justice,

dissenting.

As authority for the holding that the ownership of a coin operated music machine, which in fact is a very fine musical instrument costing over $1,500, is a privilege and taxable as such, the majority cite the case of White v. Adams, 233 Ark. 241, 343 S. W. 2d 793, which is a fortune telling case. Although that case deals with the general subject of privileges, it does not touch on the subject of the ownership of property as a privilege. There is hardly any comparison between the right to tell fortunes and the right to own property.

In the case at bar we are dealing with one of the most sacred constitutional rights. Article 2, § 22 of the Constitution of Arkansas provides: “The right of property is before and higher than any constitutional sanction; . . .” Appellant Brown is in the restaurant business. Incidental to that business be has available for the enjoyment of bis customers a music machine that may be played by depositing a coin in a slot. In my opinion it is not a privilege to own and use such a machine; it is a matter of common right. It is conceded by all that Brown could play the machine at his place of business to his heart’s content if he would remove the coin operation feature of it and play the machine by merely pressing a button or by permitting the customers to do so. And, according to the reasoning of the majority, a customer could pay the cashier for playing the machine and no privilege would be involved. But if a nickel is put in the slot, it is a privilege. The right to listen to good music, or bad music if one prefers, has been a common right of mankind since before the dawn of recorded history. Even the least advanced of savage tribes have some form of music, but here if one uses a small coin in a certain way to enable him to. listen to recorded music of his choice, a privilege is involved.

In the very early days of statehood the question of what is a privilege first came before the courts, and although since that time a number of things have been declared to be privileges, this Court has always sustained the doctrine that a matter of common right cannot be converted into a privilege by an act of the legislature. The majority say that to own, operate or lease a coin operated music machine is a privilege. But Act 120 of 1959 provides that “The business of owning, operating or leasing coin operated amusement devices ... is hereby declared to be a privilege. . . ' The majority point out that “It is common knowledge that coin operated ‘juke boxes’ are not usually placed in the home.” This is true enough, but it is equally a matter of common knowledge that coin operated music machines in the form of television sets are now widely used in homes and at this very time facilities for putting such machines in homes in Little Rock are being installed. In view of the decision in this case, it is now very likely that each owner of such a coin operated machine will have to pay an annual tax of $250 for the privilege of listening to music that may be provided by such machine. I can hardly see how there can be any valid distinction between music that comes over the air and thence through a machine and music that comes from a record through a machine.

The first case to come before the Court on the question of what is a privilege was Stevens & Woods v. State, 2 Ark. 291. Article VII, § 2 under “Revenues”, of the Constitution of 1836, in respect to the taxing of property and privileges, is the same as Art. 16, § 5 of the Constitution of 1874. In the Stevens & Woods case there was involved the constitutionality of a tax assessment of $1,000 on the keeping of two billiard tables. The issue decided by the Court was whether the keeping of a billiard table could be taxed as a privilege. The Court held that it could not be so taxed; that it was a matter of common right and could not be converted into a privilege by an act of the legislature. The case is closely in point with the case at bar, because not only is the same principle involved, but the Court actually compared the keeping of a billiard table with the keeping of musical instruments. We take the liberty of quoting rather extensively from the Stevens & Woods case. The Court said: “The meaning of the word ‘privilege’ is to be looked for in the common law. In the realm of England, and by the English law, there were a multitude of privileges of various kinds, most of which never crossed the Atlantic or took root in our soil. ... In this country few, if any, privileges exist by prescription, and few of those known in England exist by Legislative grant. But it is a certain class of privileges created in all the States by grant from the Legislature, such as banking, the privilege of keeping ferries, and holding and keeping toll-bridges, of making and receiving toll on turnpikes, canals, and railroads; and unquestionably other privileges of the same nature might be created, and when created, would be taxable. These are all special rights, powers, and privileges, not existing before, but created pro hac vice, and granted out by the Legislature as exclusive rights and franchises. Such privileges which are sources of wealth, or rather wealth in themselves, created and conferred by Legislative grant, and not capable of valuation like tangible and corporeal property, are property taxable as privileges.

“But the Legislature cannot, by first prohibiting the use of any article or the exercise of any calling, and then allowing it upon payment of a certain sum into the Treasury, create a privilege. If this could be done, there would no longer be any meaning or effect in the provision that no one species of property should be taxed higher than another species of property of equal value. If this could be done, the Legislature could tax every bureau a hundred dollars, or every table, or chair, or sofa, or book-case, to the same amount, merely by prohibiting the use or possession of each article except upon payment of such sum, and so making it a privilege to have, use, or possess it. They might pass sumptuary laws, and tax shoes, boots, hats, coats, cloaks, and every article of dress, comfort, luxury or necessity, by pursuing the same course, and making it a privilege to have, wear, or possess it.

“There are certain rights which belong to us as free men; we do not derive all our rights from Legislative grant; we have some which belong to us by nature, and as citizens of a free country; such are the rights of holding any species of property we choose, of wearing whatever garments we choose, and of possessing and holding any article of comfort or luxury which we please. As all [of] them belong to us originally, they cannot be converted into privileges by any process of Legislative alchemy. No such magical transmutation can be effected. If it could, nothing would be easier than by the enactment of sumptuary laws and acts creating privileges to transform us at one sweep from free citizens of a republic to the mere serfs of the soil.

“The right to keep and use a billiard table is one of these common rights. It is an article of furniture which every citizen had the right to own and possess before we framed the Constitution, and the Legislature cannot confer upon us the privilege of keeping what we already ex communi jure have the right to keep and use. Privileges are not so created; if they are, every thing can be transmuted into a privilege, and by undergoing this process, an article of property worth a hundred dollars may today be taxed one dollar and tomorrow a thousand, while another article of the same, may still remain subject to the original tax of one dollar. "Why not in the same tax the privilege of raising cotton, or hemp, or wheat, and so make a tax payable by one portion of the State alone.

“The playing of billiards has not been yet made a criminal or penal offense, and therefore every person has the right either to keep or play on such a table. He has the same right to do so that he has to keep or play on a flute, violin, or organ; and if one can be made a privilege while it is lawful for every man, so may the other. There is nothing unlawful or criminal in one more than in the other, by the law of nature, or the code of morality, neither malum prohibitum or malum per se. To keep a billiard table therefore stands upon the same ground with keeping any other article of furniture, or for the purpose of amusement, and one cannot be changed into a privilege any more than the other.

“A privilege, therefore, is a new right created by Legislative grant; not a right existing before and common to all, but now prohibited unless on payment of a sum into the exchequer. It is a portion of the prerogative of the State, carved out and given to an individual or a corporation. This is no such privilege. Nor could a privilege be created by declaring the keeping of a billiard table criminal, and then allowing it on payment of a sum in gross; that would be pandering to crime and present the strange spectacle of Legislative creation of a privilege to commit crime. It might be forbidden altogether, but it could never be made a privilege.

“The keeping of a billiard table, therefore, is no privilege, and therefore cannot be taxed as such, and if so, it follows, as an inevitable consequence, that the law in question is unconstitutional. That it is so we have not the slightest doubt.” (Emphasis supplied.)

In the same volume of the Arkansas Reports, there is the case of Gibson v. Pulaski County, 2 Ark. 309. It was there held that the keeping of a stallion was a matter of common right and that it conld not be taxed as a privilege. In Washington v. State, 13 Ark. 752, a distinction between a state tax and a county or municipal tax was pointed out; decisions in the Stevens & Woods case and the Gibson case were left intact. About ninety years later Judge Frank Smith wrote the original opinion involving the validity of the state income tax in the case of Sims v. Ahrens, 167 Ark. 557, 271 S. W. 720 (1925). There Judge Smith cited the cases of Stevens & Woods v. State and Gibson v. Pulaski County, above mentioned, along with McGehee v. Mathis, 21 Ark. 40; Straub v. Gordon, 27 Ark. 625; Little Rock v. Barton, 33 Ark. 436; Little Rock v. Board, 42 Ark. 160; Baker v. State, 44 Ark. 134; and State v. Washmood, 58 Ark. 609, 26 S. W. 11, and said: “Under the doctrine of stare decisis, these cases have become the settled law of this State, and, until they are overruled, which up to this hour has not been done, this court cannot consistently hold that it is within the power of the Legislature to declare and tax as privileges, for State revenue, pursuits and occupations which are matters of common right. To so hold would be to overrule all these cases, and, if they are to be overruled at all, it should be done expressly, and not by implication.”

A rehearing was granted and Judge Wood wrote the majority opinion holding that the state income tax is neither a property tax nor a privilege tax, but is an excise tax and not prohibited by Art. 16, § 5 of the Constitution. The Court referred to the case of Stevens & Woods v. State, 2 Ark. 291, and other cases'of a similar nature, on down to Standard Oil Co. v. Brodie, 153 Ark. 114, 239 S. W. 753, and said: “Those cases have not been overruled, and therefore the above provisions of our Constitution should be interpreted to read as follows: ‘The General Assembly shall have power from time to time to tax hawkers, peddlers, ferries, exhibitions and privileges in such manner as may be deemed proper, but it shall not tax for purposes of State revenue pursuits and occupations that are matters of common right.’ ”

In Thompson v. Wiseman, 189 Ark. 852, 75 S. W. 2d 393, appellant owned and operated certain coin operated devices. Act 137 of the General Assembly for the year 1933 provides for assessing a tax on vending machines, including mnsic vending machines. The Court upheld the tax, but treated the case as applying to those who operated the machines. The 1933 Act provides: “It shall be unlawful for any-person, firm or corporation, or agents or receiver thereof, to operate or permit the operation of any of the machines mentioned in Section 1 of this Act. . . .” Now the majority are holding that mere ownership of such machines is prohibited without first having paid the $250 tax.

In my opinion the Act under consideration, Act 120 of 1959, does not provide for a tax for the mere ownership or operation of a single music machine, but does tax the business of owning, operating or leasing coin operated music devices. There is nothing in the record in this case to indicate that appellant Brown is in the business of owning and operating or leasing music machines. He is in the restaurant business. The fact that he incidentally uses a stove certainly does not mean that he is in the stove business, nor does the fact that he may incidentally use a pick-up truck mean that he is in the business of owning, operating or leasing trucks. On the other hand, appellant Lynn Farr, doing business as the Central Music Company, is in the business of owning, operating and leasing the machines. The $250 tax assessed against him is valid under the decision in Thompson v. Wiseman.

I might add that the effect of Act 120 of 1959 is to give certain residents of Arkansas engaged in the business of owning all kinds of slot operated devices, including coin operated music machines, a monopoly in that field, and this is against public policy. No doubt a goodly portion of the operators own dozens and perhaps hundreds of such slot operated devices and it would be no burden on them to pay an annual tax of $250. But in many instances the little man having but one machine in his restaurant cannot afford to pay the $250 in addition to the sales tax paid at the time of the purchase of the machine, the regular annual ad valorem taxes, the sales tax on the money taken in by the machine, the federal income tax and the state income tax on the money received. Hence, he will have to use a machine belonging to a big operator, and pay as rent at least one-half, or perhaps more, of the money taken in by the machine. According to the record, there are in the State only 117 owners of coin operated devices alleged to come under the Act. This includes people such as Brown who own only one machine. The 117 owners own 6,790 machines in the State; hence, the operators own an average of 58 machines each. When it is considered that many owners have only one, a very few must own a large number, many more than the average of 58.

For the reasons set out herein, I respectfully dissent from that part of the opinion which holds that Brown is liable for the tax.

Johnson, J., joins in this dissent.


author: Sam Robinson, Associate Justice.

text:
    Superior Forwarding Co. v. Sikes.
    5-2456
    349 S. W. 2d 818
    Opinion delivered October 2, 1961.
    [Rehearing denied October 30, 1961.]

      Reid d Burge, Gardner d Steinsielc and Kirsch, Cathey d Brown, for appellant.

      McMath, Leatherman, Woods S Youngdahl and Douglas Bradley, for appellee.
   Sam Robinson, Associate Justice.

This is a personal injury case arising out of injuries received by appellee Sikes while helping to unload a truck belonging to appellant Superior Forwarding Company, a common carrier engaged in the trucking business. Appellant Fred Russell was the trucking company’s driver at the time. Appellee Sikes recovered a judgment in the sum of $35,000 for damages sustained. The trucking company and Fred Russell have appealed. There is no contention that the judgment is excessive. One Tommy Russell was actually the owner of the truck involved but had leased it to the trucking company. Fie was named a party defendant in the complaint and filed a demurrer. The demurrer was sustained by the trial court and Sikes has cross appealed from the court’s action in that respect.

Appellee Sikes was a common laborer working for the East Arkansas Lumber Company, which company was at the time constructing a building at Paragould for the Storey Realty Company of Charleston, Missouri. The building when completed was to be occupied by the Kroger Company, at that time doing business in another building in Paragould. The trucking company while engaged in the regular course of its business had a large freezing cabinet packed in a crate, weighing about 1,900 pounds, to deliver to Kroger at Paragould. The freezer was loaded in a stake body flat bed truck at the trucking company’s place of business near Corning, Arkansas. Fred Russell, following instructions of the trucking company, his employer, drove the truck to Paragould to deliver the freezer to Kroger. Of course, Russell could not unload the heavy piece of equipment alone and he had no mechanical facilities he could use to accomplish the unloading. The trucking company operated under a tariff which provides that it is the duty of the consignee to unload freight that is too heavy for the truck driver to handle. When Russell arrived at Paragould he did not notify the Kroger people of his arrival with the freight that he could not unload by himself. • He took the equipment to the building that was under construction that would be occupied by Kroger when completed. There appellee Sikes, the laborer working for East Arkansas Lumber Company in the construction of the building, helped to unload the equipment and was injured when the heavy freezer fell on him while it was being unloaded.

Appellants argue that there is no substantial evidence to support the verdict, but without here abstracting the evidence, which would unduly extend this opinion, suffice it to say that when viewed in the light most favorable to the appellee, which we must do, we cannot say there was no substantial evidence to support the verdict. The jury could have found from the evidence that Fred Russell, acting within the scope of his authority as agent for the trucking company, obtained the services of Sikes to help unload the heavy equipment; that the equipment was in charge of and under the care of Rus'sell until delivery was completed; and that the delivery was not completed at the time the freezer fell on Sikes; that Russell was negligent in the manner of unloading the equipment and that as a result of such negligence Sikes was injured. True, there is considerable conflict in the evidence as to just what occurred in connection with the unloading. Russell says that East Arkansas Lumber Company took over the job of unloading and indicates that the lumber company did so as agents for Kroger. But there is evidence that East Arkansas had no contract with Kroger, was under no obligation to Kroger and had made no agreement to unload freight for Kroger. Appellant Fred Russell testified that Curt Hayden, foreman for East Arkansas, took over the job of unloading and directed how it should be done. Hayden flatly denies that he was even there until the crate containing the freezer had been skidded out of the truck onto the planks supported by concrete blocks. He testified that Fred Russell drove the truck forward, thereby removing the support from the end of the planks, and that the crate fell on Sikes a moment after his (Hayden’s) arrival; that he had nothing whatever to do with unloading the crate. Perhaps Hayden’s testimony is against the preponderance of the evidence, but this Court does not set aside a jury verdict merely because it is against the preponderance of the evidence. In Metropolitan Life Ins. Co. v. Gregory, 188 Ark. 516, 67 S. W. 2d 602, we said: ‘ This court . . . has adopted the rule that, if there is any substantial evidence to support the verdict, it will be permitted to stand, although it might appear to us to be against the preponderance of the evidence.”

The appellants next argue that the court erred in refusing to require the plaintiff’s compensation carrier, Fidelity & Casualty Company of New York, to file an intervention. Sikes was awarded workmen’s compensation for having been injured in the due course of his employment. "When this suit was filed .against the trucking company, Fred Russell and Tommy Russell, the Fidelity & Casualty Company filed a motion asking that it be permitted to intervene. The court granted the motion, but the insurance company did not file an intervention, and prior to the trial appellant filed a motion asking that the insurance company be required to intervene. The motion was overruled. Appellant says that was error. We fail to see how the failure of the insurance company to intervene was in any manner prejudicial to the rights of appellant, or how appellee would be bound by anything that the insurance company did or failed to do.

Appellants next argue the proposition that the trial court erred by failing to grant a mistrial because counsel for plaintiff asked one question of the jury panel seeking to ascertain whether any member was connected with any insurance company. The court asked the panel, “Do any of you own stock in or do you write or are you an agent for any liability or casualty insurance company1?” There was no response. Counsel for plaintiff then propounded this question: “. . . -the court asked you if any of you own stock or had an interest in a liability insurance company. Do any of you own stock or are you employed by any kind of insurance company?”

There were several types of insurance indirectly involved in the case. Tommy Russell, the lessor of the truck to the trucking company, under the rental contract was obligated to pay the workmen’s compensation insurance premiums. The trucking company was obligated to pay the public liability, property damage and cargo insurance. We have held that it is improper to unnecessarily call to the jury’s attention the fact that there is insurance in the case. DeLong v. Green, 229 Ark. 100, 313 S. W. 2d 370. But after all it is a question of good faith and whether counsel has acted in good faith in asking the jury panel about connections with insurance companies is to a great extent a question to be determined by the trial court. This problem is discussed in 11 Ark. L. Rev. 13, where Mr. Robert Jones points out that it is a matter largely in the discretion of the trial court. In proper circumstances a question about insurance companies may be asked of the jury panel. Here we cannot say there was an abuse of discretion by the trial court. Loda v. Raines, 193 Ark. 513, 100 S. W. 2d 973 (1937); Sutton v. Webb, 183 Ark. 865, 39 S. W. 2d 314 (1931); Bourland v. Caraway, 183 Ark. 848, 39 S. W. 2d 316 (1931); Ellis v. Warner, 182 Ark. 613, 32 S. W. 2d 167 (1930); Smith Arkansas Traveler Co. v. Simmons, 181 Ark. 1024, 28 S. W. 2d 1052 (1930).

During the trial of the case it was necessary for plaintiff to prove that Fred Russell was the agent of the Superior Forwarding Company. Tommy Russell, originally a party defendant, but who was out of the case at the time by reason of the trial court’s having sustained his demurrer, was the owner of the truck and had hired his relative, Fred Russell, as a driver of the truck, which was leased to the Superior Forwarding Company. The plaintiff called Tommy Russell to prove that Fred Russell was the agent of the trucking company at the time Sikes was injured. Under the circumstances of the relationship between Tommy Russell and Fred Russell and the contractual relationship between Tommy Russell and the Superior Forwarding Company, the court did not abuse its discretion in permitting cross examination of Tommy Russell by appellee. Wallace v. Bernheim, 63 Ark. 108, 3 S. W. 712; Missouri Pac. R. R. v. Sullivan, 197 Ark. 360, 122 S. W. 2d 947; Plumlee v. St. Louis Southwestern Ry., 85 Ark. 488, 109 S. W. 515.

Next, appellants contend that the trial court erred in permitting the use of a deposition of Fred Russell, who was a party defendant. He was present in the courtroom and plaintiff had previously taken his discovery deposition. Ark. Stats., § 28-348 provides that the deposition of a party may be used by an adverse party for any purpose. Here Fred Russell was an adverse party to the plaintiff. Hence, it was perfectly proper to nse his deposition.

Appellants argne several other propositions, twenty points in all, including the giving, refusing and modification of instructions. We have examined carefully all points argued, but find no error.

On cross appeal appellee contends that the court erred in sustaining Tommy Russell’s demurrer to the complaint. The answer to that contention is that the court merely sustained the demurrer. There was no final order dismissing the complaint as to Tommy Russell, but appellee did file an amended and substituted complaint in which Tommy Russell was not made a party defendant. In the circumstances the original complaint ceased to be a part of the record. Waters-Pierce Oil Co. v. Bridwell, 103 Ark. 345, 147 S. W. 64; American Bonding Co. v. Morris, 104 Ark. 276, 148 S. W. 519.

Affirmed on appeal and on cross appeal.

McFaddin, J., dissents.


author: Jim Johnson, Associate Justice.

text:
    Newbern v. Morris.
    5-2457
    349 S. W. 2d 662
    Opinion delivered October 2, 1961.

      Rex W. Perkins and Charles Bass Trumbo, for appellant.

      Dickson, Putman & Millwee, for appellee.
   Jim Johnson, Associate Justice.

This ease involves an action arising out of a conditional sales contract.

On January 2, 1958, appellees (Joe and Virginia Morris d/b/a Houston Taylor Motors) sold to appellant (Ila Newbern) under the terms of a conditional sales contract, a new 1958 Dodge automobile for a total time price of $3,554.64, payable at a rate of $98.74 per month for 36 months. Appellees assigned the contract to Universal C. I. T. Corporation with recourse. After making 21 monthly payments totaling $2,073.54, appellant failed and refused to make further monthly payments, parked the automobile on a public street in Fayetteville, and wrote a letter to Universal C.I.T. Corporation, dated April 30, 1960, stating that she was unable to continue payments, that she was forced to let the car go back, and that the automobile was in front of 225 North Block Street. Said letter was signed by appellant who gave her address as Marianna, Arkansas. Taped to the bottom of the letter were the keys to the automobile in suit.

Universal C.I.T. Corporation contacted appellees, required them to pay off the balance due under the contract under the recourse endorsement and turned the matter over to appellees. Appellees contacted their attorney, who advised them. Appellees waited approximately two weeks, during which time the automobile remained untended on the Fayetteville street while appellant resided in Marianna, and then had one of their employees tow the automobile from Block Street to the appellees’ storage facilities which are used by the Sheriff’s department in Fayetteville. According to the testimony of Virginia Morris, one of the appellees, the automobile was moved from Block Street into storage because it had been abandoned, and because appellees wanted to salvage what they could for both appellant and appellees by protecting the automobile against damage and vandalism. Appellees never again touched the automobile, nor did appellant ever come in to see about it.

Appellees filed suit in Circuit Court against appellant on tbe contract seeking tbe unpaid balance of $1,481.10, plus contractual attorney’s fees, and bad tbe automobile specifically attached under tbe provisions of Ark. Stats., Ann. § 34-2301 through § 34-2304.

Appellant filed an answer generally denying all tbe allegations of appellees’ complaint and alleging that tbe automobile bad been repossessed and tbe debt bad been cancelled.

Tbe cause was tried on tbe 4th day of January 1961, before tbe court sitting as a jury. At tbe conclusion of tbe evidence, tbe court found that there was no repossession and awarded judgment in favor of appellees in tbe sum of $1,481.10 plus attorney’s fees in tbe amount of $148.11 and costs. Tbe automobile was ordered sold and tbe proceeds applied toward satisfaction of tbe judgment. From this judgment tbe defendant has prosecuted this appeal.

For reversal appellant contends only that there was no substantial evidence to support tbe trial court’s findings.

This case presented a close fact question to be determined by tbe trial court sitting as a jury. After bearing all of tbe evidence, tbe trial court found that appellant bad abandoned her automobile and that appellees took possession of tbe property for tbe purpose of protecting its salvage value thereby resolving all issues in favor of appellees. See: Brandon v. General Motors Acceptance Corporation, 223 Ark. 850, 268 S. W. 2d 898.

From tbe record before us, it is possible that some of tbe members of this Court might well have found contrary to tbe trial court bad they been sitting as a jury, but such is not our province here.

Tbe only point placed in issue for this Court to decide is tbe defensive matter of repossession and debt cancellation, and appellant concedes that tbe judgment must be affirmed if tbe trial court, sitting as a jury, can be sustained in the findings that Houston Taylor Motors did not repossess the automobile and thereby cancel the debt balance admittedly due on the contract.

It is understood, of course, that in the sense used herein, the term “repossession” denotes an election by the conditional seller to take the property in lieu of the unpaid debt. It is further understood and recognized by both appellant and appellees that under certain circumstances it is possible for a conditional seller to take possession of property sold under a conditional sales contract without repossessing it. See Brandon v. General Motors Acceptance Corporation, supra.

The evidence is undisputed that appellees found the automobile on a busy street in Fayetteville where it had been for some two weeks exposed to damage, vandalism and theft, caused the car to be towed in to its storage facilities; that even though the car was in a “beat up” condition it was not repaired, cleaned up, touched, handled, or bothered by Houston Taylor or by any of its employees after being placed in storage. As to appellant’s testimonial denials that she abandoned the automobile, we find that such denials are outweighed by her own actions. She refused to make further payments, divested herself of any control over the vehicle by mailing away the keys, parked the car untended on a public street in Fayetteville exposed to multiple hazards, and returned to her home and work in Marianna. She made no effort to reclaim the car after parking it on the street in April of 1960, and made no effort to reclaim it after it was moved into storage about the middle of May of that year.

Since this case was tried by the Circuit Court without a jury, the court’s findings have the force and effect of a jury verdict. Salem School District No. 30 of Fulton County v. Unit Structures, Inc., 232 Ark. 939, 341 S. W. 2d 50.

Therefore, after carefully reviewing all of the evidence in the record before us and giving it the strongest probative force it will reasonably bear in favor of tbe appellees, as we must, Southern Farm Bureau Casualty Ins. Co. v. Parker, 232 Ark. 841, 341 S. W. 2d 36, we find that there was substantial evidence to support the trial court’s findings that there was no repossession and debt cancellation. Southland Tractors, Inc., v. Clayton, 222 Ark. 539, 261 S. W. 2d 539.

Affirmed.


author: Neill Bohlinger, Associate Justice.

text:
    American Casualty Co. v. Hambleton.
    5-2463
    349 S. W. 2d 664
    Opinion delivered October 2, 1961.

      Harold Sharpe, for appellant.

      Gannaway Gannaway and Fletcher Long, for appellee.
   Neill Bohlinger, Associate Justice.

J. B. Chappell, Jr. and G. W. Moore were partners in the operation of a farm and cotton business in St. Francis County, Arkansas.

In 1953 the partnership procured through George P. Walker, Jr., an insurance agent at Forrest City, a policy of Workmen’s Compensation Insurance covering all farm employees other than in-servants, including drivers, chauffeurs and their helpers. The partners, J. R. Chappell, Jr. and G. W. Moore, were not employees within the coverage of the policy but by a special endorsement on the policy they were included in the coverage and paid an additional premium for that coverage.

In June 1954 the partnership renewed this policy with the same coverage of the partners and the additional premium was paid.

In 1955 the partnership ordered the policy renewed and the Walker Agency ordered a renewal contract from appellant. A policy was forwarded to Walker and by him delivered to Chappell and Moore. This policy did not include the two partners as covered and the record reflects that at the time of delivery, the agent, Walker, did not know the contents of the policy and did not undertake to explain the change to the partners.

It is further shown that from the time of the inception of the insurance coverage the appellant audited the books of the partnership and adjusted the premium in accordance with the partnership’s books. For the 1953 policy, a premium deposit was required in the sum of $400.00; for the 1954 policy a deposit of $334.00; and for the 1955 policy a deposit of $217.00 was required. In 1956, while the 1955 policy issued by appellant was in full force and effect, G. W. Moore was fatally injured while operating a tractor for the partnership on their farm near Forrest City. Mrs. Forma Moore Hambleton, who was the widow of Gr. W. Moore, deceased, and has since remarried, brought an action in the St. Francis Chancery Court as administratrix of the estate praying’ that the policy issued by the appellant be reformed to include the members of the partnership in accordance with the appellant’s policies covering the partnership operation in the prior years.

While it is true that this is an action under the Workmen’s Compensation Law of the State of Arkansas, and that the Workmen’s Compensation Commission is the proper forum for the adjudication of Workmen’s Compensation, this action is primarily an action for the reformation of a policy of insurance and no action before the Workmen’s Compensation Commission could be maintained until that object has been attained. We hold that the administratrix is the proper party to bring this action and the chancery court is the proper forum.

“An insurance policy, like any other contract, which by reason of mistake in its execution does not conform to the real agreement of the parties, may be reformed in a court of equity,” Phoenix Insurance Company v. State, 76 Ark. 180, 88 S. W. 917 [Citing Thompson v. Insurance Co., 136 U. S. 287, 10 Sup. Ct. 1019, 34 L. Ed. 408; Snell v. Insurance Co., 98 U. S. 85, 25 L. Ed. 52; Jamison v. State Insurance Co., 85 Iowa 229, 52 N. W. 185.]

The case, therefore, narrows down to the question as to whether or not the appellee was entitled to have the policy reformed to include the deceased member of the partnership. We think that she was. It is clear that the intention of the parties in the coverage prior to 1955, in consideration of an additional premium, was to cover the partners in their fanm activities. We know of nothing that could have prevented appellaxxt from so contracting if it was the desire of both parties. The appellant was cognizant of this coverage for the record reflects the results of the audits of the books of the partnership and in 1955 appellant paid to Gr. W. Moore a small claim for an injury he received while in the course of business for the partnership. Being thus covered, the partnership, in 1955, instructed Agent Walker to renew its policy. Walker transmitted that request to appellant’s office in Little Bock but the request was not complied with. Instead, a policy was issued which did not include the members of the partnership, which fact was in no way communicated to the partnership. It does not appear that the partners read the policy delivered by the agent, Walker, but as said in Appleman, Insurance Law and Practice, Yol. 4, § 2913, Bight of Beformation — Generally:

“The doctrine of caveat emptor does not apply to insurance contracts. A court of equity may, therefore, grant relief where mutual mistake in the writing of an insurance contract results in the written terms not expressing the clear intent and understanding of the parties, and equity will retain jurisdiction, after granting reformation to enforce such contract as between the parties thereto and their privies. This is particularly true where the insured was induced to act upon the superior judgment of an insurance agent, or where the error resulted from the fraud, mistake, or negligence of the agent. ... It has been held further that the insured’s failure to read the policy and to discover the errors therein will not prevent him suing for reformation. ’ ’

In Moline Timber Company v. Schaad, 181 Ark. 854, 28 S. W. 2d 336, we held that the reformation of an insurance contract would be granted only on testimony that was clear and convincing. We think the testimony in this case falls within that category.

Appellant’s only witness, Thomas Y. O’Mally, testified that at the time of the issuance of the policy involved he was supervising the underwriting in the Little Bock Branch Office of appellant and at the time the policy here involved was issued, no notice was given to Chappell and Moore, partners, by him that there had been any deviation in the writing of the 1955 policy from the form and coverage in the previous policies, and that Mr. Walker, the agent in Forrest City, had not instructed the Little Rock Office to change the policy but had merely ordered a renewal.

Mr. George P. Walker, the agent at Forrest City, testified that he had furnished appellant’s Little Rock Office with no request for a change in the policy, that he had not been notified that any change had been made therein and he had not advised the insured partners that any change had been made in the renewal policy.

We think the principles of law here involved have been clearly announced in a number of decisions. First, we think the appellant is estopped in denying that G. W. Moore, the deceased partner, was not covered by the 1955 renewal.

Elements of ‘estoppel’ arising from nondisclosure are ignorance of party claiming estoppel, silence of other party where there is duty to speak amounting to misrepresentation or concealment of material fact, action by party relying on the misrepresentation or concealment, and damages resulting if estoppel he denied. Nelson v. Chicago Mill & Lumber Corporation, 76 F. 2d 17 (C. C. A., Ark. 1935.)

. Equitable estoppel is the effect of the voluntary conduct of a party whereby he is absolutely precluded, both at law and in equity, from asserting rights of property, contract or remedy, which might otherwise have existed, as against another person who has in good faith relied thereon and been led to change his position for the worse. Geren v. Caldarera, 99 Ark. 260, 138 S. W. 335 (1911).

A party who, by his acts, declarations or admissions, or by failure to act or speak under circumstances where he should do so, either designed or with willful disregard of interest of others, induces or misleads another to conduct or dealings which he would not have entered upon but for such misleading influence, will not he allowed, because of estoppel, afterwards to assert his right to the detriment of person so misled. Dobbins v. Martin Buick Co., 216 Ark. 861, 227 S. W. 2d 620; Williams v. Davis, 211 Ark. 725, 202 S. W. 2d 205; Rogers v. Hill, 217 Ark. 619, 232 S. W. 2d 443.

The renewal of an insurance policy is basically nothing more than the moving of the terminal date to a later time and if the appellant saw fit for any reason to vary the terms of the policy it had been requested to renew, the duty was clearly upon it to advise the insured of the changes which had been made. Austin Fire Insurance Co. v. Adams-Childers Company, Tex. Comm. App. 1923, 246 S. W. 365, affirming Tex. Civ. App., 232 S. W. 339.

In Appleman, Insurance Law and Practice, Yol. 13, § 7648, pp. 423 and 430 of the same work, we have a concise statement of the duty that devolves upon the insurer in a case of this kind.

“Where a policy cannot be renewed in its identical form because of a change by the State Insurance Commission, the insurer would not be relieved from its obligation under a contract to either renew the insured’s policy or advise the insured of its inability to do so, since even if the change rendered it impossible to renew the policy in the same form, it still must advise the insured of its inability.” Appleman, supra, p. 423.

“An insurance policy may be reformed even after the loss insured against, so as to express the parties-5 real intent. Since it is the duty of an insurer to issue a renewal policy on the same terms and conditions as the original contract, if it fails to do so, the renewal policy may be reformed to give effect to this result. This is true though the insured did not read the policy and discover a material change until after occurrence of the loss. It may, however, be discretionary with the court as to whether to grant or deny relief on the ground of the plaintiff’s neglect to discover the change sooner.” Appleman, supra, p. 430.

We think it has been established by clear and convincing testimony that no notice of change was given and that such failure is an inequity that justifies the reformation. We think in the case at bar that the appellant is estopped by reason of its nondisclosure.

“Unless otherwise provided, the rights of the parties are controlled by the terms of the original contract, and the insured is entitled to assume, unless he has notice to the contrary, that the terms of the renewal policy are the same as those of the original contract.” Appleman, Insurance Law and Practice, Vol. 13, § 7648, pp. 419-20, and cases cited.

The appellee is the personal representative of the deceased and may properly assert these defenses. We know of no inhibition against the insurance coverage which the appellant gave to G-. W. Moore and for which it received a premium. We think the case was properly before the St. Francis Chancery Court and that the court, having taken jurisdiction to reform the instrument, had the power to grant the relief which it did. That relief, we think, was proper and the cause is therefore affirmed.


author: Carretón Harris, Chief Justice.

text:
    Hodges v. State.
    5029
    349 S. W. 2d 803
    Opinion delivered October 9, 1961.

      Edward V. Trimble and L. H. Mahon, for appellant.

      J. Frank Holt, Attorney General, by Jack Holt, Jr., Asst. Attorney General, for appellee.
   Carretón Harris, Chief Justice.

Appellants, Dorothy Hodges, Ollie Mae Martin, and Sylvester Hall were individually charged with two counts of grand larceny and one count of petit larceny in the White County Circuit Court. On April 11, 1961, they were tried by a jury, found guilty, and sentenced to two years in prison on count one, two years on count two, and a fine of $100 was imposed on count three, with a recommendation of suspension of the fine. The court entered its judgment and sentence on the same day. On April 18th, counsel for Ollie Mae Martin filed a motion for new trial, and counsel for Sylvester Hall and Dorothy Hodges likewise filed such a motion. The court denied the motions, and granted an appeal to this Court. From affidavits in the transcript, hereinafter discussed, it appears that the court permitted each defendant to make bond in the amount of $2,000, pending the appeal. No further action was taken by counsel for appellants, and on July 25, the defendants were notified by the Department, Arkansas State Police, that they were to be taken into custody on July 26th, and transported to the Arkansas State Penitentiary. On July 26th, a partial record was filed in this Court, consisting of a certified copy of the judgment and sentence, together with affidavits from each of the three appellants. On July 28th, a motion was filed here seeking a rule on the Clerk, the latter having refused to docket the cases because same had not been filed within sixty days from the entry of judgment. On July 31st, a certified copy of the motion for new trial was filed in this Court. The affidavit of Sylvester Hall sets forth that he employed an attorney of Pulaski County to perfect the appeal, and paid to such attorney the sum of $100 on or about April 18th; that he was told the appeal would be perfected, and relied upon that information until notified that he was to be taken to the penitentiary. Affiant, Dorothy Ruth Hodges, stated that she likewise employed the same attorney for the same purpose, and paid to him the sum of $250 as part payment on or about April 13th; that the attorney informed her he would perfect the appeal. Ollie Mae Martin stated that she employed an attorney of White County, Arkansas, to handle her appeal, and paid him the sum of $130 as part payment; that she had already paid him in full for the trial that had been held; that she did not know her appeal had not been perfected until she received the notice from the State Police, at which time she surrendered herself, and was placed in the White County jail.

On August 1st, while this Court was in vacation, a single Justice of the Court conducted a hearing, treating the motion for rule on the clerk as a petition for temporary writ of habeas corpus, and making such endorsement upon the record. Upon consideration, the motion was denied without prejudice to pursue the rule on the clerk. Only one question presently is before us on this appeal, vis., “Does the Court have jurisdiction to act in this case, in which an appeal was not docketed within sixty days from the date of judgment?”

Appellants rely upon the provisions of Section 43-2710, paragraph 3, Ark. Stats. (1947) Anno., and our holding in Adams v. State, 203 Ark. 1057, 160 S. W. 2d 42. The paragraph referred to reads as follows:

“Third. The appeal is taken by lodging in the clerk’s office of the Supreme Court, within sixty (60) days after the judgment, a certified transcript of the record, with the certificate of the allowance of the appeal indorsed on the transcript under the signature of one of the judges of the Supreme Court. The clerk of the Supreme Court shall thereupon issue a certificate that an appeal has been taken, which shall suspend the execution of the judgment; provided, however, that a judge of the Supreme Court may extend the time for filing the record. The court may act upon and decide a case in which the appeal was not prayed or the record was not filed in the time prescribed, when a good reason for the omission is shown by affidavit. ’ ’

However, as reflected by the very first sentence of Section 43-2710, the procedure under the entire section, paragraphs 1, 2, and the quoted paragraph, 3, [the last sentence of which appellants here rely upon] applies only in cases where the defendant was convicted of a capital offense, and no record has been filed within 60 days. Aside from the foregoing, which actually disposes of the motion under consideration, relief still could not be granted. This appeal is governed by Section 43-2701, which provides:

“No appeals to the Supreme Court in a criminal case shall be granted, nor writs of error issued, except within sixty (60) days after rendition of the judgment of conviction in the case.” While some of the language from the Adams opinion seems to conflict with an earlier case, Bromley v. State, 97 Ark. 116, 133 S. W. 813, the cases are distinguished in Allison v. State, 204 Ark. 609, 164 S. W. 2d 442, wherein we said:

“Perhaps the only ground upon which the Bromley case and the Adams case can be harmonized is that which distinguishes the court’s right to grant additional time when the motion for relief (accompanied by the judgment and such other parts of the record as appellant may care to present) is filed within sixty days, as contrasted with a similar request made after the sixty-day period has expired.”

In the instant case, no motion for relief, or partial record of any kind, was filed with the clerk of this Court until the 106th day following the rendition of the judgment. That being true, we hold, under Section 43-2701, that this Court is without jurisdiction, and thus cannot grant any relief.

The motion for rule on the clerk is accordingly denied.

       In the Bromley case, we held flatly that the court had no power to assume jurisdiction of a case even in the event of hindrance of unavoidable casualty unless the appeal was perfected within sixty days. In the Adams case, the court said that appeals must be lodged here within sixty days from date of judgment “unless additional time is given by a justice of the Supreme Court.” However, in the latter case, evidently some portion of the record was filed before the expiration of the sixtieth day.


author: Ed. F. McFaddin, Associate Justice.

text:
    R. G. Varner Steel Products, Inc. v. Puterbaugh.
    5-2439
    349 S. W. 2d 805
    Opinion delivered October 9, 1961.

      Bridges, Young Matthews, for appellant.

      McMillan S McMillan and L. Weems Truss ell, for appellee.
   Ed. F. McFaddin, Associate Justice.

The appellant, R. Gr. Varner Steel Products Company, Inc. (hereinafter called “Varner”), was plaintiff in the Trial Court; and the appellee, Billy Puterbaugh, doing business as Puterbaugh Lumber and Supply Company (hereinafter called “Puterbaugh”), was defendant. Varner sued Puterbaugh for $666.01 as balance due on account. Puterbaugh admitted the account, but cross-complained for $1,483.12, which he alleged was due him by Varner. Without objection, the Trial Court instructed a verdict for $666.01 for Varner on its complaint, but submitted to the jury the issues on Puterbaugh’s cross-complaint.

Puterbaugh alleged — and testified in support of his claim — that Varner owed him the $1,483.12 in the cross-complaint as 5% commission due Puterbaugh on all Varner products sold in Puterbaugh’s territory. Varner denied that there was any contract to pay Puterbaugh a commission. The evidence showed that Varner was engaged in the wholesale distribution of steel products and that Puterbaugh operated a retail lumber and supply business in Fordyce. In 1958 Yarner and Puterbaugh had an agreement of some nature whereby Yarner paid Puterbaugh a commission on some Yarner products sold in Dallas County; but on May 27, 1959, Yarner and Puterbaugh entered into a written contract, which provided in part:

£ £ Dealer’s Agreement : This agreement entered into by and between R. Gr. Yarner Steel Products, Inc., Pine Bluff, Arkansas, and Puterbaugh Lumber and Supply, doing business in the trade area of Dallas, Cleveland, Calhoun and Bradley Counties in the State of Arkansas, for the purpose of defining conditions under which R. Gr. Yarner Steel Products, Inc. grants the right of sale and promotion of its products to above firm for a period of one year from the date of execution.

“It is understood and agreed that you will resell, in the assigned territory outlined above, our production type buildings which are specified in our price data being furnished you under separate cover. . . .

“It shall not be our policy to make direct sales, but when in our opinion the circumstances indicate a departure from this policy, we may make or complete any sale direct or by any means through any channels we may elect. . . .

“It is agreed that you will purchase outright from us for resale. All buildings are sold f. o. b. our factory. Terms are subject to approval of our Credit Department. ...

“This agreement supersedes any previous agreements.

“This agreement has been executed in triplicate, this 27 day of May, 1959.” (Emphasis supplied.)

In August and September 1959 Yarner sold steel materials to the Fordyce Apparel Company in Dallas County for the erection of a building. The net sale was $29,662.40, and Puterbaugh claimed 5% commission on that sale. This is the item involved in the cross-complaint. As aforesaid, the issues of the cross-complaint were submitted to the jury; and the verdict was for Pnterbangh for $1,483.12. From a judgment on that verdict, Varner brings this appeal and presents three points.

I. Varner’s Instruction No. 6. The Court refused to give Varner’s Instruction No. 6, which reads as follows :

“Before you can find that the cross-complainant, Billy Pnterbaugh, is entitled to recover anything from B. G. Varner Steel Products, Inc., on his cross-complaint, you must find first by a preponderance of the evidence that a duly authorized representative of the said B. G. Varner Steel Products, Inc. and Billy Pnterbaugh entered into a valid agreement for the payment of a commission to said Billy Pnterbaugh after the execution of the written dealer agreement dated May 27, 1959. If in your minds Billy Pnterbaugh has failed to establish by a preponderance of the evidence the making of such an agreement, then your verdict must be for the plaintiff with regard to the cross-complaint.”

This instruction should have been given, because the signed contract of May 27, 1959, as previously copied, contained these words: “This agreement supersedes any previous agreements.” Pnterbaugh claimed an agreement for a 5% commission was originally made in 1958; but in view of the quoted language above, Puterbaugh could not rely on any claimed contract made prior to May 27,1959. We recognize that situations sometimes arise when the written contract does not contain the entire agreement between the parties; and in such instances testimony may be given and reliance placed on a previous oral contract. A recent case to such effect is Lemm v. Sparks, 230 Ark. 105, 321 S. W. 2d 388, in which we quoted from earlier eases. But in the case at bar the written contract specifically stated that it ‘ ‘ supersedes any previous agreements ’ ’; and, in the face of that language, Puterbaugh could not rely on any contract made with Varner prior to May 27, 1959, the date of the written contract.

For the refusal to give Varner’s Instruction No. 6 the judgment is reversed and the cause remanded.

II. Other Points. In view of what has been said, and because of the possibility of a retrial, we think it proper to state that we find no merit in either of Varner’s other assignments.

(A) Puterbaugh was permitted to testify that he assisted to a certain extent in obtaining the Fordyce Apparel Company contract for Varner. The objection to this testimony was that it was an effort to seek a recovery on quantum meruit, whereas Puterbaugh’s claim was based on contract. The objection is not well taken. The Court, by instruction, told the jury that Puterbaugh’s claim was based on an alleged contract. The allowed testimony was one of Puterbaugh’s efforts to show that he acted because of a contract. There was no effort to claim quantum meruit.

(B) Varner claims that it was entitled to an instructed verdict because Puterbaugh proved no definite contract for a 5% commission made after the written contract of May 27, 1959. "We find no merit in Varner’s assignment on this point. While the evidence is not very strong as to any subsequent contract, still we cannot say that it was insufficient to go to the jury. At one place Puterbaugh testified:

“Q. I believe you testified and offered correspondence from Mr. R. S. McFarlane, dated October 28, 1959, which recognized the 5% commission on a sale of steel which you did not erect, is that correct?

“A. Yes, sir.

“Q. Now, was this transaction after the date of the written contract?

“A. Yes, sir.

“Q. So to summarize, here you have and have testified to one transaction before the written contract and one after the written contract, reflecting the 5% commission agreement which you made with Mr. Niceley?

“A. Yes, sir. . . .

“Q. Now, let’s try to be a little more specific about this agreement for a 5% commission after you signed this agreement on May 27, 1959, did you have an oral agreement after that?

“A. Yes.

“Q. With whom?

‘ ‘ A. With Mr. Hatcher. ’ ’

On cross examination Puterbaugh’s testimony was considerably weakened; but we are unable to say that there was no substantial evidence to take the case to the jury on the matter of a subsequent oral contract.

CONCLUSION

For the error in refusing to give Varner’s Instruction No. 6 the judgment is reversed and the cause remanded.

       While his answer contained a general denial, Puterbaugh testified in his discovery deposition that he owed Varner the $666.01.

       To the same effect as our holding, see 20 Am. Jur. 988, “Evidence” § 1135; and 20 A. Jur. 992, “Evidence” § 1140.


author: G-eorge Rose Smith, J.

text:
    Wood v. Central Ark. Milk Producers Assn.
    5-2460
    349 S. W. 2d 811
    Opinion delivered October 9, 1961.

      Virgil D. Willis, for appellant.

      Owens, McHaney <3 McHaney, by James M. McHaney, for appellee.
   G-eorge Rose Smith, J.

In June of 1958 the appellee CAMPA operated several milk trucks from what is referred to as a transfer point, about two miles from the city of Harrison. CAMPA customarily had the vehicles serviced at the appellant’s service station in Harrison. On the morning of June 25 the appellant’s employee, Edgmon, was driving one of the trucks from the transfer point to the filling station, where it was to be serviced with gasoline and oil. In the course of the trip the vehicle left the highway, hurtled down a steep incline, and was extensively damaged. CAMPA brought this action for damages, relying upon the doctrine of res ipsa loquitur as a basis for recovery. The trial court, sitting without a jury, entered a judgment for CAMPA in the amount of $3,800. An appeal and cross appeal bring the case to us.

The appellant first contends that Edgmon was not acting in the course of his employment at the time of the accident. That morning CAMPA’s foreman, Spence, driving his own car, had picked up Edgmon at the appellant’s place of business and had taken him out to the transfer point, where Edgmon undertook to drive the CAMPA truck back to the service station. The appellant testified that he permitted his employees to drive passenger cars to the station, but he had instructed them not to attempt to drive the CAMPA trucks. On this basis it is argued that Edgmon was acting as CAMPA’s agent in making the trip to the service station.

This position is not well taken. When an employee is acting in furtherance of his employer’s business the latter is liable for the employee’s negligence although the particular act is unauthorized or even contrary to express instructions. Vincennes Steel Corp. v. Gibson, 194 Ark. 58, 106 S. W. 2d 173; Interurban Trans. Co. v. Reeves, 194 Ark. 321, 108 S. W. 2d 594. CAMPA was a valued customer of the appellant, the account averaging $800 or more a month. The trial court was amply justified in concluding that Edgmon was acting in furtherance of the appellant’s business in driving the truck that day.

The appellant also contends that there is no proof of negligence on Edgmon’s part. In fact, the appellant argues that the accident was caused by CAMPA’s negligence in allowing the truck to be operated with defective brakes; but Spence, who had driven the vehicle from Little Bock on the preceding day, testified that the brakes were in good condition. No eyewitness to the accident testified; so the appellee’s proof merely shows that the truck unaccountably left the highway and was damaged.

It is quite generally held that such proof is sufficient to make a prima facie case for the plaintiff under the doctrine of res ipsa loquitur. Motor vehicles do not ordinarily leave the highway without carelessness on the part of the driver. "When, as here, the defendant is shown to have been in exclusive control of the vehicle the plaintiff is entitled to the benefit of the principle of res ipsa loquitur, casting upon the defendant the burden of going forward with the evidence. See Bullington v. Farmers’ Tractor & Imp. Co., 230 Ark. 783, 324 S. W. 2d 517; Frisby v. Olin Mathieson Chem. Corp., 8th Cir., 279 F. 2d 939; Blashfield, Cyclopedia of Automobile Law (Perm. Ed.), § 6045; Case note, 6 Ark. L. Bev. 76. The appellant did not call Edgmon as a witness to explain how the accident happened. Thus CAMPA’s prima facie proof was not rebutted. It is sufficient to support the judgment.

On cross appeal CAMPA first asks that the judgment in its favor be increased. An expert witness testified that in his opinion the market value of the truck before the accident was $5,000. CAMPA paid $300 to have the damaged truck towed back up the hillside, and it was sold for $1,500. It is insisted that these three items alone are reflected in the award of $3,800, so that nothing was allowed for CAMPA’s expense in renting a truck to replace the damaged vehicle.

We need not determine whether rental expense is recoverable, for it is evident that we cannot increase the award. CAMPA’s total damages embrace several elements and were fixed by the trial court at $3,800. This finding involves a question of fact which it is not our province to decide. Manzo v. Boulet, 220 Ark. 106, 246 S. W. 2d 126. Moreover, the trial court was not bound to accept the opinion of CAMPA’s expert witness or its interested testimony as to the amount of its expenses; so it cannot be said that a larger award would be supported by undisputed proof. Home Indemnity Co. of N. Y. v. Jelks, 187 Ark. 370, 59 S. W. 2d 1028; and see Fulbright v. Phipps, 176 Ark. 356, 3 S. W. 2d 49.

The appellee concludes its brief by asking that it be awarded interest at the legal rate from the date of the accident rather than from the date of the judgment. Its damages, however, are unliquidated, because the amount rests in the opinion of witnesses and is necessarily uncertain before judgment. We have held in Saliba v. Saliba, 178 Ark. 250, 11 S. W. 2d 774, 61 A. L. R. 1348, that interest is not allowed before judgment upon an unliquidated demand, for the defendant is not in default in failing to pay an unascertained amount.

Affirmed upon direct appeal and cross appeal.


author: Paul Ward, Associate Justice.

text:
    Cook v. Cook.
    5-2455
    349 S. W. 2d 809
    Opinion delivered October 9, 1961.

      J. G. Moore, for appellant.

      Brasil & Brasil and Gordon & Gordon, for appellee.
   Paul Ward, Associate Justice.

On September 20, 1960 appellant, Hubert W. Cook, filed suit for divorce against appellee on tbe ground of desertion. Appellee answered and cross-complained, asking for a divorce on the grounds of indignities and threats upon her life. Such threats and indignities, she says, compelled her to leave appellant.

On December 29, 1960 the trial court granted appellant a divorce, but gave appellee a one-third interest for her life in certain lands owned by appellant.

First, appellant objects to the order allowing appellee her costs and attorney’s fee. There is no merit in this objection because such allowances come within the sound discretion of the trial court. See: 17 Am. Jur., Divorce and Separation § 635; Plant v. Plant, 63 Ark. 128, 37 S. W. 308; Pryor v. Pryor, 88 Ark. 302, 114 S. W. 700, and Myers v. Myers, 226 Ark. 632, 294 S. W. 2d 67. In the Pryor case the divorce was granted to the husband. We find nothing in the record here to justify us in holding the trial court abused its discretion in making the above mentioned allowances.

It is next contended by appellant that the trial court committed reversible error in .awarding appellee a life estate in lands belonging to him. He admits in his brief that this award also lies within the sound discretion of the Chancellor, but insists it is an abuse of such discretion. Again, we are unable to agree with appellant. Appellant not only owns the lands impressed with the one-third life estate interest but also owns a one-half interest in another 120 acres. In addition he draws $74 per month social security, and apparently he has no one to support but himself. On the other hand we find that appellee takes in sewing from which she earns about $40 per month, that she draws $24.40 per month social security, and that she helps support her teenage son who attends school. The Chancellor may have believed from the testimony that appellant was not entirely blameless for the marital failure. At least he saw the parties and observed their demeanor and was better able than we are to weigh the equities involved. Therefore we are unwilling to say the award of the life estate to appellee was excessive or unreasonable.

We find that there exists some doubt or confusion about whether chancery courts have the power and authority to grant the wife, as a part of her alimony, an interest in her husband’s real property where he secures the divorce. Therefore we deem it expedient to examine the question to the end that such doubts or confusion as may exist shall be set at rest.

We are not aware of any decision of this court which clearly answers the posed question. However, our study of the statutes leads us to conclude, and we now hold, that chancery courts do have such power. Ark. Stats. § 34-1214 in effect provides: (a) when a divorce is granted to either party, each party shall be restored to the property he or she obtained from the other during marriage, etc., and, (b) when the wife obtains the divorce the court shall give her one-third of all personal property absolutely and also one-third of the husband’s real-property (lands) for life. We mention the above to point out that said statute is silent as to what the court can give the wife if the divorce is granted to the husband. We do know, however, that the statute has not been interpreted to mean that the court cannot give the wife anything, because there are numerous decisions by this court approving an award of personal property to the wife where the husband secured the divorce. That being true we can think of no logical reason why the court should not likewise have power, where equities justify, to make an award of real property. The power in either event patently stems from the same source. It seems reasonable that the legislature so intended when it enacted Ark. Stats. § 34-1211 which grants the court power to give such alimony to the wife as the circumstances justify without specifying which party receives the divorce. In Pryor v. Pryor, supra, the court in commenting on the section last mentioned (Kirby’s § 2681), said: “Similar statutes in other states have been construed to have enlarged the powers of courts in divorce cases so as to empower them to allow alimony in any case, even to a guilty wife.” In the cited case a review of the facts leaves the impression that the court was referring to a settlement of real property as well as of money. In Graham v. Graham, 199 Ark. 165, 133 S. W. 2d 627, where a divorce was granted to the husband, the trial court, in allotting alimony to the wife, said: “. . . the home owned by Charlie G. Graham, or his equity in it, should be deeded to Mattie Graham. ’ ’

Based on the above we are now announcing that, where the divorce is to the husband and the equities justify, the courts have power to award the wife an interest in her husband’s real property. Such an award, of course, must be reasonable considering “the nature of the case” as provided in Ark. Stats. § 34-1211. The sound discretion of the court is always open for review on appeal.

Appellee asks for an additional attorney’s fee occasioned by this appeal, and we have concluded that she is entitled to the same in the amount of $100.

Affirmed.


text:
    Sanders, County Judge v. Killebrew.
    5-2477
    349 S. W. 2d 808
    Opinion delivered October 9, 1961.

      John B. Driver, for appellant.

      N. J. Henley, for appellee.
   Sam Robinson, Associate Justice.

The issue here is the validity of an order of the county judge determining the necessity of a county hospital and an order submitting to the voters at the general election the question of assessing a tax to provide funds to construct and maintain the hospital. Pursuant to the order of the county judge signed September 8, 1960, the matter was submitted to the voters and the election commissioners certified that the measure had carried. Appellees filed this action to restrain the collection of the tax and the sale of the bonds.

We reach only one question: the chancellor held that the order of the county judge finding the necessity of building a county hospital and the order submitting the question of a tax to pay for the construction and maintenance of the hospital were void for the reason that the county judge did not act judicially as the county court in signing the orders. We agree with the decree of the chancellor. The county court of Searcy County was not opened for any of its terms as provided by statute [Ark. Stats., § 22-603] during the year 1960. They were not signed at any place of holding court.

Appellants contend that the case at bar is a collateral attack on an order of the county court and that the proper procedure is by appeal to the circuit court from the orders in question. Ordinarily this would be true, but here we have orders void because not rendered by a court. The county court had not been convened and the alleged orders were not signed at the place of holding court. Amendment No. 17 to the Constitution, dealing with the construction of county hospitals, provides that the county court may make necessary orders in connection with building a hospital. The county court acting within its powers is a court of superior jurisdiction, and its judgment cannot be attacked collaterally except for want of jurisdiction or errors appearing on its face. Strawn v. Campbell, 226 Ark. 449, 291 S. W. 2d 508. But “a judgment void ab initio * * * may be so declared on collateral attack.” Bragg v. Thompson, 177 Ark. 870, 9 S. W. 2d 24. Ark. Stats., § 22-115 provides that if any court shall not be held on the first day of the term, it shall stand adjourned until the evening of the third day. Section 22-116 provides that if the court is not opened at that time it shall be adjourned until the next regular term. Here it does not appear that the county court was opened at any time during the year. The orders in question were made at the county judge’s house or at a lawyer’s office.

In Bottoms v. Borah, 120 Ark. 631, 179 S. W. 996, this court held that the county court could only make a valid order in term time at the county seat and no order could be made at another point in the county where the court was not legally in session.

In Bradley & Hardin v. State, 213 Ark. 927, 213 S. W. 2d 901, the court quoted from Brumley v. State, 20 Ark. 77, as follows: “ ‘The meeting together of the judge, and officers of Court, at the place, hut not at the time fixed by law for holding the Court, was not a Court, under our Constitution and laws; but was a mere collection of officers, whose acts must be regarded as coram non judice and void, as heretofore held by this Court in Dunn v. The State, 2 Ark. 229, . . ” In the case at bar not only had there been no opening of a term of court, but the orders were not signed at the regular place of holding court. The chancellor was therefore correct in holding that the orders are void.

Affirmed.