text:
    Raymond SMITH et ux v. Darlene PIPPINS
    73-43
    495 S.W. 2d 520
    Opinion delivered June 11, 1973

      W. G. Dinning Jr., for appellants.

      Mike J. Etoch Jr. and A. M. Coates, for appellee.
   George Rose Smith, Justice.

The appellee, Darlene Pippins, brought this suit to quiet her title to Lot 54, in the town of Poplar Grove, which she purchased from Luddie Baskin on May 16, 1970. The defendants, Raymond Smith and his wife, asserted title to the lot on the theory that Mrs. Pippins’ purchase had been nullified by a subsequent correction deed, substituting Lot 56 for Lot 54, and that thereafter the Smiths bought Lot 54 from Mrs. Baskin. The chancellor upheld Mrs. Pippins’ title, finding that the correcdon deed was unilaterally executed by Mrs. Baskin without Mrs. Pippins’ knowledge. The issue here is whether that finding of fact is clearly against the preponderance of the proof. Our study of the record convinces us that it is.

Five lots, numbered 54, 55, 56, 57, and 58, are contiguous. On May 10, 1970, when the Baskin-Pippins sale was orally agreed upon, Mrs. Baskin, owned Lots 54, 55, and 56. She occupied a house that was partly on Lot 54 and partly on Lot 55. Lot 56 was vacant. Mrs. Pippins lived on the adjoining Lots 57 and 58.

The oral agreement was that Mrs. Pippins would buy all three of Mrs. Baskin’s lots, for $3,000. At the time of the sale, however, Mrs. Pippins was able to pay only $500 in cash. Consequently attorney Douglas Anderson, who prepared the deed, described only Lot 54 in the conveyance. Mrs. Pippins testified that at the time it didn’t make any difference to the parties which lot was conveyed, because she was expected to buy all three lots. The deed was executed on May 16, 1970. About two weeks later the oral agreement with reference to the other two lots was rescinded by mutual agreement.

Almost a year later, on April 19, 1971, Mrs. Baskin executed a correction deed to Mrs. Pippins as grantee. That deed, which was recorded promptly, purported to correct an error in the earlier conveyance by substituting Lot 56 for Lot 54. At about the same time, apparently, Mrs. Pippins employed the appellant Raymond Smith to take down the fence between Lots 56 and 57, so that Mrs. Pippins could plant a vegetable garden on the vacant lot. According to Mrs. Pippins, Mrs. Baskin suggested that Mrs. Pippins use the lot.

Mrs. Baskin occupied the house on Lots 54 and 55 until it burned in the fall of 1971. She collected the insurance on the house. On November 2, 1971, Mrs. Baskin sold Lots 54 and 55 to the Smiths, who bought without knowledge of Mrs. Pippins’ claim to Lot 54. Mrs. Baskin died a short time later. Mrs. Pippins testified that she knew nothing about the correction deed until the present controversy arose, when she went to the courthouse and discovered the deed in the recorder’s office.

The pivotal question is whether Mrs. Pippins had knowledge of, and accepted, the correction deed. On the one hand, we have Mrs. Pippins’ sworn statement that she knew nothing about the correction deed when it was executed. The chancellor, who heard the testimony at first-hand, credited that statement. It is also shown that in September, 1971, Mrs. Pippins paid the taxes on Lot 54, amounting to 63 cents.

On the other hand, there are several cogent circumstances indicating that the substitution of vacant Lot 56 for improved Lot 54 was a reasonable step for both parties to take. One: For about a year and a half after the original sale the seller, Mrs. Baskin, remained in possession of her home on Lots 54 and 55. Two: Of the original purchase price of $3,000, $500 was a more appropriáte price for the vacant lot than for one of the improved lots. Moreover, the sale of a lot with only part of a house on it would be unlikely. Three: The correction deed was prepared by attorney Anderson. It would be somewhat unusual for a lawyer to allow his client to execute and record such a conveyance as a unilateral transaction. (Mr. Anderson was not called as a witness by either party.) Four: Mrs. Pippins took possession of the vacant lot, by having the fence torn down, and used the lot as a garden site. Five: Raymond Smith testified that when the fence was being removed Mrs. Pippins told him that she owned the vacant lot. Mrs. Baskin’s aunt also testified that she heard Mrs. Pippins say that she was buying the lot and not the home. Six: Mrs. Baskin insured the house and collected the proceeds when it was destroyed by fire some months after the date of the correction deed.

We conclude that the clear weight of the evidence sustains the appellants’ position. The decree is accordingly reversed and the cause remanded for the entry of a decree quieting the appellants’ title to Lot 54 and reinstating the correction deed (which the chancellor canceled) as a valid conveyance of Lot 56 to Mrs. Pippins.

Byrd, J., dissents.


source: Caselaw Access Project

author: George Rose Smith, Justice.

license: Public Domain

text:
    Harold Sherman UPTON v. STATE of Arkansas
    5820
    497 S.W. 2d 696
    Substituted opinion on rehearing delivered July 23, 1973
    [Rehearing denied August 27, 1973.]

      Camp & Thornton, P.A., and James J. Calloway, for appellant.

      Jim Guy Tucker, Atty. Gen., by: .0. H. Hargraves, Deputy Atty. Gen., for appellee.
   George Rose Smith, Justice.

Harold Sherman aged 28, was found guilty of murder in the first degree, committed in the perpetration of robbery, and was sentenced to imprisonment for life. His appointed counsel argue 25 points for reversal, a number of which are overlapping.

The crime occurred on December 27, 1971. Upton and his wife, according to Upton’s confession, picked up the decedent, Woodrow Defee, on a highway in Union county. Within a short time Upton stopped the car and attempted to rob Defee, at gunpoint. When Defee grabbed the barrel of the gun Upton shot him twice, first in the shoulder and then in the head. The Uptons then drove on, leaving Defee’s body near the highway. The police, by tracing a long-distance call that Upton made at a truck stop in Village, Arkansas, were able to identify Upton and to bring about his arrest in Louisiana.

The Uptons were arrested after having fled from the home of Upton’s father, Wade Upton, in Bossier parish. Two Louisiana officers then went to Wade Upton’s house, told him that his son had been arrested upon a murder charge, and explained that they were looking for the weapon used in the crime. According to the officers, Mr. Upton co-operated with them, bringing out a 12-gauge shotgun and a .410-gauge shotgun. After the officers left they learned by radio that the weapon was a 16-gauge shotgun. They returned to the Upton home, where Mr. Upton again co-operated by going to a barn and finding a green blanket, in which the guns proved to be wrapped up.

A substantial part of the appellant’s brief is devoted to the contention, under several headings, that the weapons were obtained by means of an illegal search. After an extensive hearing upon a motion to suppress the evidence, the trial judge sustained the admissibility of the guns, finding that there had actually been no search. That ruling was correct. Upton’s father was in possession and control of the house. According to the officers’ testimony, he voluntarily produced and relinquished the weapons. The State’s proof is even stronger than it was in an analogous case, where the mother of the accused freely allowed officers to have access to her house in their search for incriminating clothing. Maxwell v. Stephens, 348 F. 2d 325 (8th Cir. 1965). There the court explained its conclusion in these words: “The situation strikes us as being no different, factually, than if Mrs. Maxwell herself had brought the coat, it being properly in her possession, to the authorities.” In the case at bar the trial judge was warranted in finding that just such a voluntary surrender of the shotguns took place. We perceive no invasion whatever of the appellant’s rights.

At the trial counsel interposed the defense of insanity and evidently argued to the jury that at the time of the crime Upton’s mind was so affected by the use of drugs that he could not form the intent to commit robbery. Instructions explaining both those defenses to the jury were given.

Dr. A. C. Smith, a psychiatrist, was called as a witness by the defendant. He testified that Upton suffered from the mildest of the five classifications of schizophrenia and might be unable to control himself under stress. On cross examination Dr. Smith was permitted to testify that he had read the report of another psychiatrist, Dr. Fraser, who stated in his report that Upton had denied having used drugs for at least a week before the alleged crime. It is now insisted that the trial court erred in allowing Dr. Smith to be questioned about the statement in Dr. Fraser’s report.

That contention must be sustained. Dr. Smith testified that he did not particularly remember anything of the contents of Dr. Fraser’s report; so it cannot be fairly said that Dr. Smith relied upon it in reaching his conclusions. Hence there was no proper basis for permitting Dr. Smith to read Dr. Fraser’s statement to the jury. The statement was manifestly hearsay and of course tended to rebut the defense theory that Upton was under the influence of drugs at the time of the offense. Under our settled rule that error is presumed to be prejudicial unless we can say with confidence that it was not, Vaughn v. State, 252 Ark. 505, 470 S.W. 2d 873 (1972), we have no choice except to sustain this contention for reversal.

With respect to the plea of insanity, we are urged to adopt a rule requiring the State to prove the accused’s sanity beyond a reasonable doubt, in place of our rule that the defense must prove the accused’s insanity by a preponderance of the evidence. We think our rule to be sound and therefore adhere to our earlier refusal to change it. Kelley v. State, 154 Ark. 246, 242 S.W. 572 (1922). A related argument, that the State should have been required to provide the accused, at public expense, with a private psychiatrist, was rejected in Hale v. State, 246 Ark. 989, 440 S.W. 2d 550 (1969).

The trial judge, after a Denno hearing, found that Upton’s confession was made voluntarily, after proper warnings. We have reviewed the evidence and agree with that finding. Upton at first refused to make any statement to the officers, but later on — apparently in an effort to clear his wife of suspicion — he asked to see the prosecuting attorney. The latter, with three police officers, interviewed Upton in his jail cell, where he gave an account of the homicide, without interrogation. Two of the officers testified to the voluntary nature of the confession. No complaint is made that the other two persons present were not called to testify, nor is it shown, as it was in Smith v. State, 254 Ark. 538, 494 S.W. 2d 489 (1973.), that the accused was interrogated in the absence of the witnesses who testified.

It is argued that the court should have given instructions permitting the jury to make a finding of voluntary or involuntary manslaughter. The court instructed the jury on tirst and second degree murder. Since the jury found Upton guilty of first degree murder, he was not prejudiced by the court’s failure to submit degrees of homicide below second degree murder. Brown v. State, 219 Ark. 647, 245 S.W. 2d 938 (1951).

We have considered the appellant’s other arguments for reversal, but we find them to be without merit.

Reversed.


author: Lyle Brown, Justice.

text:
    Minnie Alice BAKER v. DILLARD DEPARTMENT STORES, and HOME INSURANCE Company
    73-34
    495 S.W. 2d 839
    Opinion delivered June 11, 1973

      Patten, Brown ir Leslie, for appellant.

      Terral, Rawlings, Matthews & Purtle, for appellees.
   Lyle Brown, Justice.

This is an appeal from the denial by the compensation commission and the circuit court on appeal of a claim of total and permanent disability. It was found that from June 1970 through December 1970 claimant, Minnie Alice Baker, sustained at different times aggravations to a pre-existing back condition which first came to surface in 1968; that she did not lose sufficient time from work so as to justify disability benefits, but that the carrier was liable for medical bills incurred during that period of time. Finally, it was found that claimant did not sustain any permanent disability from the periods of aggravation experienced in the course of her employment. On appeal, claimant seeks to reverse the last recited finding, contending that the episodes of aggravation respited in a present condition of total and permanent disability.

For seven years prior to her quitting in December 1970, claimant had been employed by Dillard’s in various capacities; In 1970 she was working in Pfeifer’s Home Center, owned by Dillard’s. For four years she had worked in the “charge-back department”. Her work consisted mainly of processing defective merchandise that had to be sent back to manufacturers and distributors who sold to her employer. Merchandise would be brought in from customers and from numerous Dillard outlets over the state. In the process of inspecting and packing for shipments she said she handled small items as well as some items which were heavy — vacuum cleaners, lamps, lawn mowers, and. complete sets of dishware. In the processing of the merchandise she said there was considerable stooping, bending, lifting, and reaching. Respondents challenged that testimony with evidence,that claimant’s work was considerably lighter.

In 1968 appellant went to Dr. Walter Carruthers for back trouble. The medical bills were paid by appellees. There was no loss of time from work. Dr. Carruthers’ findings are not in the record.

Claimant testified that she injured her back on the job in June 1970. She sought the services of Dr. Kenneth Jones, an orthopedist. Dr. Jones reported that he found complaint of pain in the lower lumbar which he understood to be a gradual onset. The doctor said he was inclined to the opinion that the patient had a degenerating spine “with superimposed stress”. He advised that claimant avoid those activities which produced the stress and carry out strengthening exercises. She returned to the doctor a month later but no additional examination was noted. Based on her description of her occupational duties the doctor advised that she change her job.

In August 1970 claimant went to Dr. Joe K. Lester, another orthopedist. He took x-rays of the lumbrosacral spine. He said the x-rays revealed “a satisfactory bony structure throughout with some degenerative change being presented”. The doctor concluded that her problems were related to lumbrosacral strain superimposed on preexisting degenerative change. After another interview with the claimant in October 1970 the doctor concluded that claimant “has symptomatic degenerative disc disease and has the classical findings of recurrent lumbosacral strain”. Dr. Lester was of the opinion that claimant was suffering from osteo-arthritis, osteoporosis, and loss of calcium from the bones, all of which had been building up gradually over the years. He said that excessive stooping, bending, and lifting would cause flare-ups which last for days or weeks.

Under the evidence in this case the commission had to choose one of two alternatives. They could find that the 1968 episode and the 1970 experiences with claimant’s back were accidental injuries. Or, the commission could find, as it did, that claimant had not preponderantly proved accidental injuries and could find that her problem was caused by flare-ups from the progressively developing arthritic condition. There was substantial evidence to support either theory and the evidence is so close that we could have affirmed the commission if it had adopted claimant’s theory of accidental injuries. But we have long ago said that the findings of the commission are like those of a jury and we are bound by those findings if reasonable men could reach the same conclusion.

Affirmed.


text:
    James Leo BATES v. STATE of Arkansas
    CR 73-33
    495 S.W. 2d 521
    Opinion delivered June 11, 1973

      Don Langston, Public Defender, for appellant.

      Jim Guy Tucker, Atty. Gen., by: Clarence Walden Cash, Deputy Atty. Gen., for appellee.
   Lyle Brown, Justice.

Appellant entered a plea of nolo contendere to a charge of rape and received a sentence of 30 years, with nine of those years suspended. Subsequently he filed a petition for a Rule I hearing, alleging several violations of his constitutional rights. The hearing was denied under paragraph (C) of Rule I, the court having found that the records in the case showed conclusively that appellant was not entitled to an evidentiary hearing. On appeal it is insisted that the hearing should have been granted on the allegation of ineffective assistance of counsel.

In his Rule I petition, appellant made these allegations: That he was held in jail 108 hours before being charged; that he was not given a preliminary hearing, nor was he indicted by a grand jury; that he was taken to the home of the victim twelve minutes after the crime was reported and was there identified; that he was not advised of his rights at the time of detention; that he pleaded guilty on the presumption he would be given a suspended sentence; and that he was inadequately defended by court appointed counsel. Since appellant entered a plea of nolo contendere and was represented by counsel, he is relegated to the questions of whether that plea was made intelligently, voluntarily, and with the advice of competent counsel. Tollett v. Henderson, 411 U.S. 258, 93 S. Ct. 1602, 36 L. Ed. 2d 235 (1973). We need not here repeat the numerous quotations from Tollett which lead us to the stated conclusion because there are extensive recitations from Tollett in our case of Horn v. State, 254 Ark. 651, 495 S.W. 2d 152 (1973).

We hold that the trial court record made at the time of appellant’s plea shows conclusively that the plea was made intelligently, voluntarily, and with the advice of competent counsel. The appellant stated that he had had plenty of time to consult with his attorney and that he was “satisfied with his counsel and his advice and his representations”; that the plea of nolo contendere had been fully explained to him and that he understood it and the possible results; that the plea was of his own free will and accord and was not being made on account of any promise or threats; that he had gone over the written plea statement with his attorney and that he fully understood its contents. His attorney also certified that he had gone over the plea statement with his client and in the attorney’s opinion the appellant understood the meaning and effect of the plea. As further evidence of his attorney’s diligence the record shows that the attorney negotiated a plea bargain with the prosecuting attorney, which the court approved. That concerned suspending part of the sentence and agreeing that appellant would be permitted to go to California (if that state would accept him), serve four years of time owed California and then be released from the Arkansas detainer. (California apparently elected not to come after appellant). It should also be noted that the trial court recognized appellant’s attorney as a respected member of the bar and well versed in criminal matters.

A somewhat similar case is our own case of Stallins v. State, 254 Ark. 137, 491 S.W. 2d 788 (1973). There we said:

Before accepting the plea and sentencing appellant to twenty years in the Department of Corrections, the trial court not only satisfied himself that appellant was voluntarily pleading guilty to a crime he had committed but caused a record to be made of the proceedings had. This record clearly demonstrates that there is no merit to the many contentions that appellant now makes.

Affirmed.


author: John A. Fogleman, Justice.

text:
    Douglas Wayne BURTON v. STATE of Arkansas
    CR 73-35
    495 S.W. 2d 841
    Opinion delivered June 11, 1973

      John P. Corn, for appellant.

      Jim Guy Tucker, Atty. Gen., by: James W. Atkins, Asst. Atty. Gen., for appellee.
   John A. Fogleman, Justice.

Douglas Wayne Burton was convicted of voluntary manslaughter of Bobby Dale Johnson. He asserts two points for reversal, but both are based upon a contention that the evidence was insufficient to sustain the conviction. We find it to be sufficient and affirm the judgment.

Burton was tried upon a charge of second degree murder, which, on the eve of trial, was reduced from a first degree murder accusation. During the trial the court directed a verdict of not guilty on the second degree charge, but submitted the case to the jury on the lesser included offense of voluntary manslaughter. The killing took place at the Frontier Bar about 5:00 p.m. on Saturday afternoon, April 13, 1972. Burton and Johnson were intimate acquaintances. There was evidence tending to show that they competed for the favors of one Jackie Hopson, the older sister of Johnson’s wife, and that Jackie, after having become pregnant by Burton, accompanied him to Texas, but returned to Little Rock with Johnson after about two weeks. There was also testimony that Johnson had, shortly before the fateful events of Saturday, April 13, made threatening remarks about Burton and that some of these were communicated to Burton.

During Saturday morning both Burton and Johnson had been at the Terminal Cafe, drinking and enjoying the society of friends. Burton and his friends left to pursue their weekend recreation elsewhere, and Johnson and Larry Patterson, a convicted felon and mutual friend and acquaintance of the parties, went next door to the Frontier Bar when it opened about noon in further pursuit of their day’s pastime of drinking and associated pleasure. An autopsy revealed that Johnson’s blood alchol content was more than twice as high as that required as a minimum basis for a presumption that an automobile driver is under the influence of intoxicating liquors. See Ark. Stat. Ann. § 75-1031.1 (Repl. 1957). The physician who performed the autopsy expressed the opinion that Johnson was “quite high” and that the alcohol content was such as to impair his judgment and slow his reflexes.

According to Patterson’s testimony, Burton had summoned Johnson to the table where Burton was seated in the Terminal Cafe, after they had been exchanging baleful stares, where the two talked and then went outside, but returned after a few minutes, when Burton sat at the table he had left and Johnson commenced playing the pinball machine Patterson had been playing while Johnson and Burton talked. Later in the afternoon Burton and his companions entered the Frontier Bar and sat down in a booth near the front door where Sally Richardson was seated. After a few minutes Ms. Richardson pointed and snapped a pistol at Burton, who slapped her vigorously and disarmed her. Ms. Richardson promptly re-armed herself with another, pistol she took from her purse with the announcement that it would fire.

There was testimony that, when Burton entered the Frontier, Johnson had reclaimed his pistol from Larry Patterson, to whom he had entrusted it upon arrival at the Frontier, and remarked that “he is loaded for bear,” and “I think it’s fixin’ to come down.” Patterson said that he and Johnson then discontinued their pool game at the rear of the bar and seated themselves about the middle of the bar, approximately 20 feet from the booth occupied by Burton and Ms. Richardson. Patterson also related that, as he passed Burton, the latter said, “I wish one of them punks would say something to me like that,” but denied that he was. speaking to Patterson. After Burton had disarmed Ms. Richardson, Johnson made some remark indicating, that her fate would have been much worse had she pointed her weapon at him rather thán Burton, and made a boast of the effectiveness of a weapon fired by him. There was testimony that Johnson’s statement was a response to a tearful inquiry by Ms. Richardson as to why he. did not help her. Immediately thereafter, Johnson demonstrated by firing a shot from his pistol which struck the ceiling at a point high over the head of Ms. Richardson. This provoked an inquiry from Burton as to whether “that went for him” and thereafter he arose, drew a pistol from his pocket and commenced firing at Johnson, who fell, woundéd and challenged Burton to shoot his best shot, becahse he (Johnson) whs hit. Patterson testified that Johnson had returned his pistol to his pocket after firing at the ceiling.

The testimony of witnesses who were not directly involved in the encounter as to what happened after the shooting started lends little to our ability to reconstruct a total picture of ensuing events, largely because an immediate general exodus from the vicinity took place with most of the patrons of the bár rushing to a bathroom, where they were deprived of the sanctuary they sought because the first fugitive to arrive there had thoughtlessly locked the door.- At any rate, after a lull in the shooting and the verbal exchange between Burton and Johnson, additional shots were fired, and Burton was seen backing out the front door, pointing two pistols toward the interior. One witness testified that Burton looked back in the door and inquired about the whereabouts of that “so and so.” Johnson’s wife, who was seated in a car outside, said that Burton fired two shots back into the interior of the Frontier, before running away. One witness said that at the time of Burton’s exit Johnson was “crunched” behind a booth. He was found unconscious in a pool of blood on the floor as a result of wounds inflicted by bullets fired from a revolver. Johnson was taken to Baptist Medical Center, and was pronounced dead upon arrival. The examining physician found a bullet wound in Johnson’s left chest and two in his arm. A later autopsy revealed that the fatal, wound penetrated the heart and was inflicted by a bullet from a small-caliber weapon, probably a .22. The entrance wound was in the left chest. Another wound from a larger caliber pistol was found to have resulted from a bullet which struck the outside of Johnson’s left arm and passed through the arm, striking but not entering the chest cavity.

There was testimony that Burton had spent the night at Johnson’s home, at Johnson’s invitation after the date of the alleged threats-. Witnesses who were said to have been present at the time of these supposed threats denied that they were made. This and other testimony tended to contradict some of that outlined above, but the foregoing resume is, as required, based upon testimony viewed in the light most favorable to the state.

Manslaughter is the unlawful killing of a human being without malice, express or implied, and without deliberation. Ark. Stat. Ann. § 41-2207 (Repl. 1964). Voluntary manslaughter must be voluntary, upon a suden heat of passion, caused by a provocation, apparently sufficient to make the passion irresistible. Ark. Stat. Ann. § 41-2208 (Repl. 1964). Intent to kill is not a necessary ingredient of the crime. Seabourn v. State, 236 Ark. 175, 365 S.W. 2d 133. The jury may have found that Burton killed Johnson upon a sudden and irresistible passion provoked by Johnson’s firing a pistol into the ceiling above the booth where Burton was seated.

Appellant’s principal argument is bottomed upon his contention that the killing was in self-defense. There was evidence which - might have sustained this plea. Still, Burton would be guilty of manslaughter, even though he shot and killed Johnson under the belief that Johnson was about to assault him, if he acted too hastily and without due care, even though the evidence was insufficient to show irresistible passion or provocation. Bruder v. State, 110 Ark. 402 161 S.W. 1067; Brooks v. State, 85 Ark. 376, 108 S.W. 205; Allison v. State, 74 Ark. 444, 86 S.W. 409; Carter v. State, 108 Ark. 124, 156 S.W. 443. One who claims self-defense must show not only that the person killed was the aggressor, but that the accused used all reasonable means within his power and consistent with his safety to avoid the killing. Nelson v. State, 249 Ark. 852, 462 S.W. 2d 452. If, in that respect, he acted hastily and without due care, the killing was manslaughter. Peters v. State, 245 Ark. 9, 430 S.W. 2d 856.

Appellant’s pleading self-defense placed the issue of manslaughter before the jury. Ellis v. State, 234 Ark. 1072, 356 S.W. 2d 426. It is true that the evidence may require that the jury be instructed on both voluntary and involuntary manslaughter. See Ringer v. State, 74 Ark. 262, 85 S.W. 410. Here the court instructed the jury on both degrees of manslaughter, and submitted forms of verdict which permitted a finding of guilt of either degree or an acquittal. The jury verdict is conclusive of the matter.

Furthermore, we think the evidence to have been sufficient to have justified a conviction of a higher degree of homicide. There was certainly evidence of malice between the parties. If the jury believed that Burton armed himself and went to the Frontier Bar in anticipation that Johnson would be there and would attack him, or by acts and demonstrations provoked an attack upon himself by Johnson, with the intent of killing Johnson, or that Burton voluntarily entered into a contest or duel with Johnson, he would be guilty of first degree murder. Caughron v. State, 99 Ark. 462, 139 S.W. 315; Ford v. State, 96 Ark. 582, 132 S.W. 995; Yancey v. State, 120 Ark. 350, 179 S.W. 352. If such were the circumstances, the homicide would not be justified in self-defense unless Burton had done everything within his power consistent with his safety to avoid the danger and avert the necessity of the killing. Valentine v. State, 108 Ark. 594, 159 S.W. 26. We cannot agree with appellant’s argument that the evidence requires acquittal because he attempted to terminate the combat during the brief lull in the shooting, but that Johnson’s threats prevented him from doing so. Even if this evidence presented a fact question, the jury verdict resolved the matter. Since the evidence would have sustained a conviction of a higher degree of homicide, appellant is in no position to complain of his conviction of voluntary manslaughter. McPeace v. State, 249 Ark. 832, 462 S.W. 2d 212; Patrick v. State, 245 Ark. 923, 436 S.W. 2d 275.

Appellant suggests that the state’s evidence fails to show that he killed Johnson or that Johnson did not kill himself. There is no evidence that anyone other than Burton and Johnson fired any shots at all. Ms. Richardson was the only other person shown to have a weapon in her possession and there was testimony that when the shooting started she was one of the crowd rushing to the bathroom. Ms. Richardson said that the first shot fired by Johnson over her head caused her speedy departure. Johnson’s only weapon contained five spent shells and one unspent. Four bullet holes appeared in the wall below the ceiling into which Johnson first fired. One witness described them as descending in a sort of row. There was testimony that Burton fired two weapons, one of which was that he took from Sally Richardson, and his firing was directed toward Johnson, who was wounded by bullets of two different calibers. There was no indication of any suicidal attempt by Johnson, and the natural presumption against suicide is very strong. The evidence was certainly sufficient to pose a question for the jury as to the corpus delicti. See Hays v. State, 230 Ark. 731, 324 S.W. 2d 520. It would be sheer speculation to say that Johnson suffered death at his own hands or those of anyone other than Burton.

The judgment is affirmed.


author: Conley Byrd, Justice.

text:
    Bobby K. HAYES et al v. STATE of Arkansas et al
    5-6238
    496 S.W. 2d 372
    Opinion delivered June 11, 1973
    [Rehearing denied July 23, 1973.]

      Murphy, Arnold & Blair, for appellants.

      L. Gray Dellinger and Roy E. Danuser and Jim Guy Tucker, Atty. Gen., by: Lonnie A. Powers, Asst. Atty. Gen., for appellees.
   Conley Byrd, Justice.

The issue here involves the rights of a riparian land owner on the White River at the location of the Chessman Ferry in Izard County. The seed for this litigation was sown when the appellant, Hayes Brothers Land & Timber Co., Inc., refused to renew the lease of appellee Guy Jenkins, a commercial boat dock operator. After the lease terminated Jenkins refused to quit the premises. The landowner through its president and principal stockholder, áppellant Bobby K. Hayes, put a fence around the area in question to prevent Jenkins and his customers from using what has been termed throughout the proceedings as “the low bottom area.” Jenkins commenced this action by obtaining, without notice, a temporary injunction to prohibit the erection of the fences on what he claimed to be land below the “ordinary high water mark.” The corporate riparian owner intervened claiming title to the land. Eventually others, including the State of Arkansas, were permitted to intervene. The issues before the chancellor resolved down to whether the White River is a navigable stream at this point, the location of the “ordinary high water mark”, and the damages, if any, due to Bobby K. Hayes as a result of the unlawful issuance of the temporary injunction. The chancellor found that White River was navigable; that the “ordinary high water mark” was six inches above “the low bottom area”; and that the issuance of the temporary injunction was unlawful as to Bobby K. Hayes. The court declined to award an attorney fee as an element of damages and held that Jenkins was not liable for the unlawful acts of the sheriff in placing Mr. Hayes in jail. For reversal the appellants here contend:

“I. Preponderance of the evidence shows the stream in issue is not presently navigable and the trial court erred in finding it to be navigable.
II. The trial court erred in finding the lands in controversy to be beneath the waters of the stream.
III. The finding that there is no proximate causation between the wrongfully obtained temporary injunction and damages suffered by appellant Bobby K. Hayes is contrary to both the law and the evidence.”

POINT I. The record shows that the white River at the point in controversy is five or six hundred feet wide at low stage and seven or eight hundred feet wide at high stage. Within the memory of witnesses steam boats regularly plied the river to points up stream from this area. Admittedly no steam boat has been on the river within the last fifty years. For many years a ferry large enough to carry from four to six automobiles at a time was operated at this point. Even if we should ignore Owen v. Johnson, 222 Ark. 872, 263 S.W. 2d 480 (1954), where we took judicial notice that the White River was navigable at Cotter, Arkansas, a point above the one in question, still it would appear that at this point the river would be navigable within the test laid down in Barboro v. Boyle, 119 Ark. 377, 178 S.W. 378 (1915). We there held that the financial success of a navigable venture was not an exclusive test of navigability. For the reasons stated we affirm the chancellor on this issue.

POINT II. The rights of the riparian landowner have been fixed as a rule of property for many years. Under our decisions the State holds in trust for the public those lands in the bed of all navigable waters below the “ordinary high water mark”, St. Louis, I. M. & S. Ry. Co. v. Ramsey, 53 Ark. 314; 13 S.W. 931 (1890), and the riparian owner holds all of the property rights above that line. See City of Little Rock v. Jeuryens, 133 Ark. 126, 202 S.W. 45 (1918), and Anderson v. Reames, 204 Ark. 216, 161 S.W. 2d 957 (1942). The acknowledged test for determining the location of the “ordinary high water mark” is set forth in Ramsey, supra, in this language:

“The banks of a river are those elevations of land which confine the waters when they rise out of the bed; and the bed is that soil so usually covered by water as to be distinguishable from the bank by the character of the soil, or vegetation, or both, produced by the common presence and action of flowing water. But neither the line of ordinary high-water mark, nor of ordinary low-water mark, nor of a middle stage of water, can be assumed as the line dividing the bed from the banks. This line is to be found by examining the bed and banks, and ascertaining where the presence and action of water are so common and usual and so long continued in all ordinary years, as to mark upon the soil of the bed a character distinct from that of the banks, in respect to vegetation, as well as in respect to the nature of the soil itself. Whether this line between the bed and the banks will be found above or below, or at a middle stage of water, must depend upon the character of the stream. * * * But in all cases the bed of a river is a natural object, and is to be sought for, not merely by the application of any abstract rules, but as other natural objects are sought for and found, by the distinctive appearances they present; the banks being fast land, on which vegetation, appropriate to such land in the particular locality, grows wherever the bank is not too steep to permit such growth, and the bed being soil of a different character and having no vegetation, or only such as exists when commonly submerged by water.”

The proof on the part of appellees was that the area in question consisted of a high bank area described as a fertile bottom area, a sloping bank on which grew elm, hackberry and ash, and a low bottom area which contained flood plain vegetation. Admittedly this low bottom area contains trees of the following species: cottonwood, green ash, silver-leaf maple, black willow, American elm, Osage orange, honey locust, sycamore, box elder and southern hackberry. Cottonwood was described as the dominant tree coverage in the low bottom area. In addition to the tree coverage there were bermuda grass, tall rag weed, beggar lice, stinging nettle and a number of other weeds and grasses. According to Edward E. Dale Jr., Professor of Botany at the University of Arkansas, 53.5% of the area was covered with vegetation and the balance of 46.5% was bare ground. Many of the trees in the area were 18 to 20 inches in diameter at a point four feet from the ground. Other testimony on the part of the appellees showed that the low bottom area was covered with water from 30 to 60 times per year. Some of the days in this count were only partial days due to the operation of the electrical turbines at Bull Shoals and Norfork dams.

Proof on the part of the riparian owner showed that the area in question had been farmed in corn and pumpkins before the construction of the dams and since that time it had been used as pasture land.

With the undisputed evidence as to the extent of the vegetation on the area in question, we find that the issue as to the rights of the riparian owner is controlled by our decision in City of Little Rock v. Jeuryens, supra. There the area in question was shown to be low and flat with several big cottonwood' trees and a lot of willows along the edge of the bank together with some cockleburs and other ordinary grasses. After quoting the test above set out from Ramsey,. supra, this court said:

“Under this test we think the land upon which Jeüryens settled’was not a part of the bed of the river. The trees and other vegetation which Jeuryens testified were then' growing there prove this. Such vegetation would not have grown on soil which was covered with Water for any considerable portion of ■ the yeár. It is true the annual overflows covered the land; but they were not of sufficient duration to destroy the trees and other vegetation or to prevent their growth. We, therefore, hold that the land was an extension of Water Street and belonged to the city as such.”

Therefore under our decisions, which have become a rule of property, it follows that the lower court erred in not accepting the vegetation line as' the extent of riparian ownership.

POINT III. Appellant Bobby K. Hayes does not here complain of the action of the trial court in refusing to award him counsel fees in dissolving the unlawful injunction but only of the refusal of the trial court to award him damages for the unlawful arrest by the sheriff. Therefore, we deem the issue as to counsel fees to be waived and do not reach the issue, of whether we should reconsider our previous decisions on this matter. See Young v. Farmers Bank and Trust Company, 248 Ark. 613, 453 S.W. 2d 47 (1970).

By Ark. Stat. Ann. § 32-206 (Repl. 1962), the temporary injunction bond is required to secure to the party enjoined the damages which he may be entitled “if it be finally decided that the injunction ought not to have been granted.” In Thurman v. Ritter, 121 Ark. 397, 181 S.W. 299 (1915), we held that for damages to be recoverable they must be traceable to the act complained of as its direct, proximate, and natural consequence, and must not be remote and speculative, involving inquiries that are collateral to the consideration of the wrongful act. We agree with the trial court that the damages suffered from the unlawful arrest by the sheriff are not recoverable against . the temporary injunction bond. Such damages are collateral to the wrongful issuance of the temporary injunction and are not such as would naturally flow from the wrongful issuance of an injunction or restraining order.

That part of the decree finding the “ordinary high water mark” to be six inches above the low bottom area and requiring appellant' to remove its fence is reversed and remanded for entry of a judgment in accordance with this opinion. Appellants are awarded all costs.

Affirmed in part and reversed in part.

Harris, C.J., not participating.


text:
    J. T. WILLIAMS and Ray HURD v. Elza G. HENCY et ux and Fred R. SAVELLE et ux
    73-47
    495 S.W. 2d 875
    Opinion Delivered June 11, 1973
    [Rehearing denied July 16, 1973.]

      Wommack & Lineberger, for appellants.

      Putman, Davis & Bassett and John O. Maberry, for appellees.
   Conley Byrd, Justice.

The trial court, upon the ground of a civil conspiracy, entered judgments against appellants J. T. Williams and Ray Hurd in favor of appellees Elza Hency and wife in the amount of $265 and in favor of appellees Fred R. Savelle. and wife in the amount of $925. For reversal, appellants do not question the damages but only contend that the trial court erred in finding that their acts constituted a civil conspiracy.

The record stated in the light most favorable to trial court’s finding shows that Hency’s father died leaving a tract of land. Hency mentioned to appellant Hurd, a distant relative, that he was going to have to sell the land to divide it among the heirs. Hurd procured Williams to find a buyer for the lands. When Williams found a buyer for the land he caused a contract to be prepared reciting a cash down payment of $1000, the acceptance of a farm tractor at a value of $800, and a balance of $14,700 payable together with interest at 8% per annum in monthly installments of $85.00 each. When the Hencys refused to sign the offer, Hurd and Williams pressured the Hencys into accepting the offer by telling them that the Savelies would bring suit. They also told them that the Savelies would pay the balance off in a few months. Williams put $408 of the $1000 cash down payment into an escrow account. He paid a portion of the balance out in lawyer’s fees, abstractor’s fees, etc. Hurd took possession of the farm tractor. After the Savelies took possession they realized that the $85 monthly payment was not paying the accumulated 8% interest. Thereafter, the Hencys refunded the $1000 cash down payment and the parties mutually rescinded the contract of sale. Appellants refused to surrender the farm tractor. Admittedly, neither Hurd nor Williams is a licensed realtor.

Ark. Stat. Ann. § 71-1301 (Repl. 1957), makes it unlawful for any person not licensed to act as a real estate broker. Ark. Stat. Ann. § 71-1302 (Repl. 1957), provides that one not licensed as a broker or salesman cannot recover a commission in connection with the sale of real estate.

In Mason v. Funderburk, 247 Ark. 521, 446 S.W. 2d 543 (1969), we pointed out that a civil conspiracy is a combination of two or more persons to accomplish a purpose that is unlawful or oppressive or to accomplish some purpose, not in itself unlawful, oppressive, or immoral, by unlawful, oppressive, or immoral means, to the injury of another. Other jurisdictions point out that a prima facie case of civil conspiracy is established when there is shown a concert of action for the accomplishment of an unlawful act. See Weber v. Paul, 241 Iowa 121, 40 N.W. 2d 8 (1949).

Here the appellants could not lawfully act as real estate brokers nor collect a commission for such unlawful act. In addition their oppressive tactics resulted in a shoddy contract which would never pay the interest — to say nothing about the principal. Therefore, we agree with the trial court that the acts complained of amounted to a civil conspiracy.

Affirmed.


author: Frank Holt, Justice.

text:
    Ralph H. HARTSELL, a/k/a DAVIS v. STATE of Arkansas
    CR 73-34
    495 S.W. 2d 523
    Opinion delivered June 11, 1973
    /. E. Sanders, for appellant.

      Jim Guy Tucker Atty. Gen by: James W. Atkins, Asst. Atty. Gen., for appellee.
   Frank Holt, Justice.

Appellant through court appointed counsel asserts that the court’s order denying his pro se Rule 1 motion to vacate his judgment and sentence is erroneous. The court was correct in denying, pursuant to subparagraph (C) of the Rule, an evidentiary hearing.

In his motion he alleged that his request for counsel was denied and he was not represented by counsel when he entered a guilty plea to grand larceny in 1943 and, also, that the resulting one year sentence enhanced his present federal sentence. It is true that the court records do not reflect appellant was represented by counsel. Even so, as the state contends, our Rule provides post conviction relief only for “[A] prisoner, in custody under sentence of a circuit court. . .” (Emphasis added). Criminal Procedure Rule 1A, Ark. Stat. Ann., Vol. 3A, Suppl. 1971, p. 107. It is not designed for and we decline to enlarge the scope of it to include a prisoner under sentence of a federal court. Certainly, appellant was and is not precluded from seeking the asserted post conviction relief, for which the federal rules provide, in the appropriate federal forum.

Affirmed.

Harris, C.J., concurs.


author: Carleton Harris, Chief Justice.

text:
    George A. TACKETT v. James Dorthan GILMER
    73-42
    496 S.W. 2d 368
    Opinion delivered June 18, 1973

      Killough ir Ford, for appellant.

      Barrett, Wheatley, Smith ¿r Deacon, for appellee.
   Carleton Harris, Chief Justice.

George A. Tackett, appellant herein, was injured on May 13, 1970 while operating a John Deere tractor. The chisel plow being pulled by the tractor struck an underground stump, breaking, being pulled up onto the tractor, and injuring Tackett. A bolt from the plow also struck appellant in the forehead. This accident occurred on land known as the Glenn Bostic Farm which was being leased and farmed by Roy Crawford. At the time of the incident, Tackett was an employee of James Dorthan Gilmer, appellee herein. Gilmer, also a farmer, and Crawford, for several years, have used labor and equipment belonging to the other. Under their arrangement, they would “swap work”, but the employees of Gilmer and Crawford were paid by their respective employers. On some days, Crawford and his employees would help Gilmer with his farming operation, and on other days Gilmer and his employees would work on the Crawford farm. Neither man had any interest in the land, equipment, crop, or crop proceeds of the other.

Tackett instituted suit against Gilmer and Crawford, alleging that they were engaged in a joint venture. Depositions were taken from Tackett, Gilmer, Crawford, and Crawford’s son, Phillip, and subsequently, both Gilmer and Crawford moved for summary judgment. The court granted the motion of Gilmer, but denied the motion of Crawford, and from the judgment granting summary judgment in favor of Gilmer, appellant brings this appeal. While three points are asserted for reversal, all really relate to the same contention, viz., that the court erred in sustaining Gilmer’s motion for summary judgment because there were genuine issues of fact to be determined by a jury. The depositions reflect that on the day in question, Tackett first drove his car to Gilmer’s headquarters, received instructions to go to Crawford’s, then drove his automobile to that location, parked his car, drove the tractor to the Bostic farm and obtained the chisel plow. Gilmer was putting out fertilizer at the same time that Tackett was operating the tractor but there was no cohtact between the two men, and Tackett testified that he did not see Gilmer at all. In explaining the work arrangement with Crawford, Gilmer stated, “Maybe some of us don’t have enough equipment and we would combine it and carry on the work, and in the Spring and Fall we will swap work. He will help me put my crops in and I will help him put his in.”

He said that he and Crawford had followed this practice since 1968 or 1969. The record further reveals:

“Q. When you and Mr. Crawford make arrangements to either exchange equipment or labor, do you work out some way satisfactory to satisfy each other?
A. I believe the way we have been doing this — I am farming about twice as much land and have twice as much equipment. We will cut my rice and then his. That is the way we did. *** I pay my labor and he pays his.”

Tackett, a general employee for farm labor, was paid $10.00 per day by Gilmer.

Crawford agreed with Gilmer concerning the manner of operation, and said the practice of swapping work had been most satisfactory. “When he got his planted, he was happy, and when I got mine planted, I was happy.” He said that he could not afford to hire the labor necessary during planting and harvesting time, although he and his sons could handle the work between those times.

On the day of the accident, Tackett went to work under the direction of Crawford, who hooked the chisel plow to the tractor. Crawford said that he gave no instructions to Tackett as the latter knew how to handle the tractor.

Appellant insists that Gilmer and Crawford were engaged in a joint venture farming operation, and it is asserted that to constitute a joint venture, it was only necessary that both participants have a community of interest in the object and purpose of the undertaking, and each have an equal right to share in the control. In support of this definition, appellant cites Reed v. Humphreys, 237 Ark. 315, 373 S.W. 2d 580; Woodard v. Holiday, 235 Ark. 744, 361 S.W. 2d 744; and AMI Instruction 712. The cases cited deal with automobile accidents, and likewise, the AMI Instruction deals with motor vehicles, aircraft and boats.

It is recognized by appellant that this court, with regard to a business enterprise, may well say that a third element must be present, i.e., an agreement expressed or implied for the sharing of profits. And we have so held. In State, ex rel. Attorney General, v. Gus Blass Company, 193 Ark. 1159, 105 S.W. 2d 853, we said:

“To constitute a joint adventure, there must be the elements of a partnership. As between the parties themselves there must have been an intention to form a partnership as expressed in the contract or gathered from acts of the parties and circumstances which may interpret such agreement. As between themselves or third parties, ‘there are certain requisites necessary before the law will in any event regard the relationship as that of partners. The requisites of a partnership aré that the parties must have joined together to carry on a trade or adventure for their common benefit, each contributing property or services and having a community of interests in the profits.’ *** ‘As between the parties' themselves, before it has been said that the relationship of partners has been created, it is essential that.the parties themselves intended by the effect of their contract to form such a partnership business, and that they should have a common ownership and community of interest in the properties of the business, and they should share in some fixed ' proportion in the profits thereof only as profits of the business.’ •

See also United States v. Westmoreland Manganese Corporation, et al (District Court E.D. Ark. N.D.) 134 F. Supp. 898.

There really is no need to discuss common purpose and equality of control, for it is clear that on the third phase, viz., that the parties must share in-the prqfits, appellant’s joint venture contention must fail. As to this phase, appellant in his brief states:

“Appellee Gilmer farms about ‘twice’" as much land and has ‘twice’ as much equipment aS Appéllee Roy Crawford and Crawford’s labor is a necessary element for him to make a profit from his crop'. Appellee Roy Crawford when asked' if the farming arrangement agreed upon with Gilmer was of ariy financial value, Crawford stated that ‘I could not afford it’ if he should be required to hire his own labor and buy additional equipment. Is there any question that the working arrangement is necessary fo,r Crawford to make a profit on his farming operation? The element of both Appellees haying a community of interest in the profits is very clearly established. Crawford and Gilmer have if not by written contract but by an implied agreement farmed for several years in this fashion and both are dependent on the other in order to financially succeed. Should either Appellee fail in the consideration they offer to the implied contract of farming the entire ‘joint venture’ would fail.
“Appellant contends that to make a profit arid show a financial gain satisfies any requirement of having a community of interests in the profits. Pooling income and equally sharing the profits is not the law. The facts are that the Appellees are in the farming business to eách make a profit and neither could do so without the farming agreement entered into.”

We cannot agree with the argument. The deposition testimony, in which .the parties, were closely and fully questioned, reveals. that there was never any’ agreement between Crawford and Gilmer. to share in each other’s profits and the profits from each man’s farming operation remained separate to that individual. While the swapping of work, according to both men, was mutually beneficial, there was no agreement to share in a fixed proportion of profits. The argument that the arrangement between the two created a joint’ enterprise because it allowed each to make a greater profit on his own farming operation has been held to be without merit. In. the case of Wells v. Whitaker, 151 S.E. 2d 422, the Supreme Court of Appeals of Virginia had occasion to discuss' this contention. In a well-written opinion by Mr. Justice I’Arison, the court said: ■

“Although there is no generally accepted definition of joint venture, it is said to exist ‘when two or more persons combine, in a joint business enterprise for their mutual benefit, with an express or implied understanding or agreement that they are to share in the profits or losses of the enterprise, and that each is to have a voice in its «control or management.’ [Citing cases];
“Joint ventures are not established by operation of law but by. contracts, expressed or implied, between the parties. There is no evidence in the record to indicate any intention of the parties that Atlas was to exercise any voice in the control or management or to share in the profits or losses of the mixing plant’s . operation or. that it did exercise control and share in the profits.
“Profits accruing from .the movement of ammonium nitrate frorn the manufacturer, Atlas, to the processor, Whitaker-Atlas, and then to the ultímate consumer cannot be said to be a sharing of the profits of the processor. The profit accruing must be joint and not several. Otherwise every person, firm or corporation who furnishes materials or supplies in connection with an enterprise might be -termed joint venturers, whether or not they had any such intention.”

The depositions of the parties very clearly reveal that there was no joint enterprise, and that being shown, appellant could not recover from Gilmer; accordingly, there was no fact question remaining to be passed on by the jury.

Affirmed.

      Tackett stated that the tractor was similar to one he drove for Gilmer, but being a different model, was operated a little differently. Stopping the tractor was a little different, Tackeit testifying, “I said, ‘How do you kill it?’ and he [Crawford] said, ‘Pull the lever plumb up and out’, but you will forget things.”


author: George Rose Smith, Justice. J. Fred Jones, Justice,

text:
    Otha GOZA v. CENTRAL ARKANSAS DEVELOPMENT COUNCIL, Inc. et al
    5-6235
    496 S.W. 2d 388
    Opinion delivered June 18, 1973

      Glover & Glover, for appellant.

      Wood, Smith é- Schnipper, for appellees.
   George Rose Smith, Justice.

This is a claim for death benefits under the workmen’s compensation law. The Commission denied the claim on the ground that the employee’s death was caused solely by his intoxication. The circuit court affirmed that decision. The question here is whether there is substantial evidence to support the denial of the claim.

We state the facts most favorably to the Commission’s decision, as is our rule. The decedent was employed at the Central Arkansas Development Council’s office in Benton. On December 14, 1970, he hunted deer in the afternoon and spent that night at a deer camp, drinking beer and playing cards until after midnight.' He arose early the next morning, had breakfast, and drank at least one can of beer before being driven to his home in Malvern by Foxx Ward (who did not testify).

Goza left Malvern in a car furnished to .him by his employer and started toward his office in Benton. A hard rain was falling. At about 11:00 a.m., on a straight highway, Goza’s car crossed the center line, with no apparent skid, and collided with a pick-up truck. There were beer cans in Goza’s automobile. A test made about two and a half hours later showed Goza’s blood alcohol level to be .22%. Goza died eight days later, apparently from a liver injury sustained in the collision.

Dr. Carlton, an expert witness, testified that a .22% blood alcohol level would blur the mental facilities of an average person, so that he would not be able to drive a car safely. Dr. Carlton 'explained that the alcohol level rises to a peak ás the blood absorbs álcohol and then decreases as the liver eliminates it. A blood test does not show whether the percentage is rising or falling. Dr. Carlton could not say whether Goza’s blood alcohol level at the time of the collision was greater or less than it was when the test was taken later on. He did say that if Goza had only one beer during the period of some ten or twelve hours before the test, the witness would assume that the alcohol content was then on the decline (indicating a higher level at the time of the accident).

The appellant, in seeking a reversal, relies upon the statutory provision that there is no liability for compensation when death was “solely” occasioned by the injured employee’s intoxication, Ark. Stat. Ann. § 81-1305 (Repl. 1960), and upon the statutory presumption that the injury did not result from intoxication of the injured employee while on duty. Section 81-1324.

We recognize the force of those statutory provisions, by which the Commission should be guided; but we must nevertheless adhere to the substantial evidence rule in reviewing cases involving an employee’s alleged intoxication. See American Cas. Co. v. Jones, 224 Ark. 731, 276 S.W. 2d 41 (1955); Elm Springs Canning Co. v. Sullins, 207 Ark. 257, 180 S.W. 2d 113 (1944). This is necessarily true, for otherwise a claim would have to be allowed whenever the record contained substantial evidence that would support either an allowance or a denial of the claim.

Here there is substantial proof in the record to sustain the Commission’s decision. The Commission, as a fact-finding tribunal, was justified in concluding, as it did, that Goza’s blood alcohol level made him incapable of safely operating an automobile. The Commission was also warranted in finding, as it did, that the accident was not caused by any factor other than Goza’s driving his vehicle across to the wrong side of the highway and striking the oncoming truck. Inasmuch as we find substantial evidence to sustain the Commission’s decision, it is our duty to uphold the denial of the claim.

Affirmed.

Jones, J., dissents.

J. Fred Jones, Justice,

dissenting. I do not agree with the majority opinion in this case. 1 do agree that Ark. Stat. Ann. § 81-1305 (Repl. 1960) provides that there is no liability for compensation where the injury or death from injury was “solely” occasioned by intoxication of the injured employee. I also agree that the word “solely” in this provision is fortified by the statutory presumption that the injury or death did not result from intoxication of the injured or deceased employee under Ark. Stat. Ann. § 81-1324 (Repl. 1960). The area of my disagreement lies in the application of the substantial evidence rule as applied by the majority to the known facts in this particular case.

It is my view that the statutory presumption that the injury did not result from the intoxication of the injured employee while on duty, places the burden on the respondent employer, or insurance carrier, to not only prove that the injured employee was intoxicated at the time of his injury; and not only to prove that the injury was occasioned partially because of intoxication, but it places on the employer or insurance carrier the burden of proving that the injury or death was solely occasioned by intoxication.

While I recognize that the decisions of the Workmen’s Compensation Commission have the same force and effect as a jury verdict, we should remember that the statutory composition of our Workmen’s Compensation Commission consists of two laymen and only one lawyer experienced in the practice of law. The Commission does not have the benefit of instructions from a presiding judge as does a jury and is, therefore, less restricted in turning its decisions on evidence which is less than substantial than would be the situation with a jury in a circuit court trial. Consequently, I feel that we should examine the substantiality of evidence in a workmen’s compensation case perhaps a little more closely than evidence considered by a jury under proper instructions on preponderance and weight of evidence and the burden of proof.

In Wigmore on Evidence, 3rd Ed., vol. 9, footnote 18, at 300, it is stated that substantial evidence is evidence furnishing a substantial basis of fact from which the fact in issue can reasonably be inferred and the test is not satisfied by evidence which merely creates a suspicion or which amounts to no more than a scintilla or which gives equal support to inconsistent inferences. Substantial evidence is defined in Ford on Evidence, vol. 4, § 549, at 2760, as follows:

“Substantial evidence is evidence that is of sufficient force and character that it will, with reasonable and material certainty and precision, compel a conclusion one way or the other. It must force or induce the mind to pass beyond a suspicion or conjecture.”

Measured by these definitions it is my opinion that the appellee-employer and compensation carrier in this case did not present substantial evidence that Mr. Goza’s death was solely occasioned by intoxication. It has become a matter of common knowledge that accidents where intoxication is not even involved occur every day when one automobile crosses the center line of the highway and collides headon with another automobile. In Larson’s Workmen’s Compensation Law, § 34.34, at 507 under the heading “Intoxication sole cause of injury,” is found the following:

“The strictest type of statute, which requires a showing that intoxication was the sole cause of the injury, presents an opportunity for a little more controversy than the better-known concepts of causation in the other statutes. Because of the severe burden of proof, the great majority of attempts to invoke the defense have been unsuccessful. ...”

Under this section in Larson are cited several cases from states having such statutes as ours, pointing up the difficult burden assumed by employers and compensation carriers in overcoming the statutory presumption against intoxication as the sole cause of injury. I shall only cite one of them. In the New Jersey case of O’Reilly v. Roberto Homes, 107 A. 2d 9, the decedent employee was killed when his automobile crossed to the wrong side of the highway and struck a tree. The defense that intoxication was the sole and proximate cause of the death was interposed, and in that case the New Jersey Court said:

“Thus the New Jersey rule today is that the employer must show intoxication as a cause to the exclusion of all others.
... ‘If the Legislature intended intoxication as a concurrent or contributory cause of an injury to effect a deprivation of the benefits of the statute it would have been a simple matter to have said so.’
* # *
. The employer must show intoxication as the sole and proximate cause of the injury and it is not enough that the condition of the worker was a contributing factor in bringing about the accident. Van Note v. Coombs, 24 N.J. Super 529, 532, 95 A. 2d 12 (App. Div. 1953). The testimony was that in the afternoon decedent had a few beers, and that later that evening the decedent had three or four eggnogs containing rye whiskey. The toxicologist report showed alcoholic content in the. brain to be ‘.1965 per cent, which is equivalent to 1.965 gram of alcohol per kilogram of brain.’ According to the weight of the testimony, such a percentage of content may produce a state of intoxication which would affect different people and drivers in varying degrees.
The exact cause of the accident in the present case is open to mere speculation since there are no witnesses to the accident. There is disputed testimony of tire marks or ‘skid’ marks. The gas station attendant who last saw decedent shortly before the accident testified that the decedent did not appear intoxicated to him. We may speculate that perhaps the accident was caused by faulty mechanism or perhaps decedent fell asleep at the wheel of the car since it was late at night and decedent worked long hours.
Respondent has not carried the burden of proving intoxication as the sole factor of the accident as required by R.S. 34:15-7, N.J.S.A. The nature of the employee’s duties exposed him to highway dangers; the accident was directly attributed to a risk of the highway to which the employment exposed him and the injuries and death followed as a rational sequence from a risk connect with the employment. Sanders v. Jarka Corp., 1 N.J. 36, 61 A. 2d 641 (1948); White v. Sindlinger, 30 N.J. Super. 525, 105 A. 2d 437 (App. Div. 1954).”

In the case at bar Goza had been up practically all night at a deer camp and while there is evidence that he drank some beer while at the deer camp, it was he who went for groceries in order to prepare breakfast prior to leaving the deer camp and going to his home for the purpose of reporting to work. One of the most important facts in the case is that it was raining hard when Goza’s vehicle crossed the center line of the highway and collided with a pickup truck and resulting in Goza’s injury and subsequent death. I recognize the evidence that Goza’s blood alcohol level was 0.22% in a test made about two and one-half hours after the accident, but there is no evidence as to what Goza had to drink either before or after the accident except the evidence as to one can of beer before he left the deer camp and the existence of some empty beer cans in his truck. There was no evidence of faulty driving prior to the collision and there was no evidence as to the mechanical condition of windshield wipers and steering mechanism. As I view the evidence in this case, the sole evidence as to the extent of Goza’s intoxication was the percentage of alcohol found in his blood stream two and one-half hours after his accident.

It is my conclusion, therefore, that this evidence standing alone could amount to no more than a suspicion or conjecture that intoxication might have contributed to the cause of the collision and would only support a number of inconsistent inferences that could be drawn when considered in connection with the admitted hazardous driving conditions on the highway. I fail to find any substantial evidence that Goza’s injury and death were solely occasioned by intoxication. I would reverse the decision of the trial court.


author: Lylf. Brown,' Justice.

text:
    Edwin Eugene BRUNS, Executor of the Estate of William J. LOTZ, Deceased v. Goldie LOTZ
    73-56
    496 S.W. 2d 376
    Opinion delivered June 18, 1973

      Walls, McAllister, Wade ér Burke, for appellant.

      D.avis, Reed & Douglas, for appellee.
   Lylf. Brown,' Justice.

The facts are brief and undisputed. In 1966 William J. Lotz, a single person, acquired title to real estate subject to an existing indebtedness secured by a mortgage to Fayetteville Building and ■ Loan Association. Mr. Lotz assumed that debt. He subsequently married appellee. Mr. Lotz died testate in 1969, at which time the balance due on the mortgage debt was $17,545. The decedent’s'estate was solvent. Building & Loan did not file a claim. The widow elected to take against the will. She petitioned that the mortgage debt be paid from the general assets of the estate and that she be allowed her full dower in the property that is subject to the mortgage. The trial court agreed with Mrs. Lotz. The correctness of that decision is the sole issue on appeal.

The trial court based its opinion on Ark. Stat. Ann. § 62-2908 (Repl. 1971) and on our holding in Wilcox v. Brewer, 224 Ark. 546, 274 S.W. 2d 777 (1955). The cited statute and a significant portion of the committee comment are as follows:

As between the distributees, secured debts shall be discharged out of the general assets of the estate, subject to the right of a decedent to provide otherwise by his will; provided nothing in this section shall preclude a secured creditor from having recourse to his security for satisfaction of the debt.
Committee Comment. It is believed that the intention of a decedent \yho has incurred indebtedness secured by a mortgage or pledge is more likely to be accomplished by the discharge of the indebtedness out of the general estate as he would have done had he lived, than by requiring the indebtedness to be paid out of the mortgaged security.

In Wilcox we held that when the estate is solvent the widow, under § 62-2908, was entitled to take dower in full in pledged stock certificates after the debt had been discharged out of the general estate. With respect to a number of cases cited by appellant we quote a statement from Wilcox which is apropos here:

There is no need to attempt to harmonize the cases cited by each side by pointing out (a) that some of these cases involved rights of a creditor to hold security against- the widow; (b) that some involved in solvent estates; and (c) that some contained broad statements without discussing the solvency of the estate, or rights of secured creditors as contra-distinguished from the right of widow to dower. The fact remains that § 167 of Act 140 of 1949 (the Probate Code Act), as now found in § 62-2908, has seeded the questions here posed.

Affirmed.


text:
    BEAVER AMUSEMENT CORPORATION et al v. STATE of Arkansas
    73-13
    495 S.W. 2d 839
    Opinion delivered June 18, 1973

      R. W. Laster, for appellants.

      Jim Guy Tucker, Atty. Gen., by: Lonnie A. Powers, Asst. Atty. Gen., for appellee.
   John A. Fogleman, Justice.

The judgment is reversed and the cause dismissed upon authority of Southland Theatres v. State, 254 Ark. 639 (1973), 495 S.W. 2d 148; Southland Theatres v. State, 254 Ark. 192 (1973), 492 S.W. 2d 421; Mini-Art Operating Co., Inc. v. State, 253 Ark. 364 (1972), 486 S.W. 2d 8.


text:
    Donald Ray JOHNSON v. STATE of Arkansas
    CR 73-36
    495 S.W. 2d 845
    Opinion delivered June 18, 1973

      James R. Howard, for appellant.

      Jim Guy Tucker, Atty. Gen., by: Charles A. Banks, Asst. Atty. Gen., for appellee.
   Conley Byrd, Justice.

Appellant Donald Ray Johnson was found guilty of robbing Bill’s Liquor Store in Little Rock. For reversal he contends the lower court should have granted his motion for a directed verdict because the prosecution failed to prove that the crime was committed in Pulaski County and that the appellant participated in the robbery. He confessed on March 25, 1972, that he participated in a robbery “Last Thursday,” which was the date of the crime. A police officer, testified that appellant denied robbing Bill’s Liquor Store on Eighth Street but admitted to driving the automobile used in the robbery. The jury could have concluded from this evidence that the appellant participated in the crime charged.

As to the claim that the State failed to prove the crime was committed in Pulaski County, see Ark. Stat. Ann. § 43-1426 (Repl. 1964), Lyons v. State, 250 Ark. 920, 467 S.W. 2d 701 (1971) and Hill v. State, 253 Ark. 512, 487 S.W. 2d 624 (1972).

Affirmed.


text:
    Roxie McDONALD, Executrix of the Estate of Hazel PETTY, Deceased v. Ray Dale PETTY et al
    73-50
    496 S.W. 2d 365
    Opinion delivered June 18, 1973
    [Rehearing denied July 23, 1973.]

      Gibbs Ferguson, for appellant.

      Paul K. Roberts, for appellees.
   Frank Holt, Justice.

The appellees initiated this action to enforce an oral contract to make a will, to cancel their respective deeds, and for an accounting. The appellees are the surviving five brothers and sisters (including their spouses) of the deceased, Frank Petty, who allegedly agreed to make a will devising to appellees certain property deeded to him by them.

The appellees and their brother Frank each acquired a 1/6 interest, as surviving heirs, in a 95 acre farm upon their father’s death in 1959. Approximately three years later, appellees conveyed their respective interests to Frank by warranty deeds reciting a consideration of $3,000 each. Frank died approximately 8 years later, intestate and without issue, and the property became vested in Hazel, his wife of 28 years, pursuant to Ark. Stat. Ann. § 61 - 149 (1971 Repl.). Hazel died after the trial to enforce the alleged oral contract and before a decree was entered. Appellant was appointed executrix of Hazel’s estate and the action was revived in her name.

It was alleged by appellees that Frank constantly importuned them to sell their interests in the farm to him; that they didn’t want to sell; that he promised if they would deed him their interests he would execute a will and devise the farm back to them; that he threatened he would kill them if they failed to make such deeds; that, fearing for their lives and relying on his promise to make a will, they deeded the lands to Frank. They, also, alleged failure of consideration and prayed for cancellation of the deeds and an order directing conveyance of the lands. These allegations were denied by Hazel Petty, Frank’s widow.

The chancellor found, inter alia, that appellees had met their “heavy burden of proof” to establish that an oral contract was made to make a will devising the farm to appellees. We have long recognized that an oral contract to make a will to devise or a deed to convey real estate is valid when the testimony and evidence to establish such a contract is clear, cogent, satisfactory, and convincing. Williams v. Robinson, 251 Ark. 1002, 476 S.W. 2d (1972). The evidence “must be so strong as to be substantially beyond reasonable doubt.” Walk v. Barrett, 177 Ark. 265, 6 S.W. 2d 310 (1928); Crowell v. Parks, 209 Ark. 803, 193 S.W. 2d 483 (1946). In the case at bar, upon a review of the evidence, we must agree with appellant that it does not meet the quantum of proof that is required for the specific performance of the alleged oral contract to make a will devising the lands.

Appellees testified that the $3,000 was only a partial consideration for their deeds. They said, as alleged, that Frank promised to will the property back to them. Further, that in his obsession to own the property he coerced them into deeding their respective interests to him by threats of physical harm to the extent of killing them unless he acquired the property; also, that he would kill anyone who bid on the property against him. One of the appellees, Ray Petty , said Frank threatened him by the use of a pistol the night before he made his deed. Some of the appellees testified that Frank, also, promised to will to them half of everything else he possessed. In answer to an interrogatory, one of the sisters stated that he promised to make her beneficiary of a $10,000 life insurance policy. It was appellees’ understanding that the conveyances to him were with the assurance that the property would be kept in the family.

Three years after the death of appellees’ father, or before appellees’ deeds were made to Frank, a partition action was commenced by one of the appellees, Ray Petty and his wife, residents of Arkansas, against his nonresident brothers and sisters (appellees and Frank) and their spouses. The court found that the lands were incapable of partition in kind and should be sold and the proceeds divided equally between the heirs. The clerk of the court was appointed commissioner and a public auction was set for December 8, 1962. On November 26, 1962, appellee Smart and her husband conveyed their interests by a warranty deed to Frank. They resided in Oregon and according to them his promise to make a will was communicated by phone and at a later date in person to Mrs. Smart. The Newtons, who also resided in Oregon, conveyed their interest to Frank by warranty deed in November, 1962. However, the exact date is not legible on the deed. According to them, the oral promise to make a will was by phone. The McGinnises, who resided in Texas, said that because of threats by Frank and his promise to make a will they conveyed their interest by warranty deed on December 5, 1962. The deed was signed • by them in the presence of a lawyer in Texas. Two days later they were accompanied by Frank and Hazel, who also lived in Texas, to Arkansas to attend the scheduled public sale. It appears that the McGinnises had the benefit of a local lawyer at the scheduled sale. Gus and Dorothy Petty, who resided in Texas and attended the scheduled sale, conveyed to Frank their interest by a warranty deed on December 8, 1962, the sale date. Dorothy testified the deed was made because of Frank’s threats and promises to make a will. Her husband was too ill to testify. The warranty deed was signed by them in the presence of and with the counsel of their own lawyer. Ray and Mary Petty, who initiated' the partition sale, conveyed their undivided-interest,.to Frank,,by warranty deed, also, on the sale date of December 8, 1962. Their deed, according to them, was • made due to his threats and promises. to make a will. They were, also, represented and counseled by their own attorney..-

The partition sale, which was attended by several bidders, was not conducted as scheduled. On that very date Ray and Mary Petty petitioned the court) however, to vacate the sale order asserting ‘-‘that. Frank A. Petty has acquired the interest, of all'other .owners of, said property, said owners being named as defendants in this action, and now .owns said, property completely.” ..It is undisputed that each of the appellees received $3,000 for their respective interests. ,

Appellees testified that they considered the-95.27 acre farm to have a value of $400 an acre in -1962 or approximately twice what they were paid. Their own witness, an adjoining landowner, who attended the scheduled - sale, testified, “I don’t know-if,I could-say specifically what the land was worth in 1963 ..... You know, putting the 9,6 acres with any large tract .... then I might háve paid $200 and $250 [per acre] for this 95 ácre tract- [i.e., $19,000 to $23,750] .... [T]here was a neighbor of mine up there that owned a tract of land at that time that joined this property that you are talking about. ... I imagine that he would have paid the figure that I mentioned there.” Appellant’s witness, a local professional appraiser, testified that the farm had a fair market value-of $17,862 as of December, 1962. It is significant that this local appraiser had, in fact, previously appraised the lands in 1959 or 1960 at the specific request of appellee Ray Petty, himself. This appraisal preceded Ray’s partition action.

In addition to paying each of the appellees $3,000 for their interests, Frank, also, paid $450 which his brother Ray owed for attorney’s fees in the partition action he had instituted against his non-resident brothers- and sisters. There was, also, an assumption by Frank of $1,675.93 loan against the land. By counting Frank’s 1/6 interest, the total consideration involved for the farm would be $20,125.93. Thus, it appears the appellees received a fair price for their respective interests.

Hazel testified that she never heard her deceased husband promise to make a will. Further, that he didn’t have a pistol and that he was riot of a violent disposition and never “got into a fight with anyone.” “He was kind and considerate.” She testified that he had purchased a house in a town near the farm for his parents and sent them sums of money periodically. His non-violent disposition was corroborated by the tenant who had rented the farm continuously since 1956 or originally from appellees’ father. According to her, Ray wanted his money out of the property, “put it up for sale,” and sold his interest after the others had done so “cause he would get more out of it that way.” Also, the appellees seemed well pleased with the transactions and they were “real sweet to me.” Hazel was suffering from cancer when she testified and died approximately á year following the trial.

Frank had previously purchased other lands in the vicinity from his father and a brother. It appears undisputed that after Frank acquired the deeds from appellees to the 95 acre farm he received the rental payments from the land during the eight years preceding his demise and no demands were ever made upon him to execute a will. There is no evidence from any disinterested witness that there was a promise to make a will or threats made in order to secure appellees’ deeds: To the contrary, court officials testified they could not recall/any “fussing or arguing or loud talk” among the appellees and Frank on the date of the scheduled partition sale at which time the last two warranty deeds were signed by Ray, his wife, and Gus, his wife, in the presence of and with the counsel of their own attorney.

In these circumstances we cannot say the evidence was sufficiently clear, cogent, satisfactory and convincing to be substantially beyond a reasonable doubt that an oral contract was made to make a will to devise the farm. Walk v. Barrett, supra, and Crowell v. Parks, supra. It is true that § 61-149, supra, (Act 303 of 1969) changed the law as to ancestral estates. However, it does not appear logical that the appellees would accede to their brother’s asserted hostility and threats and at the same time rely upon his oral promise to make a will without requiring some limitation in their respective deeds which conveyed their interests absolutely. It appears, as indicated, that most of the appellees were represented and counseled by their own attorneys in the preparation and making of their warranty deeds. The evidence does not justify the finding of an oral contract to make a will and the cancellation of the solemn and unrestricted recitals of the respective warranty deeds, each of which is supported by a fair and adequate consideration. We deem it unnecessary to discuss appellant’s other contentions for reversal.

Appellees urge, by a motion to dismiss, that an action to recover land must be revived in the names of the heirs of the parties who die during during the pendency of an action as provided by Ark. Stat. Ann. § 27-1014 (1971 Supp.) instead of in the name of a personal representative as in the case at bar. Although the appellees reserved the right to object to the revivor action, no objection was ever raised until after the cause reached this court on appeal. Therefore, since this issue is presented for the first time on appeal, we do not reach it. Griffith v. Rozell, 252 Ark. 280, 478 S.W. 2d 762 (1972). Furthermore, in the case at bar, the burden to have the action properly revived falls upon the plaintiffs, the appellees, who are the ones seeking to establish their title to the land.

The decree is reversed.

Fogleman, J., concurs because he feels that the decree was clearly against the preponderance of the evidence.


text:
    William C. RAIBORN v. Don E. RAIBORN
    73-54
    495 S.W. 2d 858
    Opinion delivered June 25, 1973

      Barber, Henry, Thurman, McCaskill if Amsler, for appellant.

      Hall, Tucker if Lovell, for appellee.
   Carleton Harris, Chief Justice.

Along during the middle of May, 1971, William C. Raiborn, appellant herein, was visiting his son, Don E. Raiborn, appellee herein, at the latter’s home in Pasadena, Texas. The two Raiborn families made a sightseeing trip to Galveston on Sunday, May 16. The trip was made in Don Raiborn’s Oldsmobile, traffic conditions being “bumper to bumper” between Houston and Galveston. A number of quick stops were made during the trip, and the brakes were operating perfectly and normally. The next day, Don Raiborn was unable to start his Ford Thunderbird and he accordingly requested the father to bring the Oldsmobile around in front of the Thunderbird in order to get the Thunderbird started with jumper cables. Appellant complied with this request and, while doing so, stopped the Oldsmobile at least four times; there was no indication at all of anything being wrong with the brakes. After the Thunderbird had been started, appellee backed it up in order to let his father move the Oldsmobile forward to get it out from in front of a neighbor’s driveway. The son was fixing to shut the hood on the Thunderbird when he noticed a noise in the distributor; he then leaned over and felt of the distributor, looking away from the other car. The father, William C. Raiborn, moved the Oldsmobile forward, and the car struck the son, pinning him between the two automobiles. The senior Raiborn then backed the Oldsmobile away, applied his brakes, and stopped the car. Appellee received a broken leg and subsequently instituted suit against the father, seeking damages in the amount of $9,990.00, alleging that the father was negligent in failing to keep his vehicle under proper control, failing to keep a proper lookout, and failing to properly apply his brakes. The father answered with a general denial and further asserted that the injuries sustained were a result of negligence on the part of the son. On trial, following the testimony of Don Raiborn, appellant moved for a directed verdict on the basis that there had been no proof of any nature establishing negligence on the part of the father. This motion was denied by the court. Following the testimony of appellant, a directed verdict was again sought, and again denied by the court. The jury returned a verdict in the amount of $20,000, the court reducing it to the amount sought in the complaint ($9,990.00), and from the judgment entered in that amount, appellant brings this appeal. For reversal, it is first asserted that the court erred in refusing to direct a verdict for appellant, there being no evidence of negligence by the father. It is then asserted that the court erred in refusing to direct a verdict for appellant for the reason that, as a matter of law, appellee was guilty of contributory negligence. We proceed to discuss these points in the order named.

The contention of appellant is that the testimony reflected there was no negligence on his part, and he was entitled to a directed verdict. Of course, we can only consider the second motion, since appellant offered proof in his own behalf following the denial of the first motion. Chrestman v. Kendall, 247 Ark. 802, 448 S.W. 2d 22. We cannot agree that the court erred in denying the second motion, for we are of the opinion that the facts presented a jury question. There was no dispute but that the brakes on the Oldsmobile were working properly the day before the accident occurred. As earlier stated, on the trip to Galveston, which was made in heavy traffic, the brakes were consistently used, without any indication that there was anything wrong. Likewise, appellant testified that on the occasion of the accident, in backing, and going forward, to get the Oldsmobile in position to connect jumper cables with the Thunderbird, he stopped at least four times, the brakes working normally each time. He said that after disconnecting the jumper cables, he got back into the Oldsmobile and, the Thunderbird having been backed up by his son, started the Oldsmobile forward to clear a driveway. The son was leaning over the front of the car with the hood up. Distance between the two cars at that time was approximately 15 to 18 feet and appellant stated that when he came within about 5 feet of the Thunderbird, he applied the brakes “and I seen there was no brakes there. Seems the pedal would go plumb to the bottom.” He said when he started moving the car forward, he probably “mashed” down on the accelerator a little but that the car was just “creeping”. When the brakes failed to hold, he tried “pumping” but this was of no help. When asked if he did anything else, he replied that he did not. “There wasn’t time. Can’t throw one in park while it is rolling.” After pinning the son between the cars, appellant backed up to release appellee, and again applied the brakes, stopping the vehicle. From the record:

“Q. When you backed the Oldsmobile up, you said you stopped it. Did you put on the brakes then?
A. Yes.
Q. Could you stop it with the brakes?
A. Yes, it stopped.
Q. Did they work all right then?
A. Yes, sir.”

Appellant, a retired minister, testified that he had mechanical experience, having worked on, and repaired automobiles, all of his life, including brake systems. He said that after the accident, he examined the master cylinder on the Oldsmobile and “found the cup in the master cylinder was faulty when it applies the pressure to the breaking system. It had a little crack right in the back of the cup.” The witness stated that this crack would allow the fluid to “come back into the master cylinder chambers instead of applying it to the brake shoes.” Appellant said that he replaced the cup, replaced the master cylinder, and tested the brakes, finding them in order.

The son, Don Raiborn, offered no evidence as to how the accident occurred, other than he was struck by the car, and it is argued that all of the evidence reflects that there was no negligence on the part of the father. It is pointed out that the use of the Oldsmobile the day before, and on the day in question (prior to the accident) when the brakes were working perfectly, left appellant without any warning that there was anything wrong with the braking system, and the court should have directed a verdict in his behalf.

Appellant overlooks the fact that there was no testimony in this case except from the two principals, and we have said that the testimony of a party to a suit is not to be treated as undisputed in testing the legal sufficiency of the evidence. See Hales & Hunter Co. v. Wyatt, 239 Ark. 19, 386 S.W. 2d 704, and Turchi v. Shepherd, 230 Ark. 899, 327 S.W. 2d 553. In the last cited case, we stated:

“Of course, the testimony of a party to the litigation is considered disputed as a matter of law, and therefore, standing alone, will not support a peremptory instruction in his favor [our emphasis], but such testimony constitutes substantial evidence to support a jury verdict; ***”.■

Since the testimony of William Raiborn cannot be considered as undisputed, it follows from that fact alone that a directed verdict would not have been proper. Actually, there were circumstances which presented a jury question. Certainly, it is noticeable that the brakes on the automobile on the date of the accident worked perfectly at least four times just prior to the accident, and apparently worked perfectly when appellant backed up and applied his brakes following the accident. According to appellant, the car that he regularly drives is a Chrysler (1962), which is operated by push button located on the left hand side of the dash, while the shift in the Oldsmobile is on the steering column. In other words, he was accustomed to operating a different type of automobile, and the jury might have thought that, intending to put his foot on the brake, he hit the accelerator, which would account for the force of the blow, as testified to by appellee. It also appears that no effort was made to use the emergency brake. Of course, for that matter, a jury, as we have pointed out many times, is not required to believe everything a witness says, and though members of the jury might not consider the witness a deliberate falsifier, they could well consider that human nature frequently causes one to see the facts on a basis favorable to himself. The court did not err in permitting the case to go to the jury.

As to the second point, there is little to be said. Under Texas substantive law which applies in this case, a defense of contributory negligence is an absolute defense to a cause of action. Jones v. Smith, (Court of Civil Appeals of Texas) 466 S.W. 2d 47. It is first argued that appellee was under a duty to keep his brakes in proper order, adequate to control the movement of, and to stop and hold such vehicle. Vernon’s Ann. Civ. St. Art. 67, Old Uniform Act Regulating Traffic on Highways, § 132, Brakes. However, it was, of course, not established that faulty brakes were the cause of the accident (the jury apparently found otherwise), and as heretofore pointed out (if the brakes were faulty), there was no warning, i.e., no more warning to appellee, owner of the car, than to appellant, driver of the vehicle. It is also argued that Don Raiborn was guilty of contributory negligence in walking around in front of the Thunderbird and turning his back on appellant, knowing that appellant was going to drive the Oldsmobile forward. We certainly cannot agree that this was negligence as a matter of law. Rather, it was a fact question for the jury to pass upon. In Blissett v. Frisby, 249 Ark. 235, 458 S.W. 2d 735, we said:

“The verdict of the jury was a general one. It was rendered upon instructions relating to negligence, proximate cause and comparative negligence, and preponderance of the evidence, of which appellant does not complain. Resolution of conflicts in testimony in a law case is not within the province of an appellate court. [Citing cases]. It is fundamentally a jury function, and a verdict usually is conclusive. [Citing cases]. Especially is this so where questions of negligence, contributory negligence and credibility of witnesses are involved.”

The jury was correctly instructed as to the defense of contributory negligence, and it found contrary to appellant’s contention.

Affirmed.

      Appellee testified, “I was hit. The Oldsmobile reared up inside the grill on the Thunderbird.”