author:
Paul Ward, Associate Justice. Sam Robinson, Associate Justice,
      George Rose Smith, Associate Justice,

text:
    Antrim v. McKelroy.
    5-1706
    319 S. W. 2d 209
    Opinion delivered December 22, 1958.
    [Rehearing denied January 26, 1959]

      Q. Byrum Hurst, C. A. Stanfield, for appellant.

      Richard W. Hobbs & B. W. Thomas, for appellee.
   Paul Ward, Associate Justice.

In this litigation appellee, J. A. McKelroy, sought to cancel a deed which he executed to his son (and also to cancel subsequent conveyances stemming therefrom including the one to appellant) on the ground of the lack of sufficient mental capacity at the time said deed was executed. From the decee of the Chancery Court cancelling the deeds and restoring the property to appellee, appellant prosecutes this appeal.

After a careful reading of all the testimony relating to appellant’s mental capacity at the time he executed the deed in question we have concluded the trial court’s finding that he did not have the necessary mental capacity is supported by the weight of the evidence.

We have, however, further concluded that the decree of the trial court cancelling the deeds and restoring the property to appellee must be set aside. Our reasons for this conclusion will be discussed hereafter, and in doing so all relevant testimony will be set out. This makes it unnecessary to re-examine separately all the evidence relative to appellant’s mental status at the time he executed the deed to his son. Some of it will be noted as other points are discussed.

We find that, regardless of appellee’s lack of mental capacity at the time he made the deed, he later ratified the transaction at a time when he was capable of doing so.

For a better understanding of the issues, a brief factual background will be helpful. On March 13, 1954 appellee executed a warranty deed to his son, T. F. Mc-Kelroy, conveying Lots 12,14, and 15 of Block 1 of J. H. Smith Addition to Hot Springs; On May 2, 1955 T. F. McKelroy conveyed the same property to his brother, Scotty E. McKelroy, and his wife, and; on February 16, 1956 Scotty and his wife conveyed the same land to appellant, the consideration being $5,600. This sale was negotiated by H. Ward Conde as appellant’s agent wbo is a real estate broker and wbo apparently assisted appellant with her financial and business affairs generally. •

Appellee’s mental history and condition is adequately set forth in a letter, dated June 6, 1957 and admitted as evidence by agreement, written by Dr. Robert G. Carnahan, Assistant Superintendent of the State Hospital. In substance it shows: Appellee was admitted to hospital first time on March 17, 1954 on a Physician’s Statement but was never admitted through a court; He stayed until May 21, 1954 and was released; He was returned to the hospital on June 7, 1954, and conditionally discharged on October 18, 1954; He was returned November 12, 1954 and conditionally discharged again October 18, 1955. He was completely discharged on October 18, 1956 after he had been out of the hospital a year, and; He has had no further trouble and he could be considered competent at the present time. Dr. Carnahan further stated that he considered it unlikely appellee had sufficient mental capacity to understand the nature and effect of business at the time he executed the deed on March 13, 1954. Other medical testimony regarding appellee’s mental capacity is that contained in a letter by Dr. Charles D. Yohe dated June 18, 1957, admitted by agreement. Dr. Yohe’s testimony, based on an examination of appellee three days previously and on reports by Dr. Carnahan, is, in substance: He agrees with Dr. Carnahan that appellee lacked mental capacity to execute the 1954 deed, but that he was now mentally competent. Among other things, his letter states:

“Relative to the situation that he (appellee) is in, he could now be considered sane and competent”; “. . . as one sees him now ... he does think rationally, forms logical conclusions, and his memory is intact”; “He is not senile.”

In view of the above medical testimony and in view of other lay testimony and certain facts to be later noted, we cannot escape the conclusion that appellee had regained normalcy (to the extent of understanding ordinary business transactions) as early as October 18, 1955. Dr. Carnahan stated that, according to the hospital records, appellee was conditionally discharged on October 18, 1955, and that he was completely discharged one year later. It is not shown that he needed or received any treatment during the intervening one year period. Mrs. Johnson said she saw appellee nearly every day for several years, that she saw and talked to him in September of 1956, and that she saw no difference in his conduct and attitude from that of other neighbors. H. Ward Conde testified to many small business transactions with appellee beginning early in 1956, to which reference will be made later.

It is appellee’s actions and conduct during the year 1956 that impel us to conclude he ratified the 1954 conveyance of his property. It is noted that there were three houses on the lots conveyed by appellee and that appellee’s son and his wife lived in one of the houses. After appellee was discharged from the hospital on October 18, 1955, he went to live with this son. The uncontradieted testimony of Conde was that he told appellee that Scotty and his wife had given appellant a mortgage on the property for $1,800 and that appellee’s only reply was “well, those kids shouldn’t do that”. After this, on February 16, 1956 appellant bought the property assuming the $1,800 mortgage and paying Scotty $3,600 in cash, and took a deed from Scotty and his wife. From that time on Scotty became a renter. Scotty’s wife paid the rent of $30 per month to appellant up to April, 1956. It seems that shortly after this time Scotty and his wife moved to Texas, leaving appellee in the house. Following this appellee paid the rent for May, 1956; In June (same year) he paid $23 and $7 on separate occasions; then appellee asked to have the rent reduced, and appellant made a reduction of $5 per month; and after that appellee made rent payments on June 12, August 20, September 26, September 28, October 2, October 18, and October 30, all in 1956. Appellee admits paying rent. Conde testified that appellee never said anything about being the owner or about not having to pay rent. It was not until appellee got behind with his rent in a sizeable amount and was threatened with eviction that he employed attorneys and filed this suit on January 11, 1957 to cancel the deeds. We feel that these acts on the part of appellee clearly amounted to a ratification of the deed to his son.

This court has many times held that a person who has regained sanity can ratify his act or deed performed while non compos. See: George v. St. L., I. M. & S. Ry. Co., 34 Ark. 613 at page 626; Eagle v. Peterson, 136 Ark. 72, 206 S. W. 55, and; Brandon v. Bryeans, 203 Ark. 1117, 160 S. W. 2d 205. In this connection we have uniformly held that a deed executed by an insane person is voidable only and not void. See: George v. St. L., I. M. & S. Ry. Co., supra; Langley v. Langley, 45 Ark. 392; Eagle v. Peterson, supra, and Brandon v. Bryeans, supra.

The defense of Ratification should ordinarily be pleaded but it was not done in this case, and that gives us some concern. It seems, however, that this is not a fatal defect under certain circumstances and especially where equities are involved.

In the case of Fairbanks-Morse & Company v. Hogan, 201 Ark. 1114, 148 S. W. 2d 162, where a similar question was presented, the court said: “When appellee introduced evidence which tended to create an estoppel there was no objection, and it cannot be complained of now.” While the above case dealt with estoppel, it must also be pleaded as a defense ordinarily. In Parker v. Jones, 221 Ark. 378, 253 S. W. 2d 342, we said: “Where a case is tried upon an issue not tendered by an answer and evidence is introduced concerning it without objection, the answer will be treated as having been amended to conform to the proof and the sufficiency of the answer may not be challenged on appeal.” Where a waiver was not pleaded in Athletic Tea Company v. McCormack, 159 Ark. 405, 252 S. W. 7, it was stated: “It is true appellee did not interpose the waiver as a defense, in his written answer, but, without objection on the part of appellant, evidence was introduced, and the case tried, upon the theory that appellee had been released as surety because appellant waived the weekly reports required by the contract.5 ’ For holdings to the same effect see: Nance v. Eiland, 213 Ark. 1019, 214 S. W. 2d 217, and Bridgman v. Drilling, 218 Ark. 772, 238 S. W. 2d 645. The reason for the rule seems to be based partly at least on the equitable policy of deciding litigation on its merits, and applies only where there is no objection to the introduction of the questioned testimony. There was no objection made in this case.

We cannot help being impressed by the fact that appellant paid $5,600 for the property to one of appellee’s sons without (as she stated in her deposition) knowing about appellee’s mental condition in 1954. In addition, she has made valuable improvements on the property. It would manifestly be unfair for her to suffer the entire loss if, in fact, appellee ratified the transaction at a time when he was sane and in possession of the pertinent facts.

Since, however, there was no plea of ratification, and since it is possible that appellee would have introduced proof in rebuttal had such a plea been made and will do so if given a chance, we have decided the cause should be reversed and remanded for further development, consistent with this opinion, along the lines indicated. It is so ordered.

Reversed and remanded.

McFaddin and George Rose Smith, JJ., dissent; Harris, C. J., and Robinson, J., concur.

Sam Robinson, Associate Justice,

(concurring). I concur for the reason that I believe the pleadings and the evidence justify a conclusion that appellant should prevail on the theory of being a bona fide purchaser without notice of any equities in appellee’s favor.

I am authorized to say that the Chief Justice also has this view.

George Rose Smith, Associate Justice,

(dissenting). The majority rest their decision on the doctrine of ratification. Not only was this defense not pleaded, it was not even mentioned in the briefs filed in this court. We have repeatedly held that an appellant abandons any error not argued in his brief. Harris v. Edwards, 129 Ark. 253, 195 S. W. 1064; Mo. Pac. R. Co. v. Harding, 188 Ark. 221, 65 S. W. 2d 20; Connell v. Rolinson, 217 Ark. 1, 228 S. W. 2d 475. Those precedents are binding on us in the sense that they should be followed or overruled; we are not at liberty simply to ignore them. The rule protects the trial court by not requiring him to pass upon issues not presented to him and protects the appellee by not requiring him to argue points not mentioned in the appellant’s brief. I am unable to join in the majority’s action in ignoring this settled rule of practice.

McFaudin, J., joins in this dissent.


source: Caselaw Access Project

author: Sam Robinson, Associate Justice.

license: Public Domain

text:
    Bowling v. State.
    4924
    318 S. W. 2d 808
    Opinion delivered December 22, 1958.

      Bryan J. McCallen, Claude F. Cooper and Gene Bradley, for appellant.

      Bruce Bennett, AUy. General and Bill J. Davis, Asst. Atty. General, for appellee.
   Sam Robinson, Associate Justice.

The appellant was convicted in Clay County, Arkansas, on the charge of possessing stolen property exceeding in value the sum of $35.00. The information charged, also, that he had previously been convicted of a felony in Oklahoma and had been convicted of a felony in the District Court of the United States for the Eastern District of Illinois. The jury was unable to agree on the punishment, and the court fixed the penalty by sentencing the defendant to ten years in the penitentiary.

On appeal appellant urges several points for reversal, one of which is that the evidence is not sufficient to sustain the conviction. There is no contention that the defendant did not have in his possession merchandise which had been stolen, consisting of several guns, bnt appellant does maintain that there is no substantial evidence from which an inference can be drawn that he knew the guns had been stolen. In view of the fact that the judgment must be reversed on other grounds, there is no need to abstract the evidence here. Suffice it to say that in our opinion there is substantial evidence to sustain the verdict.

Appellant contends that the State was permitted to impeach its own witness,. Charles Skaggs. The court permitted the prosecuting attorney to cross-examine this witness, on the theory that the prosecution was surprised by his testimony. Apparently the cross-examination included the reading from documents by the prosecuting attorney in the presence of the jury. The question is whether the cross-examination went so far that it can be said to amount to impeachment, but it is not necessary to dwell on this point, because in a new trial there will be absent the element of surprise giving the State’s attorney the right to cross-examine a State’s witness.

The jury was unable to agree on the punishment. Therefore, on the authority of Ark. Stat. § 43-2306, the court assessed the punishment by sentencing the defendant to ten years in the penitentiary. Appellant contends that the statute authorizing the court to fix the punishment is contrary to several provisions of the Constitution. But we do not reach the constitutional question. The rule is well established that the Constitution is not construed unless the cause cannot be disposed of on any other ground. Bailey v. State, 229 Ark. 74, 313 S. W. 2d 388.

On cross-examination, over the objection and exception of defendant’s counsel, the defendant was asked if he had been charged with other crimes. This was error. In Reddell v. State, 216 Ark. 197, 224 S. W. 2d 812, we said: “It is well settled in Arkansas that the defendant as a witness may not be questioned about mere previous arrests, indictments, or charges filed against him. The mere fact that a charge has been made, as distinguished from the doing of a criminal act or a conviction therefor, tends to prove nothing as to the credibility of the witness. Johnson v. State, 161 Ark. 111, 255 S. W. 571; Wray v. State, 167 Ark. 54, 266 S. W. 939; Jutson and Winters v. State, 213 Ark. 193, 209 S. W. 2d 681. And see 3 Wigmore, Evidence (3d Ed., 1940) § 980a.”

After his arrest on November 24, 1956, the defendant’s case was set for trial the following January. The case was continued to April 22nd. At that time the defendant failed to appear, and his bond was forfeited. In explaining his absence, on April 22nd, he stated that he was in jail at Kennett, Missouri, from February 1st to July 16th. The fact that the bond had been forfeited was wholly immaterial, as was the reason for the defendant’s absence. Neither sheds any light on the issue of the guilt or innocence of the accused, and we do not think the defendant’s effort to explain his absence by stating he was in jail in Missouri opened the door for the prolonged cross-examination of the defendant about other charges. The first fifteen pages of the record given to cross-examination are devoted almost exclusively to questioning the defendant about other offenses and other charges. Of course, we have held that a witness (and this includes the defendant who takes the stand in his own behalf) can be asked on cross-examination about acts embracing moral turpitude, for the purpose of shedding light on his credibility. But the rule is universal that a witness cannot be asked if he has been indicted or charged with an offense. “Nor should the court permit a question whether the witness has ever been arrested, incarcerated or imprisoned, accused, charged with, informed against, tried without being convicted, or indicted, or prosecuted for crime.” Under-hill’s Criminal Evidence, 5th Ed., Yol. 1, § 244.

It would unduly extend this opinion to set out the fifteen record pages of cross-examination above mentioned, but a liberal portion of it is as follows:

“Q. Doc, how old are you? A. 38 years old.

Q. Where were you born? A. Clinton, Arkansas.

Q. Where is Clinton? A. Yan Burén County.

Q. When did you move to Missouri? A. In 1941 when I came to Missouri.

Q. You moved to Missouri in 1941? A. Yes sir.

Q. Were you ever arrested or convicted of anything in Arkansas before you moved to Missouri? A. No, sir.

Q. You had never been charged over there with anything? A. No, sir.

Q. Are you sure of that? Public drunkenness or anything else? A. No, sir.

Q. You moved from Clinton right to Missouri? A. No, sir, moved from Clinton to Henrietta, Oklahoma.

Q. Is that where you stole the cattle? A. Where I, was supposed to have stolen cattle.

(Previously the State had proved the conviction for stealing domestic animals.)

Q. You weren’t guilty of that either? A. No, sir.

Q. But you were tried by a jury? A. Yes, sir.

Q. And found guilty by the jury? A. Yes, sir.

Q. You started serving time when? A. I believe the spring of ’40.

Q. When did you get out, February ’41? A. I believe that’s right.

Q. When did you go in service? A. January 5, 1942.

Q. You were in service about three years? You got out what month in ’45? A. I got out October 12th.

Q. October 12, 1945. How many days was it before you stole the car? A. I couldn’t be exact.

(In its case in chief, the State had proved this offense.)

Q. How many days did you have the car before you were arrested? A. I thinlc maybe over night, something like that.

Q. If you were arrested 11/17/45, then you stole it on the 16th, didn’t you? Did you steal the car or did they have you charged with it? A. I drove my ear and left the— went in a saloon, and got in another car and drove it off. I stopped at Centralia, Illinois at a beer joint.

Q. You didn’t have a bill of sale on that car? A. I didn’t have nothing.

Q. You pleaded guilty there, too? A. No.

Q. Did you plead guilty? A. I did.

Q. What was your lawyer’s name? A. Mr. Hans W. Wulff of St. Louis and I believe Mr. George K. Reeves from Caruthersville.

Q. You plead guilty there in stealing a car? A. Yes, sir.

Q. But you plead not guilty of larceny of domestic animals, cattle theft? A. Yes, sir.

Q. You were out of the Army less than a month when you got in trouble stealing a car? A. I would say around that length of time.

Q. When did you get out of the Federal Penitentiary? A. I don’t remember.

Q. Was it December 29, 1946? A. I believe it was along about that time, yes, sir.

Q. Where did you serve the Federal time ? A. Leavenworth.

Q. On January 6, 1954, were you picked up by the State Highway Patrol at Poplar Bluff? A. What day?

Q. January 6, 1954.

ME. CO OPEE: That is objected to.

Q. In January—

ME. COOPEE: He can ask if he was convicted.

ME. SHELL: You asked about charges, Mr. Cooper.

ME. COOPEE: No matter about that. All he can ask (is) if he has been convicted or if he did a certain thing.

COUET: Mr. Cooper, did you ask this witness on direct examination about charges he had been placed in jail on?

ME. COOPEE: No, sir, I certainly did not. If I did, I was asleep.

ME. SHELL: I would remind the court about all the charges in Missouri having been dismissed and that have not been dismissed. I submit that opened it up.

COUET: Did you ask him about the charges he had been placed under?

ME. COOPEE: I asked why he didn’t come to Arkansas on charges —

COUET: I am asking you this question, Mr. Cooper, did you ask about charges he had been placed in jail on?

ME. COOPEE: Yes, sir, in Caruthersville.

COUET: Then this is proper cross examination.

ME. BEADLEY: Just a minute.

(Conference at the bench.)

ME. BEADLEY: The court then is overruling Mr. Cooper’s objection?

COURT: Sustaining the objection to that question there. The court is permitting the prosecuting attorney to examine on any charges since December 1956 for the reason that the direct examination of the defense counsel made it competent.

MR. BRADLEY: Of course the defendant is objecting to the court’s ruling. Exception.

MR. COOPER: If the court please, my objection was to the whole business.

COURT: I sustained the objection to 1954, but by your direct examination of defendant on charges since December 1956, the court is holding this is competent for the prosecuting attorney to examine him on arrests and charges since December 1956.

MR. BRADLEY: Same objection.

COURT: All right.

MR. BRADLEY: Same exception.

Q. In May 1954, in or about Poplar Bluff, did you break into any place and steal something?

A. No, sir.

Q. You didn’t? Specifically the date is May 6, 1954.

MR. COOPER: I object to that.

COURT: Overruled.

MR. COOPER: Exception.

A. No, sir.

Q. On or about April 9th, or on or about April 7, 1955, in or around Caruthersville, Missouri, did you steal anything? A. No, sir.

Q. What happened to you between January and April? A. I was put in jail at Kennett.

Q. On charges over there for receiving stolen property, property alleged to have been stolen from places in Missouri? A. No, sir, not at Kennett.

MB. COOPER: We object to that.

COURT: Overruled.

MR. COOPER: Exception.

Q. Why were you put in jail? A. The warrant you fellows sent over there.

Q. Is that why you were put in jail over there first? A. At Kennett, yes.

Q. After you made bond in November or December, you came back to court in January, didn’t you? A. Yes, sir.

Q. You left here? A. Yes, sir.

Q. Freely and voluntarily? A. Yes, sir.

Q. Went back to Missouri? A. Yes, sir.

Q. You were in jail in April at the time the bond was forfeited, were you not? A. Yes, sir.

Q. What were you in jail for then? A. I don’t remember the charge right now.

Q. You are telling the jury you were in jail and you don’t even remember the charge? A. I don’t.

Q. As the truth of the matter, you know what the charge is, receiving stolen property alleged to have been stolen from places in Missouri, wasn’t it? A. No.

MR. COOPER: I object to the manner of examination of this witness. If Mr. Shell wants to know, he can get the alias warrant issued and the information from over there.

COURT: Mr. Cooper, the examination is proper and the statement you made is improper.

MR. SHELL: The alias warrant was issued after the bond was forfeited.

Q. Where were you in jail on—

MR. BRADLEY: I would like a ruling on Mr. Cooper’s objection.

COURT: Overruled.

MR. COOPER: I am objecting to statement of the prosecuting attorney testifying what was done because the record speaks for itself.

COURT: Do you want the court to state what the record shows?

MR. SHELL: Yes, sir, at this time I would like the court to state.

MR. COOPER: Yes, sir, I would like to see the record.

COURT: April 22, 1957, defendant called three times, failed to answer. Not present, forfeiture on bond, alias warrant for defendant.

MR. SHELL: That is on the—

COURT: April 22, 1957.

Q. Where were you on April 22, 1957? A. In jail at Kennett.

Q. What kind of charge? A. I don’t remember what the charge was.

Q. And at that time there were also charges against you in Pemiscot County and another county, three different counties, wasn’t there? A. No sir, there was two counties.

MR. COOPER: I ask that the witness be given time to answer the questions.

COURT: He can’t answer with you interrupting. The witness was trying to answer with you talking. Co ahead and answer.

A. Two counties in Missouri had warrants for me.

Q. You are telling this jury you can’t remember the charge? A. No, not Kennett.

Q. What in the other counties! A. Pemiscot, burglary and larceny.

Q. What other charges! A. That’s all.

Q. Did you have a charge of receiving stolen property or buying stolen property! A. No, sir.

Q. You don’t know what the charge was in Ken-nett! A. No, I don’t remember what it was. I had it read to me.

Q. Do you remember if it was murder! A. No, it was not murder.

Q. Do you remember whether it was rape! A. No, it wasn’t that.

Q. Do you remember whether it was stealing an automobile! A. I don’t remember what the charge was.

Q. You were in jail but you don’t remember what the charge was! A. That’s right.”

The rule is that a witness cannot be asked if he has been charged with a crime. There was nothing in the direct examination of the defendant that justified the prosecution in pursuing the subject of the defendant’s incarceration in the Kennett, Missouri, jail. He was asked on cross-examination: “Q. What happened to you between January and April! A. I was put in jail at Ken-nett. Q. On charges over there for receiving stolen property, property alleged to have been stolen from places in Missouri! A. No, sir, not at Kennett.” and “Q. As the truth of the matter, you know what the charge is, receiving stolen property alleged to have been stolen from places in Missouri, wasn’t it!” and “Q. Where were you on April 22, 1957! A. In jail at Kennett. Q. What kind of charge! A. I don’t remember what the charge was. Q. And at that time there were also charges against you in Pemiscot County and another county, three different counties, wasn’t there!” Questions concerning other charges against the defendant were repeated again and again by the prosecution. The effect of these questions was to impress upon the jury that the defendant had been charged in Missouri with offenses similar to the one for which he was then being tried. Evidence of other crimes (not charges) is admitted solely for the purpose of shedding light on the credibility of the witness, but such evidence is not admissible for the purpose of showing that the defendant is a person likely to commit the offense charged. Alford v. State, 223 Ark. 330, 266 S. W. 2d 804; Moore v. State, 227 Ark. 544, 299 S. W. 2d 838.

Next, the appellant contends that the federal offense of transporting a stolen automobile in interstate commerce will not support the charge of having been convicted of a prior offense under our statute. Act 228 of 1953 (Ark. Stat. §§ 43-2328-43-2330) is known as the “Habitual Criminal Act”. The first section (Ark. Stat. § 43-2328) deals with the punishment when the prior offense was committed in this State. Section 2 (Ark. Stat. § 43-2329) applies where the prior conviction was not in the courts of Arkansas. Section 2 provides:

“SECTION 2. Effect of conviction in another State. Any person convicted in any of the United States, or in any district or territory thereof, or in any Federal Court, or in a foreign country, of an offense which, if committed in this State, would be punishable by the laws of this State by imprisonment in the penitentiary, shall, upon conviction for any subsequent offense punishable by imprisonment, within this State, be subject to the punishment prescribed in Section 1 upon subsequent convictions, in the same manner and to the same extent as if such first conviction had taken place in a court in this State.” (Emphasis ours)

Obviously before Section 2 would apply the offense committed elsewhere would have to be punishable by the laws of this State if committed here. The evidence introduced by the State to prove the charge of having been convicted of a felony in a district court of the United States showed that the defendant had pleaded guilty to the violation of the Dyer Act on two counts. Appellant cites Landreth v. Gladden, 253 Or. 205, 324 P. 2d 475, as authority for the proposition that a prior conviction of transporting a stolen automobile in interstate commerce cannot be used as the basis for a charge of a prior conviction under a statute substantially the same as our Habitual Criminal Statute. But in the case at bar, not only did the defendant plead guilty to violating that section of the Dyer Act (18 U. S. C. A. § 2312) dealing with transporting a stolen vehicle in interstate commerce, but pleaded guilty, also, to violating § 2313, which provides: ‘ ‘ § 2313. Sale or receipt of stolen vehicles. Whoever receives, conceals, stores, barters, sells or disposes of any motor vehicle or aircraft, moving, as, or which is a part of, or which constitutes interstate or foreign commerce, knowing the same to have been stolen, shall be fined not more than $5,000 or imprisoned not more than five years, or both.”

The distinction between § 2312 and § 2313 is pointed out in the Landreth case, and there the conviction in the federal case was under § 2312, which applies to transporting a stolen automobile in interstate commerce. Section 2313 makes it unlawful to “receive” a stolen automobile moving in interstate commerce, and such an act would also be a violation of the laws of this State. The fact that the vehicle was or was not moving in interstate commerce would be immaterial. People v. Morgan, 270 App. Div. 859, 60 N. Y. S. 2d 774.

For the error in permitting the State to cross-examine the defendant in regard to other charges, the judgment is reversed and. the cause remanded for new trial.


author: William J. Smith, Associate Justice.

text:
    Smith v. Thomason.
    5-1707
    318 S. W. 2d 814
    Opinion delivered December 22, 1958.

      Garvin Fitton and Arnold Adams, for appellant.

      Virgil D. Willis and Eugene W. Moore, for appellee.
   William J. Smith, Associate Justice.

This case grew out of an automobile accident that occurred on U. S. Highway 62 in Carroll County at a place known as Mockingbird Hill on March 23, 1956 at approximately 10:30 o ’clock in the evening.

All of the appellees, E. O. Thomason, his wife, Imogene Thomason, his son, David Thomason, Pearl Boren and Freda Boren, were riding in an automobile traveling to the east and being operated by E. O. Thomason, when at the crest of Mockingbird Hill it collided with an automobile traveling to the west on the south side of the highway being operated by appellant Joe R. Hosley, and also occupied by Roy Larimer. The Hosley automobile had come up the hill almost abreast of an automobile being operated by appellant Jerral Smith, and also occupied by David Gooley, Leon Hudson, Raymond Bunch and John D. Lively. The Smith automobile remained on the north side of the highway and did not collide with either of the other two automobiles. Appellant Arthur C. Berry had signed for a driver’s license for his stepson, Joe R. Hosley, who was 16 years of age, and appellant Joseph H. Smith had signed for a driver’s license for his son, Jerral Smith, who was 17 years of age. Sec. 75-315, Ark. Stats. 1947.

Appellees filed a complaint against appellants in which they alleged that Hosley and Jerral Smith were negligent in speeding and racing; that Hosley was negligent in attempting to pass the Smith automobile; that Jerral Smith was negligent in speeding up to prevent Hosley’s passing; that Jerral Smith was negligent in crowding Hosley’s automobile; and, that Hosley was negligent in operating his automobile on the left-hand side of the highway. Appellees prayed a judgment against appellants for damages to compensate for personal injuries and property damage. The cause was tried to a jury and was submitted on interrogatories. Pursuant to the jury’s answers to the interrogatories the court entered a judgment for appellees for a total of $21,500, together with costs.

Appellants rely upon ten points for reversal of the trial court’s judgment and we have determined that at least one of these points requires that the cause be remanded for a new trial. We agree with appellants’ contention that it was prejudicial error to permit appellees to impeach their own witness, Roy Larimer, by introducing a statement previously signed by him. This witness was called by appellees and on direct examination testified in part as follows: “Q. Did Jerral Smith speed his car up? A. I can’t say. Q. Did you succeed in passing the Jerral Smith car? A. No, sir. Q. What prevented it? A. Either our car lost speed or he speeded up. * * * Q. Do you know why you didn’t get ahead of him? A. No, sir. * * * Q. It just happened instantly? A. It happened pretty fast. Q. Roy, to refresh your memory I want to ask you if you signed this statement? Mr. Adams: We object to the impeachment of the witness. Mr. Willis: I am not impeaching him. The Court: Is it contradictory to what he has testified? Mr. Willis: No, because he says he doesn’t know whether his car slowed or whether Jerral Smith speeded up. ” Thereafter the court permitted appellees to show this witness his previous statement and then ask if it refreshed his memory. When the witness answered “not too much”, appellees announced to the court that they were taken by surprise and the court ordered the matter argued out of the presence of the jury. After the jury retired testimony and argument were heard by the court relative to Larimer’s statement and the circumstances under which it was signed. The jury was recalled and over the continuing objection of appellants this procedure was followed: “Further examination by Mr. Willis: Q. Roy, did you sign a written statement presented to you by the Deputy Sheriff of Carroll County in regard to this accident here about 3 months ago? A. Yes, sir. Q. Is this the statement which you signed? A. Yes, sir. Mr. Willis: May I read it to the jury? The Court: Very well (reading from the written statement) ‘I was a passenger in an automobile driven by Joel Hosley; that about half way between Alpena and Green Forest the Hosley car overtook a car driven by Jerral Smith. Hosley attempted to pass the Smith car on the west slope of the hill. Smith speeded up to prevent Hosley from passing and there was a race through the hollow and on up the Mockingbird Hill. We were traveling side by side when we reached the top of the hill. The Hosley car struck a car at the top of the Hill. ’ Signed Roy Larimer. The Court: Mr. Willis, I think the court should mention to the jury at this point the statement that you have read, which the witness has stated he signed previously, if you find that it contradicts the testimony that he is giving now, or has given, you will consider it solely and only for the purpose of going to the credibility of this witness, and in determining how much credit should be given to his testimony, not to prove any facts in issue.”

Prior to the introduction of this statement, Larimer had given no positive testimony relative to the allegations that the boys were speeding and that Smith had speeded up to prevent Iiosley from passing. These questions were vital and all important and had a direct bearing upon the liability, if any, of appellants. The use of Larimer’s statement served to supply a deficiency at that point in the trial in appellees’ evidence. Under these circumstances appellees were permitted to introduce a statement containing substantive evidence not otherwise admissible by contending it was for impeachment purposes, Sec. 28-706, Ark. Stats. 1947, at a time when there was nothing to impeach and nothing to contradict. We hold that this was prejudicial and was error, even though the court instructed the jury that the statement was to be considered as only going to the credibility of the witness. It is significant that appellees admitted (see counsel’s statement above) that Larimer had not testified to the contrary and it is to be noted that he had not testified to anything prejudicial to appellees. The mere fact that he did not give the positive testimony anticipated by appellees did not render his previous statement admissible, and enable them to use his statement to supply evidence they had failed to elicit from him.

In the recent case of Milum v. Clark, 225 Ark. 1040, 287 S. W. 2d 460, this court stated: “For such evidence to be admissible, however, the witness to be impeached must have given substantive testimony damaging to the party who seeks to attack his credibility. It is settled that inconsistent prior statements cannot be used to impeace a witness who merely fails to give the positive testimony that the party expected from him. Doran v. State, 141 Ark. 442, 217 S. W. 485; Murray v. State, 151 Ark. 331, 236 S. W. 617; Williams v. State, 184 Ark. 622, 43 S. W. 2d 731. The reason is that the prior statements are not competent evidence of the basic fact, being hearsay, and are admissible only as bearing on the issue of credibility. Comer v. State, 222 Ark. 156, 257 S. W. 2d 564. But if the witness has testified to nothing his credibility is immaterial.”

The test for determining when a party may impeach his own witness by the use of contradictory statements requires two conditions: First, the witness must give testimony at variance with that anticipated by the party calling him; and, second, such testimony must be prejudicial or detrimental to the case of the party calling him. Here the witness testified to nothing in favor of or against the party calling him. 58 Am. Jur., “Witnesses”, Secs. 799 and 800.

Ordinarily we would not refer to the other points argued in the briefs, but since this ease is being remanded for a new trial, we think it proper for us to discuss certain of the points raised.

The first four points argued by appellants pertain to the voir dire■ examination of the veniremen on the subject of insurance. The rules governing voir dire inquiry into this subject were set forth in the case of DeLong v. Green, 229 Ark. 100, 313 S. W. 2d 370, and we do not consider it necessary for us to further elaborate on the rules laid down in that case.

During the trial of this cause the appellants who are minors moved for a directed verdict because a guardian had not been appointed to defend them, as required by Sec. 27-825, Ark. Stats. 1947. We do not think they were entitled to a directed verdict, but a mistrial, as to these minors, should have been ordered. This would have halted the proceedings against these minors until there was a compliance with the statute.

The only other point we deem it necessary to mention is appellees’ closing argument in which counsel stated: “* * * Mr. Adams didn’t call them — he asked why we didn’t call them, because gentlemen of the jury we have got their statements in the file and their statements are they were racing and that car increased his speed.” Appellants objected and requested the court to admonish the jury not to consider the statement, and this was done. We are constrained to say that in our opinion this statement was highly improper and grossly prejudicial and would have called for a mistrial upon proper motion by appellants. Gregory v. Rees Plumbing Co., Inc., 222 Ark. 908, 263 S. W. 2d 697.

The judgment is reversed, and the cause is remanded.


text:
    Andrews v. Lauener.
    5-1724
    318 S. W. 2d 805
    Opinion delivered December 22, 1958.

      J. Kenton Cochran, for appellant.

      Bichard Mobley, for appellee.
   William J. Smith, Associate Justice.

This is an appeal from a decree by the Chancery Court of Pope County dismissing the appellants’ action alleging that a mineral deed from Luller Etta Webb and John M. Webb to W. E. Lauener, conveying an undivided one-half interest in all oil, gas and other minerals in, under, and •upon the following described lands lying in Pope County, Arkansas, to-wit: The South Half of the Northeast Quarter; Southeast Quarter of Northwest Quarter; Northeast Quarter of Southeast Quarter; all in Section 26, Township 9 North, Range 18 West, dated the 2nd day of August, 1929, appearing of record in book 4-E, page 526, of the Deed Records of Pope County, Arkansas, is a forgery.

The appellants first argue that the court erred in refusing to strike the appellees’ answer. On December 11, 1957, appellant B. B. Andrews verified the appellants’ complaint and on the next day the appellants filed a motion to strike the appellees’ answer because it was not verified. This motion was not presented to the court until the appellants had completed their proof and the appellees had moved for dismissal on February 4,1958. At that time the court permitted appellee W. E. Lauener to verify the answer in open court. We find no error in this procedure.

In construing Ark. Stats. 1947, Sec. 27-1105, pertaining to the verification of pleadings, we said in Bank of Dover v. Jones, 192 Ark. 740, 95 S. W. 2d 92, that the court did not abuse its discretion in permitting the defendant to verify her answer when it became apparent that the plaintiff sought to take advantage of her failure to do so.

The second point raised by the appellants is the contention that the court erred in denying their motion for a continuance. In determining whether this point has any merit, we think it significant that the motion was not presented until the day the case was set for trial when the appellees and their witnesses were present and ready for trial; that this case was set on November 21, 1957, for trial on December 19, 1957, and continued due to the inability of the court to hear the matter on that date; and, on January 16, 1958, the case was set for trial on February 4, 1958. Certainly the appellants had sufficient notice of the trial date to be prepared. Further, they made no effort to comply with the statute pertaining to information to be filed in support of a motion for continuance, Ark. Stats. 1947, Sec. 27-1403. It is settled law, Crisco v. Murdock Acceptance Corporation, 222 Ark. 127, 258 S. W. 2d 551, that whether a continuance should be granted is a matter within the sound discretion of the trial court. We find nothing in the record to indicate an abuse of the court’s discretion in denying this motion and in our opinion the appellants’ argument on this point is without merit.

Next, the appellants urge that the court’s findings are against the preponderance of the evidence.

Appellants B. B. Andrews and Luller Etta Webb did not attend the trial and testify, and the notary, B. L. Hillis, and W. L. Hamm, the witness to the mark of John M. Webb, were deceased.

The court heard voluminous testimony from nine witnesses in behalf of the appellants and four witnesses (including one hand-writing expert) in behalf of the appellees. Several of the appellants’ witnesses limited their testimony to collateral issues. The appellants introduced six exhibits, and seventeen exhibits were introduced by the appellees. A great deal of this evidence was conflicting and we can see no useful purpose in summarizing it in this opinion. A careful review and consideration of all the evidence convinces us that the trial court’s finding that the disputed deed is not a forgery is supported by a preponderance of the evidence. Having so determined the issue on the allegation of forgery, we do not reach the court’s finding as to limitations and laches.

The fourth and last point argued by the appellants calls for a ruling on a question we have not decided since Act 555 of 1953 was enacted, Ark. Stats. 1947, Sec. 27-2106.1, et seq.

After giving notice of appeal but before the record was filed in this Court and the case was docketed in this Court, the appellants filed a motion to vacate the judgment, and the appellees then filed a motion to quash, on the ground that the court was divested of jurisdiction by the filing of notice of appeal. The motion to quash was granted and we have concluded that this was error. The trial court held that after notice of appeal was filed it retained limited jurisdiction and could act only pursuant to Ark. Stats. 1947, Sec. 27-2127.1 and Sec. 27-2129.1.

In construing Act 555 of 1953, we note that the General Assembly said: ‘If an appeal has not been docketed in the Supreme Court . . .” (Sec. 27-2106.1); “. . . and if the action is not yet docketed with the appellate court . . .” (Sec. 27-2107.2); “The record on appeal shall be filed with the appellate court and the appeal there docketed . . .” (Sec. 27-2127.1); “Where the Supreme Court has acquired jurisdiction of a cause, but it is made to appear that the record is incomplete for want of documents, exhibits, or a bill of exceptions, and the trial court has lost such jurisdiction . . .” (Sec. 27-2129.2). In our opinion there is a clear legislative intent in this Act that after notice of appeal is filed the trial court retains jurisdiction of the case until the record (under proper circumstances a partial record, Norfleet v. Norfleet, 223 Ark. 751, 268 S. W. 2d 387) is filed with this Court and the appeal is docketed in this Court, and we so hold.

However, we have determined that this holding does not require that the case be reversed, because the motion to vacate does not allege facts sufficient to put in issue the chancellor’s qualification.

The appellants’ motion to vacate the judgment is predicated upon the allegation that the chancellor who rendered the decree against them was disqualified by-reason of his former service, many years ago, as counsel in a similar case.

Article 7, Sec. 20 of the Constitution of the State of Arkansas is as follows:

“No judge or justice shall preside in the trial of any cause in the event of which he may be interested, or where either of the parties shall be connected with him by consanguinity or affinity, within such degree as may be prescribed by law; or in which he may have been of counsel or have presided in any inferior court.”

We find no allegation indicating to us that the chancellor may be interested in the case; or, that the chancellor is connected with any party to the suit by consanguinity or affinity; or, that he has acted as counsel in this cause. The mere allegation that the chancellor acted as counsel in similar litigation many years ago between different parties is certainly not sufficient to put his qualification in issue in this case. Something more than a suggestion of disqualification is required to support such a motion. Rowland v. State, 213 Ark. 780, 213 S. W. 2d 370.

The appellees found it necessary to file a supplemental abstract, without which we could not have considered the merits of this case. Under our Rule 9(e) .they have requested and are entitled to additional costs in the amount of $85.50.

The decree is affirmed.


author: William J. Smith, Associate Justice. Carleton Harris, C. J.

text:
    Rose v. Rose.
    5-1693
    318 S. W. 2d 818
    Opinion delivered December 22, 1958.

      Peyton D. Moncrief, for appellant.

      No brief filed for appellee.

   William J. Smith, Associate Justice.

It appears that Mrs. Wilmer A. Bose filed a charge of insanity against her husband in the Probate Court of Arkansas County, Southern District, and following a hearing, without notice to him and at which he was not present, the court adjudged him insane and ordered him committed to the State Hospital for Nervous Diseases. This appeal is by C. P. Bose, father and next friend of Wilmer A. Bose.

The appellant has argued several points for reversal, one of which is the court’s failure to comply with the statutory requirement that a person be present before the court at the time his sanity is inquired into, Sec. 59-101, Ark. Stats. 1917. In the case of Monks v. Duffle, 163 Ark. 118, 259 S. W. 735, we discussed the-mandatory provision of this statute, stating:

“The order contains no recital that appellant was before the probate court when the condition of her mind was inquired into. Under Article 7, Sec. 34, of the Constitution of 1874, exclusive jurisdiction in matters relating to persons of unsound mind and their estates is conferred upon probate courts. Watson v. Banks, 154 Ark. 396. This jurisdiction can be exercised only in the special manner provided in Sec. 5829 of Crawford & Moses’ Digest, which is as follows: ‘If any person shall give information in writing to such court that any person in his county is an idiot, lunatic, or of unsound mind, and pray that an inquiry thereof be had, the court, if satisfied that there is good cause for the exercise of its jurisdiction, shall cause the person so charged to be brought before such court and inquire into the facts by a jury, if the facts be doubtful.’

“It will be observed that, in order to exercise its jurisdiction, it was necessary to have appellant before the court. Where the jurisdiction conferred upon a court must be exercised in a special manner, and not according to the course of the common law, it is necessary for the facts essential to the exercise of such jurisdiction to appear in the record. Oliver v. Routh, 123 Ark. 189; Massey v. Doke, Id., 211; Jones v. Ainell, Id., 532. The failure of the record to affirmatively show the presence of the appellant in court when the condition of her mind was inquired into renders the probate order void. The letter of guardianship must fall with the order. ’ ’

In the case of Hyde v. McNeely, 193 Ark. 1139, 104 S. W. 2d 1068, we said:

“The direction that the subject of the inquiry be brought before the court has been held to be mandatory, and an order which fails to recite such jurisdictional fact is void. ’ ’

It is undisputed that Wilmer A. Rose was not present at the time when the court adjudged him insane and ordered him committed. Accordingly, under the statute and eases, supra, the court was without jurisdiction to make the order and it must be reversed.

The circumstances in this case are quite different from those we had under consideration in Barbee v. Kolb, Superintendent, 207 Ark. 227, 179 S. W. 2d 701, wherein Barbee was seeking his release from the State Hospital for Nervous Diseases in a habeas corpus proceeding. During the hearing on his petition, Barbee established by his own witnesses that he was of unsound mind. In this case Rose has appealed from the order declaring him to be of unsound mind and we are called upon to determine whether there was reversible error in the proceedings in the trial court.

If Wilmer A. Rose is still confined to the State Hospital for Nervous Diseases, he should remain in protective custody while a hearing is had in compliance with the applicable statute, supra.

The order is reversed and remanded for further proceedings consistent with this opinion.

Carleton Harris, C. J.

(dissenting). While I agree with the majority that Rose is entitled to a hearing, I do not agree that the order should be reversed. These exact contentions were made to the Court in the case of Barbee v. Kolb, Supt., 207 Ark. 227, 179 S. W. 2d 701. There, Barbee, through habeas corpus proceedings, sought to obtain his discharge from the State Hospital for Nervous Diseases, setting out that the proceedings of the Probate Court committing him to the hospital were void for the following reasons:

‘ ‘ a. Such proceedings were conducted in the absence of appellant and without his knowledge because he was not given notice of the institution and pendency of such proceedings or the nature of the charge, or the time when and the place where the hearing thereof would be had; * * *
* sfc # # *
c. No competent evidence was introduced tending to establish appellant’s insanity.”

The proof showed that the commitment was issued by the Probate Judge, following the filing of the affidavit and interrogatories of the doctors. Barbee was not present and was not notified in any way of the proceedings thereto. This Court, in passing upon appellant’s contentions, stated:

“For the purpose of this opinion we may, and do, assume, without deciding, that such proceedings were not in conformity to then existing law. It is not contended that the warrant for commitment was void on its face. On the contrary, such warrant was introduced in evidence by appellant’s attorney, and the copy thereof set out in the record before us discloses that the same was, on its face, in all things regular.
Since appellant, indubitably an insane person, was delivered to appellee Kolb under a warrant of commitment regular on its face, such appellee acquired rightful custody of appellant, and became charged with certain duties and responsibilities with respect to him regardless of whether the inquisition for determination of his sanity was entirely regular.
At 28 Am. Jur. 679, it is said: * * if the evidence indicates that one committed to an institution for the insane is actually insane, the court should not order his discharge, regardless of the invalidity of the proceedings under which he was committed, but should direct his continued restraint until such time as proper proceedings can be had for a formal adjudication of insanity.’ * * *”

In Payne v. Arkebauer, 190 Ark. 614, 80 S. W. 2d 76, it was held that, while a person charged with insanity must be present in a proceeding for appointment of a guardian, such presence is not necessary in a proceeding solely for a commitment.to the state hospital. In the instant case, the order was valid on its face, and recited evidence by physicians to establish the incompetence of Rose, including the oral testimony of one physician. The other, Dr. Kolb, in his certificate, stated:

“My diagnosis is maniac depressive reaction, maniac type, and he is incompetent. I feel this man can be potentially dangerous to himself and others.
In view of the above pattern of behavior, it is evident that prolonged psychiatric care will be needed for a recovery. If he will not submit to hospitalization voluntarily, then I recommend commitment.”

There is nothing to prevent Rose from instituting habeas corpus proceedings for a hearing on his sanity here in Pulaski County, and, in my view, this would be the proper step. While the majority hold that the Court was without jurisdiction, and reverse the order, they state that Rose “* * * should remain in protective custody while a hearing is had in compliance with the applicable .statute, supra.” This, to me, is inconsistent, for I see no authority for the hospital authorities to hold Rose if the order of commitment is invalid. It is true that the superintendent himself can still apply for an order of commitment under the provisions of Section 59-234, Ark. Stats. (1947) Anno., (and, for that matter, under Section 59-236, no liability is incurred by the superintendent or staff for the detention of any person until 30 days after such patient has made demand in writing for his release). But I see no reason to impose this duty upon the superintendent in the instant case. Under the Barbee case, supra, Rose could obtain his hearing, but would remain in custody until his sanity was determined.

For the reasons herein set out, I respectfully dissent.


author: Carleton Harris, Chief Justice. J. Seaborn Holt, J.,

text:
    Bruere v. Mullins.
    5-1671
    320 S. W. 2d 274
    Opinion delivered January 12, 1959.
    [Rehearing denied February 23, 1959]

      Mahony d Yocum é Eugene R. Warren, for appellant.

      Brown d Compton, for appellee.
   Carleton Harris, Chief Justice.

This is a will contest. K. W. Bullion of El Dorado died on February 12, 1957. Among Ms effects was found the will here in question. Under tbe terms of this instrument, $2,500 was left to the Roman Catholic bishop of Little Rock to be used for the best interest and welfare of the Church of the Holy Redeemer in El Dorado, and the balance of the estate was devised to appellee herein, M. E. Mullins. Appellants, a niece and nephew of the deceased, filed a petition objecting to the admission of the said document to probate as the Last Will and Testament of K. W. Bullion, alleging that K. W. Bullion lacked the mental capacity to make a will on April 16, 1954 (execution date of the will), and later amended the petition to further allege that appellee exerted and exercised undue influence on the deceased, “causing him to disinherit his kin and devise his entire properties to her.” The court was asked to declare the instrument null and void. Following the filing of a response to the petition and amendment, denying such allegations, and after various other motions and orders, the cause proceeded to trial. Subsequent to a lengthy and extended hearing, the court found that K. W. Bullion was mentally competent to make the will, that no undue influence was exercised upon him, and that the instrument should be admitted to probate as the Last Will and Testament of the deceased. From such order, comes this appeal. Five points are relied upon by appellants for reversal, the first three relating to the alleged lack of testamentary capacity, and the allegation of undue influence. Point four deals with the failure of the trial court to admit the deposition of Judge George LeOroy, a close friend of Bullion for a number of years, and it is finally contended that the purported will was not executed, witnessed, or published in accordance with law.

Before examining these specific points, it might be said that we see no need to relate the testimony in detail. Twenty-nine witnesses testified, nine for appellants, including one of the contestants, and twenty for appellee, including contestee. Some of the evidence was near revolting (certain letters from appellee to deceased), and a detailing of such evidence, and a prolonged discussion of the testimony of the various witnesses, could serve no useful purpose, since there is no unusual point in the litigation, nor any phase that could make this opinion worthwhile as a precedent. After all, the law governing testamentary capacity and undue influence has long been established in this state, and the outcome of this litigation, as far as appellants' first three points are concerned, depends entirely upon the weight of the evidence. With this preliminary statement, we proceed to a discussion of whether K. W. Bullion possessed the mental capacity to execute the will in question.

Appellants’ evidence reflected that K. W. Bullion divorced his wife in 1945. According to some witnesses, a gradual personality change began in 1946. Though having formerly been a meticulous and neat dresser, he became slovenly in his dress and habits . . . extremely hard to please . . . careless with his insurance business . . . though formerly a member of the country club and an attendant at parties, he subsequently abandoned his close friends and pulled away to himself . . . was forgetful . . . had delusions of persecution. According to Dawson Hawkins, an insurance agent in El Dorado, and formerly associated with deceased, Bullion had the idea that people were entering the office at night, and he stated that Bullion had locks changed on the doors of both the office and his home . . . witness was told by Bullion that people were coming into his home . . . this knowledge was gained by stretching wires across the backyard and observing where someone had tripped over the wires and fallen . . . people followed him in his car . . . in 1948 or ’49, Bullion began to carry a gun ... he would get mad at a waitress and require her to bring him additional glasses of water, but would then tip her $5 or $10. It was the witness’ opinion that Bullion was not mentally competent to make a will after the middle of 1949. Appellants’ evidence reflected that Bullion became interested from time to time in several young women (hereafter mentioned), in their 20’s, and in 1952, he married a yonng woman named Madolyn. She almost immediately divorced him, and received a property settlement of $50,000 and a Cadillac. According to the testimony, he became enamored, in the early part of 1953, with a yonng’ woman named Beth, and sent his nephew to determine whether this woman would marry him. The nephew, one of the appellants herein, discovered that Beth was holding $1,500 belonging to his uncle, and insisted that it be returned. This fact was later learned by Bullion, who apparently considered the nephew’s action as interference in his personal affairs, and was deeply resentful. Bullion subsequently became interested in two young women, sisters, named Duke, and sent each large sums of money. Among other witnesses, in addition to the appellant nephew, who testified that in their opinion, Bullion was not competent in 1954, were Lizzie McClellan Davis, Bullion’s part-time housekeeper (this testimony was rather weak evidence), Tom Moore, a long time friend, Dr. E. J. Munn, family physician for many years, and Carolyn Price, who was Mr. Bullion’s secretary for ten years. Father Thomas TValshe, a Priest, formerly of El Dorado, also a friend of Bullion’s, testified that he considered Bullion incompetent, and observed personality changes as early as 1938; however, he had only seen Bullion approximately a half dozen times since 1940, and had not seen him at all since sometime in 1952, just prior to his marriage to Madolyn. Probably appellants ’ strongest evidence, relative to the alleged incompetency of Bullion, was the testimony of Dr. Munn. Dr. Munn testified that in his opinion, Bullion was not competent, because of senility, to make a will in the spring of 1954. He stated that the latter had suffered from hypertension and arteriosclerosis, the latter a progressive hardening of the arterial system, causing the muscular walls of the arteries to become less pliable, and affecting the blood supply to the brain. According to his testimony, this condition is progressive, and increasingly slows down the physical and mental reactions of the person affected. Dr. Mnnn is a general practitioner, and admittedly has never specialized in mental diseases. Actually, we do not consider the Doctor’s testimony to be overly impressive. He appeared, on cross-examination, to be somewhat reluctant to give direct answers, and some of his statements were a bit surprising. For instance, he stated that “old age” might commence at the age of 40. It was his opinion that the average person 60 years of age, suffers from some degree of senility. Further, from his testimony:

“* * * Your position, as I understand, as having been stated by you, is that when a man arrives at the age of sixty-five years of age, senility has set in?

'A. Sixty-five?

Q. Yes. And this senility has set in to the point that the average person, now, now the average person, having arrived at the age of sixty-five, does not have the capacity to understand his properties and his (interrupted)

A. The valuation of everything he does, now?

Q. He doesn’t have the proper evaluation of things —(interrupted)

A. In a true business way.

Q. And he doesn’t, then, have the capacity to make a will after that time, without help?

A. Help in some way.

Q. Help in some way?

A. Is going to have to get help in some way. He is going to consult somebody. He is going to have an advisor.

Q. Suppose he doesn’t have an advisor, what do you say about that?

A. He better find one.

Q. He better find one?

A. Yes, sir.

Q. Because the average person, if he doesn’t do it, you say that that instrument is such — subject at all times to attack because he did not have the capacity, standing alone, to make that?

A. The average person.

Q. That is true, is it?

A. That’s true.”

We are prone to feel that this witness’ opinion as to the senility of Bullion was based to some extent upon his opinion as to when senility commences, rather than solely upon Bullion’s apparent mental condition at the time.

On the other hand, numerous witnesses testified that Bullion appeared normal in 1954 and thereafter, and they noted no change from his previous mental condition. Among those so testifying, were Mrs. Mary Engelke, a neighbor, Mrs. Marshall Craig, Jr., a next door neighbor, Tom Plair, who had some business dealings with Bullion, Mrs. Margaret Craig Parham, a neighbor, Joe Dunn, yard boy, T. P. Oliver, attorney of El Dorado, Sam D. Babb, president of the National Bank of Commerce of El Dorado, Jimmy Wilkins, operator of a laundry and dry cleaning plant at El Dorado, who had been acquainted with Bullion for 25 years, Eddie String-fellow, shop foreman for the Greorge Morgan Pontiac Company, who serviced Bullion’s automobile, Ned Wilfong, in the oil production business, who had transacted business with Bullion in 1953 or 1954, and Henry Crook, grocerman, who had known Bullion from 1944, and saw him nearly every day. Their testimony reflected his conduct to be entirely normal . . . the reading of daily newspapers, Reader’s Digest and Life magazines . . . listening to the radio . . . playing cards and dominoes. Witness Oliver testified that they discussed politics, baseball, and that he noted but little deterioration in Bullion’s physical appearance until five or six months before the latter’s death . . . witness noted no change in Bullion’s mental status, even on the last oecasion when they talked together, which was only a few days before Bullion’s death. Neighbors testified that he talked about current events, children, and flowers, that his conversations seemed to be normal, and he appeared entirely clear in his thinking.

While according to appellants’ evidence, Bullion did commit some acts which, to the average mind, would appear rather eccentric, and perhaps indicate an overwrought imagination, such acts would not necessarily establish an impairment of testamentary capacity. There does not appear to be any connection between the alleged delusions (if such there be), and the making of the will. In probably one of the longest opinions ever handed down by this Court, Taylor v. McClintock, 87 Ark. 243, 112 S. W. 405, a case with 51 headnotes, the subject of testamentary capacity, insane delusions, and insanity, generally, is thoroughly discussed. Relative to delusions, the Court, quoting other Arkansas cases, said:

“The law now recognizes the fact, well established by the investigation and observation of medical experts, that there may be a derangement of mind as to a particular subject and yet capacity to comprehend and intelligently act on other subjects. * * * The fact that the grantor was a monomaniac, and possessed of insane delusions on some subjects not connected with the conveyance or the matters out of which it grew, is not sufficient to invalidate his deed. To have that effect, the insane delusion must be such as to disqualify him from intelligently comprehending and acting upon the business affairs out of which the conveyance grew. * * * It is unquestionably true that one may be possessed of a delusion concerning one subject and yet be of sound mind on all other subjects, according to the weight of modern authority, and this should be so declared as a proposition of law. * * *”

However, irrespective of this established law, in the litigation before us, as previously stated, numerous people who had daily contact with Bullion testified as to his normal behavior and mental competence, and, as stated by tbe trial court, “In addition, there is in evidence the personal records which he kept up to a short time before his death in which he minutely detailed his every day business affairs.” While irritability and an overfondness for young women are not admirable characteristics, such traits do not establish incompeteney. From a careful reading of the testimony, we are unable to say that the Chancellor’s finding that K. W. Bullion was possessed of testamentary capacity at the time of the making of the will, is contrary to the weight of the evidence.

The testimony reflects that appellee lived in Union County from the time she was ten or eleven years of age, except for several years in college, until 1944, when she joined the army as a WAC. According to her evidence, she began keeping company with Bullion in December, 1942, at which time she was 25 or 26 years of age and Mr. Bullion was in his late 50’s, and continued to keep company with him until she entered the army. Upon returning, the previous relationship was resumed, except for the period of his marriage to Madolyn in 1952. In October, 1955, appellee went to New Orleans, and subsequently to Tulsa, Oklahoma, during which time, almost daily letters were written between the parties. According to her testimony, she last saw Bullion during Christmas, 1956, and learned, for the first time, of the existence of the 1954 will. It was during this period of courtship and correspondence between the parties, that Bullion became interested, from time to time, in the other young women previously mentioned. While the evidence reflects that gifts of money were made to some of the others, appellee contends that she only exchanged gifts with Bullion, giving as much as she received. Appellants’ evidence does not establish otherwise. The contention of undue influence is principally based upon the letters written by appellee to Bullion, establishing that the two had been sexually intimate. However, the letters make no demand upon Bullion concerning money or property, and clearly establish that she knew he was interested in, and spending his money-on other women.

Our views, relative to the issue of undue influence, are well expressed in the Chancellor’s written opinion, wherein he said:

‘ ‘ In view of the letters introduced, which were written by the beneficiary under the Will, the second count of the exceptions to the Will, vis., “Undue Influence”, presents a more serious problem. However, our Supreme Court has often said that one having the testamentary capacity to make a will, is not required to mete out equal and exact justice to relations, and the motives or partiality, affection or resentment by which they are influenced are not reviewable; and if one has the capacity to make a will, he may make it as eccentric, injudicious and unjust as caprice, frivolity or revenge can dictate.

“No doubt there existed an illicit relationship between the deceased and the beneficiary, but it is also apparent that she, at no time,- over the years, took advantage of deceased by reason thereof. The testimony disclosed that when a gift was made to beneficiary by the deceased, she reciprocated by giving him a gift of comparable value. The evidence also disclosed that deceased had given other women friends large gifts from time to time, and there is no evidence that either of them gave gifts in return. It also appears from the evidence that shortly before or about the time of the execution of the Will in question, one of those women friends to whom a large gift was made was contacted by one of the contestors of this Will, and the gift was recovered by him, which no doubt, was the reason for the “falling out” of the deceased and the contestor.” As did the Chancellor, we likewise hold that such contention was not established.

It is next alleged that the court erred in refusing to admit the deposition of Judge George LeCroy, an attorney of El Dorado, a close friend, and attorney for deceased. Judge LeCroy was in bad health (which was the reason for taking the deposition), and in fact, died before the trial of the case. The court’s refusal to admit this evidence was based upon the fact that appellee did not receive sufficient notice of the taking of the deposition. While we agree with the holding of the trial court, a discussion of this contention is deemed unnecessary, since we do not consider that this evidence would have added sufficiently to appellants’ case to establish the preponderance necessary for a reversal.

This brings us to consideration of appellants’ final contention. K. W. Bullion’s will recites inter alia that he is of sound and disposing mind and memory, and the attestation clause recites that the will “* * * was signed by the said K. W. Bullion in our presence and by him published and declared as and for his Last Will and Testament and at his request and in his presence, and in the presence of each other, we hereunto subscribe our names as attesting witnesses at El Dorado, Arkansas, this 16th day of April, 1954.” The attesting witnesses are Robert H. Archer and D. M. Hawkins, and their respective addresses in El Dorado are listed. Neither of the witnesses, in their testimony, seemed to have much recollection about the occurrence. Archer testified that it appeared to be his signature, and that he had attested a will for Bullion. He stated that as far as his personal relationship with the latter was concerned, he had no reason to question the mental capacity of Bullion, and that he really could not say whether Bullion -was competent or incompetent at the time. Hawkins testified that he had witnessed several wills for Bullion between 1948 and 1954. He identified his signature to the will in question, but stated he did not think any will made by Bullion after mid-1949 was any good. We consider appellants’ contention to be without merit. The testator’s signature on the will is not questioned, and the evidence shows that the will was found among his effects. Of course, after several years, attesting witnesses rarely remember any details or circumstances surrounding the witnessing of a will, and the testimony of the attesting witnesses is not unusual in that respect. Both recognized their signatures, and Archer stated that he had no reason personally to question the testator’s competency. While Hawkins stated that he did not consider Bullion competent after 1949, it will be noted that this statement covers a general period of time, rather than the particular occasion on which the will was executed. Further, such evidence is due to be closely scrutinized. As stated in American Jurisprudence, Volume 57, page 133, paragraph 145:

“It is generally held that when an attesting witness attempts to impeach a will by testifying that the testator did not have testamentary capacity, his evidence will be received with suspicion and the utmost caution, # # *. Such testimony is deemed to reflect on the credibility of the witness. The theory is that the fact that a person voluntarily identifies himself with the execution of a will and a witness, is an indication that, in his opinion, the person executing the instrument is competent so to do.”

To the same effect is our holding in Leister v. Chitwood, 216 Ark. 418, 225 S. W. 2d 936.

Concluding, let it be remembered that approximately three years elapsed from the time of the making of the will until Mr. Bullion’s death. During a good portion of that time, appellee was away, in New Orleans or Tulsa, without opportunity to personally exert any influence upon the testator. He had every opportunity to revoke the will had he desired to do so, and the evidence reflects that he had several times revoked other wills executed by him. Also, this is not a ease wherein a child, or one living in the home and closely associated with the testator, is disinherited. The relationship of nephew and niece to uncle is not, within itself, a particularly close relationship, nor is theire evidence that would establish an unusually close connection between the parties herein. There is no evidence that would establish such a relationship between the niece and Mr. Bullion, and the record reflects that Bullion never had anything further to do with his nephew after the incident concerning Beth, hereinbefore referred to. On the whole, appellants have fallen short in meeting the burden of proof necessary to invalidate the will.

The judgment of the Probate Court is affirmed.

Justice Johnson not participating.

Justice Holt dissents.

J. Seaborn Holt, J.,

dissenting. It is true that a donor has the right to dispose of his own property as he chooses. It is equally true, however,' that such a right is not unlimited. When it is shown that the maker of a will lacks the mental capacity to make a will, or that he was subjected to undue influence in making it, then the will should be declared invalid. After carefully considering the evidence presented, I am convinced that K. W. Bullion, at the time the will in question was made — April 16, 1954, was not mentally competent to dispose of his property and was the victim of the undue influence of a shrewd, designing, scheming and an admittedly immoral and unprincipled woman, appellee.

Here we are dealing with a mentally weakened man, easily influenced, who was in his late fifties who fell under the spell of a woman in her middle twenties, not related to him in any manner, and who willed his entire estate of about $50,000 (except $2,500 to the Catholic church) to her and gave nothing to appellants, who were his nephew and niece, who had his love and affection until appellee intervened, and would have inherited his property had he died intestate. Among the tests of testamentary capacity the most commonly used and pointed out by this court are: (1) Was this a natural or unnatural will; (2) what was the testator’s physical condition; (3) what was the opinion of the family physician; (4) what was the opinion of the subscribing witnesses; (5) what was the lay opinion by his intimate friends and family; (6) how had the testator conducted his business and affairs at the time or prior to the execution of the will; and (7) had the testator undergone marked personality changes prior to the execution of the will.

To me this was a most unnatural will. “. . . evidence of an unnatural disposition of his property by a testator is admissible as a help to be considered with the other evidence as tending to show an unbalanced mind or a mind easily susceptible to undue influence. In other words, it is a help which the jury may consider in connection with the other evidence in passing upon the soundness of mind of the testator,” Howell v. Miller, 173 Ark. 527, 292 S. W. 1005. The present will was unnatural.

Until appellee came on the scene the evidence showed that the testator had a warm affection for his niece and nephew and in previous wills he had made his nephew, •Bruce, his heir. The evidence shows that Mr. Bullion’s physical condition had deteriorated until he was almost helpless at the time of the execution of the will. His lifelong family physician, Dr. Munn, testified without reservation that he was incompetent when he made the will, that he lacked mental capacity to make a will, that he had been treating Mr. Bullion for twenty years or more. Mr. Bullion became almost a recluse. He had few friends with the exception of Tom Moore, Dawson Hawkins and Judge LeCroy. His physical condition was so bad that he needed constant attention from his family physician. There is no question about the high qualifications of Dr. Munn as a physician.

One of our outstanding authorities on wills, Mr. Schouler, in his book on “Wills, Executors and Administrators,” % 97, page 106, uses this language: “Where one’s mental condition appeared to his medical attendant suitable for the testamentary act, or the reverse, shortly before or after the will was made, testimony to this purport should carry great weight.” Other witnesses testified that he walked with a peculiar tottering gait, had to have assistance in getting in and out of cars, needed constant attention ; had to have a nurse with him at all times during the day and a colored boy at night, was unable to control himself physically. Appellee, Mullins, testified that at the time of the execution of the will he was so agitated and upset he was unable to sign his checks or list his household expenditures, and it was three or four months before he was able to resume signing his cheeks.

In the present case there were two attesting witnesses, one a close and lifelong friend of the testator and the other a casual acquaintance. Dawson Hawkins, one of these witnesses, a man of unquestioned integrity and who had known the testator, Mr. Bullion, for a decade or more, and was very close to him, testified that in his opinion Mr. Bullion did not have mental capacity to make a will; that he did not possess the capacity to know the condition and extent of his property; nor to know the just deserts of those to whom he would normally leave his property. He further testified that he witnessed the will to humor Mr. Bullion, and that Mr. Bullion did not know what he was doing at the time the will was executed. The other subscribing witness stated that he could not say whether Mr. Bullion was competent or not, that he was merely an acquaintance of Mr. Bullion.

Here the testimony is undisputed that Mr. Bullion had been living in immoral relations with appellee for many years prior to the execution of the will, at the time it was executed, and until his death. She brazenly admitted writing him the most obscene letters on sex (too obscene to be presented in any court record) and to using every method at her command to excite and accommodate the sexual desires of this sex crazed man. There is no evidence that she was in love with him, ever had any intention of marrying him, and to me it is obvious that her one and only motive was to induce him, in his weakened mental and physical state, to will all of his property to her, a stranger to the blood. Just here it may be said that the Catholic priest to whose church the will provided a gift of $2,500, frankly testified that he did not think Mr. Bullion was competent to make the will in question and apparently his church has made no demand for this $2,500.

Thiel, Special Adm. v. Mobley, 223 Ark. 167, 265 S. W. 2d 507, “Mental weakness, though not to the extent of incapacity to execute the instrument designated, ‘may render a person more susceptible of fraud, duress, or undue influence, and, when coupled with any of these, or even with -unfairness, such as great inadequacy of consideration, may make a contract voidable, when neither such weakness nor any of these other things alone, or of themselves, would do sol” Alford v. Johnson, 103 Ark. 236, 146 S. W. 516, ". . . the proof of such undue influence may be made, not only by direct and positive testimony, but by facts and circumstances from which such undue influences may be reasonably inferred. And this proof is permitted to take a very wide range. There must be free agency on the part of the testator, but in order that there may be such free agency there must be a state of mind on his part free to act, and if, therefore, he is restrained or coerced unduly by the relation he bears to, or the influence exercised by, one over him in the execution of his will, his free agency is to that extent destroyed. . . . There is a distinction between influence exerted through a lawful relation and that exercised by one occupying an unlawful and adulterous relation. Much less evidence will be required to establish undioe influence on the part of one holding wrongful and meretricious relations with the testator. . . . The testimony adduced in this case was not only sufficient to warrant a finding that there existed wrongful sexual relations between the testator and the proponent of this will, but it was sufficient also to prove a course of adulterous conduct between them that continued for years. . . . The jury were warranted in finding that the testator was influenced during the entire latter portion of his life by the appellant, who obtained an ascendency over him that dominated him. . . . Under these facts and circumstances, we are of opinion that the jury were warranted in finding that the proponent of the will, who had lived with the testator in adultery for all these long years, exercised over him an influence that destroyed his free agency and caused him to forget the relation and deserts of his own flesh and blood, and to make her in effect the sole beneficiary of his bounty. ’ ’ This case is on all fours with the case at bar.

In addition, the proof in this case appears to be undisputed that Mr. Bullion dissipated at least $150,000 during the last few years of his life, $100,000 of which is unexplained.

I am convinced, on the record before us, that the great preponderance of the evidence shows that Mr. Bullion was so weak physically, and his mind so weakened by disease, senility, and insane delusions, that he was incapable of executing a will on April 16, 1954. I would reverse the judgment with directions to deny the will to probate.

       The will had been discovered by the nephew, who had previously-been appointed administrator of the estate.

       On re-direct examination, he testified that Bullion’s senility was more than normal senility; he was suffering from senile dementia.

       Numerous physical ailments were also mentioned.


author: J. Seaborn Holt, Associate Justice.

text:
    Rannals v. Smokeless Coal Co.
    5-1713
    319 S. W. 2d 218
    Opinion delivered January 12, 1959.

      Luke Arnett, for appellant.

      Hardin, Barton, Hardm & Garner, for appellee.
   J. Seaborn Holt, Associate Justice.

This appeal involves our Workmen’s Compensation Law (Secs. 81-1361 — 1349 Ark. Stats. 1947). Claimant’s claim for an award of compensation benefits for injuries from silicosis received while in the employ of appellee and while in the course of his employment, was denied by the full commission and on appeal, was also denied by the circuit court of Johnson County. This appeal followed.

It appears that counsel, in effect, agreed that the sole question for determination here was whether Bannals’ claim was filed within the statutory period required. The applicable law is set forth in Sec. 18 (a) (2) of the Workmen’s Compensation Law, Sec. 81-1318 Supplement Ark. Stats. 1947, as follows: “A claim for compensation for disability on account of injury which is either an occupational disease or occupational infection shall be barred unless filed with the commission within two years from the date of the last injurious exposure to the hazards of the disease or infection, except that in a claim for compensation for disability on account of silicosis or asbestosis, the claim must be filed with the commission within one year after the time of disablement therefrom, and such disablement must occur within three years from the date of the last injurious exposure to the hazards of silicosis or asbestosis.”

The trial court in its findings of facts said: “The Facts: The facts and evidence conclusively show claimant is totally and permanently disabled. No controversy as to this condition of claimant. The claim for compensation from the exhibits, show same to have been received by the commission on December 27, 1954. The claim on its face shows that employer was first notified on November 13, 1953 and that the accident (disability) occurred November 13, 1953.” Rannals testified, when questioned as to his first notice of trouble with lungs and breathing: “A. Well, that happened about the last two years that I worked at the mines. . . . Q. Why did you quit work? A. One reason, the mine was abandoned, and another reason, I wasn’t able to work . . . Q. When you say you have worked any at all since you quit in February of 1953? A. No, sir. Q. You knew you were through at that time? A. I knew I was through at that time. I didn’t even go back and report, or help them take the machinery out. Q. The doctor tried to get you to quit before that time and told you you had silicosis? A. Yes, sir. . . . Q. When you got the x-rays, you quit? A. Yes, sir. Q. Then what date did you quit? A. That was in 1953 — ■ February of 1953.” Dr. Cecil F. Boulden testified: “He (Rannals) noted increased dyspnea with exertion, fatigability and muscle aching, which eventually caused his volunteer retirement in February 1953,” and “His first knowledge of silicosis came during a hospital admission at Clarksville in October 1954.” Dr. Harley C. Darnall stated “He had been unable to work since February 1953, because of this shortness of breath . . .” His diagnosis, Silicosis Grade III. Dr. George L. Hard-graves testified: “I have treated Arch A. Rannals of Clarksville, Arkansas, since 1946 for silicosis and bronchietasis, growing worse each year and now cannot work. Advised him to quit long before he did quit. ’ ’

We hold that the above testimony alone was substantial and sufficient to support the findings of the commission and the judgment of the circuit court. As we read Rannals’ testimony, he, in effect, admits he quit work in February 1953 because he was unable to continue, or even to go on the dismantling job on February 13, 1953. He did not work thereafter, and became permanently disabled.

The trial court correctly held that: “Under our statute where a claim is filed for compensation for disability on account of silicosis, claim must be filed within one year after the time of disablement therefrom. It is therefore, not the disease of silicosis, for however long a period it might have existed, but the actual disablement which determines the period of limitation, or the date of the commencement of the running of the statute. . . . it is the finding of this court, that the disablement of claimant, Rannals, occurred on February 13, 1953. That the claim for compensation not having been filed within one year thereafter, same is barred by the statute of limitations, and that the finding to such effect by the commission should be affirmed. That the statement of claimant, together with other competent testimony, sustain such findings.”

In the case of Donaldson v. Calvert-McBride Printing Co., 217 Ark. 625, 232 S. W. 2d 651, we said: “The rule in most jurisdictions is that the period within which a proceeding for the recovery of compensation may be instituted, or within which an application or claim may be filed, commences to run when the injury accrues, or when the disabling consequences of the accident or injury become apparent or discoverable, rather than at or from the time of the happening of the accident from which the injury results; . . .” and in the more recent case of T. J. Moss Tie & Timber Co. v. Martin, 220 Ark. 265, 247 S. W. 2d 198, in which we, in effect, reaffirmed what we said in the Donaldson case above, we used this language: “. . . the time of injury from which the statute commences to run means the time when the disabling consequences of the accident or injury become apparent or discoverable, rather than the time of the happening of the accident from which the injury results. In short, we held that the time of injury meant the time when the injury becomes compensable. ’ ’

It is elementary that the circuit court on appeal from the commission, as well as this court on appeal from the circuit court, must give to the findings of fact by the commission the same verity that would attach to a jury’s verdict, or to the findings of the circuit court sitting as a jury. In other words, if we find any substantial evidence to support the findings of the commission and the judgment of the circuit court, we must affirm, Lundell v. Walker, 204 Ark. 871, 165 S. W. 2d 600; J. L. Williams & Sons, Inc. v. Smith, 205 Ark. 604, 170 S. W. 2d 82; Hughes v. Tapley, 206 Ark. 739, 177 S. W. 2d 429; Johnson v. Little Rock Furniture Mfg. Co., 206 Ark. 1016, 178 S. W. 2d 249; Kloss v. Ford, Bacon & Davis, 207 Ark. 115, 179 S. W. 2d 172; Fordyce Lbr. Co. v. Shelton, 206 Ark. 1134, 179 S. W. 2d 464; Barrentine v. Dierks Lbr. & Coal Co., 207 Ark. 527, 181 S. W. 2d 485; McKamie v. Kern-Trimble Drilling Co., 229 Ark. 86, 313 S. W. 2d 378; Carty v. Ward Furn. Mfg. Co., 229 Ark. 725, 318 S. W. 2d 148.

Accordingly, we affirm.

Justice Johnson not participating.