author:
Carleton Harris, Chief Justice.
      Sam Robinson, Associate Justice,

text:
    Michigan Life Insurance Co. v. Hayes.
    5-1914
    332 S. W. 2d 593
    Opinion delivered February 8, 1960.
    [Rehearing denied March 21, 1960]

      Barber, Henry, Thurman■ S McCaskill, for appellant.

      Osborne W. Garvin and Wright, Harrison, Lindsey & Upton, for appellee.
   Carleton Harris, Chief Justice.

This litigation involves the construction of the “Confinement Clause” of an insurance policy issued to Dr. J. Donald Hayes of Little Rock by the Michigan Life Insurance Company. In May of 1952, Huntington & Homer, Inc., General Agents for the company, mailed, from their Chicago office, to a large number of professional men in Little Rock, descriptive literature of a new policy which the company was issuing to attorneys, dentists,- and physicians. An application and a specimen policy of the company were enclosed. During the same month, Dr. Hayes executed the application and mailed same to the agency, which in turn forwarded the application on to the company’s office in Detroit. The application was accepted, policy was issued on May 27th, effective June 1, 1952, and returned to the agency, which in turn forwarded it on to Dr. Hayes in Little Rock. Statement for the premium due ($190.00) was also enclosed, and Dr. Hayes mailed his check on May 29,1952. Subsequently, the doctor also paid the 1953 and 1954 premiums. The policy, styled “Professional Disability Policy”, which is a health and accident policy, provides, inter alia, as follows:

“Article 2.
If such injuries, sickness or disease shall wholly, continuously and necessarily disable the Insured, and prevent him from performing every duty of his occupation, the Company will pay at the rate of the Monthly Indemnity specified in the Schedule on page four hereof, for the period of such disability, not to exceed three years commencing with the eighth day of such disability.
If under the preceding paragraph of this Article such disability shall necessarily confine the Insured within a hospital during the first seven days of disability, said Monthly Indemnity shall then he payable commencing with the first day of such hospital confinement.
After the payment of the Monthly Indemnity for three years as aforesaid, the Company will continue the payment of Monthly Indemnity at the same rate thereafter so long as the Insured shall live and be wholly, continuously and necessarily:
A. Disabled by such injuries from engaging in any occupation or employment for wage or profit;
B. Confined in the manner as required in the next paragraph, as the result of sickness or disease and regularly visited and treated by a legally qualified physician or surgeon other than himself;
‘Confined’ means that the Insured is absolutely unable to leave the house and the yard situated immediately around the house, and in order to receive the Monthly Indemnity, the Insured must at all times remain within such confines without any exception but one, namely, the Insured, when deemed necessary and prescribed by the physician or surgeon, may be transported to and from the office of the physician or surgeon or to and from the hospital or sanitarium. If at any time the Insured shall leave such confines, except to be transported to and from the office of the physician or surgeon or to and from the hospital or sanitarium as provided above, payment of the Monthly Indemnity shall terminate.”

On May 5, 1954, Dr. Hayes suffered a heart attack, and under the schedule of benefits provided in the policy, was paid, under the total disability coverage, the sum of $300 per month for three years, or a total amount of $10,800. Thereafter, appellee contended that he was due $300 per month under the confinement clause of the policy, but appellant refused to pay on the ground that Hayes was not confined to the house in conformity with the definition of “confinement” set out in the policy. On August 29, 1957, appellee instituted suit for recovery, amending his complaint in December, 1958, to include amounts which he contended had accrued during that period. The cause was heard by the court, sitting as a jury. On January 8, 1959, judgment was entered for Dr. Hayes in the amount of $6,671.85, which included interest and 12% penalty. An amended judgment was entered to include attorneys’ fee, in the sum of $1,250, making the total judgment $7,921.85, together with interest thereof at 6% per annum. From such judgment comes this appeal. Appellant relies upon two points for reversal, hut under the conclusion we have reached, it is only necessary to discuss point two, which simply poses the question of whether Dr. Hayes was confined, as the term is used and defined in Article 2, of the policy.

Let it first be pointed out that the “total disability” of Dr. Hayes is not in issue, and appellant admits that Hayes became totally disabled in May, 1954, 'and is still so disabled, and unable to practice his profession. As previously mentioned, the company paid appellee for the full three years total disability as provided in Article 2. We are therefore only concerned with whether Dr. Hayes is now entitled to further payments under provision B of the contract. The record reflects the following activities on the part of appellee in 1957 and 1958. He went deer hunting to the Old Dixie Hunting Club, located in Chicot County, during the 1957 deer season, and attended the opening deer season at the Club in the fall of 1958, which started on November 10th. Dr. Hayes stayed the full week, from Monday until Saturday. He also went to the opening in December, staying Monday and Tuesday, returning on Tuesday night. Appellee likewise hunted deer in Mississippi during the seasons, which follow immediately upon the Arkansas seasons. His testimony reflected that he stays in town at the motel, and a friend drives him back and forth to the camp. He has a choice of stands and sits in a chair by a tree hidden, by brush . . . upon getting tired, he gets in his car and goes back to town. The distance from the motel to the camp is ten or twelve miles. Dr. Hayes testified that he would go on the deer stand early, getting up at 4 or 4:30, and eating breakfast,, “we have breakfast early in order to drive out to the deer stand before daylight”; that he would stay on the deer stand- “from a few minutes to a few hours. Of course, you don’t always do like you want-to do. Tf you come along and kill your deer the first thirty minutes, that pretty well ends the hunting, then you are visiting your friends, getting the deer taken care of, and if the dogs are running around, you have to sit there three or four hours. Q. Did you ever kill a deer -the first thirty, minutes? A. I have lots of times. I am .a pretty good deer killer. Q. Do you sometimes have, to stay, three or four- hours? A. Yes, I have stayed three or- four days and not kill a deer. Q. I mean when you go out in the-morning you may stay three or four hours or thirty minutes? A. According to how I feel. I have my car with me. My jeep or car. If I feel tired I get in the car and rest. If the sun comes up and gets warm, I may take a nap. I was asleep down there and a deer woke me up and killed him last year.” The testimony further reflected that Dr. Hayes has made a number of trips to Hemp-stead County. He testified that he sometimes does his own driving and other times has a boy who acts as chauffeur . . . that he drives the car more frequently than when first becoming ill. He testified that he particularly drives the car on Sundays, since he does not employ the chauffeur at that time. He frequently goes to the Elks Club and plays dominoes, and sometimes drives in the evening; when he plays dominoes late, he drives the car home himself. From the testimony: “You stay at the Elks Club from about noon until 5 in the evening? A. Sometimes later than that. Sometimes I get there before they even open up.” He further testified that he had frequently attended meetings of the North Little Eock Elks Club after May 5, 1957, would sometimes go in the afternoons to play dominoes, and would stay until the meeting adjourned about nine o’clock. “In fact, in the last two or three years, I have gone to more meetings than I ever did before except the year I was exalted ruler. I had to go then. I didn’t go before I got sick much, I didn’t care anything about it then. Q. What time do the meetings convene? A. Eight o’clock. They have supper about seven and the meeting about eight. Q. Do you go to the suppers? A. Yes, sir. Q. What time does the lodge adjourn? A. About nine o’clock.” The evidence given by appellee reflected that his brother still maintains the same office in the Donaghey Building (formerly occupied by the two), and appellee goes by each morning and evening to get his mail, visit with the employees, and take care of business interests (not referring to medical practice, which the doctor has not engaged in since his heart attack). He stated that he sometimes stays as much as two hours, and has stayed as long as three hours. In the summer of 1957, he took the baths at the Majestic Hotel in Hot Springs, and while at that city, would fish on Lake Ouachita. Appellee has mainly fished at Indian Bay, which is about 100 miles from Little Bock, and has also done some fishing at Bearskin Lake, sometimes two or three times a week. On some occasions, the chauffeur drove, and at other times, he operated the automobile. The doctor testified that he keeps a boat at Old Biver, and that he would go there each weekend during the summer, and sometimes two or three times during the week, and that he has operated the boat while members of the family were water skiing. Dr. Hayes visited one of his friends in Little Bock who operated a filling station so frequently that, according to his testimony, “I visited so much down there, that it got out that I owned the oil company. ’ ’

The above activities were all related by Dr. Hayes, and obviously cannot be construed as literal compliance with the provisions of Section B, but for affirmance, appellee relies upon Occidental Life Insurance Company of California v. Sammons, 224 Ark. 31, 271 S. W. 2d 922, and cases cited therein. In that case, and each of the eases mentioned therein, the insured was allowed to recover under a “confinement clause” substantially like the one presently before the Court, though the evidence reflected that the insured had not remained in the home. In the Sammons case, testimony showed that the insured would leave the house and yard for the purpose of taking rides, walking for recreation, and that some part-time work as a clothing salesman was engaged in by Sammons. The transcript in that cause reflects that the insured would go to the corner drug store, or to the service station, and would sometimes go uptown to visit the other employees of the store where he had been employed. He testified, however, that “I rest practically all day, get up around 7:30, be back in bed by 8:30, and usually, most of the time, get up around noon, eat dinner, fool around the house a little bit, and maybe stay a couple of hours and sometimes go down town or to the service station or drug store and go back home, maybe lay down until my wife comes-home. That is almost routine work with me, I don’t do it every day, almost every day.” Relative to the work that he had done, he testified that he had not worked more than one day at a time, that he occasionally would go to a picture show, that he had gone to one baseball game, but though a football fan, would not go to games. According to his evidence, the occasional work that he had done had been on the advice of his physician, Dr. J. N. Compton. “I told him I sat around the house, sometimes got pretty nervous. He said it might not hurt to work a little.”

In the case before us, appellee apparently largely relies on the fact that these activities were authorized by his physician, Dr. R. E. McLochlin of Little Rock. From the doctor’s deposition:

“I have spent a lot more time, so far as time is concerned, directing Dr. Hayes’ activities than I have in directing any medication. The medication boils down to rather simplified routine. Dr. Hayes’ mental attitude regarding this illness was such it created quite a problem for several months and it took a lot of time, both in my office and at his home and visiting with him to try to get him convinced that he can live and that life can be enjoyable even though his activities are curtailed. I have given him a lot of directions on how to live. ... I recall one of the first things I specifically told him to do other than generalities. I had been talking to him in general terms for weeks, like going fishing, going riding in the car perhaps with a chauffeur, he had one available, those were generalities. I told him to lay in the hammock in the sun and rest and lay out where he could see traffic go by the house, visit with relatives, I mean with friends, and then I have been aware of his interesting in hunting, deer hunting, for a number of years. I know many of the members of his deer hunting club and those hunting trips became almost an obsession with him. He liked it so well that I directed him and urged that he go on a hunting trip with his same group; that he go to the hunting lodge and spend a big part of the time there doing the social affairs of the hunting trip, perhaps rest while the others were riding their horses or that he be put on a stand in a comfortable chair and preferably with somebody to visit with and that he could actually hunt but was not allowed to ride a horse. That was the first time I can specifically recall directing that he do something. I was aware of these trips in previous years. * * * I directed he go fishing provided he have someone do all the heavy work, managing the boat if any rowing was to be done or carrying the motor, someone do that, and he to sit in the boat and not even help drag the boat on the bank. Preferably have a chauffeur to drive him to and from, and in that way he can take some recreation.
Q. Doctor, do I understand correctly that visiting friends, riding about in the car, these hunting and fishing trips and carrying on the activities for recreation were all considered by you to be part of his treatment?
A. They were the important part of the treatment in his specific case because it was obvious his house wasn’t big enough for him to live long confined in it. He wasn’t constituted that way and it was necessary that he have recreational outlets and even go to the Elks Club and play dominoes and visit with folks and recreations that require very little physical exertion but would build his morale.”

This advice was concurred in by Hr. H. F. Gray, and Dr. Walter H. O’Neal. According to Dr. McLochlin, Dr. William D. Stroud of Philadelphia stated that “Dr. Hayes has got to get out, he has got to travel. He recommended that Dr. Hayes book passage on lots of ships and travel the world over. He thought that would keep him busy. Well, he carried it a little too far, but those were the instructions, that he had to keep occupied.”

We have reached the conclusion that this judgment must be reversed. In doing so, we are not unmindful of the fact that the literal language of the confinement clause in the Sammons case, and other cases cited in that opinion, was violated by each respective insured, and yet recovery was allowed. Arkansas has consistently given a liberal construction to confinement clauses, but we think even liberality has its limits. Of course, it would be ridiculous to hold an insured to the very letter of the clause, for, as has been pointed out by other jurisdictions, such an interpretation would prevent his leaving the house during danger of flood, fire, or destruction. So, it is apparent that a reasonable construction should, and must be given, rather than interpreting the contract from a strict, literal view. Certainly it is reasonable for one to go outdoors for fresh air —to visit with friends — to walk for exercise — to pick up mail — to sometimes engage in other activities for pleasure, and to even engage in occasional work. We think the evidence in this case goes far beyond such activities, for the activities of Dr. Hayes seem to be regular and systematic; in fact, one would almost gain the impression that the doctor is away from his home as much as he remains in it. In fact, we do not see a great deal of difference in his routine and that of one who has retired because of age or length of service.

To affirm'this judgment would actually mean that there can be no such-contract in Arkansas as provided in the confinement clause, and that a confinement clause has the exact and identical meaning, as total disability, i.e., if an individual is unable to perform all the substantial and material acts necessary' to the prosecution of his business or occupation, in a customary and usual manner, he is totally disabled — and confined. Not only would such a construction be completely unfair to an insurance company, but it could also have the result of preventing this coverage from being available for persons who would qualify, for a company might well withdraw this provision from contracts sold- in states giving so liberal a construction. Further, to affirm this judgment would be to empower any doctor to reform any similar contract entered into by a company and its insured. The Courts are not permitted to rewrite contracts between parties. Logic dictates that this prohibition should apply likewise to members of the medical profession.

To state our position, we simply say that this Court is unwilling to further extend or further liberalize the interpretation given the confinement clause in the Sammons case, i.e., that case represents the ultimate peak of liberal construction which we have approved — or will approve in future cases. Of course, appellee asserts that this case calls for no more liberal construction than the Sammons ease. As stated, we disagree with this assertion; but if it be correct — then we are modifying our previous interpretation.

Reversed and dismissed,

George Rose Smith and Robinson, JJ., dissent.

Sam Robinson, Associate Justice,

dissenting. Whether the insured is totally disabled is a question of fact. Likewise, it is a question of fact whether the insured leaves the yard and house on the advice of his physician to improve the condition of his health. And if the jury finds that he leaves the house for such reason, then according to a long line of decisions by this Court and the great weight of authority in general the policyholder is entitled to recover on a policy of sick and accident insurance, notwithstanding there is a house or bed confinement clause in the policy. This Court has held repeatedly that it is a question of fact for the jury as to whether a policyholder has been confined to the house within the meaning of a house or bed confinement clause in a policy of insurance, although the undisputed evidence may show that actually the policyholder has not been confined to the house. If the question of whether there has been confinement within the meaning of an insurance policy is no longer a question of fact for a jury, this Court should say so and expressly overrule the numerous cases to the contrary. Such cases should not be overruled by implication.

It is admitted that Dr. Hayes is totally disabled, due to a very serious heart condition. The fact that acting on the advice of his doctor on rare occasions he went fishing and deer hunting and made a trip or two to Prescott to see his mother did not render him any less disabled. Incidentally, as I see it, the majority opinion leaves the impression that Dr. Hayes hunts practically all the time. The record shows that he only goes deer hunting; the deer season is open only two weeks out of the year; and the record clearly shows that the way he hunts entails no physical hardship or exertion, and the undisputed evidence is that he was at all times acting on the advice of his physician.

The majority goes to great length in an attempt to distinguish the case at bar from the case of Occidental Life Ins. Co. of California v. Sammons, 224 Ark. 31, 271 S. W. 2d 922, but there is no valid distinction. The provision of the policy in issue in the case at bar is practically identical with the provision of the policy in the Sammons case and other cases decided by this Court, and there is no material distinction between tbe facts in the Sammons case and the case here involved. For convenient comparison, we show the undisputed facts in the Sammons case along with the undisputed facts in the case at bar:

Sammons Case

1. Sammons ’ disability was due to a heart condition.

2. During the entire period for which Sammons sought recovery he followed the practice of leaving his house and the yard frequently for the purpose of taking rides and frequently for walking and recreation.

3. Sammons visited with friends at various places of business.

4. Beginning with the year 1950, about two years before the suit was filed in the Sammons case, he began work on Saturdays as a clothing salesman. During the period from November 11, 1950 to December 30, 1950, Sammons earned $180 working as a clothing salesman, and from that time up to the time of the trial, which was on March 20, 1953, three years later, he worked as an extra salesman.

5. The work that Sammons did was on the advice of his physician.

Hayes Case

1. Dr. Hayes’ disability is due to a heart condition.

2. Dr. Hayes left the house and yard frequently for taking rides, but did no walking for recreation purposes.

3. Dr. Hayes visits with friends at various places of business.

4. Since Dr. Hayes became disabled with heart disease he has done no work whatever, and according to the undisputed testimony he is unable to do any kind of work.

5. Dr. Hayes did no work, but he did some hunting and fishing on the advice of his physician.

If there- is any distinction between the two cases it is to the effect that Dr. Hayes is more disabled than was Sammons. Dr.- Hayes is unable to do any work, while Sammons worked over a period of years as a clothing salesman, where it was necessary to be on his feet all day. And, moreover, the majority fails to point out wherein Dr. Hayes left the house and yard any more than did Sammons. After all, the'only issue involved in the case at bar is whether Dr: Hayes is- precluded from recovering under the. terms, of the policy because he left the house and yard. There is no question about his' disability; the insurance company admits-he-is totally disabled. The majority mentions directly only the Sammons case, but-we have other cases to the same effect as that case and just as strong. In fact, we have a long line of cases where the issues were whether the insured was confined to the house and yard within the meaning of that kind of provision in a policy of insurance. In all of those cases it was held that the question was one for the jury, and it is not shown in the case at bar that Dr. Hayes left the house and yard any more often than did the policyholdersin the ca.ses heretofore decided by this Court. It must bq borne in mind that there is no question about Dr. Hayes’ total disability.

According to all the cases heretofore decided by this Court, without an exception, it was held to be a question of fact to be determined by a jury whether the insured left the yard and house on the advice of his physician to improve the condition of his health. And if the jury finds that he leaves the house for such reason, then according to the long line of decisions by this Court and the great weight of authority in general he is entitled to recover. This Court first dealt with a house confinement clause in an insurance policy in the year 1911, in the case of Great Eastern Casualty Co. v. Robins, 111 Ark. 607, 164 S. W. 750. There it was held that the policyholder could recover although he was not confined to the house.

Later, in the case of Interstate Business Men’s Accident Assn. v. Sanderson, 144 Ark. 271, 222 S. W. 51, this Court approved what had been said in the Robins case and further held that it is a question of fact for the jury to determine whether the policyholder is disabled within the meaning of the house confinement clause in a policy of disability insurance. The Court specifically held that whether the policyholder’s disease and his state of health at the time required continuous confinement in the house within the meaning of the policy, notwithstanding his trips out of the house, was a question for the jury. And the Court held it was a question for the jury although there was no dispute as to the facts. Only the insured introduced testimony, the same as in the case at bar.

In Massachusetts Protective Assn. v. Oden, 186 Ark. 844, 56 S. W. 2d 425, a clause the same as the one involved here was in issue; the insured had heart disease, the same as Dr. Hayes. Oden, the policyholder, took frequent automobile rides, including a trip to Montieello, and a train trip to Corpus Christi, Texas. The Court cited with approval the Robins and Sanderson cases and said that the activity of the insured did not bar him from recovery as a matter of law. The case of Mutual Benefit Health & Accident Assn. v. Murphy, 209 Ark. 945, 193 S. W. 2d 305, involved a house confinement clause in a disability policy. During the time the insured claimed benefits under the terms of the policy, he became engaged in the insurance business. There the Court said: “It is undisputed that about a year prior to the date of trial, appellee procured a contract with a life insurance company to sell insurance and opened an office in Fort Smith, across the hall from that occupied by Dr. Rose. It also appears in the testimony of H. R. Parker, representative of appellant, that appellee, Murphy, sold insurance for appellant while being paid by appellant $80 per month for total disability. . . . Appellee’s territory with the Life Insurance Company covered thirteen comities and he managed to sell a number of policies, substantially supplementing his income over the monthly payments from appellant. . . . The Supreme Court of Arkansas has consistently given a liberal construction to the provisions of these policies which require that the insured be confined to the house.” A judgment for the insured was affirmed. Bear in mind that in the Murphy case at the time the policyholder was claiming benefits under a policy having a house confinement clause, lie went down town, rented an office, began to ■ sell insurance and did sell insurance over an area embracing-13 counties.

The Sammons case, decided by this Court, has been heretofore mentioned. It is the one that the majority attempts to distinguish from the case at bar, but in my opinion the Sammons case is no stronger than the other cases in point decided by this Court in support of the proposition that it is a, question of fact for the jury to say whether a policyholder, conceded to be totally disabled, is confined to the house within the terms of the policy of insurance. In fact, I have not been able to find a single case where the policyholder was totally disabled and the house confinement clause was in issue and this Court has not said such issue was a question of fact for the jury. And the majority has cited none to that effect. In fact, the majority has not cited any authority from any source sustaining the views therein expressed.

The case of Colorado Life Co. v. Steele, 101 F. 2d 448, involved a health and accident policy issued in Arkansas. The Arkansas law applied. Judge Gardner of the Eighth Circuit Court of Appeals wrote the opinion. The policy had a house confinement clause and the issue before the court was whether the policyholder had been confined to his home within the meaning of the policy. There the court said: “It appears from the undisputed evidence that plaintiff transacted more or less business during the period for which recovery is sought, and that he traveled by automobile a great deal, and it is claimed that he was not totally disabled, as that term is used in the policy, and that he was not necessarily and continuously confined within the house, nor prevented from engaging in his occupation. ... In considering the question of the sufficiency of the evidence, it is our province to determine whether or not there was substantial evidence to sustain the verdict. ... As the jury has resolved the issues in favor of plaintiff, we must accept the testimony in his favor as true, and he is entitled to such reasonable favorable inferences as may fairly be drawn therefrom. . . . The Supreme Court of Arkansas has consistently given a liberal construction to tbe provisions of these policies which require that the insured be confined to the house and that he be there treated regularly by a physician.” The court sustained a judgment in favor of the insured. In the case at bar a jury was waived; the cause was tried before the court sitting as a jury; and the court’s finding of fact is as conclusive on appeal as a jury verdict. Pate v. Fears, 223 Ark. 365, 265 S. W. 2d 954.

In my opinion according to all the law ever announced by this Court on this subject up to this time, it was a question of fact for the trial court, since a jury was waived, to determine whether the policyholder was confined to his house within the terms of the policy as such terms have heretofore been construed by this Court.

The finding of fact by the trial court was in favor of the insured, and the judgment should be affirmed. For the reasons set out herein, I respectfully dissent.

       Now called North Little Rock Hunting Club.

       It appears that the doctor returned for the trial, which commenced on December 12, 1958. From the testimony: “Now, did you go down at the opening of the season, December 8th, 1958? A. I was there Monday and Tuesday and came back Tuesday night. Q. Are you going back? A. You have got me tied up here with this thing now. I won’t get to hunt any more.”

       Part of the old Arkansas River cut-off below Scott, beyond Willow Beach.

       Now deceased.


source: Caselaw Access Project

author: J. Seaborn Holt,

license: Public Domain

text:
    James v. Bowman.
    5-2012
    331 S. W. 2d 866
    Opinion delivered February 8, 1960.
    [Rehearing denied March 7, 1960]

      W. B. Putman and Shaw, Jones <& Shaw, for appellant.

      Rex W. Perkins and James R. Hale, for appellee.
   J. Seaborn Holt,

Associate Justice. Appellant, Johnnie James, brings this appeal from a judgment on a jury verdict in favor of appellee, Roy Bowman for $17,000.00. In his complaint, Bowman alleged that he was severely injured from an electric shock caused by the negligence of James in operating a crane so as to cause its cable to come in contact with a high power electric wire which carried 7,200 volts. James answered with a general denial and specifically pleaded assumption of risk and contributory negligence of Bowman such as to constitute a complete bar to any recovery.

For reversal James says, in effect, that the trial court erred, (a) in denying his request for an instructed verdict at the close of all the testimony, (b) in giving instruction 15 as follows: “Before any recovery can be had for permanent injury, or any future pain or suffering connected therewith, it must appear with reasonable certainty that the injuries are permanent and that future pain and suffering is inevitable. Where future pain or suffering appear to be only probable or uncertain, recovery cannot be given therefor. * * (c) that the verdict was excessive and (d) that the court erred in “permitting appellee’s counsel to make certain remarks in his closing argument.”

(a and b)

The testimony shows that at the time Bowman received his injury he was employed by Tyson Feed and Hatchery Company at Springdale, Arkansas as an electrie welder. He had had some twelve years experience as such welder and at the time of his injury, he (Bowman) was assisting another Tyson employee,. Graves, in handling and installing- some 8 by 12 feet steel panels in constructing a feed bin. James was an independent contractor and owned and operated a crane equipped with a boom and wire cable. Tyson Feed .and Hatchery Company was engaged in constructing a metal feed bin on the east side of a building located adjacent to an alley which was 45 feet wide and running north and south. Tyson also owned a warehouse building -directly across the alley to the east. Running parallel to the warehouse and at a height of 32 feet 5 inches from the ground and from four to six feet from the eave of the warehouse building, was the electric wire in question.. The steel panels used in constructing the feéd' bin were stacked alongside the warehouse building on the east side of the alley.

Tyson Feed Company had engaged James to bring his crane and hoist the metal panels, carry them one at a time as needed from the east side of the alley to the side of the building on the west side thereof and up to a point where they were to be installed on the feed bin. James determined where his crane would be located, how it would be operated and had sole control and operation of it. The crew engaged in construction of the feed bin consisted of the independent contractor, James (appellant), Bowman, Mr. Graves, Robert Bowers, and Dick Kendrick. As indicated, it was James duty to hoist the steel panels and in order to do this, he had stationed his crane 12 to 15 feet west of the wall of the warehouse building. The crane was equipped with a moving boom extending 47 feet and 3 inches above the ground. The crane was equipped with a cable which was used in hoisting the material. There was a hook on the lower end of the cable from which was attached two short lengths of cable to be attached to the panels to move them. Before attaching the cable to the panels, they were moved outward from the warehouse building and laid in the alley. Kendrick took no part in this part of the work but remained up on the side of the building where the feed bin was being constructed. Bowers assisted in installing the panels on the feed bin. On the day that appellee received his injury, and Graves was killed, the crew had moved and installed two or three panels and Bowers was up on the side of the feed bin. James, Bowers and the other three employees all knew and realized the dangerous situation confronting them. James testified: “I knew — he told me what he wanted to do and I knew the condition over there. I knew there was a power line over there. * * * So I moved on over to the location and I saw the conditions there and I parked my machine and I got out and I said, ‘Boys, we’ve got a dangerous condition here.’ ”

It is undisputed that the cable attached to the crane came in contact with the electric wire above mentioned while Bowman and Graves were attaching the cable wires to one of the 8 by 12 feet panels, and the electric shock killed Graves instantly and severely injured Bowman. The cable had contacted the power line 32 feet and 5 inches above the ground, or about 14 feet and 10 inches below the boom. As to the location of the metal panels to which Bowman and Graves were attaching the wire cable, Bowman testified: “Well, we come down to pick up the third or fourth piece of metal which was leaning up against the building on the east side, me and Mr. Graves, him at one corner and me at the other. We picked a piece of metal up and laid it down. At the same time we laid it down, we pulled it out about two or three foot, like we’d been doing. We got our cable and walked over and was hunkered down, both of us, bolting angle irons to the corner of the section of metal that we was picking up. The first thing I knew, I was froze. I couldn’t move. Couldn’t move a finger. Next thing I knew, I was laying on the piece of metal and it was burning my arm, which I have a scar, and it burnt me across my back, and I rolled off the piece of metal I was laying on to get free from the electricity. * * * Q. Did you ever, at any time, pull that cable into the highline? A. No, sir.”

James testified that he depended upon Bowers who was to signal him when to move the boom or crane. He testified: “Q. From your position on the crane, Mr. James, could you keep these people in view in the process of attaching this sling? A. Yes, I could keep them in view, had I been watching. But after I swung back and put my machine in position, my work was done until I had a signal to lift away. * * * Q. In other words, you didn’t pay any attention to Bowman and Graves. A. No. Q. To see whether they were ready, or not? A. No. Q. Or to see where the cable was? A. That’s right.” James further testified that immediately after he saw that Graves and Bowman had received a shock, ‘ ‘ Immediately, I just reached back and I started out of the door, I remember, I hit the throttle, and shut the machine off and then I jumped off the machine.”

Our rule is well established that in testing the sufficiency of the evidence to support the verdict of a jury, we must view the evidence, with every reasonable inference arising therefrom, in the light most favorable to the appellee. Missouri Pacific Transportation Co. v. Jones, 197 Ark. 79, 122 S. W. 2d 613. We hold that there was substantial evidence to support the jury’s verdict and the judgment rendered thereon. It appears undisputed that someone was negligent in this case and it was the province of the jury to say whose negligence was the approximate cause of Bowman’s injury. After hearing the evidence and viewing the premises, the jury composed of twelve representative citizens, unanimously held appellant, who had absolute control of the crane and its movements, to be the negligent party. Under the testimony, as we view it, the jury could, and evidently did, find that while Bowman and Graves were attaching the short wires to the metal panel, appellant, James, moved the boom in an easterly direction, causing the cable to contact the power line, which resulted in the instantaneous death of Graves and severe injuries to Bowman.

(c)

We do not agree that the verdict was excessive and unsupported by substantial evidence. Bowman was 37 years of age and had followed the trade of “welder” for twelve years. He was earning $80.00 to $85.00 per week before his injury, and has suffered a loss of $20.00 per week in wages, or approximately $1,000.00 a year in salary, since his injury. He was in fine health before the injury but after he was injured, he testified, “got so nervous I just couldn’t stay around the electric welding. The electric welding sounded just like it did whenever the accident happened.” He has been forced to give up welding and has gone to truck driving. Following his injury he was treated for more than two months by his family doctor and then admitted to the Veterans Hospital where he remained for seven weeks, receiving little or no benefit therefrom. He has developed heart trouble since the injury, his eyes were permanently injured and certain functions of his brain impaired by the electric shock. We have no definite yardstick with which to measure damages. In the recent case of Williamson v. Garrigus, 228 Ark. 705, 310 S. W. 2d 8, we said: “In cases of this nature we are afforded no definite yardstick by which to measure damages and the amount awarded must, therefore, be left to the sound discretion and judgment of the jury, or the court sitting as a jury, based upon the evidence in the case. The amount so awarded cannot be disturbed by this court as excessive if we find any substantial evidence to support it.” See also Rudolph v. Mundy, 226 Ark. 95, 288 S. W. 2d 602.

(d)

Appellant next contends that the court erred in permitting appellee’s counsel to use the following language in his closing argument: “I’m telling you when they knew death was hovering over and above them, that if a line touched that line, and they put that drag line into a position where it could touch that highline, I’m telling you that that’s negligence. And you know it.” The court, in answer to objection to this statement, stated: “You can comment on my instructions.” Trial courts have some discretion in allowing statements of counsel in closing arguments. We find no abuse of such discretion here. It appears to us that counsel was only arguing what would constitute a failure of appellant, James, to use ordinary care as had been clearly defined by the court in one of its instructions in which this language was used: “a. Negligence is the failure to use ordinary care, and ordinary care is that degree of care which is used by ordinary persons under the same or similar circumstances.”

We have carefully considered other alleged errors and find them to be without merit. Accordingly, the judgment is affirmed.


author: Ed. F. McFaddin, Associate Justice.

text:
    Parker v. Parker.
    5-2018
    331 S. W. 2d 694
    Opinion delivered February 8, 1960.

      J. H. Evans and Robert J. White, for appellant.

      Richard Mobley, for appellee.
   Ed. F. McFaddin, Associate Justice.

The question here is what is best for the welfare of Mrs. Laura E. Parker, a lady past 83 years of age, and the widow of John M. Parker, a long-time lawyer of Arkansas. She has lived in Dardanelle many years and she has both real and personal property: her home, a number of rent houses, several farms, and both checking accounts and savings accounts.

On September 30, 1959 Mrs. Laura Parker accompanied her son, to the office of the Probate Judge; and her son was duly appointed guardian of her estate. The son, Parker Parker, made a surety bond, entered into the discharge of his duties as such guardian of the estate, and filed his inventory on December 5, 1957, showing fourteen items of realty valued at a total of $20,000.00 and nine items of personalty valued at a total of $9,-836.88. The only liability was a note to a bank for $2,586.70.

Mrs. Laura E. Parker has three children, being two daughters and a son: Mrs. Johnnie Parker Walrath, Mrs. Laura Parker Gray, and Mr. Parker Parker, an attorney. On March 25, 1958 Mrs. Parker, joined with her two daughters as next friends, filed a petition to dissolve the ■ guardianship of her estate on the basis that Mrs. Parker was thoroughly competent to handle her own affairs. Mr. Parker Parker resisted this and filed a counter-petition asking that his guardianship of the estate be extended also to the person of his mother. The Probate Court has been most patient in the entire proceedings. Testimony was taken -.on four different occasions in 1958: May 7th, October 15th, October 24th, and October 30th. Serious efforts were made to accomplish an agreement between the children so that some disinterested third person or bank could be appointed guardian of the estate; and Mr. Parker even offered to do all the “leg work” if such an arrangement could be accomplished. It was all to no avail. The insistence was that Mrs. Laura Parker should be released from all guardianship.

At the conclusion of the hearings the Probate Court took the case under advisement; and on February 12, 1959 rendered judgment. That judgment (1) refused to discharge Parker Parker as guardian of the estate of his mother; (2) refused to appoint Parker Parker as guardian of the person of his mother; and (3) taxed all costs against Mrs. Johnnie Walrath. From that judgment there is this appeal. The appellant in this Court is Mrs. Laura E. Parker, by her next friend (daughter), Mrs. Johnnie P. Walrath. The appellee is Parker Parker, Guardian. The appellant lists four points, being:

I. The court was without authority to make original appointment for physical disability, and without authority to continue guardianship so appointed.

II. The evidence of incompetency is not sufficient to warrant a guardianship.

III. If a guardianship is justified, then it is to the best interest of the incompetent that an independent, unbiased and unrelated guardian be appointed.

IV. That the costs of these proceedings should be borne by the guardianship estate.

The appellee cross-appeals from the refusal of the Court to extend the guardianship to the person of Mrs. Parker.

I and II

Points I and II of the direct appeal raise the question of the necessity of any guardianship and the sufficiency of the proof to support the order appointing a guardian. A careful study of the record convinces us that the Probate Court has been entirely correct at all times in appointing a guardian of the estate of Mrs. Laura Parker. It is very apparent that she is dominated by whichever of her children happens to be last with her; and there seems to be a tug-of-war between the children to see who can control Mrs. Parker’s property and its ultimate disposition. Serious friction developed between Mr. Parker Parker and his sister, Mrs. Walrath; and all sorts of charges and counter-charges are contained in the record. At the hearings it was shown that instruments had been executed by Mrs. Laura Parker in favor of one or the other of the. daughters, that checks for large amounts had been given; and all this was done by Mrs. Parker while Parker Parker was g'uardian of her estate.

Appellant says that Mrs. Lanra Parker’s trouble was physical and not mental, and that guardianship does not extend to cases of physical disability, citing the Committee comment following § 57-601 Ark. Stats, and also our case of Powers v. Chisman, 217 Ark. 508, 231 S. W. 2d 598. Physical incapacity (old age in the case at bar) has caused the lessening of mental facilities to such an extent that the lady is unable to understand the nature of her property and how to protect it. Our statute, § 57-601 Ark. Stats., says: “All incompetent is any person who is . . . incapable, by reason of . . . ■ senility ... of managing his property . . .” Senility is defined by Webster’s Dictionary as, “. . . old age or its.physical and mental infirmities”. The statement, “once a man and twice a child”, applies to many people who live past four score of years. Dr. Lewis A. Webb gave the statement to the Probate Court at the original hearing that Mrs. Parker was suffering from “hypertensive and arteriosclerotic cardio-vascular disease”. Mrs. Laura Parker testified before the Probate Court in the original hearing and also on two of the other hearings as previously mentioned; and the Court had ample opportunity to see that this splendid lady had returned to childhood. So the Probate Court was entirely correct in having a guardian of the estate of Mrs. Laura E. Parker.

in.

On direct appeal we are asked to have an independent, unbiased, and unrelated person appointed as guardian of the estate. This has given us most serious concern. The same argument was made to the Probate Court; and, as previously mentioned, serious efforts were made to settle the differences on such a basis. But the Probate Court, seeing the parties, reached the conclusion that the present guardianship should be continued just as it is; and wé are unable to say from this record that the Probate Court was in error. So we leave the Guardianship just as the Probate Court left it. The patience and care that the Probate Court gave to this matter convinces us that it would be quite unwise for us to substitute our own opinion for that of the Probate Court on the record before us. And what we are saying in this regard also disposes of the cross-appeal. The Court, in refusing to appoint Parker Parker guardian of the person of his mother, was evidently of the opinion that the two daughters can look after their mother far better than a daughter-in-law or a granddaughter ; and we are unwilling to substitute our opinion for that of the Probate Court on the record now before us. So the case is affirmed on cross-appeal.

IV.

The fourth point on the direct appeal relates to the matter of the costs of these proceedings. The question is whether the costs should be individually paid by the daughters, or whether the costs of the entire proceedings should be paid from the estate of Mrs. Laura Parker. We reach the conclusion that for the best interest of all parties concerned, the costs of this appeal should be paid from the estate of Mrs. Laura E. Parker. To this extent only do we modify the judgment of the Probate Court. In all other respects the judgment is affirmed.

       The probate order contained these factual recitals: “On this the 30th day of September 1957, the petition of Mrs. Laura E. Parker and Parker Parker requesting that Parker Parker be appointed guardian of the estate only of Mrs. Laura E. Parker, was held in Booneville, Arkansas, Parker Parker appearing as attorney for Mrs. Laura E. Parker and the Court having examined sworn statement of Dr. Lewis A. Webb stating that Mrs. Parker is not physically able to manage her real and personal property and that a guardian should be appointed by this Court to manage said property.
      “It was submitted to the Court also a sworn statement by Mrs. Laura E. Parker which is attached to the petition.
      “Testimony was taken of Mrs. Laura E. Parker, Parker Parker, Mrs. Mima Buford and Sam Turner in support of said petition.
      “The Court finds that Mrs. Laura E. Parker, age 83, is suffering from hypertension, arteriosclerosis and cardio-vascular disease which prevents her from being able to personally manage her farm and city property.
      “The Court further heard evidence of dissipation of assets of the said Mrs. Laura E. Parker and other evidence from which the Court finds that Mrs. Parker is not physically able to see after her large number of rent houses and farm propertv.
      “The Court finds that Parker Parker deals in real estate and is quite familiar with his mother’s affairs and that he can best conserve her assets.”

       The judgment is concise, and we copy its findings: “On this 12th day of February 1959 comes on for final determination the matter of two petitions pending in this cause, one for the termination of the guardianship and the other to extend the guardianship to include a guardianship of the person of Mrs. Laura E. Parker. The petitioners asking termination of guardianship appear by their attorneys, Robert J. White and J. H. Evans. The Guardian appears in person and by his attorney, Richard Mobley. Testimony has been taken at various times and the matters taken under advisement and the entire matter on the two petitions now comes on for final determination.
      “The Court, being advised in the premises finds that on September 30, 1957 this court appointed a Guardian for the estate of Mrs. Laura E. Parker and that such proceeding was valid in every respect and that there is a need for the continuation of such a guardianship. The Court further finds that at this time the physical needs of Mrs. Laura E. Parker are being taken care of, and that there is no necessity for a Guardian of her person.
      “Wherefore, premises considered, it is by the court considered, ordered, adjudged, and decreed that each petition be and the same is hereby denied; that the Guardianship of the estate continue as it now exists without any prejudice to the rights of any petitioner seeking other relief or to other pending matters relative to exceptions to current accounts.”

       We are not referring to costs in other matters of the estate.


author: George Rose Smith, J.

text:
    Carr v. Young.
    5-1978
    331 S. W. 2d 701
    Opinion delivered February 8, 1960.
    [Rehearing denied February 29, 1960]

      Edivin E. Dunaivay, for appellant.

      Bruce Bennett, Atty. General, by Bill J. Davis, Asst. Atty. General and Mehaffy, Smith & Williams, for appellee.
   George Rose Smith, J.

This case involves the validity of the teacher-affidavit law, Act 10 of the 1958 special session. The appeal is from a declaratory decree upholding the statute.

Two suits were consolidated in the trial court. In one the appellant Carr, an associate professor of music at the University of Arkansas, acting for himself and others similarly situated, sought a decree declaring the act unconstitutional and enjoining its enforcement by the defendants, the president and trustees of the University. The other case is a similar class suit brought by the appellant Gephardt, a vocational printing instructor at Little Rock Central High School, asking for like relief against the Little Rock Special School District and its superintendent and directors. Both plaintiffs assert that Act 10 infringes upon their freedom of speech, freedom of assembly, freedom of association, freedom of thought, and allied rights, all protected by the Fourteenth Amendment and by parallel provisions in the Arkansas constitution.

Act 10 provides that no person shall be employed as a teacher in any of the state’s public schools or as a superintendent or principal in any elementary or secondary school without having first filed with the employing authority an affidavit giving the names and addresses of all organizations and associations to which the applicant has belonged within the preceding five years or to which he has paid regular dues or made regular contributions within that time. Other provisions of the act nullify any contract made in violation of the statute, permit the recovery of funds paid under such a void contract, and fix civil and criminal penalties for the willful filing of a false affidavit.

The appellants’ attack upon the act may be considered in two aspects: First, is Act 10 unconstitutional on its face? Secondly, if the act is outwardly valid, does the record show that the statute was intended to be applied, and will in fact be applied, in such a way as to deprive the appellants and those they represent of their constitutional rights?

We do not find Act 10 to be invalid on its face. By § 1 of the act the legislature declared its belief that the public school system would be benefited as a result of the school authorities having the required information about applicants for tbe positions covered by tbe statute. It cannot be doubted that the information would often be of real value to the employing school board. We are not convinced that either the federal or the state constitution compels a school board to engage its teachers without first inquiring about the matters that the act requires to be disclosed.

A similar question was presented long ago, in Mc-Auliffe v. New Bedford, 155 Mass. 216, 29 N. E. 517, where a policeman complained of a city regulation that prohibited him from soliciting money or aid for political purposes. In the familiar words of Justice Holmes: “The petitioner may have a constitutional right to talk politics, but he has no constitutional right to be a policeman. . . . the city may impose any reasonable condition upon holding offices within its control. ’ ’

The appellants are not entitled to demand that the University and the Little Rock school board employ them without making any inquiry about organizations to which they have belonged within a period reasonably close to the date of the application. Such investigations are the usual practice among private employers, and, as the court pointed out in Garner v. Board of Public Works of Los Angeles, 341 U. S. 716, public employers are not denied the privilege of making similar inquiries. From that opinion: “We think that a municipal employer is not disabled because it is an agency of the State from inquiring of its employees as to matters that may prove relevant to their fitness and suitability for the public service. Past conduct may well relate to present fitness; past loyalty may have a reasonable relationship to present and future trust. Both are commonly inquired into in determining fitness for both high and low positions in private industry and are not less relevant in public employment. The affidavit requirement is valid.”

The prima facie validity of Act 10 is pretty well settled by the holding in Adler v. Board of Education of New York, 342 U. S. 485, where the court sustained a state statute forbidding the employment in the public school system of persons belonging to organizations found to be subversive. This language in the opinion is peculiarly pertinent to the case at bar:

“A teacher works in a sensitive area in a schoolroom. There he shapes the attitude of young minds towards the society in which they live. In this, the state has a vital concern. It must preserve the integrity of the schools. That the school authorities have the right and the duty to screen the officials, teachers, and employees as to their fitness to maintain the integrity of the schools as a part of ordered society, cannot be doubted. One’s associates, past and present, as well as one’s conduct, may properly be considered in determining fitness and loyalty. From time immemorial, one’s reputation has been determined in part by the company he keeps. In the employment of officials and teachers of the school system, the state may very properly inquire into the company they keep, and we know of no rule, constitutional or otherwise, that prevents the state, when determining the fitness and loyalty of such persons, from considering the ofganizations and persons with whom they associate.”

In the Adler case the statute was directed only at subversion, but the court’s language dealt repeatedly with fitness as well as with loyalty. We have no doubt that a school board might’ ask an applicant whether he belonged, specifically, to the Communist Party, to any organization dedicated to the violent overthrow of the government, to a nudist colony, to a drag-racing club, to an association of atheists, or to other organizations that might be listed almost without number, membership in which might shed light upon the applicant’s fitness to guide’ young minds in the schoolroom. We are not persuaded that the constitution compels the board to ask scores or hundreds of permissible questions one by one, instead of making the blanket inquiry required by Act 10.

We conclude, as did the three-judge district court in Shelton v. McKinley, D. C. Ark., 174 F. Supp. 351, that the act is not unconstitutional on its face. We do not, of course, pass upon the wisdom of the law, for as the court said in the Shelton case: “We think that the information required by Act 10 is relevant. The fact that some educators and members of the public may feel that this requirement is unwise, or unnecessary or even insulting does not mean that the statute is unconstitutional. Those are considerations of the legislative, not the judicial branch of the government.”

There remains the contention that Act 10, even if ostensibly valid, is subject to being used in an unconstitutional manner. Upon this point the appellants offered three witnesses. Two of them, the Attorney General, whose office assisted in the drafting of the bill, and the state senator who introduced the measure in the legislature, testified that the act was intended as a weapon against subversion. Such expressions of individual opinion are not competent to show the legislative intention, Wiseman v. Madison Cadillac Co., 191 Ark. 1021, 88 S. W. 2d 1007, but even if the testimony were considered it would not create any doubt about the validity of the act.

The appellants’ third witness, Guthridge, testified that he was a director of, and attorney for, the Capital Citizens Council, which he describes as an organization advocating states rights and racial integrity and opposing by all lawful means the desegregation decisions of the United States Supreme Court. Guthridge was interrogated by the appellants’ counsel about newspaper accounts of public statements he had made concerning Act 10. In those statements, which Guthridge reaffirmed on the witness stand, he said that his organization and similar ones in the state meant to attempt to gain access to some of the Act 10 affidavits with a view to seeking to eliminate from the school system teachers who belonged or contributed to the N.A.A.C.P., the Urban League, and other organizations opposed by the Citizens Councils.

We do not think this testimony sufficient to show that the act will be applied by the state and its agencies in such a way as to violate the appellants’ constitutional rights. In reaching this conclusion we are not unmindful of the settled principle that a statute, even though fair on its face, may become invalid if it is administered by the state “with an evil eye and an unequal hand.” Yick Wo v. Hopkins, 118 U. S. 356.

Here, however, the proof does not show any inclination on the part of any school board to use Act 10 in a discriminatory manner. The most that can be said is that at least some members of the Citizens Councils are so ill-advised as to advocate that course. “Ill-advised” is the proper term, since such an effort, if successful, would defeat its own purpose by rendering the act invalid.

It is very far from certain that efforts to misuse Act 10, if any are made, will succeed. Inasmuch as the validity of the act depends upon its being construed as a bona fide legislative effort to provide school boards with needed information, it necessarily follows that the affidavits need not be opened to public inspection, for the permissible purpose of the statute is to enlighten the school board alone. The only testimony on this point indicates that the affidavits are not being publicized; the president of the University testified that its affidavits are being treated as confidential and are being kept under lock and key.

Moreover, even if secrecy should not be observed in every instance it still cannot be surely predicted that any teacher will be eliminated from the school system. Unlike the statute upheld in the Adler case, supra, which mandatorily forbade the employment of persons belonging to subversive organizations, Act 10 does not affirmatively require a school board to take any action, no matter what associations an .affidavit may reveal. Thus in order for us to invalidate Act 10 at this stage of its existence we should have to assume, wholly without proof, that conscientious and responsible school board members will inevitably yield to a nebulous public insistence that the act be applied discriminatorily and in disregard of recognized constitutional guaranties. We are aware of no principle that requires us to attribute improper motives to public officers as a means of enabling us to declare an act invalid.

Affirmed.


author: Paul Ward, Associate Justice.

text:
    Bracey v. State.
    4967
    331 S. W. 2d 870
    Opinion delivered February 8, 1960.
    [Rehearing denied March 7, 1960]

      Thomas L. Cashion, for appellant.

      Bruce Bennett, Atty. General, by Thorp Thomas, Asst. Atty. General, for appellee.
   Paul Ward, Associate Justice.

The appellant, John Bracey, is a negro male, 26 years of age. He is here appealing from a judgment of the court sentencing him to die in the electric chair for the slaying of Alberta .Miles, a negro female, on January 30, 1959.

Alberta Miles was killed in her home in Eudora on January 30, 1959 but her body was not discovered until the morning of February 3, 1959 when neighbors having noticed her absence, requested the Chief of Police of Eudora to make an investigation. This investigation revealed that the deceased’s body was in a partially clothed condition lying on the bed. There was a hole in the left side of her chest apparently caused by a small caliber bullet.

On the next morning after the slaying, appellant, who lived in a house owed by Jack Harrison, left Eudora and went to Vicksburg, Mississippi where he remained for sometime. A search was made of appellant’s room where articles of his clothing were found with bloodstains on them which led to the suspicion that he was connected in some way with the slaying. On April 11, 1959, appellant was arrested in McGehee, Arkansas by two members of the McGehee Police Department who knew appellant and had previously learned that he was under suspicion. After his arrest appellant admitted his identity and admitted that he had slain Alberta Miles. His confession was given in detail and reduced to writing and signed by him.

The Prosecuting Attorney filed an Information against appellant charging him with the crime of murder in the first degree for the slaying of Alberta Miles. He was tried on July 15, 1959 and found guilty of murder in the first degree by a jury which fixed his punishment to be death by electrocution. The trial court pronounced judgment in accordance with the jury’s verdict.

In due time a Motion for a new trial was filed on the following grounds:

1. The verdict and judgment is contrary to the law.

2. The verdict and judgment is contrary to the evidence.

3. The verdict and judgment is contrary to the law and the evidence.

4. The court erred in permitting the State of Arkansas to introduce into evidence the alleged confession of the defendant over the specific objection of the defendant.

5. The court erred in permitting the State of Arkansas to introduce into the evidence the alleged clothing of the defendant under the specific objection of the defendant.

6. The court erred in not granting the defendant’s motion for an instructed verdict at the conclusion of plaintiff’s testimony.

The evidence, which we think is sufficient to support the verdict and the judgment, is substantially as hereafter set out.

Clarence Bethune, a witness for the State and a licensed embalmer and undertaker at Eudora stated that he knew Alberta Miles during her lifetime and was called to her home on February 3, 1959. Upon entering her home he found her body sitting on the bed with her head in her lap and also found a slopjar which seemed to be filled with bloody water. The room was torn up and portions of her clothing were torn off. There was a bullet hole in her breast on the left side which was apparently caused by a small caliber bullet. Louella Crawford, 65 years of age, a resident of Eudora, testified that she was acquainted with Alberta Miles during her lifetime and lived three or four blocks from her. On February 3rd she went to Alberta’s house to take a check. Upon arriving at her house she called but no one answered, then she started around to the back where she saw a window broken out although she didn’t go into the house. Jack Harrison, of Eudora, a witness for the State stated that he knew Alberta Miles for a few years and that he lived about two or three hundred yards from her; that appellant was boarding at his house at the time Alberta Miles was killed; that he went to her house on the 3rd of February and found her dead; and that blood was all over the place and on the bed and that the room appeared to have been ransacked. He further stated that he didn’t see appellant on the morning of January 30th but heard him when he came to his room; that after appellant had left he later went to appellant’s room and found some of his clothes bloody from top to bottom behind the bed; and that he also found a rubber boot, a pair of pants, and a jacket belonging to appellant which were bloodstained. Brady Bledsoe, who lives at Eudora, testified that he also had a room at Jack Harrison’s house where appellant lived; that on Saturday morning of January 31,1959, he saw an empty pistol cartridge behind the toilet outside of Harrison’s house and that he showed the empty cartridge to Emmett Davis on February 7th. Emmett Davis, a witness for the State, testified that he was acquainted with Alberta Miles and the appellant and that he lived in the back of a store in the vicinity of Alberta Miles’ house; that having been advised about appellant’s clothes he told Mr. Harrison not to let anyone in the room; that acting upon the information given him by Brady Bledsoe he found the empty cartridge behind the house and that he took it up and gave it to Mr. Mathis, the City Marshal and Deputy Sheriff.

Mr. Mathis, a witness for the State, testified substantially as follows: For the past forty years I have been a law enforcement officer in Eudora and for 46 years in Chicot County. I am acquainted with Jack Harrison, John Bracey (appellant) and Alberta Miles; having been advised that Alberta Miles was missing and that there was a window broken on the west side of her house I went to her house in the company of Jack Harrison and Mr. Davis, we entered the two-room house through the window and found the body which was slumped over on the bed; there was a bullet hole in the left side of her chest apparently from a small caliber bullet; appellant resided in the home of Jack Harrison which is about 70 feet from the home of Alberta Miles; the room in which we found the body had papers scattered around and was in a state of disorder; we checked for the bullet hole which has been mentioned heretofore, and there were no other wounds or appearance of powder burns on the deceased’s body; I took several items of clothing from appellant’s room and I took a bedspread and a pair of pajamas from the home of Alberta Miles; later I described the clothes to appellant and he told me they were his and also told me that the bloodstains on the articles of clothing in his room came from Alberta Miles. On the day after appellant was arrested in McGehee he confessed the killing of Alberta Miles to the McGehee officers and the following day, in the presence of the Prosecuting Attorney, the Sheriff of Chicot County, and myself, appellant without duress or compulsion gave and signed a full confession.

The confession was introduced in evidence at the trial in connection with Mr. Mathis’ testimony.

The appellant John Bracey, testified in his own behalf substantially as follows: I was born December 6, 1933, at Vicksburg, Mississippi; since I was 17 I have been engaged in sawmill work having finished the 4th grade in school; I am married but have been separated from my wife for about four years; while in Eudora I worked for the Breece-White Manufacturing Company, and made from $70.00 to $90.00 a week but saved no money. After I got off from work on January 30th I went to town and cashed my check at the liqiior store and bought a pint of wine; I drank this right away and then went to the cafe where I drank a quart of beer; then I bought a pint of Old Taylor whiskey which I drank with some beer; then I drank another pint of wine with some beer — spending'all that was left of my salary. On my way home from the cafe I passed the home of Alberta Miles with whom I was well acquainted; I turned into the yard and went up to the door but nobody answered, and then I went to the window and called and when she asked who I was I told her; I went into the house through the window where she was sitting in a chair and I told her I didn’t want to hurt her but wanted to borrow two or three dollars but she told me she didn’t have any money; I didn’t believe this so she told me that she had some money in the top drawer of her dresser but I didn’t find anything there; I looked in the drawer again and she came at me and I believe I hit her; I laid down on the bed and went to sleep and when I woke up I put on my pants which were on the chifforobe drawer. I didn’t mean to shoot her but meant to shoot over her head to scare her; after I shot her she said I had no business to shoot her and I told her she had no business to hit me; all I got from Alberta’s house was $9.00. After I left Alberta’s house I went to my room and laid down on the bed and got up early; I was supposed to go to work but when I woke up and saw the blood on my clothes I couldn’t figure out where it came from; but I changed my clothes and went down to the bus station. After I left Eudora I sold the pistol for $12.00 and used the money for something to drink. I admitted the killing to the McGehee officers just to get some rest, but when Mr. Mathis came the next day I told him that it was not so — I really don’t know what happened; I figured if I was the only one in the house that night it must have been me so I admitted the killing. What I am telling now is the truth.

Sufficiency of the Evidence. We have already indicated that we think the evidence is sufficient to sustain a conviction for first degree murder. However, since the confession of appellant was made out of court and later introduced in evidence it was incumbent upon the State to introduce corroborating evidence. It would be a useless repetition to set out again what we have stated heretofore, but suffice to say there is an abundance of this kind of testimony. Appellant in his testimony admitted that he was in the room with the deceased, that he robbed her, and that he actually fired at her. He admitted that he left the State the next morning, that the bloodstained clothes were his and that he sold the pistol with which he fired the fatal blow. In the case of Ezell v. State, 217 Ark. 94, 229 S. W. 2d 32, there is this statement: “We have held that the extrajudicial confession of the defendant accompanied by proof that the offense was actually committed by someone will warrant Ms conviction”. There is, of course, much more than tMs kind of proof in the case under consideration.

The Confession. One of the appellant’s principal contentions for a reversal is that the court allowed the State to introduce the confession without hearing testimony in chambers relative to whether said confession was voluntary or the result of pressure of some nature. It is true that in several cases, including the case of Brown v. State, 198 Ark. 920, 132 S. W. 2d 15, this court, in this kind of situation, has stated that the practice approved by us is for the court to hear the testimony in the absence of the jury regarding the circumstances under which the confession was given. However, under the facts and circumstances of this case, appellant’s contention is refuted by our holding in the case of House v. State, 230 Ark. 622, 324 S. W. 2d 112, where we said: ‘ ‘ One contention is that the court erred in permitting the introduction of this document (referring to a confession) without first conducting a preliminary hearing in chambers to determine whether the confession was voluntary . . . but the reason for the rule is to avoid the possibility of the jury’s being prejudiced if the court rules the confession inadmissible, and hence the accused has no basis for complaint if the confession is actually admitted in evidence”. Of course, here, the confession of appellant was admitted and we think properly so. While the State’s witness, Mathis, was testifying he was asked if appellant admitted to him that he killed Alberta Miles. At this point appellant made the following objection: “Your Honor, he was laying the ground work to put that confession on the record and I wanted to make my specific objection. I object to the introduction of this alleged confession on the ground that it was involuntarily given and specifically object to its introduction as violating the defendant’s right under the Fifth Amendment to the Constitution of the United States”. After the court had overruled the above objection the witness, without further objection, testified at length about the circumstances under which the confession was made and signed, showing that no pressure or influence of any kind was used, that the confession was read over to appellant, that he had an opportunity to change it if he so desired, and that he signed the same voluntarily. Thereupon and without any further objection by the appellant, the confession was introduced in evidence. Appellant, at no time, during the cross-examination of Mathis or during his own testimony, contended that any force or promise was used to obtain the confession, nor did he deny giving and signing the same. Furthermore, appellant at no time intimated to the court that he desired to have a hearing in chambers. Under these circumstances and under the holding in the House case, supra, we must conclude that it was not reversible error for the court to permit the introduction of appellant’s confession.

The Clothing as Exhibits. It is next insisted that the trial court erred in permitting the exhibition of certain bloodstained articles of clothing belonging to appellant and a sheet or bedspread belonging to the deceased. We see no merit in this contention. The introduction of these articles was in the sound discretion of the court and we cannot say the court abused this discretion. In a long line of cases this court has approved the introduction of certain articles of clothing ■in a trial of this kind. See: Hankins v. State, 103 Ark. 28, 145 S. W. 524; Deatherage v. State, 194 Ark. 513, 108 S. W. 2d 904; Cross v. State, 200 Ark. 1165, 143 S. W. 2d 530; Bartley and Jones v. State, 210 Ark. 1061, 199 S. W. 2d 965; Brown v. State, 219 Ark. 647, 243 S. W. 2d 938; and Atkinson v. State, 223 Ark. 538, 267 S. W. 2d 304. There is in this case an additional reason for the introduction of the articles of clothing above mentioned. As pointed out before it was necessary. for the State to introduce evidence- corroborating appellant’s extrajudicial confession.

Instructions. We have carefully examined the numerous instructions given by the trial court and find in them no reversible error. Moreover, appellant made no specific objection to any particular instruction but did make a general objection to all of them. In the case of Tiner v. State, 109 Ark. 138, 158 S. W. 1087, which was a first degree murder case in which a general objection was made to several instructions, this court in refusing to recognize the validity of such objection said: “It has been uniformly held by this court that a general exception to certain instructions will not be entertained on appeal, if any of them be good”, citing numerous cases. Since that decision this court has many times re-affirmed the announced rule. See: Massey v. State, 207 Ark. 675, 182 S. W. 2d 671; Coffer v. State, 211 Ark. 1010, 204 S. W. 2d 376; and Oliver v. State, 225 Ark. 809, 286 S. W. 2d 17.

We have also examined the entire record in this case independently of any points relied on by appellant and find no reversible error. Therefore, the judgment of the trial court must be, and it is hereby, affirmed.

Affirmed.


author: Sam Robinson, Associate Justice.

text:
    Ward v. Boone.
    5-2078
    331 S. W. 2d 875
    Opinion delivered February 8, 1960.
    [Rehearing denied March 7, 1960]

      Ike Murry and John F. Park, for appellant.

      Odell Pollard and Robert C. Doivnie, for appellee.
   Sam Robinson, Associate Justice.

Involved in this appeal are the issues of whether the county court has jurisdiction to hear and determine the outcome of a local option election on the question of the manufacture and sale of intoxicating liquors in White County and whether the complaint contesting the election held in accordance with Act No. 1 of 1942 as amended by Act No. 15 of 1955 states a cause of action. The election in issue was held on November 4, 1958. The county election commissioners certified that 3,811 votes were cast for the manufacture and sale of intoxicating liquors and 3,770 votes against the measure. Later the complaint herein was filed in the county court, alleging that the returns as certified were incorrect and that actually a majority of the votes cast were against the manufacture and sale of intoxicating liquors. The appellants demurred to the complaint, contending that the county court does not have jurisdiction of the subject matter and that the complaint does not state a cause of action. The county court overruled the demurrer, and appellants petitioned the circuit court for a writ of prohibition. The petition was denied and petitioners have appealed to this court.

We have held that the county court has jurisdiction in contests of local option elections on the liquor question. Craig v. Barron, 225 Ark. 433, 283 S. W. 2d 127; Yarbrough v. Beardon, 206 Ark. 553, 177 S. W. 2d 38. But appellants say that the decisions in that respect are not now applicable because of Act No. 15 of 1955, which provides:

“SECTION 1. Local option elections, to determine the legality or illegality of the manufacture, sale, bartering, loaning, or giving away of intoxicating liquors, shall hereafter he held only on the regular biennial November general election days.
“SECTION 2. Every petition for a local option election shall be prepared in accordance with Initiated Act No. 1 of 1942, and it shall be filed, and the subsequent proceedings thereupon shall be had and conducted, in the manner provided for county initiative measures by Initiative and Referendum Amendment No. 7 to the Constitution of Arkansas and enabling acts pertaining thereto.
“SECTION 3. All laws and parts of laws in conflict herewith are hereby repealed.
“SECTION 4. Whereas, under the present laws local option elections can be called and held at special elections; and, whereas these elections can be held on regular biennial general election days and thereby save the counties the expense of these elections; now, therefore it is determined by the General Assembly that an emergency is hereby declared to exist, and this act being necessary for the immediate preservation of the public peace, health and safety, shall be in full force and effect from and after its passage and approval.”

Subsequent to the adoption of Amendment No. 7 to the Constitution of Arkansas — the Initiative and Referendum Amendment — the General Assembly adopted Act No. 4 of 1935, an enabling act to the Amendment. It consists of 16 sections. Section 13 (Ark. Stat. § 2-314) provides: “The right to contest the returns and certification of the vote cast upon any proposed county act or measure is hereby expressly conferred upon any ten qualified electors and taxpayers of the county. Said contest shall be brought in the chancery court and shall be conducted under statutes and procedure for contesting the election of county officers, except that the complaint shall be filed within sixty days after the certification of said vote and no bond shall be required of the contestants.”

The same session of the General Assembly for the year 1935 adopted Act No. 108, legalizing the manufacture and sale of intoxicating liquors. The act is very comprehensive and provides for local option elections on the question and for the contest of such elections. Article 7, § 14, par. 1 (Ark. Stat. § 48-820) provides: “Any election held under this law may be contested as provided for in this section: 1. The contest shall be heard and determined by the same board which, by law, is authorized and empowered to hear and determine a contest of an election for county officers; and the same provisions of the statutes shall apply to the contest of any election held under this law as are provided for the contest of any election for county officers, except as hereinafter provided.”

Ark. Stat. § 3-1205 (Act No. 34 of 1875) provides: “When the election of any clerk of the circuit court, sheriff, coroner, county surveyor, county treasurer, county assessor, justice of the peace, constable, or any other county or township office, the contest of which is not otherwise provided for, shall be contested, it shall be before the county court, . . .”

Thus it will be seen that Act No. 108 of 1935 providing for local option elections on the liquor question, when construed along with Ark. Stat. § 3-1205, as it must be, gives the county court jurisdiction to hear and determine election contests in local option elections on the liquor question. But the question here is, does § 2 of Act No. 15 of 1955 change the law in that respect? The 1955 act provides: “Every petition for a local option election shall be prepared in accordance with Initiated Act No. 1 of 1942, and it shall be filed, and the subsequent proceedings thereupon shall be had and conducted, in the manner provided for county initiative measures by Initiative and Referendum Amendment No. 7 to the Constitution of Arkansas and enabling acts pertaining thereto.”

Appellants argue that according to this provision of the statutes a contest of a local option election must be held in the court having jurisdiction to hear contests of county initiative measures as provided by Act No. 4 of 1935, the enabling act to Amendment No. 7. It will be noted, however, that § 2 of Act No. 15 of 1955 makes no reference to an election contest. It deals only with the petition for a local option election and provides how it must be prepared and that subsequent proceedings thereon must be conducted in accordance with Amendment No. 7 and the enabling acts pertaining thereto. Act No. 15 fixes the date for holding a local option election, provides how the petition for such an election must be prepared, and fixes the jurisdiction for “subsequent proceedings thereon” on the petition for the election — and nothing more. The Act does not mention an election contest, either directly or by reference. It is hard to believe that the General Assembly intended that the Act should apply to all the ramifications of an election contest and completely change the law fixing the jurisdiction in a contest of local option elections without even mentioning an election contest.

Since the adoption of Act No. 15 of 1955, two cases have been before this Court that involve the application of that Act. Both cases came from chancery courts. Both involved the validity of a petition for local option elections. In neither case is anything said that would indicate that the chancery court has jurisdiction of a local option election contest. Brown v. Davis, 226 Ark. 843, 294 S. W. 2d 481; McCurry v. Wilson, 226 Ark. 860, 294 S. W. 2d 485.

In reaching a conclusion as to the intent of the Legislature, another thing to be considered is Article VII, § 28 of the Constitution, which provides: “The county court shall have exclusive original jurisdiction in all matters relating to county taxes, roads, . . . and in every other case that may be necessary to the internal improvement and local concerns of the respective counties. ’ ’

In Freeman v. Lazarus, 61 Ark. 247, 32 S. W. 680, it is said: “The issuance of license to sell liquors is a matter of local concern, as much so as the removal of a county seat; and the circuit court correctly held that the jurisdiction to determine a contest of the vote upon the question of liquor license is in the county court.” (citing Article VII, § 21 of the Constitution). Obviously there is a typographical error. It is clear that the court was referring to § 28 of Article VII. And in referring to Article VII, § 28 of the Constitution, the Court said in Yarbrough v. Beardon, 206 Ark. 553, 177 S. W. 2d 38: “Under this provision it has many times been held by this Court that the county courts may perform many ministerial duties, many of them of the kind here in question, such as county seat removals and elections . . . and contests over liquor elections.”

In the recent case of Jones v. Dixon, 227 Ark. 955, 302 S. W. 2d 529, we held that the county court had jurisdiction in an action to contest an election held on the question of constructing a county hospital. That decision was based on Article VII, § 28 of the Constitution, giving the county court exclusive jurisdiction in all matters relating to internal improvement and local concerns of the respective counties. As heretofore pointed out, Freeman v. Lazarus (61 Ark. 247, 32 S. W. 680) held that Article VII, § 28 of the constitution gives county courts jurisdiction to determine a contest of the vote on the liquor question. In view of the constitutional provision, the existing statutes and decisions of this Court, and the wording of Act No. 15 of 1955, it cannot be said that it was the intention of the General Assembly to change from the county court to the chancery court the jurisdiction to hear and determine the contest of local option elections on the liquor question.

The next question is whether the complaint filed in the county court states a cause of action. The complaint contains 29 numbered paragraphs, in which appellees complain of the method of holding the election and the results thereof. The complaint alleges that the returns as certified show there was a majority of only 41 votes in favor of the manufacture and sale of intoxicating liquors. It is also alleged that the certificates of the officials reflected that 58 wet and 52 dry votes were cast in Garner Township; that the returns as canvassed and certified by the election commissioners show 68 wet votes and 42 dry votes; that the change in the total of said votes was made after certification by the officials of Garner Township. The complaint further alleges the returns as certified by the county election commissioners show that in Gum Springs Township there were 42 wet and 27 dry votes, but as a matter of fact 36 ballots were cast in favor of the drys, and names the 36 electors voting dry. Moreover, the complaint alleges that in Denmark Township the election commissioners showed only 13 dry votes; that actually more than 19 votes were cast against the manufacture and sale of intoxicating liquors, naming those that voted dry. In addition, it is alleged that the returns show 66 wet and 27 dry votes in Higginson Township, and that there were in fact more than 40 votes cast as dry in that township. We think the allegations mentioned state a cause of action without considering the other allegations in the complaint. Neither do we take into consideration the allegations contained in an amended complaint brought up by certiorari. It is our conclusion that the county court has jurisdiction and that the complaint states a cause of action.

Affirmed.


author: Jim Johnson, Associate Justice.

text:
    Wakefield v. Wheeler.
    5-1993
    332 S. W. 2d 245
    Opinion delivered February 8, 1960.
    [Rehearing denied March 7, 1960]

      Wiley A. Branton, for appellant.

      David Solomon, Jr., for appellee.
   Jim Johnson, Associate Justice.

This is a case involving a boundary dispute. The appellant is the owner of 80 acres of land situated in the West half of the West half of Section 9, Township 2 South, Range 4 Bast, Phillips County, Arkansas. She acquired title to this property in 1932 from her former husband who had owned the property since 1917. Appellee, J. O. Wheeler, owns lands lying to the West in the Southeast Quarter of Section 8 which he acquired in 1951. Appellee, Wheatley Cooke, owns land immediately North of the Wheeler farm and West of the appellant’s farm in the Southeast Quarter of the Northeast Quarter of Section 8, which he acquired in 1955.

A county road runs North and South between the appellant’s land in Section 9 and appellees’ land in Section 8. As the road runs South along the Section line it veers Westerly from the line and runs at an angle of approximately South, one degree West, thereby encroaching on Section 8 and the land claimed by appellees. The ownership of the strip of land lying between the Section line and the county road is in dispute and furnishes the basis for this suit.

Appellant brought suit alleging inter alia that she and her husband before her had always considered this county road to be their western boundary and had been in adverse possession of the land involved and cultivated it since 1917.

Appellees contend the section line and not the county road has been the recognized boundary line for many years, and deny that the appellant has cultivated or been in possession of any land lying West of the Section line and East of the county road, and further that the land involved has been wild unimproved land until cleared by appellee Wheeler in 1955.

The Chancellor decreed the East boundary of the appellees’ lands to be the Section line common to Sections 8 and 9 and not the county road, and also enjoined the appellant from interfering with the possession of the appellees of the land lying West of the Section line.

The appellant introduced evidence that they had cultivated the strip in question for many years and exercised acts of ownership over it. On the other hand, the appellees introduced evidence that the strip in question was wild and unimproved with small trees growing on it until appellee Wheeler cleared it in 1955.

The evidence is conflicting but the finding of the Chancellor upon the conflicting evidence is most persuasive with us. We are of the opinion that his finding of fact was not against the clear preponderance of the.testimony, and it is a well settled rule of this Court not to reverse unless the finding of the Chancery Court is clearly against the weight of the evidence. Hinkle v. Broadwater, 73 Ark. 489, 84 S. W. 510; England v. Scott, 205 Ark. 52, 166 S. W. 2d 1014.

The attorneys are to be commended for their excellent briefs and the parties for their efforts to resolve this dispute. Both parties expressed a willingness to move the road back to the Section line thereby giving the appellant access to the road and allowing appellees to cultivate up to the property line. This is a problem left to the parties themselves.

Finding no error, the decree is affirmed.

George Rose Smith, J., dissents.