author: Sam Eobinson, Associate Justice.

text:
    Campbell, County Judge v. Arkansas State Hospital.
    5-1360
    306 S. W. 2d 313
    Opinion delivered November 4, 1957.

      J. Frank Holt, Prosecuting Attorney, for appellant.

      Pope, Pratt & Shamburg&r, for appellee.
   Sam Eobinson, Associate Justice.

This is a suit for a declaratory judgment, the issue being whether a .county is required by law to reimburse tbe State Hospital for necessary maintenance for persons charged with a criminal offense who have been committed to the hospital by the circuit court for a mental examination. The Circuit Court held that the County is liable for such maintenance, and the County Judge has appealed.

Initiated Act 3 of 1936 authorizes the circuit court to send to the State Hospital for mental examinations persons Avho have been charged with a crime and are awaiting trial.

Ark. Stat. § 43-1301 provides:

“* « * The State Hospital shall be reimbursed by the county for such observation at the same rate as that established for the maintenance of patients under the provisions of Act 241 of 1943. * * * ”

Act 415 of the Acts of 1955 (Ark. Stat. § 59-230.1, Pocket Supp.) provides:

‘•‘The business manager of the State Hospital shall periodically ascertain the per capita cost of maintenance of patients and shall render monthly statements of charges therefor to the guardian or other person whose duty it is to provide care, maintenance or support of each patient, and he shall diligently attempt to collect such charges.”

Judge Mitchell Cockrill of the Pulaski Circuit Court, Third Division, wrote an opinion as follows:

“The First Division Pulaski Circuit Court (Criminal Division) in the course of criminal actions pending before it committed some twenty-seven persons to the State Hospital when those persons who had been charged with a crime raised the defense of insanity. Such a commitment procedure is authorized by Initiated Act 3, Ark. Acts of 1936 as amended by Act 237, Ark. Acts of 1955 (Ark. Stat. (1947) Pocket Supp. % 43-1301); which act provides that the State Hospital ‘ shall be reimbursed by the county * * * at the same rate as that es-» tablished for the maintenance of patients under the provisions of Act 241, Ark. Acts of 1943 (Ark. Stat. (1947) Pocket Supp. § 59-230.1).’ The commitment of the Pulaski Circuit Court, First Division, was in the usual course of handling the criminal proceedings by the State, then pending before it, and was'necessary in the discharge of its duties.
“The State Hospital accordingly billed the County $50.00 for each of twenty-seven persons committed for an observation and report. The total amount claimed by the State Hospital is $1,350.00. The State Hospital charged Pulaski County ‘at the same rate as that established for the maintenance’ of other patients. No more than 90 days Was charged to the County for any one patient.
“There is no objection to the rate charged and no question of the reasonableness of the charge of $50.00 per month per patient; nor is there any contention that the State Hospital acted in excess of the authority conferred by Act 415, § 4(a), Ark. Acts of 1955 (Ark. Stat. (1947) Pocket Supp. § 59-230.1). There is no contention that the act authorizing the hospital to.fix the charges is unconstitutional for lack of adequate standards to guide the determination, and none could be raised, for the charge could be determined by simple accounting and mathematical computations. Judge Campbell’s defense and contention seems to be that the Legislature cannot constitutionally impose a charge on the County since by Section 28 of Article 7, Ark. Const, he is given ‘exclusive original jurisdiction in all matters relating to * * * the disbursement of money for county purposes, and in every other case that may be necessary to the internal improvement and local concerns of the respective counties. ’
“The defendant makes the further contention that, what the Legislature cannot do, namely, bind the County Court in its area of exclusive jurisdiction, neither can it delegate to. the State Hospital Board the power to do.

The defendant bases his entire argument on Section 28 of Article 7 of the Arkansas Constitution and certain statements from the opinion of our late Chief Justice Griffin Smith, in the case of Campbell v. Little Rock School District, 222 Ark. 615, 262 S. W. 2d 267.

“If we assume that the County Court has ‘exclusive original jurisdiction’ then there would be no difficulty in deciding:
“1. That the Act under consideration is unconstitutional.
“2. That the Act fixing and requiring payment of grand juror fees is unconstitutional.
‘ ‘ 3. That the general salary acts of the county officials are unconstitutional.
“4. That the Act requiring the county court to defray the expenses of the several courts of record is unconstitutional.
“5. That the Act imposing the costs of primary elections on the counties is unconstitutional; and on ad inf initem.
“The crucial question is whether the County Court has ‘exclusive jurisdiction’. Our court has stated in Price v. Madison County Bank, 90 Ark. 195, 118 S. W. 706: ‘We think that it was only intended by them (the framers of the Constitution) that the county court should have jurisdiction when the subjects enumerated in Sec. 28 of Art. 7 were directly affected. This construction is borne out by the decisions of our court.’
‘ ‘ Our Supreme Court, in the case of Adams v. Whittaker, 210 Ark. 298, 195 S. W. 2d 634, had under consideration the question of the Legislature’s power to impose upon the county the expense of a primary election. In a lengthy opinion discussing many facets involving such a problem, our court said, among other things:
“ ‘Section 28 of Article 7 defines the jurisdiction of the county courts, and gives them jurisdiction over matters of “local concern” of their respective counties. There is nothing about this act (requiring the payment of expenses of a primary election) involving the jurisdiction of the county court, except indeed to order the payment of the expenses of the election for which the act provides.’
“The court then proceeded to quote from a prior opinion in the case of Little Rock v. North Little, Rock, 72 Ark. 195, 79 S. W. 785: ‘ “It thus appears that the local concerns over which the county court is given exclusive jurisdiction are those which relate specifically to county affairs, such as public roads, bridges, ferries and other matters of the kind mentioned in the section referred to * * * ” ’
“The Court concluded that the Legislature had the power to impose the expenses' of an election on the counties and such an Act is not unconstitutional under Art. 7, § 28, of the Constitution.
“The Court has also held counties liable for the expenses of municipal courts created by ordinance which were adopted under authority of a legislative Act, as against the contention that such Acts were violative of the provisions of Art. 7 § 28, Ark. Const. Crawford County v. City of Van Buren, 201 Ark. 798, 146 S. W. 2d 914, and Jackson County v. Pickens, 208 Ark. 15, 184 S. W. 2d 591.
“The Supreme Court, in the case of Jeffrey v. Trevathan, 215 Ark. 311, 220 S. W. 2d 412, again reviewed some of the prior holdings and stated:
“‘(a) In Cain v. Woodruff Co., 89 Ark. 456, 117 S. W. 768, it was claimed that a legislative enactment, requiring the county to pay the sheriff seventy-five cents per day for feeding each prisoner, was void as violative of the county court’s power under said Art. VII, § 28 of the Constitution. In holding the Act valid, we said:
“ ‘ “The Legislature, unless restricted by the Constitution, has full and plenary powers to adopt such policies and prescribe the duties which it demands of officers in carrying out such policies which it deems best for the peace and welfare of the People. Straub v. Gordon, 27 Ark. 625; Carson v. St. Francis Levee District, 59 Ark. 513, 27 S. W. 590.
“ ‘ “Aside from the restriction of the State or Federal Constitutions, the Legislature is unfettered in the exercise of legislative power. The question as to whether the enactment is wise or expedient belongs exclusively for the General Assembly to determine. State v. Martin, 60 Ark. 353. (30 S. W. 421, 28 L.R.A. 153)
“ ‘ “ ‘The.Constitution regards the county courts as political and corporate bodies that are to be controlled and regulated in their discretion by the acts of the General Assembly, and not as independent of or superior to it. As political and corporate bodies, they are required to conform their action to the rule of the Legislature, and in the exercise of their jurisdiction to proceed in the mode and manner prescribed by law. County of Pulaski v. Irvin, 4 Ark. 475; Hudson v. Jefferson County Court, 28 Ark. 359.’ ”
“‘(b) In Crawford County v. City of Van Buren, 201 Ark. 798, 146 S. W. 2d 914, it was claimed that a legislative enactment requiring the quorum courts to appropriate money for municipal court purposes was violative of the said Art. VII, § 28 of the Constitution. In holding the legislative enactment to be valid, we said, in referring to §§ 28 and 30 of Art. VTI:
“ ‘ “We do not think, however, that these sections of the Constitution operate to deprive the general assembly of the power to impose duties upon counties and to require counties to pay therefor. Our cases are to the contrary. For instance, in the case of Polk County v. Mena Star Co., 175 Ark. 76, 298 S. W. 1002, there is an enumeration of various items of expenses imposed upon counties by legislative enactment. In the case of Burrow, County Judge v. Batchelor, 193 Ark. 229, 98 S. W. 2d 946, there was involved an act of the genera] assembly • requiring all counties to pay salaries of circuit court and grand jury stenographers. This act was upheld, * * ’
“Act 77, § 6, Ark. Acts of 1879, Pope’s Digest § 2527, now codified as Ark. Stat. (1947), § 17-409, has been considered and discussed in many cases. In Polk County v. Mena Star Co., supra, it was pointed out that * * this court many years ago, determined and held that there were two classes of obligations dealt with in this section of the statutes (Ark. Stat. (1947), § 17-409); first, those that are imposed on the counties by law and about which the county court is substantially without discretion; * * * items 1 to 4, inclusive, being in the first class * * V It is interesting to note that the first item (Ark. Stat. (1947), § 17-409, sub-par. Sixth — 1.) provides: ‘1. To defray the lawful expenses of the several courts of record of the county or district and the lawful expenses of criminal proceedings in magistrate’s courts, * ' * *’
“Prom this plain language and the many decisions analyzed in reaching the conclusion herein set forth, it seems fundamental that the County Court is responsible for the expenses of the courts in our judicial system.
“Even the case of Campbell v. Little Rock School Dist., et al, 222 Ark. 615, 262 S. W. 2d 267, relied on by the defendant in the case under consideration, recognizes the power of the Legislature to bind the County Court. That case is not controlling,- nor decisive of the question presented here, for there the County Court was ‘without audit or power of scrutiny except the right to appoint three property owners to act in that behalf’. The distinction was clearly set forth by the late Chief Justice Griffin Smith, with the following language: ‘ The distinction lies in the fact that here * * * three property owners * * * (have) the power to make conditional contracts affecting county revenues derived from tax sources.’ (Emphasis supplied)
“Upon reference to the language of Art. 7, § 28, of the Arkansas Constitution (‘The County Court shall have exclusive original jurisdiction in all matters relating to comity taxes, * * * the disbursement of money for county purposes * * *’), it is readily apparent that the language of the act there being considered fell squarely within and directly affected the subjects enumerated in Art. 7, § 28, Ark. Const., so that the rule in Price v. Madison County Bank, 90 Ark. 195, 118 S. W. 706, applies.
“Here we have an item having to do with expenses of the Circuit Courts, * * * It is inconceivable that the framers of our Constitution could have intended to stretch the plain language of Art. 7, § 28, so as to vest the County Court, an office requiring no special knowledge of the law, with exclusive jurisdiction to completely thwart the operation of our criminal courts in granting an accused certain rights, by refusing to pay expenses of that court. The Circuit Court, a State office, was here discharging a duty imposed on it by the legislative branch, namely, granting a mental examination to one accused of a crime who has raised the defense of insanity. In view of the myriad of cases and the long-standing operation of Ark. Stat. (1947) § 17-409 (1879 Act) there can be no question but that the County Court and the Quorum Court, its appropriating agency, must pay the expenses of the courts of record within their boundaries.
“Finally, the court is persuaded by the holding of the Supreme Court in the case of Phillips County v. Arkansas State Penitentiary, 156 Ark. 604, 247 S. W. 80. In the penitentiary case, the county urged that the legislature had no authority under the Constitution to impose upon the counties the cost of maintaining a State institution. Factually, the case is indistinguishable, for there an act of the legislature had required that the counties should pay to the State Penitentiary the sum of $1.00 per day for each day a person remained in confinement prior to electrocution and, further, that the county should pay to the State Penitentiary $25.00 for the electrocution of a person charged and convicted with a capital offense.
‘ ‘ The county there, as here, relied on a line of cases construing the exclusive original jurisdiction of the county court but which are inapplicable in the case at bar, just as they were inapplicable in the penitentiary case. Our Supreme Court said:
“ ‘* * * The expense imposed by the present statute is not, we think, a contribution towards a State institution, or towards the payment of the salaries of State officers, but is an expense in enforcing the criminal laws of the State, which has always been held to be a matter within the power of the lawmakers.
“ ‘There is no constitutional restriction upon the imposition of costs of prosecution, and it has always been held by this court that this was a matter regulated entirely by statute. Lonoke County v. Reed, 122 Ark. 111 (182 S. W. 563) * * *
“ ‘The statute constitutes no invasion of the jurisdiction of the county court in fixing the amount to be paid by the county as the expense of keeping the convicts and carrying out the sentence of the court.
# # * J
“The Court finds in this case that the sum claimed by the State Hospital under the statute in question is an expense of enforcing the criminal laws of this State.
“This Court feels that the presumption of constitutionality would require .the conclusion reached herein, though this ‘so-called’ presumption was not here relied on as the basis for the conclusion reached.
“It is, therefore, the conclusion and judgment of this Court that the defendant, R. A. Campbell, County Judge and Judge of the County Court, is indebted to the State Hospital in the amount of $1,350.00.
“It is hereby declared that the County Court should pay to the State Hospital the sum of $1,350.00.”

We agree with the views expressed by Judge Cock-rill.

Appellant contends, also, that Initiated Act 3 violates Article 5, § 1, of the State Constitution by delegating the authority to determine the cost of keeping persons sent by the court to the State Hospital for a mental examination. But there is no unlawful delegation of authority.

In Johnston v. Bramlett, 193 Ark. 71, 97 S. W. 2d 631, we said:

"While the Legislature cannot delegate the power to make a law, it can make a law to delegate the power to determine certain facts. * * *”

And in Little Rock v. North Little Rock, 72 Ark. 195, 79 S. W. 785, the Court quoted from a Pennsylvania case:

“ ‘There are many things upon which wise and useful legislation must depend, which cannot be known to the laAvmaking power, and must therefore be a subject of inquiry and determination outside the halls of legislation.’ ”

And in Hogue v. The Housing Authority of North Little Rock, 201 Ark. 263, 144 S. W. 2d 49, the Court said:

"A careful reading of the act does not. reflect that the Legislature has delegated its right to make laws to the public agency or authority. The most it does is to delegate power to the agency or authority to determine facts conditioning the operation of the law. This delegation of authority to determine facts upon which its law may operate is permissible. * * * J 5

Here, the Legislature merely provided that the Hospital shall be reimbursed at the same rate as that established for the maintenance of patients in the institution. There is no unlawful delegation of authority in such procedure.

Affirmed.


source: Caselaw Access Project

author: J. Seaborn Holt, Associate Justice.

license: Public Domain

text:
    Ragon v. Day.
    5-1369
    306 S. W. 2d 687
    Opinion delivered November 11, 1957.

      Hardin, Barton, Hardin & Garner, for appellant.

      Gordon & Gordon, for appellee.
   J. Seaborn Holt, Associate Justice.

This litigation stemmed from a collision of two passenger automobiles which resulted in personal injury to Alex Day, Sr.’s two minor sons, Alex, Jr., and Clarence, who were in one of the cars, and the death of James A. Widmer (21 years of age) who was driving the other car. Appellee, as father and next friend of his sons, sued appellant for personal injury damages to Alex, Jr., and Clarence Day, for the loss of their services in their minority, and for car damage. Appellant interposed a general denial, pleaded contributory negligence of appellees, and in a cross-complaint sought damages against appellees. At the conclusion of all the evidence, the trial court directed a verdict against appellant on his cross-complaint. A jury trial resulted in a verdict and judgment for appel-lee, Alex Day, Sr., in the amount of $995.80, for Clarence Day the sum of $175.00, and for Alex Day, Jr. in the amount of $10,000. This appeal followed.

Some ten witnesses testified for appellees as to the cause of the collision and how it happened, and appellant offered none. The evidence showed that at about 8 o’clock A. M. on October 7, 1956, on a clear day, Alex Day, Jr. (19 years old) was driving his father’s car westerly on highway 64 just a short distance out of Conway, Arkansas. Clarence Day (his 17 year old brother) was riding with him. While they were thus trayeling toward their home at a speed of about 40 miles per hour and on the right side of the 22-foot concrete pavement, their car was struck in the rear by an on-coming car being driven in the same direction by Widmer. The pavement, at the point where the collision occurred, was a straight-away for about a mile and the point of collision was about mid-way of this straight-away, and there was an un-obstructed view, with no other traffic, for about one-fourth mile in both directions. As indicated, the mishap occurred in the right portion of the highway on which the boys were traveling in the proper traffic lane for their use and while the Day car was in the act of making a right-hand turn off the highway to Day’s home. The evidence further shows that Alex Day, Jr., when the Widmer car was about one-fourth mile behind him, began giving a right-hand turn signal, to slow down, and continued to signal until he began making the right-hand turn and had his right front wheel on the right shoulder of the highway. At this instant it appears that Widmer’s ear struck him in the rear with such force that the Day car was knocked over and driven for some 125 feet, and the Widmer car, following the impact, traveled some 50 feet. Both cars were almost completely wrecked. Appellee’s witness, Tessie Talley, tended to corroborate appellee’s testimony. She testified that, “At the time of the collision I was standing at my window on the front of the house. The Avindow faces the highway and I can look and see the highway. I saw this boy with his hand out and up. When I looked again I didn’t see anything other than the car sitting there. I did not see the collision. I'saAv Alex Day, Jr. Avith his hand up.

‘Q. Did you know at the time who it was?
A. Well, at that time I thought it was his mother.’ I know the automobile, when I heard the crash I went out my back door and rushed doAvn to where it was and no one was coming either way . . .”

Also, the testimony of State Trooper, Stone, and Sheriff HAwkins as to the physical facts, at the point of the collision, was of a corroborative nature. Appellant offered only the testimony of Widmer’s parents who testified as to his age, education, earnings and their mental anguish because of the loss of their son.

For reArersal, appellant first contends that the trial court erred in denying him a mis-trial. It appears that after counsel for appellant had introduced a two-page signed statement of appellee, Alex Day, Jr., and Avhile appellee’s attorney was questioning him on re-direct examination, the following occurred:

“Q. Did you write this statement out yourself?
A. No, sir.
Q. This statement is dated October 11, 1956. Where Avere yon at that time?
A. I was in the hospital.
Q. St. Anthony’s Hospital?
A. Yes, sir.
Q. Were you flat on your back?
A. Yes, sir.
Q. In traction?
A. . Yes, sir.
Q. Do you know who took the statement?
A. No, 1 don’t know his name, he said something about being an insurance man . . . (Italics ours)
MR. GARNER: Your Honor, I ask for a mistrial.
THE COURT: Tbe Jury will be admonished not to consider any reference to insurance or an insurance adjustor, because that has no part in the trial at all. The - question is whether or not the plaintiffs and the defendant were or were not guilty of negligence.. You will not consider the question of insurance for any purpose.
MR. GARNER: Save our exceptions.”

We hold appellant’s contention untenable for two reasons. First, the answer given was not responsive to the question. Certainly it was proper for appellee to know the name of the person who took Day’s statement within five days after Day’s injury and while he was flat of his back in traction in a hospital, in the absence of Day’s attorney. Day’s answer, “No. I don’t know his name” would have fully answered the question asked and the remainder of his answer, “He said something about being an insurance man,” was not responsive to the question and purely voluntary information on the part of the witness. In addition, the trial court, by his prompt admonition to the jury, we think, removed any possible prejudicial effect on the jury. , In the case of Malco Theatres, Inc., v. McLain, 196 Ark. 188, 117 S. W. 2d 45, where the following situation presented itself:

“When the appellee was being examined on her direct examination she was asked to tell exactly how the injury occurred, and what treatment was given, and she answered: ‘And then, on the 14th day of Jnne I went hack becanse it hadn’t healed as well as we thought it should heal and the doctor told me then if it didn’t do better, why, I would have to wear a brace and go on crutches. And then the insurance company wanted an X-ray, I think-.’ Here the witness was interrupted and the appellant objected and moved the court to declare a mistrial. The court said to the jury: ‘That is Avithdrawn from you, gentlemen of the jury. Don’t consider that statement as any evidence in this case. It is wholly improper.’ ” We there said, “The record shows clearly that the attorney for appellee did not ask anything about insurance and that the appellee, in answering the general question, made some statement about the insurance adjuster. She was immediately interrupted, and the court in no uncertain terms told the jury that they could not consider it. If there was any prejudicial effect, what the court said removed it, and there was no error in the court’s refusing to grant a mistrial.”

What Ave said in the above case applies Avith equal force here. ■

Second, the appellant contends that the court erred in directing a verdict against him on his cross-complaint and in giving instructions five and six. We do not agree to either contention. As Ave read this record, Ave are unable to find any substantial testimony (and appellant points to none) that the Day boys Avere guilty of contributory negligence or any negligence Avhatever. Such Avas the effect of the jury’s verdict. While the testimony of the ttvo Day boys, since they are interested parties here, Avill not be taken as undisputed, it was corroborated by other Avitnesses, Tessie Talley and the two officers, and was ample to support the verdicts. Instructions five and six contained a clear statement of the reciprocal rights and duties, under our statutes, of the drivers of two automobiles on a public highway going in the same direction and we hold were correct. In other instructions the court clearly told the jury, “. . . that if you find from a preponderance of the evidence that at the time and place of the alleged collision, Alex Day,- Jr., and Clarence Day, sustained personal injuries as the proximate result of some act of negligence, upon the part of James A. Widmer, deceased, then if you so find, your verdict should be for the plaintiffs . , . If the jury finds from the evidence heard in the trial of this case, that James A. Widmer, deceased, was not guilty of any act of negligence as alleged proximately causing the alleged personal injuries and damages alleged by the plaintiffs, Alex Day, Sr., Alex Day, Jr., and Clarence Day, then if the jury so finds, your verdict should be for the defendant, Heartsill Ragon, as Administrator of the Estate of James A. Widmer, deceased . . . The question of whether or not, James A. Widmer, deceased, was guilty of some act of negligence as alleged by plaintiffs’ in their complaint, proximately causing the alleged personal injuries and property damages complained of by plaintiffs, is a matter and issue for the jury to determine from the evidence heard in the trial of the case as held admissible and all instructions given by the court, all of which should be considered by the jury. ’ ’

As indicated, the jury placed the negligence on appellant alone and we hold that the court did not err in dismissing the appellant’s cross-complaint in the circumstances. Our rule is that where from the undisputed facts all reasonable minds would reach the conclusion that the injured person acted as an ordinary prudent person under the circumstances and was free of negligence, then it becomes a question of law for the court. Kansas City So. Ry. Co. v. Lewis, 80 Ark. 396, 97 S. W. 56. In Cory Bros. & Hannon v. Morrison, 129 Fed. 177, 65 L. R. A. 659, C. C. A. 8th Circuit, an Arkansas case, the Court said: ‘ ‘ The question of contributory negligence, like every question of negligence, is ordinarily for the jury; and it is only when there is no substantial conflict in the evidence which conditions it, and when, from the undisputed facts, all reasonable men, in the exercise of a fair judgment, would be compelled to reach the same conclusion, that the court may lawfully withdraw it from them.” And in Bumpas v. Sinclair Refining Co., 191 Ark. 571, 87 S. W. 2d 29, it is stated: “Usually the existence of contributory negligence which will bar a recovery is a question of fact for the jury’s consideration and judgment. But if the testimony in this regard be such that all reasonable minds must reach the same conclusion, then it resolves itself into a question of law.”

But, says appellant, the court should have given an instruction on our comparative negligence statute, Act 191 of 1955 in effect when the present action arose. The answer to this is that the appellant made no such request for such instruction or offered any such instruction.

Finally contention is made that the verdicts were excessive, especially the $10,000 verdict in favor of Alex’ Day, Jr. We do not agree. Alex’s physician testified, in effect, that Alex was confined to a hospital for a total of 26 days and was under his treatment from October 7, 1956 to February 27, 1957, about four months and 20 days, and that total medical and hospital bills amounted to $548.30. This physician testified that Day’s injuries consisted of cerebral concussion, a dislocated left shoulder, a dislocation of the 5th cervical vertebra, and a compressed fracture of the 4th and 5th thoracic vertebra. He further testified that Alex would have stiffness, limitation of motion, and some pain in the area of the injury to the neck which will be permanent. Day was in traction for about three weeks which is a painful process. After he was discharged from the hospital he was put in a supportive cast which extended from the waist up, enclosing the body, chest and neck with support to the chin. He was in a cast for six weeks.

There was other evidence that young Day was a student at Philander Smith College in Little Rock, earning $36.00 per month at the Albert Pike Hotel in off hours, that since his injury he has headaches, and that his vision has been weakened making it necessary for him to wear glasses. It appears that young Day has a life expectancy of approximately 48 years. On the measure of damages, the court correctly, told the jury, “If you find from a preponderance of the evidence that the plaintiff, Alex Day, Jr., is entitled to recover in this action for alleged personal injuries, then in de-terxnining the compensation to be awarded Mm, if any, yon may consider the nature and extent of such injuries, if any, any physical pain and suffering endured or suffered as the result of the injuries, if any, and the duration of same; any mental anguish occurring as the result of such injuries, if any, and any loss of earnings resulting from injuries, if any, and the extent of same, if any loss is found to have been sustained.”

While the jury has no definite yardstick by which to measure damages in a case such as this, the- amount of an award must largely be left to the judgment of the jurors and unless we can say that the amount of the judgment was induced by prejudice or is so unreasonably excessive as to shock the conscience of the court, we do not disturb it, (Grandbush v. Grimmett, 227 Ark. 197, 297 S. W. 2d 647). On the evidence here we do not find that any of the verdicts are excessive. Accordingly, the judgment is affirmed.


author: Ed. F. McFaddik, Associate Justice.

text:
    Kelker v. Hendricks.
    5-1341
    306 S. W. 2d 691
    Opinion delivered November 11, 1957.

      Paul E. Gutensolm, for appellant.

      Hill, Filshugh & Brissolara, for appellee.
   Ed. F. McFaddik, Associate Justice.

The question here presented is whether the Chancery Court was in error in finding that certain transfers were fraudulent conveyances as regards the rights of the appellee, who was a subsequent creditor of appellant Andy J. Kelker.

On July 1, 1955, Andy J. Kelker became liable to Mrs. Grail Hendricks on a promissory note for $5,000 due July 1, 1956. When the note was not paid at maturity, Mrs. Hendricks. filed this suit (in December, 1956) seeking judgment for the amount due and also seeking to set aside certain conveyances that Kelker had made to his wife, Loretta, who is also an appellant. The purpose of setting aside the conveyances was to subject the conveyed property to the judgment lien of Mrs. Hendricks. Trial in the Chancery Court resulted in a judgment for Mrs. Hendricks for the debt, and also a decree setting aside certain conveyances as fraudulent and subjecting the conveyed property to the lien of Mrs. Hendricks’ judgment.

The Kelkers have appealed, and challenge here that portion of the decree holding the transfers to Mrs. Kelker to be fraudulent and enforcing Mrs. Hendricks’ judgment against such property.. Kelker does not here challenge the correctness of the money judgment. The Kelk-ers point out that the conveyances to Mrs. Kelker were prior to the note to Mrs. Hendricks; and claim that she did not sustain the burden of proving that the conveyances were fraudulent as to a subsequent creditor.

The law is well settled and unquestioned. Section 68-1302 Ark. Stats, reads:

“Every conveyance or assignment, in writing or otherwise, of any estate or interest in lands, or in goods and chattels, or things in action, or of any rents issuing therefrom, and every charge upon lands, goods, or things in action, or upon the rents and profits thereof, and every bond, suit, judgment, decree or execution, made or contrived with the intent to hinder, delay or defraud creditors or other persons of their lawful actions, damages, forfeitures, debts or demands, as against creditors and purchasers prior and subsequent, shall be void. (Rev. Stat., ch. 65, § 2; G. & M. Dig., § 4874; Pope’s Dig., § 6071.)”

Some of our many cases involving this statute are: Driggs & Co.’s Bank v. Norwood, 50 Ark. 42, 6 S. W. 323; Rudy v. Austin, 56 Ark. 73, 19 S. W. 111, 35 A. S. R. 85; May v. State National Bank, 59 Ark. 614, 28 S. W. 431; and Evans v. Cheatham, 183 Ark. 82, 34 S. W. 2d 1076. In Driggs & Co.’s Bank v. Norwood, supra, we held that when an embarrassed debtor makes a voluntary conveyance of his property, his indebtedness makes a presumption of fraud against existing creditors, but a voluntary conveyance by a person in debt is not per se fraudulent as to his subsequent creditors; and to impeach such conveyance the subsequent creditors must prove actual or intentional fraud. The question here then becomes one of fact: did Mrs. Hendricks prove actual or intentional fraud by Kelker when he made the conveyances to his wife prior to the creation of Mrs. Hendricks’ debt?

The evidence showed that in August, 1954 Kelker had an automobile collision; that, fearing a substantial judgment might be obtained against him, Kelker took approximately $30,000 in cash and went to Indiana and deposited the money to the credit of his wife; that thereafter, and from such funds, he made numerous 4 4 trades, ’ ’ always taking the title in his wife’s name. The Chancery Court was undoubtedly convinced that in these manipulations through his wife’s bank account, Kelker was acting in fraud of subsequent as well as prior creditors. The facts here are strikingly similar to those in May v. State National Bank, supra.

The evidence also showed that Kelker was a partner in the Kelker-Payton Construction Company from 1954 to 1956. In the present case there was introduced in evidence by stipulation the findings of fact made by the Chancery Court in the case of Payton v. Kelker (affirmed by the Arkansas Supreme Court in the case of Kelker v. Payton, 227 Ark. 369, 298 S. W. 2d 704). That case involved some of Kelker’s dealings with the partnership (later corporation). We copy a few of the pertinent findings made by the Chancery Court in that case, which findings, as aforesaid, were brought into the record in this case by stipulation, to-wit:

“The Court finds that defendant Kelker owes to the corporation the following amounts by reason of the misapplication of corporate funds to his own personal use, to-wit: . . .” (Nine items).
“The Court further finds that the defendant, Andy Kelker, did wrongfully and unlawfully convert corporate funds with the knowledge and consent of his wife, Loretta Kelker, and that said funds were converted into assets belonging to Loretta Kelker . . .” (Several tracts of property here described).
“The Court further finds that the defendant Kelker owes to the corporation by reason of conversion of corporate funds to the property owned by Mr. and Mrs. Kelker . . . ” (Property described and amounts stated).
“The Court further finds that the defendant Kelker did, with the consent and knowledge of the defendant, Loretta Kelker, convert corporate funds of the defendant corporation into property owned by Mr. and Mrs. Kelker . . .” (Described).

Kelker claims that he is, and was at all times, completely solvent; yet the fact remains that he has consistently manipulated his finances and properties so as to conceal assets required to pay the judgment held by appellee. He does not here challenge the judgment for debt, but challenges only that portion of the decree which would make available to Mrs. Hendricks’ judgment the properties which he placed in his wife’s name. It would unduly extend this opinion to recite all of the manipulations by Kelker. It is sufficient to say that the Chancery decree is not contrary to the preponderance of the evidence.

Affirmed.

       By garnishment, Mrs. Hendricks was able to find $1,000.00 of funds belonging to Kelker, which amount was ordered to be credited on her judgment of $5,475.00.


author: Min on W. Mill wee, Associate Justice.

text:
    Metheny v. Metheny.
    5-1379
    307 S. W. 2d 223
    Opinion delivered November 11, 1957.
    [Rehearing denied December 16, 1957.]

      McGourtney, Brinton, Gibbons & Segars, for appellant. •

      Howard A. Mayes, for appellee.
   Min on W. Mill wee, Associate Justice.

Appellant, Weldon Metheny, challenges the correctness of the chancellor’s determination that appellee, Geneva Metheny, was entitled to dower and homestead rights in a certain lot in the City of Paragould upon which she and her husband, Troy Metheny, resided for approximately nine years prior to his death in 1955.

The suit was begun by appellant in ejectment against appellee, his stepmother, but was transferred to chancery court by agreement. Appellant claimed title under a deed to him from Ben S. Turner and wife executed January 8, 1943. In her answer appellee asserted that Troy Metheny paid the consideration of $2,000 for said deed and had it made to his son, the appellant, in contemplation of a divorce from his second wife and with the intent that his son should hold the land in trust for him. She also alleged that Troy Me-theney “was in continuous occupancy of said lands from the date of its purchase until his death, that he paid all taxes thereon, that he exercised complete dominion and control over the same”; and that he and appellee were occupying the residence on the lot as husband and wife at the time of his death. She further alleged that the equitable title to said lands was in the estate of her deceased husband; . that appellant merely held the record title as trustee for his father’s estate; and that appel-lee, as the widow, had a homestead right in the dwelling and dower in the remainder of the land.

The chancellor rendered an exhaustive memorandum opinion as a basis for the decree dismissing appellant’s complaint. The court held that under the facts presented there was no resulting trust in favor of Troy Metheny, but that appellee, as his widow, was entitled to assert her homestead and dower rights by reason of the fact that Troy Metheny had been in adverse possession of the property since 1943, and that appellee’s possession since his death in February, 1955, could be tacked thereto. Appellant earnestly insists the chancellor erroneously found that Troy Metheny became the owner of said lot by adverse possession.

There is little dispute in the material facts. On January 8, 1943, Troy Metheny purchased the lot in question from Ben Turner and wife for $2,000 and had the deed made to appellant, his son by his first marriage, who was then nearly 19 years of age. At the time of the conveyance Troy Metheny was having marital difficulties with his second wife, Wilda. The lot was taken in the son’s name to prevent her from obtaining an interest therein and he obtained a divorce on April 3, 1943. Immediately after purchase of the lot Troy Metheny moved his wholesale jewelry and barber supply business into a building then standing on the lot where he also resided until shortly before his marriage to appellee on February 11, 1946. He and ap-pellee tore down the store building and erected a dwelling in its place and a new business building on the lot in the Spring of 1946 or 1947. They lived in the residence and operated the business from the new store' building from that time until his death and appellee has resided there since.

On February 21, 1946, Troy Metheny executed a 10-year lease of a part of the lot to Edward Taylor giving him the right to erect a small business building thereon with an option to purchase at the end of the term. No mention was made of appellant or any interest he may have had in the property in the written lease or in the negotiations relative thereto. Troy Metheny collected the rents under the lease, paid taxes on the lot and exercised complete control over the property treating it as his own from the time of the purchase until his death.

Appellant was in the military service from February, 1944, until May, 1946. He resided on the lot with his father a short time prior to his entry into military service and for a brief period immediately prior to his marriage in April, 1947, when he and his wife acquired their own home. He worked for his father as salesman on a commission basis from the time of his return from the service until 1950 when he moved to Jonesboro where he opened his own business. About seven months later he returned to Paragould and resumed work for his father until 1952 when he purchased a part of his father’s barber supply business which he moved to and operated from a small building near his own home.

"While there was some proof to the contrary, we think a clear preponderance of the evidence supports the trial court’s conclusion that Troy Metheny exercised continuous and exclusive possession, supervision and control of the property from the time of its acquisition in 1943 until his death; and that such possession and control had no reference to any filial or parental duty to appellant whose own actions were at all times inconsistent with any claim of ownership on his part. In these circumstances it was concluded that Troy Me-theny had acquired title to the lot by adverse possession, hence appellee was entitled to assert her dower and homestead rights therein.

The trial conrt based his decision on Johnson v. Johnson, 106 Ark. 9, 152 S. W. 1017. There a husband purchased land in the name of third parties in order to defraud creditors. He went into immediate possession and exercised control over the lands for six years in a manner similar to that of the deceased husband in the instant case. At his death his widow continued in possession for two years and this court held that such possession, in privity with his, gave his heirs title by adverse possession and entitled the widow to dower and homestead rights. A material difference in that case and this one is that the purchase by the husband there was in the name of third parties. And the rule is that a purchase of land by a father in the name of his son is, in the absence of proof to the contrary, presumed to be an advancement. White v. White, 52 Ark. 188, 12 S. W. 201; Cotton v. Citizens’ Bank, 97 Ark. 568, 135 S. W. 340. So the critical issue is whether the evidence was sufficient to overcome this rebuttable presumption.

Appellant relies heavily on the White case, supra, whore the court held the proof insufficient to overcome the presumption of an advancement. While the father controlled and improved the property there, it was also shown that the son was a minor and resided with the father during nearly all the time of the father’s possession; and that the father declared at the time of the conveyance and on numerous occasions thereafter that an advancement was intended and the land belonged to his son. In Forrest v. Forrest, 208 Ark. 48, 184 S. W. 2d 902, a father conveyed land to his son to place it beyond the reach of an anticipated judgment creditor. We held the nature of the possession and control of the land by the mother and widow, coupled with that of the father and husband during his lifetime, sufficient to overcome the presumption that the father was holding in subordination to the original grant and to vest title in the widow by adverse possession under his will.

On the whole case we. think the evidence was sufficient to overcome the presumption of an advancement to the appellant. Also that it was sufficient to sustain the chancellor’s finding that Troy Metheny had title to the property by adverse possession at the time of his death, thus entitling the appellee to assert her homestead and dower rights in the property. The decree is, therefore, affirmed.


author: George Rose Smith, J.

text:
    Abbott v. Prothro.
    5-1324
    307 S. W. 2d 225
    Opinion delivered November 11, 1957.
    [Rehearing, denied December 16, 1957.]

      I. 0. Abbott, pro se, and Spencer & Spencer, for appellant.

      Surrey E. Gilliam & Melvm E. Mayfield, for ap-pellee.
   George Rose Smith, J.

This is a bonndary line dispute involving a strip of land forty feet in width. The suit was brought by the appellant Abbott, who asked for a decree quieting his title to the land in controversy. The appellees answered with an assertion of title in themselves and asked that their own title be quieted.- At the trial the questions presented were chiefly issues of fact. The chancellor entered a decree dismissing Abbott’s complaint and confirming the Pro-thros’ title.

The parties own lands lying on opposite sides of a concrete highway in Union county, the appellees’ property being a forty-acre tract east of the highway and the appellant’s property being a smaller platted block on the west side of the paved road. The two tracts abut along the entire length of the appellant’s east boundary, which is a north-south line 312.50 feet long. Abbott contends that this common boundary line runs approximately down the center of the concrete pavement. The appellees assert that the boundary is. a line that parallels the highwáy forty feet to the west and that now coincides with a row of utility poles along the western edge of the cleared public easement. Alternatively, the appellees insist that the line they contend for has been established by agreement or acquiescence on the part of former owners of the two tracts.

On the first point, the actual position of the true line, the evidence preponderates decidedly in favor of the appellant. Here the only problem is that of determining the correct location of the line which, according to the original government survey, divides the forty acres now owned by the Prothros from the adjoining forty acres to the west, of which Abbott’s land is a part. The only surveyor to testify, J. 0. Godwin, was called as a witness by the appellant. Godwin’s survey shows that the disputed line runs along the center of. the concrete pavement, as Abbott contends. We have studied God-win’s testimony closely and find it altogether convincing.

The appellees, citing Stevens v. French, 227 Ark. 864, 302 S. W. 2d 286, argue that Godwin’s survey should be disregarded because he took as his starting point a concrete monument which he thought to have been set by the county authorities. Godwin’s measurements, however, tied in with several other established monuments and cannot be said to rest upon guess and speculation, as was the situation in the Stevens case. Furthermore, Godwin’s survey is corroborated by a recorded plat of Abbott’s property, prepared by a deceased county surveyor, and by a mark which that surveyor chiseled into the concrete highway at the point which Godwin fixes as the northwest corner of the Proth-ros’ forty acres. In addition to this confirmation of Godwin’s testimony it is shown that the appellees employed three different surveyors (including Godwin' himself) to survey the line before the trial. The ap-pellees’ failure to produce these men as witnesses suggests, of course, that their testimony would have been unfavorable.

On the second point, concerning the existence of a line by acquiescence or agreement, the appellees’ proof shows that for many years there existed a belief in the neighborhood that the northwest corner of the appel-lees’ tract lay forty feet west of the point that has now been fixed as its true location. This supposed corner, where four forty-acre tracts were thought to intersect, has been marked for the past twenty or thirty years by an iron blade set in the ground and before that by other visible monuments. There may well have been a generally accepted belief that these ancient landmarks correctly attested the location of the corner in question. That belief, however, is shown by this record to have been erroneous, and the tangible evidence on the ground related only to a point, not to a line. Perhaps the landowners assumed that the line now in controversy could be determined by running due south from this supposed corner, but it is not shown that such a line was agreed upon or that it was physically marked on the ground and confirmed by possession with reference to it. Thus the essential elements of a valid oral boundary line agreement are absent. Peebles v. McDonald, 208 Ark. 834, 188 S. W. 2d 289.

Nor does this proof establish an agreed line by acquiescence. A similar situation was considered in Ball v. Messmore, 226 Ark. 256, 289 S. W. 2d 183, where a stream or branch had long been mistakenly thought to be the true line. There we said: “In claiming more land than the chancellor awarded them the appellants rely upon the testimony of several witnesses who say that the branch has long been understood to be the line. This testimony may be true, but it falls short of establishing a record title, or adverse possession, or an agreed boundary line, or any other fact of substantive importance. It shows at most the existence of a general belief about the line, but of course such a belief could not have the effect of vesting or divesting the title to real property.”

Reversed.


text:
    Jackson v. Farmers Union Mutual Ins. Co.
    5-1368
    306 S. W. 2d 693
    Opinion delivered November 11, 1957.

      W. M. Burnett, for appellant.
    ■ Charles A. Wade, for appellee.
   George Rose Smith, J.

TMs is a suit by tbe appellant upon a $2,000 fire insurance policy covering two dwelling bouses and certain furniture. Tbe policy was issued for a term of three years, beginning May 30, 1953, and expiring May 30, 1956. Tbe property was destroyed by fire on June 6, 1956 — seven days after tbe expiration of tbe contract. At tbe close of tbe plaintiff’s proof tbe trial court directed a verdict for tbe insurance company and for its agent, James Cole, wbo was joined as a defendant in the case.

It is tbe plaintiff’s contention that her proof presented an issue of fact as to whether tbe policy was still in effect on tbe day of tbe fire. Tbe complaint alleges, and the plaintiff testified, that in selling tbe policy tbe insurer’s agent, Cole, informed her that she would have a thirty-day period of grace in which to pay tbe premiums. Upon this testimony it is argued that tbe jury might have found that tbe policy was in force when tbe fire took place.

There are two answers to this argument. First, tbe written contract does not provide tbe asserted grace period, and tbe burden was on tbe plaintiff to show that the insurer’s soliciting agent was authorized to change tbe terms of tbe agreement. American Ins. Co. v. Hornbarger, 85 Ark. 337, 108 S. W. 213; Sadler v. Fireman’s Fund Ins. Co., 185 Ark. 480, 47 S. W. 2d 1086. That burden of proof was not met. Second, by tbe terms of tbe policy a premium of $50 was payable annually on May 30 for a term of three years beginning in 1953. Even if there had been a grace period it could have up-plied only to the premiums that were due in 1953, 1954, and 1955. Since no premium was due when the contract expired on May 30, 1956, the existence of a grace period on that date is immaterial.

One of the plaintiff’s witnesses testified that he once had a policy with the defendant company and that he was permitted to pay his premiums as much as two weeks after their due date. This witness was unable to say whether the extension of time was granted by Cole or by the company, nor was any effort made to show that the witness’s policy was similar to the one sued upon. It is clear that this testimony did not make a ease for the jury. That the insurance company accepted the belated payment of premiums actually due, under another policy, has no tendency to show that the contract in issue was still in force when by its terms it had already expired and when by its terms no further premiums were even due.

After the fire the company, upon being notified by its local agent of the loss, wrote to the plaintiff and disclaimed liability on the ground that the policy had lapsed. In this letter the insurer’s assistant manager made this statement: “I am sure you will agree as a general rule your insurance representative is on the lookout for your well being, since James [Cole] stated he made one or two calls to your place to collect the premium right after the policy lapsed.” It is earnestly insisted that the insurer’s attempt to collect a premium after the lapse of the policy would have justified the jury in finding that the contract was still in effect when the loss occurred.

This contention cannot be sustained. There is authority for the view that an insurer, by demanding payment of an overdue premium, waives the right to declare a forfeiture on the ground that the premium in question was not paid when due. Other decisions take the position that the insurer’s conduct does not constitute a waiver. In discussing the eases on both sides of this question Professor Williston has expressed his preference for the latter view. Williston on Contracts, § 761. We need not explore this controversy, for the case at bar does not involve the essential element of a forfeiture. Here the appellee issued a policy insuring the property for a term of three years, on condition that the appellant pay the premium in advance for each year. Had the appellant failed to pay one of the premiums during the life of the contract, and had the insurer nevertheless demanded payment, it would have been necessary for us to say whether the company’s attempt to collect the premium amounted to a waiver of its right to declare the policy canceled for the remainder of its term. But that is not the case before us. Here the appellant paid each premium as it was due and was protected by the policy until it expired by its own terms on May 30, 1956. After that date there was no contractual relationship between the parties, and the insurer obviously could not waive its right to declare a forfeiture, for there was nothing left to be forfeited.

Affirmed.


author: Paul Ward, Associate Justice.

text:
    Gentry v. Alley.
    5-1381
    306 S. W. 2d 695
    Opinion delivered November 11, 1957.

      0. D. Pendergrass and Holt, Parle & Holt, for appellant.

      Arthur N. Wood, Fitton & Adams and Arnold M. Adams, for appellee.
   Paul Ward, Associate Justice.

This litigation is over microfilm copies of abstract indices of real estate records in Marion County.

Factual Back Ground. Most of the facts are not in dispute and are, substantially and briefly, as here set out.

Appellee, Don Alley, had for some years prior to 1949 been engaged in the abstract business in Baxter County, during which time one of the defendants, Nellie Cooper, had also been likewise engaged in the same county. In June of said year Alley bought a complete set of abstract books or, as sometimes referred to, abstract indices in the adjoining county of Marion. This set of books or indices was operated under the name of Berry Land and Abstract Company. It is important here to point out that the Bull Shoals Dam project had been under way in Marion County for some time, that, consequently, a great demand for abstracts had arisen, and that this demand was met by competitive bidding. One of the successful bidders was the Ozark Title Company of Fort Smith. However the Ozark Company did not have a. set of abstract books, so in 1947 they contracted with the said Berry Abstract Company to film and use its indices with strict limitations imposed. When Alley bought out the Berry Abstract Company he also bought all rights incident to the filming contract first mentioned.

On or about November 1st, 1956 the Ozark Company, contrary to the express provisions of the filming contract, sold the indices film to appellants, Ernie Gentry and Earl Linton.

Upon learning that Gentry and Linton had purchased the film and that they were about to use the same to conduct an abstract business in Marion County, Alley promptly filed a complaint, asking that the Ozark Title Company be forced to comply with its contract with the Berry Land & Abstract Company, that the microfilm and all copies thereof be delivered to Alley, that he have judgment against the Ozark Title Company for breach of contract, and that Gentry, Linton and Cooper be enjoined from using the film (or copies thereof) for making abstracts.

The principal defense relied on by Gentry and Linton was that they were innocent purchasers for value of the film in question. They also pleaded laches and the statute of limitations, but apparently abandon these on appeal.

After a full hearing of the matter on its merits the Chancellor ordered Gentry and Linton to deliver to the Clerk of the Court forthwith the original film of said indices together with all copies of the same, to be later turned over to appellee; he enjoined them, their heirs and assigns from using information extracted from said films, and; he dismissed the complaint against Nellie Cooper. No personal service was had on F. M. Blood who, as an employee of the Ozark Title Company, had actually made the film.

We have concluded that the decree of the trial court must be affirmed upon the grounds hereafter discussed.

The Chancellor, after the submissions of briefs by both sides, made written Findings and Holdings which take up eight pages of the record, and which reflect exhaustive research of the authorities. In these Findings and Holdings he reached the conclusion that appel-lee (through his contract with the Berry Land and Abstract Co.) had- literary property rights in the indices, that he had not released those rights by permitting the film to be made under the restrictions of the contract, and that consequently Gentry and Linton received no title to the film and particularly to the information contained in the film. We want to here acknowledge the assistance we often receive from these written findings by the Chancellors. However we find it unnecessary to pass upon the merits of the legal conclusions announced by the Chancellor, because we sustain the decree on an entirely different‘ground which he rejected.

After a careful review of the testimony and considering the surrounding facts and circumstances, we are led to conclude that Gentry and Linton are not innocent purchasers for value as those words have been construed by the courts. We will mention some of the things that lead us to this conclusion.

One. While this litigation involves only one film —that of the indices of appellee’s abstract books — the record discloses that Blood, as an employee of the Ozark Title Company, also took 56 other films of the records of Marion County and that Gentry and Linton purchased these 56 films at the same time they purchased the other one. The purchase price for all 57 films was only $500. On the face of it, this appears to be a small consideration, calculated to raise suspicions. It was testified that it would take a person one and one half years, working diligently, to prepare only the indices for the purpose of making abstracts in Marion County. Not only so, but Linton himself practically admits they got the indices for nothing. Q. “You mean you did buy films from a man in Tulsa (Blood) without inquiring the source of them?” A. “We were interested in the connty films also (the 56 films mentioned above). We figured they were worth what we paid for them.” No one questions Gentry and Linton’s right to the latter films of course. In 77 C. J. S. we find at page 1092, under the title of SALES, Adequacy of Price, the following: “Inadequacy of price, when very great, is of itself evidence to a purchaser of infirmity in his seller’s title, and consideration is to be given it, in connection with other circumstances, in determining whether a buyer is a purchaser without notice.” Also at page 1099, same volume, it is stated: “The consideration, in order to be effective to bring a transfer within the doctrine of bona fide purchase, should be an adequate valuable consideration, or a fair consideration, but it need not be up to the full price of the goods.”

Two. The evidence disclosed by the record forces the conclusion that Gentry and Linton had information which, if reasonably acted upon in good faith, would have disclosed to them the true factual situation regarding the microfilm in question. It was not necessary for the testimony to show they had actual knowledge that Alley was the owner of, or that Blood and the Ozark Title Company had no title to, the film. This principle of law has been repeatedly and consistently stated in our decisions. In the case of Fomby v. Colquitt, 56 Ark. 537, 20 S. W. 413, appellee furnished supplies to one Pyle and took a mortgage on land therefor, without actual knowledge of the fact that Pyle had previously sold part of his land to a Mrs. Perritt. In dealing with the question of priority of appellee’s lien, the court said: . . . “if he had notice of circumstances that ought to have put a prudent business man upon inquiry, and he failed to make inquiry, he was not an innocent purchaser.” To the same effect are McKenzie v. Rumph, 171 Ark. 791, 286 S. W. 1022 and Vaughn v. Dossett, 219 Ark. 505, 243 S. W. 2d 565.

The record discloses many facts and circumstances which were calculated to have aroused Gentry and Linton’s curiosity as to the history and ownership of the questioned film, and very little inquiry would have disclosed the true .facts.. All either of them had to do was to inquire of the one logical person to ask — -Alley, and they had daily opportunity to do so. They were apparently relying on the expert advice of Nellie Cooper Avho had been in the abstract business for many years in a county adjoining, and who was naturally acquainted with the abstractors in Marion County. It is obvious that Nellie Cooper, as well as Gentry and Linton, knew the film was taken from a set of abstract books in Marion County. In fact the film itself revealed that fact. The record discloses that they knew there were only two sets of abstract books in Marion County. One was owned by appellee, and they knew the film was not a copy of the other set because they had rejected that set as being unreliable or inaccurate. We also gather from the record that appellants knew something about the existence of a film contract with one of the Marion County abstract companies. Their testimony was that they hired a man to search the records of that county to see if such a contract had been placed of record. In order to make this search the man worked in the same building — perhaps the same room — with appellee, and yet he made no inquiry of appellee.

We cannot agree with appellants that appellee is barred by the statute of limitations or is guilty of laches. It is undisputed that the Ozark Title Company had a right to a limited use of the disputed film as long as titles to dam-site lands were being processed. Appellee testified that this work is just now being completed. He also said that he never learned of appellants’ purchase of the disputed film until about a month before this suit was filed by him.

Appellee is denied relief on his cross appeal because there is no proof that Nellie Cooper is associated with Gentry and Linton in trying to establish an abstract business in Marion County.

The trial court was correct in enjoining Gentry and Linton from using the indices film and ordering them to deliver it and all copies to appellee. Anything less would have been an empty victory for appellee, since it was shown that the Ozark Title Company is insolvent, and in fact is now nonexistent as a business concern.

Affirmed.

Robinson, J., dissents.

Holt, J., not participating.


author: Sam Robinson, Associate Justice.

text:
    Farelly Lake Levee District v. Hampton.
    5-1374
    306 S. W. 2d 699
    Opinion delivered November 11, 1957.

      George E. Pike, for appellant.

      George 0. Green, for appellee.
   Sam Robinson, Associate Justice.

In the year 1913, by a Special Act, the Legislature created the Farelly Lake Levee District of Jefferson and Arkansas Counties. In 1928 the District was placed in receivership, due to the inability to meet its financial obligations. In 1938, while the District was still in receivership, the banks of the Arkansas River were caving and it became necessary to set the levee back to protect the property in the District. The District had no money available to purchase the new right of way, and therefore the necessary land for a right of way was largely donated to tlie District by those who owned the property on which the new levee would be located. Mr. E. P. Mahaffy, one of the owners of land across which the new levee would be built, refused to donate a right of way. In view of the emergency occasioned by the caving banks of the fiiver, 24 landowners in the District contributed $4,483 to purchase the right of way across the Mahaffy property.

On the 25th day of May, 1955, the commissioners of the District adopted a resolution stating the circumstances of the contribution of money to acquire the right of way across Mahaffy’s property, specifically pointing out that at the time the contributions were made it was understood by the property owners and the commissioners of the District that such landowners would be reimbursed when the District had the necessary funds, and the resolution authorized the president and secretary of the levee board to reimburse those who made the contributions in the first place.

This suit is to enjoin the District from repaying the right of way money to those who advanced it in 1938. The chancellor granted the injunction and the commissioners of the District have appealed. Appellants concede that the District was in receivership at the time the property owners put up the money to purchase the right of way, and that the commissioners had no authority to authorize the collection of such funds and no authority to agree at that time to repay it.

There is no contention that the receivers solicited the funds; from the testimony it is clear that the contributions were purely voluntary. Since the commissioners had no authority to borrow the money to purchase the right of way, they cannot now consider the money as a loan and repay it.

In First Nat. Bank of Waldron v. Whisenhunt, 94 Ark. 583, 127 S. W. 968, it is said:

“It is urged by appellant that the contract has been ratified by the receipt and use of the charts by the school district. But where a contract made by the directors of a school district is invalid because it was beyond the scope of their powers, it cannot be ratified by acceptance.”

A contract invalid in the beginning for want of power to make it cannot be ratified. Dell Special School Dist. No. 23 v. Johnson, 129 Ark. 211, 195 S. W. 373.

The doctrine of ratification does not apply where there is a want of power in the public officer to make the original contract. 43 Am. Jur. 74.

In the case at bar the District was in receivership; the commissioners had no power or authority whatever to make any agreement with reference to the purchase of a right of way for the District. Hence, they have no authority to ratify such agreement.

Affirmed.

HaRkis, C. J., disqualified and not participating.


author: CarletoN Harris, Chief Justice.

text:
    Booth v. Hayde.
    5-1371
    307 S. W. 2d 227
    Opinion delivered November 18, 1957.
    [Rehearing denied December 23, 1957.]

      Warner, Warner & Bagon, for appellant.

      O. E. Williams, for appellee.
   CarletoN Harris, Chief Justice.

Thomas J. Hayde, then a resident of Eureka Springs since December, 1945, on January 15, 1946, obtained from one Boy F. Park-hill a one year option to purchase approximately 360 acres of land in Carroll County, commonly known as Blue Springs Farm. For the option he paid $1,200, which was to apply on the purchase price of $20,000 if the option was exercised. In the spring of 1946, Hayde became acquainted with Frank Sweeney, a real estate broker of Chicago, and the two of them made an agreement with a Mrs. Lyon of Chicago to divide said land and sell it in lots; however, Mrs. Lyon withdrew, and the agreement was cancelled. Hayde authorized Sweeney to advertise lots for sale, though at the time, title could not be conveyed, since neither Hayde nor Sweeney could finance the purchase of the property. Sweeney returned to Chicago and advertised the property in the Chicago Tribune. Mrs. Maude Poston (who later took the name of Evan Booth through marriage), appellant herein, and widow of a dentist who had died in 1944, saw the advertisement and contacted Sweeney. He called on appellant; she advised him that she was interested in purchasing a lot for a home, and he invited her to a party at his office, which was to be attended by numerous other prospective buyers. Sweeney also telephoned Hayde at Eureka Springs, who likewise attended the Chicago party. A large number of people were present, and appeared enthusiastic over the lots. Appellant told Sweeney that she was ready to purchase a lot, and he then advised her title could not be conveyed because it was required that $10,000 cash be paid to Parkhill before a deed could be executed, and neither he nor Hayde was able to make such a payment. Sweeney then proposed that appellant finance the purchase, and join with them in their project of selling lots. He represented that the lots would be easy to sell, reminded her of the large number of people who had attended the party, stated that she would have nothing to do but execute the deeds, and that he and Hayde would handle everything else. Appellant was quite interested, and she and Sweeney went to Eureka Springs in January, 1947, being met there by Hayde. In the meantime, Hayde had obtained an extension on his option, and on January 23, 1947, Hayde, Sweeney, and appellant entered into the following contract.

“This Contract and Agreement made and entered into by and between Maude E. Poston, and Frank Sweeney, both of Chicago, Illinois, and Thomas J. Hayde of Eureka Springs, Arkansas, WITNESSETH:

It is the purpose of this Contract and the intention of the parties hereto to form a partnership on a basis of 40 per cent to Maude E. Poston and 30 per cent each to Frank Sweeney and Thomas J. Hayde. Thomas J. Hayde has an Option on the Roy Parkhill Blue Springs Farm of approximately 360 acres and is anxious to complete said Option and obtain a deed for said property. The consideration for said property’s purchase price is $20,000 and Maude E. Poston is this day paying $10,000 to the said Parkhill on the same and in the execution of Parkhill’s deed he is to make it to Maude E. Poston and retain a vendor’s lien, which is known by some as a Mortgage for $10,000 due in one year, drawing interest at the rate of 5 per cent per annum, and during this year the same may be paid in payments of at least $500 each on any tracts of land that are sold in five acre or less tracts, at which time C. A. Fuller, as agent and attorney for the said Parkhill, shall release the same from this vendor’s lien or mortgage.

The said Frank Sweeney is to obtain his interest by reason of his activity and work of promoting and selling or causing to be sold various tracts of land out of this big tract, and it is recognized that he shall have complete charge of all sales, commissions and prices, and as the land is sold, all the money received therefor, less commissions and real operating expenses, is to be paid to Maude E. Poston and Boy P. Parkhill, and neither the said Sweeney nor Hayde are to receive any of their interest in said lands until these two obligations of Poston and Parkhill are fully paid.

It is understood that the said Thomas J. Hayde, who is located in Eureka Springs, will show people over the farm and do all within his power to favorably present the project to prospective purchasers and in this same connection, also without compensation, he will fly such people as want to be flown over the place from his flying field located nearby.

This Contract may be terminated upon the request of either party hereto when the purchase price for the land has been paid, together with all expenses thereto and terminated either by a division of the balance of the land left or in cash as may be agreed upon by the parties hereto.

IN WITNESS WHEBEOF, the parties hereto have set their hands in triplicate this 23rd day of January, 1947.”

Appellant deposited $1,000 in a Eureka Springs bank in the Blue Springs Development account as an advance. Some improvements were made on the property, mostly at the expense of appellant, but the sale of lots did not materialize. By October, 1947, activity in connection with the sale of lots had ceased. Sweeney apparently abandoned any interest that he had, and the project was at a standstill. According to Hayde’s testimony, he talked with appellant in late September or early October in Chicago relative to the project. Appellant stated that Sweeney was “out,” and that other arrangements would have to be made; thereafter she went to South America, staying for something over a year. In May, 1948, Hayde went to California and has resided there since, though according to his testimony, Arkansas is still Ms official home. Appellant, through her then attorney, paid $1,500 on the Parkhill indebtedness, and received an extension óf time to pay the balance. Hayde next saw appellant in Eureka Springs in 1949 or 1950, at which time she advised him that she was working hard to pay off the mortgage on the place; he testified that he saw her in 1953 at Blue Springs, but she would not talk business with him. Mrs. Booth had made some improvements on the property, and operated it as a tourist, attraction, charging admission to see the springs, and selling post cards, candy, and various trinkets. According to her testimony, she spent $23,290 on improvements, and paid the balance due Parkhill by obtaining other loans, some indebtedness still remaining. In September, 1955, Hayde instituted suit against appellant, Prank Sweeney, and Cecil E. Maberry, trustee, alleging that he (Hayde) was a partner of appellant, asking that the partnership be dissolved by a decree of the court, and that a master be appointed to take proof and state the account between the parties; that he be given judgment for his interest in said property. Upon hearing, the court held Hayde to be a partner under the contract herein set out, and further held that appellant acquired the title to said land as trustee for said partnership. The court found that Sweeney had abandoned any interest that he had, and that such interest should be vested in Hayde and appellant in equal shares; that appellant held a 55 per cent interest and Hayde a 45 per cent interest, subject to existing liens and indebtedness. A master was appointed to state the account between the parties. From such judgment comes this appeal.

For reversal, appellant first argues that no partnership was created, or existed, nnder the contract. The record is volnminons, and a large part of the testimony-taken, and exhibits introduced, were on this question, which is argued rather fully in both briefs. Some of the facts would indicate a partnership; other facts tend to dispute the existence of such a relationship. However, under the view that we take, it is not necessary that this question be determined in order to dispose of the litigation. It is immaterial whether the contract created a partnership or was simply a contract of employment. As previously set out, appellant paid $10,000 on the purchase of the Blue Springs property, and the remaining $10,000 was due within one year. This remaining $10,000 was to be paid by the sale of lots, as per the contract:

“* * * and as the land is sold all the money received therefor, less commissions and real operating expenses, is to be paid to Maude E. Poston and Roy F. Parkhill, and neither the said Sweeney nor Hayde are to receive any of their interest in said lands until these two obligations of Poston and Parkhill are fully paid * * *”

Sufficient lots were not sold to pay the indebtedness to Parkhill, much less to repay appellant the advances she had already made. At the end of the year, it Avas necessary that appellant borroAV money to pay Parkhill, in order to protect her previous investment. Otherwise, Parkhill could have foreclosed, and the rights of any or all of the parties under the contract would have ended. SAveeney had told appellant that the lots could be sold Avithin three months. Hayde testified that he told appellant that it might take up to a year. At any rate, it Avas contemplated and intended by all parties that sufficient lots would be sold within the year to pay both Parkhill and appellant. The contract provided that same could then be terminated by a division of the bal-anee of the land or a division of cash. Since the lots were not sold, the common undertaking “fell through.” Under the contract, the parties had nothing to divide until the lots were sold and the indebtedness paid. The conditions imposed in the contract preliminary to Hayde and Sweeney obtaining an interest were never met. Hayde says that appellant is responsible for the failure to. sell lots; that numerous prospects were available and the lots could have been sold if water had been distributed to each lot. He testified that he ordered pipe for a water main, but that appellant had her agent cancel the order. Though carefully reading the contract, we are unable to find any provision which requires Evan Booth to pay for a water main, or any other improvement. . Improvements are not mentioned. There is no indication that the contract relates to other than a sale of the lots in their then present condition. We are of the opinion that appellant was entirely within her rights in refusing to pay out additional money, and the contention of appellee is not Avell taken.

It is conceded that the Sweeney interest was abandoned. It likewise appears that Hayde abandoned any interest he might have had. In his testimony, he relates various acts that he performed relative to showing the property to prospects:

í ¡ * * * ‡ jia¿ †0 get up at 4 o ’clock in the morning, and drive to the railroad .station in Monett, meet the prospect, and — with my station wagon — drive them back to Eureka Springs, get them set up or put up at a hotel and call for them later; show them the property physically, with the station wagon; walk over it with them, and sometimes give them a plane ride over the entire property, if the party felt like it. Sometimes they did not want to. And sometimes they were not content with just looking over that property; they wanted to look over the rest of the country and I felt obliged as a matter of courtesy to spend the entire day with them showing them around. I would say on various occasions I did this as often as three times a week. I also was always available for the local realtors any time they called there and wanted to. send a prospect out for me to ac-túally show them the property even if they didn’t accompany them. And I would say I showed the actual property to almost every local realtor in the whole vicinity or anybody that wanted to look at it. I continued to show that property to any and everybody that desired to see it up until I left here in the early months of 1948 when I left Eureka Springs. I didn’t . . . until the actual time I left Eureka Springs , I didn’t ever abandon the idea of selling it or that we would get together and it would be sold. * * *”

After leaving Eureka Springs and going to California, it appears that he returned a few times for short periods, but the record does not reveal any activities in connection with Blue Springs. Certainly, Hayde was unable to perform his duties under the contract after moving to California. He was no longer in a position to “show people over the farm and do all in his power to favorably present the farm to prospective purchasers,” or to fly people over the place. It therefore appears, and we so hold, that he abandoned and repudiated the agreement or contract on May 1, 1948. Hayde contends that appellant was responsible for the failure of the project, and had already violated the agreement by taldng the lots off the market, and that this left nothing further for him to do. If Hayde took this view, then such action, within itself, should have been notice to ap-pellee that appellant considered their business relationship at an end; there were also other circumstances that should have served to notify appellee that he had best take steps to protect any rights that he might have under the contract. For instance, Hayde testified that he went to Chicago in September or October of 1947, to talk with appellant, and was told at her hotel that she had gone to South America. While he was standing at the desk, she came downstairs to get her mail. “ * * * Mrs. Poston was quite embarrassed, and asked me to sit down and have some coffee. She was having her breakfast. * * *” She told him Sweeney was ont of the picture, that they (Hayde and Booth) would just have to make some other arrangement, and that she would come down to Eureka Springs the following week to discuss same with him. She did not show up. Taking this version, it certainly should have been obvious to Hayde, from the fact that Mrs. Booth was apparently trying to avoid him, and further, did not come to Eureka Springs as she had promised, that she was repudiating the contract, and had no intention of making any further agreements relative to the project; nor did she make any effort to contact him thereafter, either before or after his move to California.

If a partnership is created without a written instrument, then an action for accounting must be filed within three years after the dissolution. Williams v. Walker, 148 Ark. 49, 229 S. W. 28. Here, Hayde claims that the written instrument created a partnership agreement, so his action for an accounting was due to be filed within five years. Sec. 37-209, Ark. Stats. Anno. (1947). The same statute would also apply if the instrument is only a contract of employment. Accordingly, in either event, any right which might have been held by Hayde under the contract, as partner, or employee, was barred by both laches and the statute of limitations, since his suit was not instituted until September, 1955.

For the reasons herein set out, the decree of the Chancery Court is reversed, and the cause is remanded with directions that a decree be entered consistent with this opinion.

       She testified, that she borrowed this money from the attorney and he obtained the extension while she was in South America.

       Appellant came to Eureka Springs after returning from South America.

       Appellant borrowed $14,000 from Maberry in December. 1950, and executed deed to him conveying said land. The deed actually was intended as a mortgage, though Maberry paid the taxes the entire time he held same. The $14,000 and amounts paid for taxes were repaid Maberry within five years, and he reconveyed the property. Maberry, accordingly, is not involved in this litigation.

         Appellant had purchased additional land for $200 which the court also held to be partnership property.

       While not definitely established, the evidence strongly indicates that Hayde received back his $1,200 which he had paid for the option from this amount.

       Only one lot was sold actually, and that by appellant.

       Emphasis supplied.

       One Steve Ellis, a real estate broker, wrote two people on September 29, 1947, that the lots were temporarily off the market. He testified that he was acting of his own accord as an independent real estate broker who had had the property for sale, and not at the direction of appellant.

       Appellant testified: “* * * I told him I was on my way to South America within a very short time; that I was just about, ready to go. And he said, ‘Well, what about Blue Springs?’ And I said, ‘You are through, I will not recognize you any more because you have done nothing. Mr. Sweeney is out and you are, too. That is that.’ ”


author: J. SeaborN Holt, Associate Justice.

text:
    Maxcy v. John F. Beasley Construction Co.
    5-1361
    306 S. W. 2d 849
    Opinion delivered November 18, 1957.

      Bernard Whetstone, for appellant.

      Riddick Riff el, for. appellee.
   J. SeaborN Holt, Associate Justice.

Tbis is a suit under our Workmen’s Compensation Law, Sections: 81-1301 — 81-1349, Ark. Stats. 1947, and involves the proper distribution, as between tbe Workmen’s Compensation Insurance Carrier and the injured employee, of the proceeds of a recovery against a third party.

The facts appear not to be in dispute. Appellant Maxcy, while in the course of his employment with John F. Beasley Construction Company, suffered injuries by a third party, the Ditmars, Diekmann, Pickens Construction Company (succeeded by Diekmann, Pickens, Bond Construction Company). Maxcy employed attorney, Whetstone, under a contract whereby he agreed to pay Whetstone 50 per cent of any recovery. Suit was filed in the federal court with the result that a settlement was effected, without trial, for $10,016.50. Because of his injuries, Maxcy was paid benefits by his employer’s compensation carrier, the Liberty Mutual Insur-anee Company, in the total amount of $3,730.56. It appears that there was never any controversy between Maxcy and Liberty Mutual as to its liability to Maxcy for his injuries.

On March 5, 1956, appellant Maxcy filed a petition with the Workmen’s Compensation Commission in which he asked for approval of a settlement and for an order of distribution of the $10,016.50. Later, in an amended petition, he asked that distribution be made in the following manner: To Liberty Mutual Insurance Company, $2,250 (5/9ths of its payment of $3,730.56); to Bernard Whetstone, $5,142.40 (attorney’s fee plus $142.50 costs expended); and the balance to the employee, Robert Maxcy. In the alternative, he prayed for a distribution as follows: To Liberty Mutual Insurance Company, $1,865.28; to Bernard Whetstone, attorney, $5,142.40; to Robert Maxcy, employee, $3,008.82.

Following a hearing before a single commissioner, on the question of distribution and approval of the settlement with the third party, the commissioner approved the settlement of $10,016.50 and that attorney Whetstone was entitled to a fee of $5,000 to be deducted from the total recovery and that he should be reimbursed in the amount of $142.40 for certain expenses incurred by him in procuring the settlement. Of the remaining $4,851.60, $3,234.40 was ordered paid to Liberty Mutual Insurance Company and the remainder amounting to $1,617.20 paid to the employee, Maxcy. The full commission, on a hearing, approved the findings of the single commissioner and on appeal to the Circuit Court of Garland County, that Court affirmed the findings of the commission on November 2, 1956. This appeal followed.

For reversal, appellant relies on two points.

(1) First he says: “Since the recovery was due 100 per cent to the efforts of appellant’s attorney, and since appellee had no attorney and contributed nothing toward the recovery, that it should not be allowed to recover free of its proportionate share of the reasonable cost of collection. (Conversely stated: — that appellant (employee) should not be required to pay practically all of the cost of collection).”

The material parts of the statute dealing with distribution of the third party recovery seems to us to he clear and unambiguous.

Section 81-1340, Ark. Stats. 1947, provides: “Third party liability. — (a) Liability unaffected. (1) The making of a claim for compensation against any employer or carrier for the injury or death of an employee shall not affect the right of the employee, or his depend-' ents, to make claim or maintain an action in court against any third party for such injury, but the employer or his carrier shall be entitled to reasonable notice and opportunity to join in such action. If they, or either of them, join in such action they shall be entitled to a first lien upon two-thirds of the net proceeds recovered in such action that remain after the. payment of the reasonable costs of collection, for the payment to them of the amount paid and to be paid by .them as compensation to the injured employee or his dependents.

“(2) The commencement of an action by an employee or his dependents against a third party for damages by reason of an injury, to which this Act (§§ 81-1301 — 81-1349) is applicable; or the adjustment of any such claim shall not affect the rights of the injured employee or his dependents to recover compensation, but any amount recovered by the injured employee or his dependents from a third party shall be applied as follows: Reasonable costs of collection shall be deducted; then one-third of the remainder shall, in every case, belong to the injured employee or his dependents, as the case may be; the remainder, or so much thereof as is necessary to discharge the actual amount of the liability of the employer and the carrier; and any excess shall belong to the injured employee or his dependents.”

It seems clear to us that the above section, after giving an injured employee the right to sue a third party for his injury and providing that the employer may join in such action and thereby be entitled to a first lien on two-thirds of the net proceeds recovered, and providing that the commencement of such action should not affect the employee’s right to recover compensation, there is the further provision that any amount recovered by the employee from a third party shall be applied, after deducting reasonable costs of collection: “ — one-third of the remainder shall in every case belong to the injured employee or his dependents as the case may be; the remainder or so much thereof as is necessary to discharge the actual amount of the liability of the employer and the carrier; and any excess shall belong to the injured employee or his dependents.”

It is our view that the order of the commission directing distribution, after allowing reasonable costs of collection, in the circumstances here is strictly in accordance with the above statutory authority and is correct. .

As indicated, the settlement here was effected without the suit being contested in federal court. It was a voluntary compromise settlement and we think the commission, under the authority of Section 81-1340 (c) had the right to approve the allowance of attorney’s fee and other reasonable costs of collection where, as here, a voluntary settlement Avas made. The commission, after al-loAving "Whetstone $142.40 expenses, itemized as folloAVS:

$ 16.50 Court Costs
100.10 Court Reporter
15.00 Clerk Costs
2.00 Marshal’s Fee
8.80 Pictures

alloAved Maxcy one-third of the balance of $4,851.60, or $1,617.20, and alloAved the insurance carrier, Liberty Mutual, $3,234.40 Avhich was $495.96 less than it had paid Maxcy in compensation benefits.

(2) It appears that in the course of the hearing before the commission, appellant alleged and offered to prove an alleged agreement or contract entered into between him and his attorney and the insurance carrier, Liberty Mutual, whereby he contended that Liberty Mutual agreed to contribute as part of the cost of collection, one-third of the amount it was entitled to receive in the settlement. The commission refused to consider any testimony relating to the existence of the alleged contract. On this issue appellant says, “The Commission, after hearing the testimony covering 37 pages, held that if Maxcy contended that he had a contract (agreement) with Liberty Mutual, with reference to distribution of proceeds, that this was a matter over which the Commission had no jurisdiction; that it was a matter of law and Maxcy must sue in Circuit Court; and that all the testimony in connection with such alleged agreement should be stricken from the record.”

We have concluded that the commission was correct in refusing to consider testimony relating to the alleged contract for the reason that it was without jurisdiction to determine the existence of such a contract. The commission’s powers and jurisdiction are determined and derived from the Workmen’s Compensation Law. Clearly a suit on the enforcement and existence of a contract is for a court of law. We find nothing in the Compensation Act (and appellant has pointed to no such provision) giving the commission jurisdiction in the circumstances here. What we have said in this opinion is not intended to be, and is not, res judicata of appellant’s right, should he so desire, to assert in a court of law whatever rights he may have under the alleged contract with Liberty Mutual. Affirmed.


author: Ed. F. McFaddiN, Associate Justice.

text:
    Nickle v. Nickle.
    5-1376
    306 S. W. 2d 855
    Opinion delivered November 18, 1957.

      Mann & McCulloch, for appellant.

      Langston & Walker and Wayne Foster, for appellee.
   Ed. F. McFaddiN, Associate Justice.

By this appeal the appellant, Mr. Nickle, challenges the Chancery decree which awarded a divorce to the appellee, Mrs. Nickle.

The parties were married in March 1952 and separated in July 1956. Mrs. Nickle sued for divorce, alleging two grounds: habitual drunkenness and indignities. The Chancery Court, after hearing the evidence, found that she was entitled to a divorce on both grounds. Mr. Nickle here claims that the decree is contrary to the preponderance of the evidence and that she did not prove she was entitled to a divorce on either ground. We find it unnecessary to consider the matter of habitual drunkenness because, after carefully studying the evidence, we conclude that the Chancery Court was not in error in granting Mrs. Nickle a decree on the ground of indignities.

Mrs. Nickle testified that Mr. Nickle was addicted to the use of intoxicants and drank to excess during the entire existence of their marriage; that at times he would become violent and abusive; that on numerous occasions in public places Mr. Nickle would humiliate and embarrass her because of his intoxicated condition and would also curse her; that on one- occasion she woke in the middle of the night to find Mr. Nickle standing over her with a gun; and that on two occasions he struck her.

We now discuss Mrs. Nickle’s testimony concerning the two instances of physical violence. In the fall of 1953, when she was in a delicate condition, Mr. Nickle came home drunk at about 4:30 A. M.; Mrs. Nickle finally got him into a car and drove him to his mother’s home; when he got out of the car he struck his wife in the face with his fist, split her lip, and knocked her down. The other time when he struck his wife was on July 16, 1956. Mr. Nickle came home intoxicated that night; Mrs. Nickle was in bed with their little girl; Mr. Nickle grabbed his wife in the pit of her stomach, lifted her out of bed, and dropped her on the floor on her hack, and then slapped her. She separated from him that night.

While Mr. Nickle does not specifically deny these two acts of violence just recited, his defense is that there is no corroboration of Mrs. Nickle’s testimony. We find there is sufficient corroboration in this bitterly contested case. Several witnesses testified as to Mr. Nickle’s intoxicated condition and embarrassing conduct toward his wife in public places. While no witness saw him actually strike his wife on either of the two occasions she has detailed, nevertheless several witnesses saw her split lip in 1953. Also, immediately after the separation in July 1956, one witness testified that Mrs. Nickle had a knot back of her ear; that she had bruises and contusions on the side of her head; that her ear was swollen; and that the side of her face was swollen from the ear to the jaw.

It would serve no useful purpose to detail the other evidence of indignities and the corroboration thereof. We have many cases involving the sufficiency of corroboration in contested divorce cases. Some of them are: Price v. Price, 217 Ark. 6, 228 S. W. 2d 478; Gabler v. Gabler, 209 Ark. 459, 190 S. W. 2d 975; and Goodlett v. Goodlett, 206 Ark. 1048, 178 S. W. 2d 666.

Tested by the rules recognized in these cited cases, we conclude; (a) that there was ample corroboration of Mrs. Niclde’s testimony; and (b) that the Chancery Court was not in error in awarding Mrs. Nickle a divorce on the ground of indignities.

         All matters of property rights, etc. were reserved for later decision in the Chancery Court.

       Both habitual drunkenness and indignities are listed under the Fifth ground for divorce in § 34-1202 Ark. Stats.