text:
    Johns v. Pomtree, Adm’r
    5-3747
    398 S. W. 2d 674
    Opinion delivered February 7, 1966

      James Daugherty, Pickens, Pickens & Boyce, Hodges & Hodges, for appellant.

      John D. Eldridge and George P. Eldridge, for appellee.
   Frank Holt, Justice.

The appellee brought this action against the appellants to recover damages for the wrongful death of appellee’s decedent, James Pomtree. The appellee alleged that appellants failed to maintain a proper enclosure for their cattle resulting in Pomtree being killed when the car he was driving struck one of appellants’ cows upon the highway. The appellants pleaded the negligence of appellee’s decedent as a defense. In response to interrogatories-, the jury assessed 75% negligence to appellants and 25% to the decedent and fixed appellee’s damages at $20,-000.00 Based upon this finding of comparative negligence the court entered judgment for appellee in the amount of $15,000.00 from which the appellants bring this appeal.

Appellants contend for reversal that the court erred in allowing counsel for appellee to make reference in his opening statement, then present evidence, and later comment in his closing argument that appellants added a strand of barbed wire to their fence subsequent to the accident. It is undisputed that on the day following the mishap the appellants added a strand of barbed wire to a part of the fence which enclosed their cattle. We must agree with appellants’ assertion that evidence of precautionary measures subsequent to an accident is inadmissible to establish a negligent condition at the time of the accident. In Kearns v. Steinkamp, 184 Ark. 1177, 45 S. W. 2d 519, we said:

“* * * Subsequent precautions taken to prevent a recurrence of an injury cannot be proved to establish negligence in the first place.”

In Prescott & Northern Railway Co. v. Smith, 70 Ark. 179, 67 S. W. 865, Justice Riddick wrote:

“* * * The fact that the defendant exercised less or greater care after the accident than it did at that time does not show that it was either guilty or not guilty of negligence at the time of the accident. ’ ’

See, also, Sterling Stores, Inc. v. Martin, 238 Ark. 1041, 386 S. W. 2d 711. This is in accord with the general rule, both state and federal, that evidence of repairs, precautionary measures, alterations or a change of conditions subsequent to an occurrence or accident is inadmissible to establish prior negligence. 170 ALB 7; 31A C. J. S. Evidence § 291, p. 745. The rationale for this exclusionary rule is expressed in 64 ALB 2d, 1303. There it is said:

“Some of the courts exclude the evidence on the theory that it. is immaterial and irrelevant, while others take the position that such evidence should be excluded as a matter of policy, since such subsequent repairs, alterations, or precautions are to be encouraged in order to prevent future accidents, and if such improvements could be introduced in evidence against the person making them as proof of his prior negligence, he would be discouraged from improving the place or thing that caused the injury. ’ ’

The appellants argue, however, that evidence of the addition of another strand of wire to the fence on the day following the accident is not too remote in time and is competent to show the condition of the fence on the day of the accident. The answer to this argument is that the condition of the fence on that date, including the fact it contained only two strands of wire, is susceptible of proof without adverting to any precautionary measures for the future. The addition of the third strand of wire was called to the jury’s attention by appellee’s counsel in his opening statement, the introduction of evidence, and in the closing argument contrary to the objections of the appellants. In the light of our decisions we must hold that this constituted prejudicial and reversible error.

We deem it unnecessary to discuss other points urged by appellants for reversal.

Reversed and remanded.

Cobb, J., not participating.


source: Caselaw Access Project

author: Oseo Cobb, Justice.

license: Public Domain

text:
    Lewelling v. Mansfield School Dist. No. 76
    5-3789
    398 S. W. 2d 665
    Opinion delivered February 7, 1966

      Garner & Parker, for appellant.

      Shaw, Jones & Shaw, for appellee.
   Oseo Cobb, Justice.

On July 30, 1964, the Board of Directors of the Mansfield School District No. 76, Sebastian County, Arkansas, caused to be published in the Greenwood Democrat their proposed budget of expenditures together with the tax levy for the fiscal year beginning July 1, 1965 to and including June 30, 1966. Said notice proposed a tax levy of 50 mills. An official ballot was thereafter prepared for the purpose of submitting the 50 mills school tax to the qualified electors participating in the annual school election, which was held on September 29, 1964, the last Tuesday in September, as designated by the provisions of Ark. Stat. Ann. § 80-301 (Repl. 1960).

We quote that portion of said ballot which is pertinent to the issues raised on appeal.

“Vote on Measure by placing an [x] in the square above the measure either for or against.
FOR TAX .............................................................................................□
AGAINST TAX..............................................................................□
“50 MILLS SCHOOL TAX
“The 50 mill tax includes (a) 21 mills for the maintenance and operation of schools: (b) 17 mills for the retirement of existing bonded indebtedness which has been previously voted and is a continuing annual tax until the bonds are paid; and (c) 12 mills will be a continuing building fund tax for five (5) years, 1965 through 1969 both inclusive, for the purpose of calling $75,000 of bonds now outstanding prior to maturity, and said building fund tax will constitute a continuing annual levy to be collected in the years specified above, with the provision that after calling $15,000.00 in bonds each year the surplus from said 12 mill building fund tax may be used for other school purposes. Surplus revenue from all building fund millage may be used for other school purposes.”

It has been stipulated that the proposed 50 mills school tax carried by a vote of 367 for the tax and 307 against the tax at said election.

■ Appellants, as taxpayers and electors of the school district, brought a class action suit in the Circuit Court seeking to have the annual school election declared null and void because of many alleged irregularities in the conduct of the election. Appellants attacked the legal sufficiency of the election ballot as unclear and misleading. They also contended that said election should have been conducted in conformity with the provisions of Act 28 of the Extraordinary Session of the General Assembly of 1933 (Ark. Stat. Ann. § 80-1110) instead of under the provisions of Amendment 40 to our present Constitution, said amendment having been adopted on November .2, 1948.

The Circuit Court, following hearing, found against appellants as to all of their contentions and entered a judgment dismissing the cause with prejudice. The case is now before us for review.

We now discuss the three points raised by appellants on appeal.

Point 1. ACT 28 AS AGAINST AMENDMENT 40.

Constitutional Amendment 40 reads as follows:

“The General Assembly shall provide for the support of common schools by general law, including an annual per capita tax of one dollar, to be assessed on every male inhabitant of this State over the age of twenty-one years; and school ■ districts are hereby authorized to levy by. a vote of the qualified electors respectively thereof an annual tax for the maintenance of schools, the erection and equipment of school buildings and the retirement of existing indebtedness, the amount of such tax to be determined in the following manner :
“The Board of Directors of each school district shall prepare, approve and make public not less than sixty (60) days in advance of the annual school election a proposed budget of expenditures deemed necessary to provide for the foregoing purposes, together with a rate of tax levy sufficient to provide the funds therefor, including the rate under any continuing levy for the retirement of indebtedness. If a majority of the qualified voters in said school district voting in the annual school election shall approve the rate of tax so proposed by the Board of Directors, then the tax at the rate so approved shall be collected as provided by law. In the event a majority of said qualified electors voting in said annual school election shall disapprove the proposed rate of tax, then the tax shall be collected at the rate approved in the last preceding annual school election.
“Provided, that no such tax shall bo appropriated for any other purpose nor to any other district than that for which it is levied.”

Constitutional amendments, when duly adopted by vote of the people, become a part of our organic law and supersede all legislative enactments inconsistent therewith. “Provisions necessarily repugnant to constitutional amendment must yield thereto.” Polk County v. Mena Star Co., 175 Ark. 76, 298 S. W. 1002. See also Priest v. Mack, 194 Ark. 788, 109 S. W. 2d 665.

The record in this case reflects that appellees attempted to follow the provision of Amendment 40 in proposing their budget and tax levy, in publishing notice of same, and in preparing the ballot for the annual school election. This was mandatory. Amendment 40 embraces the same subject matter of Act 28 and supersedes said Act, and the contentions of appellants to the contrary are without merit.

Point 2. APPELLANTS’ CONTENTIONS AS TO INSUFFICIENCY OF THE BALLOT.

Having determined that Constitutional Amendment 40, supra, was controlling as to said election, we have tested the sufficiency of the ballot in the light of the provisions of said Amendment. The principal objection raised by appellants is to the last sentence which appears on the ballot, which we quote. “Surplus revenue from all building fund millage may be used for other school purposes.”

It will be noted that the concluding paragraph in Constitutional Amendment 40 clearly requires that all appropriations from such revenues be expended for school purposes, and the language of the ballot did not offend Amendment 40. We have carefully scrutinized all of the language appearing on the ballot and we find same sufficient in all respects for the election. Appellants’ contentions as to the insufficiency of the ballot used in the election are without merit. For comparable reasoning see Bates v. Orr, 236 Ark. 499, 367 S. W. 2d 122. It will be noted from the quoted portion of the ballot that the 12 mill levy for the purpose of calling outstanding bonds is to continue for five years only, after which it will no longer be part of the district’s continuing levy.

Point 3. APPELLANTS’ CONTENTIONS AS TO IRREGULARITIES IN CONDUCT OF THE ELECTION.

The record supports appellants’ contentions as to the occurrence of several irregularities involving noncompliance with statutory requirements in the conduct of this election.

(a) At the preceding annual election in 1963, a total of 602 votes were cast in this school district. Ark. Stat. Ann. § 3-810 (Repl. 1956) requires that 150 ballots be printed for each 50 electors or fraction thereof voting in the last preceding election. The statute thus required the printing of 1850 ballots for this particular election. It appears from the record that the County-Board of Election Commissioners turned over- to Otis Roberts, -the County School Supervisor, the details of printing and distributing the ballots for this • election.

Mr. Roberts ordered only 750 ballots on the anemic excuse of economy in the printing bill.

(b) In the 1963 school election, the election preceding the one here under review, Dayton and Prairie Townships cast a total of 125 votes against the 50 mills school tax, as against a total of 4 votes for the tax. It was, therefore, reasonably well known in advance of the submission of the same issue in the school election in 1964 that the voters in those townships had previously expressed disapproval of the millage increase.

Mr. Roberts, the County School Supervisor and a party interested in the election, handled the distribution of ballots to the various townships in the district, and from his inadequate original supply he provided to Dayton and Prairie Townships a significantly reduced pro rata share of the ballots for the election. The complaint alleged the delivery of only 43 ballots to the Dayton Township and 45 ballots to Prairie Township.

For many years the law in Arkansas has,placed the responsibility upon the sheriff and his deputies as to the delivery of ballots for an election. Ark. Stat. Ann. % 3-813 (Repl. 1956). There is nothing in this record to indicate that the sheriff was not. ready and willing to perform his duties. . .......

The officials conducting the election in Dayton and Prairie Townships and many of the voters in such townships weie understandably irritated and-upset-by the obvious inadequacy as to the number of ballots furnished for the election. They proceeded, however, with considerable ingenuity to meet the situation. Mrs. John King, one of the officials at the Dayton Township, sent her husband to the Huntington Township to borrow extra blank ballots, which were obtained, and near the end of the day, the officials hand made several ballots for use of the voters and a total of 95 votes were cast in the Dayton Township. This is 14 more votes than were cast in the same township in the 1963 election. Prairie Township cast a total of 61 votes as against 58 votes in the 1963 election. All of the votes in both townships in subject election were counted as cast.

Only one man, C. L. Scott, testified that he did not get to vote for lack of ballots, and that was in Prairie Township. We assume he was a qualified elector.

Appellants urge no irregularities in connection with any of the townships in the District except Prairie and Dayton.

The irregularities of this election flowed from an unwitting or intentional disregard of our statutory provisions with.reference to conducting such election.

At the outset of our discussion of applicable law, we call attention to the fact that findings of the Circuit Judge in an election contest have the force and effect of a jury in the ordinary Circuit Court case. In other words, findings of the Circuit Judge, if supported by competent and substantial evidence, will not be disturbed here. Williams v. Buchanan, 86 Ark. 259, 110 S. W. 1024; Logan v. Moody, 219 Ark. 697, 244 S. W. 2d 499; Phillips v. Melton, 222 Ark. 162, 257 S. W. 2d 931; Baker v. Hedrick, 225 Ark. 778, 285 S. W. 2d 910.

Appellants have invited our attention to Baker v. Hedrick, supra. There was a wide variety of irregularities and illegalities in the Baker case involving a local option liquor election. In that ease this court quoted with approval the following test as to when an election should be set aside: “The wrong should appear to have been clear and flagrant; and in its nature, diffusive in its influences; calculated to effect more than can be traced; and sufficiently potent to render the result really uncertain. If it be such, it defeats a free election . . If it be not so general and serious, the court cannot safely proceed beyond the exclusion of particular illegal votes, or the supply of particular legal votes rejected.”

It would have taken 61 additional votes against the increase in school tax to have changed this election. We find nothing in the record to indicate that such a large number of voters were denied an opportunity to cast their votes. We must accordingly find that the results of the election were not affected by the irregularities practiced in the conduct of the election.

We have many times held, as in Baker v. Hedrick, supra, that elections will not be invalidated for alleged wrongs committed unless said wrongs were such to render the result doubtful. In order to destroy the result of an election it must be shown that wrongs against the freedom of election have prevailed, not slightly and in individual cases, but generally and to the extent of rendering the result doubtful. Jones v. Glidewell, 53 Ark. 161, 13 S. W. 723.

We find no error in the action of the trial court, following hearing, in dismissing the complaint of appellants with prejudice.

Affirmed.


author: Carleton Harris, Chief Justice.

text:
    Bailey v. King
    5-3769
    398 S. W. 2d 906
    Opinion delivered February 14, 1966

      Franklin Wilder, for appellant.

      If. Clay Robinson, for appellee.
   Carleton Harris, Chief Justice.

George King d/b/a Acme Industrial Laundry, appellee herein, employed appellant, Richard E. Bailey, as a route salesman on July 2, 1963. The laundry is engaged in the business of renting linens and industrial uniforms to commercial customers, and the soiled linens and uniforms are picked up at regular intervals by the routemen, and replaced with clean ones. Every employee is assigned a list of customers that he is to service. Upon employment, Bailey executed an agreement, agreeing, in consideration of being employed, that, on termination of the employment, he would not ‘ ‘ directly or indirectly engage in the linen supply business * * * or any competitive business within the city of Fort Smith, Arkansas, or within a radius of 25 miles of the city of Fort Smith * * * for a period of one (1) year from the date when his employment under this contract ceases.” The form agreement also included “cleaning and laundry,” but these words were stricken from the contract. On May 6, 1965, Bailey’s employment was terminated by his employer, and appellant soon thereafter accepted employment with Tulsa Linen Service, a direct competitor of Acme’s, and commenced soliciting former customers (whom he had called on for Acme), and obtained some of these as customers for the new employer. King-instituted suit in the Sebastian Chancery Court to enforce the provisions of the contract, and, after the taking of evidence, the court entered a permanent injunction, enjoining Bailey “from participating in the linen supply, rental of industrial uniforms and allied business within the city of Fort Smith * * * or radius of twenty-five miles around Fort Smith * * * for a period of one (1) year * * *” from the termination of his employment. From the decree, appellant brings this appeal. Appellant asserts that the contract is void as against public policy; that the contract is void because of lack of mutuality; and that there was no valid reason for issuance of the injunction.

The question of contractual restraint provisions has been passed upon by this court several times, and in McLeod v. Meyer, 237 Ark. 173, 372 S. W. 2d 220, we pointed out that “whether a restraint provision is reasonable or unreasonable (and thus valid or invalid) is a matter to be determined under the particular circumstances involved.” In Little Rock Towel and Linen-Supply Company v. Independent Linen Service Company of Arkansas, 237 Ark. 877, 377 S. W. 2d 34, we. held a contract, which provided that appellant would not, during his employment with appellee, or for a period of five years thereafter, be connected directly or indirectly with any other linen service company, or with any laundry anywhere within appellee’s territory in Arkansas, to be void. It will be quickly noted, however, that the period of time was five years, and likewise, the appellant in that case was prohibited from engaging in the family laundry business as well as a linen supply service. We commented:

“* * * According to the proof there is a clear-cut distinction between a family laundry and a linen supply service. A family laundry is engaged principally in laundering clothing and household linen for residential customers. A linen service company deals principally with commercial customers. Such a company owns commercial uniforms, restaurant linen, barber supplies, and the like, which the company rents to its patrons. Its routemen make calls at frequent intervals for the purpose of collecting soiled linen and replacing it with an equal supply of clean linen.

“When Independent Linen and Bew [appellant] executed their agreement, the company was engaged in the linen service business, but never in its history had it been engaged in the laundry business. Hence its attempt to restrain Bew from entering the latter field went decidedly farther than the company’s protection required. * * *”

Likewise in American Excelsior Laundry Company v. Derrisseaux, 204 Ark. 843, 165 S. W. 2d 598, we held that an- agreement, which provided that Derrisseaux could not engage in the laundry and dry cleaning business in a particular territory for five years, was void. It seems clear that this court is of the view that five years is an unreasonable length of time to restrict a former employee’s competition. However, the facts in the instant case are decidedly different. In the first place, Bailey, under the agreement, was still permitted (if he should leave Acme’s employment) to engage in the home laundry business, a business in which he had been previously employed before entering the employment of appellee. It is thus clear that he was not being deprived of this means of earning a living. In the next place, the amount of time covered by the restriction is only one year, obviously quite different from the five-year restrictions in the two linen and laundry cases herein cited. To say that this contract was unreasonable would actually have the effect of saying that no employment agreement in the laundry, or linen supply business, could be upheld, and this would be contrary to decisions from various jurisdictions. This particular type of business seems to be a fertile field for this type of contract, and, in fact, appellant signed a similar agreement with Tulsa Linen Service when he commenced work for it.

Appellant contends that there is no mutuality (of consideration), and the contract is thus void. He argues that, under the agreement, appellee did not have to employ Bailey for any particular length of time; appellee did not have to pay any specific amount of money; and could fire Bailey without cause. We do not agree with appellant’s contention. Numerous cases support the enforceability of protection covenants where the consideration is based simply upon employment. National Linen Service Corp. v. Clower, 175 S. E. 460 (Ga.); Tolman Laundry v. Walker, 187 A. 836 (Md.); Sherman v. Pfefferkorn, 135 N. E. 568 (Mass.).

Of course, if an employer obtained an agreement of this nature from an employee, and then, Avithout reasonable cause, fired him, the agreement Avould not be binding. In other words, an employer cannot use this type of contract as a subterfuge to rid himself of a possible future competitor. As avo have pointed out, each case must stand upon its own facts. Here, there is no evidence that this Avas not a bona fide agreement. There is no evidence of trickery or chicanery. Bailey Avas employed for nearly íavo years before his services Avere terminated, and Avithout going into detail, Ave simply say that there were valid reasons for ending his employment. ,

The breach of a covenant not to compete is, of course, of a continuing nature, and an action for damages is hardly adequate, mainly because of the extreme difficulty in determining the amount of damage caused by loss of business. It appears that the only realistic relief for a breach of this type of contract is by injunction, and the court properly granted that remedy in the instant case.

Summarizing, we hold that the contract in issue, providing that' appellant could not engage in the linen supply business for the period of one year within a radius of twenty-five miles of the city of Fort Smith, was a reasonable agreement, and accordingly enforceable.

Affirmed.

Johnson, J., dissents.

      These, incidentally, are laundry cases.


author: Ed. F. McFaddin, Justice.

text:
    Mainprize v. Bates
    5-3765
    398 S. W. 2d 894
    Opinion delivered February 14, 1966

      Hodges & Hodges, for appellant.

      Gus Causbie, for appellee.
   Ed. F. McFaddin, Justice.

From a judgment in favor of plaintiffs-appellees, the defendant-appellant brings this appeal. Two matters occurring in the litigation are now urged for reversal.

In 1958 Bates Motor Company (a partnership composed of appellees, Messrs. Bates and Freeman) sold a power unit to the appellant, O. 0. Mainprize. Part of the purchase price was paid in cash, and the unpaid balance of $1,150.32 was secured by a chattel mortgage on the power unit. Bates Motor Company was in business in Arkansas; and Mainprize lived in Missouri; so the chattel mortgage was on a Missouri form and was duly recorded in that State.

Mr. Mainprize made several payments on the secured indebtedness and also had repair work done from time to time on the power unit. Mr. Mainprize returned the power unit to Bates Motor Company, but without giving any explanation mutually understood between the parties. • After some delay, Bates Motor Company sold the power unit at advertised sale under claimed provisions of the chattel mortgage; and on June 1, 1961, Bates Motor Company filed this action against Main-prize for the claimed balance due of $667.67.

By answer, Mainprize denied owing any balance on the power unit; and by cross complaint sought $3,-000.00 damages for breach of express and implied warranties in regard to the power unit. For reasons best known to the parties, the cause was not tried until October 22, 1964, when it was presented to the Circuit Judge sitting as a jury. The main issue in the trial related to alleged defects in the power unit and to Main-prize’s claim for breach of warranty. The Circuit Court judgment was in favor of appellees, Bates et al, for the amount sued for; and on this appeal only two points are urged by the appellant:

“I. The Court erred in refusing to quash the writs of garnishment.
“II. The Court erred in refusing to hold the sale void because the appellee did not have the property appraised. ’ ’

I.

The Garnishment Matter. The first point relates to the refusal of the Court to quash certain writs of garnishment. The following schedule of dates gives the background for appellant’s insistence on this point:

6/1/61 Original complaint filed and summons issued. Service Avas obtained in Missouri on July 20, 1961.

6/1/61 Allegations and interrogatories filed and garnishment issued on Cherokee Village Company. The garnishee ansAvered on August 2, 1961.

7/18/61 Allegations and interrogatories filed and garnishment issued against Hidden Valley Company; and this garnishee ansAvered on August 28, 1961.

1/1/62 The service on defendant of the original summons of June 1, 1961 was quashed because there had been much delay in obtaining service.

1/2/62 New summons issued against defendant, and served on January 19, 1962.

3/29/62 Defendant, saving his objections, filed answer and counter-claim.

4/3/63 Defendant moved that the writs of garnishment against Cherokee Village and Hidden Valley Company be quashed because the service of summons of 6/1/61 on defendant had been quashed.

2/5/65 Judgment rendered, reciting as to the writs of garnishment, “and plaintiffs are authorized to proceed under the garnishments as issued herein toward satisfaction of the recovery herein. ’ ’

The appellant insists that since the service on him of the summons of June 1, 1961 was quashed, therefore the writs of garnishment issued on June 1, 1961 and July 18,1961 should likewise be quashed. In other words, the position of the defendant is that until he was validly served with process, no writ of garnishment could be validly served. We find no merit in this point. Our statute on the commencing of a cause of action (Ark. Stat. Ann. § 27-301 [ftepl. 1962]) reads in part: “A civil action is commenced by filing in the office of the clerk of the proper court a complaint and causing a summons to be issued thereon, and placed in the hands of the sheriff of the proper county or counties.” Thus, on June 1, 1961, when Bates et al filed this action against Mainprize and placed the summons in the hands of the officer, the action was “commenced.”

Our statute on garnishment before judgment (Ark. Stat. Ann. § 31-501 [Repl. 1962]) says in part: “In all cases where any plaintiff may begin an action in any court of record .... and such plaintiff shall have reason to believe that any other person is indebted to the defendant .... such plaintiff may sue out a writ of garnishment . . . .” The writ of garnishment before judgment may be sued out “in all cases where any plaintiff may begin an action.” Bates et al began their action on June 1, 1961, and they could obtain a writ of garnishment on that date or thereafter. There is no question in this case as to the allegations, bonds, interrogatories, etc. regarding the garnishment. The sole insistence of the appellant is that when the Court quashed the service obtained on the defendant of the summons dated June 1, 1961, such quashing ipso facto rendered the writs of garnishment void.

We find no merit in this contention. Our case of Roach v. Henry, 186 Ark. 884, 56 S. W. 2d 577, is in point. In that case, action was filed and summons issued against the defendant on September 6, 1932. Personal service could not be obtained on the defendant so a warning order was issued at a subsequent date. A writ of garnishment was issued and served on September 6, .1932, before the warning order was issued. We held that the failure to obtain personal service on the defendant on September 6, 1932 did not render void the writ of garnishment, saying: “The mere fact that the defendant was not served would not render the garnishment void.”

II.

The Matter Of Appraisement. As previously mentioned, Mr. Mainprize-returned the power unit to Bates et at without any explanation being mutually understood between the parties. Bates et at, purporting to act under the chattel mortgage, sold the power unit for $525.00 and credited that amount on what was due to Bates et al by Mainprize. With the said credit allowed, this action was filed against Mainprize for $667.67 for balance claimed due on the mortgage indebtedness, plus also an unpaid open account.

In the course of the trial Mr. Bates testified, without objection, as to how this balance of $667.67 was calculated. The existence of the chattel mortgage under which Bates acted was not questioned. Its terms were not denied, and it was not thought to be of sufficient importance to be introduced in evidence. Mr. Bates testified that he posted notices of the proposed sale of the power unit, and Mr. Mainprize admitted that he was told of the sale. There was some slight evidence by Mr. Bates that “our shop appraised it” (referring to the power unit). As to whether there was any formal appraisement, and as to whether the Missouri mortgage required any formal appraisement, are matters that were not considered important. The Trial Court found “that in January 1960, plaintiffs, after having advertised and giving notice of intention to do so, sold the said unit under the aforesaid ‘Missouri mortgage’ for $525.00, defendant being aware of the pendency and time of said sale; . . . .”

Now, on appeal, the appellant claims that in selling the power unit under the mortgage Bates did not comply with Ark. Stat. Ann. §§ 51-1112 et seq. (1947) as regards appraisal and sale of property under- a mortgage. This point appears to us to be an afterthought. The big issue in the Trial Court was the warranty of the power unit. No one seemed to have even regarded the provisions of the mortgage to be of any importance. The parties selected the issues in the trial below; and we cannot here retry the case on other issues.

Affirmed.

      The Ford Motor Company was named as a cross-defendant, but there is nothing in the record to show any service on that Company; and the Ford Motor Company is not listed in the judgment as ever having been a party to the litigation.


author: Ed F.'McFaddin, Justice.

text:
    Ark. State Highway Comm. v. Phillips
    5-3771
    398 S. W. 2d 899
    Opinion delivered February 14, 1966

      Mark E. Woolsey and Phil Stratton, for appellant.

      Edward H. Boyett, Holman & Boyett, for appellee.
   Ed F.'McFaddin, Justice.

This is an eminent domain proceeding, and the only question on this appeal relates to a ruling of the Trial Court in excluding evidence offered by the appellant-condemnor.

The Arkansas State Highway Commission filed this proceeding on January 8, 1965, and took possession of 1.12 acres from a tract of 9.5 acres belonging to the appellee, Mrs. Jewell Phillips. The case was tried to a jury on the damages claimed by Mrs. Phillips. At the trial the witness for the landowner testified that her property was worth $25,000.00 before the taking and $17,000.00 after the taking; or a difference of $8,000.00 claimed as damages.

The Highway Commission called as its witness H. K. McMurrough, who testified that Mrs. Phillips’ property was worth $10,500.00 before the taking and $24,200.00 after the taking, since the landowner had received special benefits because of the highway. The witness testified that because of the new highway the landowner had a most valuable location for a filling station; and the witness proceeded to tell of three filling station locations on another recently constructed highway in the same vicinity. The witness testified:

(a) That on June 2, 1964 Mr. Young sold 4.73 acres at an interchange point to Grulf Oil Company for $30,000.00;
(b) That on September 17, 1963 Mr. Jeffers sold 1.75 acres as a filling station location to Humble Oil Company on a newly constructed highway for $18,500.00; and
(c) That on November 6, 1963 Mr. Kaiser sold a filling station location to Humble Oil Company for some large figure.

The witness testified as to firsthand knowledge of each of these sales, and also testified that the access point to the highway in each instance was similar and comparable to the property of Mrs. Phillips. The Trial Court excluded all this evidence, saying as regards each item: “Gentlemen of the Jury, you will wholly disregard the testimony of this witness with reference to the value or the sale price of this land based upon the fact that it happened prior to January 8, 1965.”

The quoted ruling is urged by the appellant for reversal; and we conclude that the ruling ivas in error. In Lazenby v. Ark. State Hwy. Comm., 231 Ark. 601, 331 S. W. 2d 705, in discussing the benefits which may be off-set against the damages sustained by the landowner for the taking, we quoted from the earlier case of Cribbs v. Benedict, 64 Ark. 555, 44 S. W. 707:

“ ‘The view which seems to us to accord with reason, and which is supported by high authority, is that where the public use for which a portion of a man’s land is taken so enhances the value of the remainder as to make it of greater value than the whole was before the taking, the owner in such case has received just compensation in benefits. And the benefits which will be thus considered must be those which are local, peculiar, and special to the owner’s land, who has been required to yield a portion pro bono publico.’ ”

In the Lazenby case, we also quoted from Washa v. Prairie County, 186 Ark. 530, 54 S. W. 2d 686:

“ ‘It is true also that, before the owner can be said to have been compensated by benefits derived from the appropriation of his property, such benefits must be, not those enjoyed by the public generally, but must be special benefits accruing to the particular owner of the land from which a part had been taken.’ ”

In the case at bar, the witness McMurrough ivas attempting to show a “local, peculiar, and special” benefit to Mrs. Phillips’ property. To show such benefit, the witness was attempting to testify as to other property, claimed to be comparable; and the fact that these other sales were before January 8, 1965 (the date of the taking of Mrs. Phillips’ property) was not a material distinction. In Ark. State Hwy. Comm. v. Witkowski, 236 Ark. 66, 364 S. W. 2d 309, we discussed the question of comparable sale of property, and said:

“There can be no fixed definition of similarity or comparability. Similarity does not mean identical, however it does require some reasonable resemblance. See Nichols, Eminent Domain, Yol. 5, § 21.31, p. 439. There are certain criteria of similarity which can be utilized to establish a reasonable resemblance. Important factors of similarity to be considered are location, size, and sale price; conditions surrounding the sale of the property, such as the date and character of the sale; business and residential advantages, or disadvantages; unimproved, improved, or developed land.”

The fact that the claimed comparable sale ivas before the taking of Mrs. Phillips’ property, was not a determinative factor. We can find no authority to support the ruling of the Trial Court in excluding the testimony; and it was certainly prejudicial to the appellant’s case.

Reversed and remanded.

      There had been’ some evidence about a $26,000.00 option by the landowner to Texaco.


author: George Rose Smith, Justice.

text:
    McAdams v. Stephens
    5-3707
    399 S. W. 2d 504
    Opinion delivered February 14, 1966
    [Rehearing denied March 21, 1966]

      Spencer & Spencer, By: Don Gillaspie, for appellant.

      Shackleford & Shackleford, for appellee.
   George Rose Smith, Justice.

This is an action for personal injuries and property damage sustained by the appellant in a collision between his automobile and an ambulance owned by the appellee Andrews Funeral Home and being driven by its employee, the appellee Stephens. The jury returned a $1,000 verdict for the plaintiff. Despite the fact that the verdict and judgment were in his favor the appellant insists that the award is so inadequate that other prejudicial errors in the record entitle him to a new trial.

At the outset the appellant is confronted by our holding in Smith v. Ark. Power & Light Co., 191 Ark. 389, 86 S. W. 2d 411 (1935), and later cases. In the Smith case we summarized our earlier decisions in this language: “When substantial damages are awarded, a judgment will not be reversed because of inadequacy, if there be no other error than that committed by the jury in measuring the damages. But a judgment even for substantial damages will be reversed where the undisputed lour italics] testimony shows the damages to be inadequate, if error of a substantial and prejudicial nature was committed at the trial of the case.”

Upon the testimony now before us the award of $1,000 is a substantial amount. Its inadequacy, however, is by no means an undisputed fact. Between the date of the collision and the date of the trial the plaintiff was involved in another collision and also suffered a heart attack. There is much uncertainty about the extent to which his injuries were caused by the first collision. Moreover, the testimony about his pain and suffering, his partial disability, and the like comes largely from his own lips and cannot be regarded as undisputed. If the jurors chose to resolve the conflicts in the evidence in the defendants’ favor, as they may have done, the verdict is not demonstrably inadequate.

■ We are urged to overrule our declaration in the Smith case that a reversal for other error in the record will be ordered only when the undisputed testimony shows an award of substantial damages to be inadequate. We are not convinced, however, that there is available some other rule better calculated to achieve justice in most cases. When there is testimony, although it be disputed, that would support the verdict no one can say with confidence that the plaintiff was prejudiced by other asserted error in the record. In many, many cases the plaintiff is in a position to argue that his proof would have supported a somewhat larger verdict in his favor. In a great many of those same cases he is also in a position to argue that some irregularity in the trial amounted to prejudicial error.

But how serious must the inadequacy or the error be? If we should abandon the rule of the Smith case We hardly see how we could, without sitting as a jury, deny a new trial on the ground that the verdict was only slightly inadequate or the other error only slightly prejudicial. No line could be drawn short of allowing a new trial in every case of inadequacy coupled with other error. Thus our adoption of a new rule would unavoidably lead to a host of new trials in cases in which the plaintiff had really received an adequate verdict in the first place and might often obtain no greater award upon a second trial. We cannot believe that the suggested departure from the doctrine of the Smith case would actually improve the administration of justice.

It is also contended that our earlier cases on the point involved the common-law rule of contributory negligence and were therefore defensible on the ground that the verdict for the plaintiff absolved him of any negligence, however slight, so that the inadequacy of the verdict was more readily apparent than it is under our present comparative negligence statute. That difficulty is one more of form than of substance. In the case at bar the issue of comparative negligence was submitted to the jury. During the oral argument before us counsel for the appellant voluntarily corrected a statement in his printed brief by conceding that under our statute his client’s contributory negligence could not in any event have reduced .his recoverable damages by more than half. Ark. Stat. Ann. § § 27-1730.1 and 27-1730.2 (Repl. 1962). Under that view it is evident that the comparative negligence act creates no real difficulty. For the jury to have returned a $1,000 verdict it must have found that the plaintiff’s damages did not, without regard to his negligence, exceed $2,000 (less a penny). Thus under the comparative negligence statute a plaintiff can bring himself within the principle of the Smith case merely by showing that according to the undisputed evidence an award of twice the amount of the verdict would be inadequate. That slight change in the plaintiff’s burden is not a sufficient basis for the demand that our earlier cases be overruled.

Affirmed.


text:
    Rogers v. Union National Bank of Little Rock
    5-3766
    398 S. W. 2d 904
    Opinion delivered February 14, 1966

      Moses, McClellan, Arnold, Owen & McDermott, By: Wayne W. Owen • Smith, Williams, Friday & Bowen, By: John T. Williams, for appellant.

      Chowning, Mitchell, Hamilton & Burrow, By: W. S. Mitchell, for appellee.
   George Rose Smith, Justice.

By order of the Pulaski chancery court the appellee national bank, in its capacity as trustee of the Penzel Heirs Trust, was authorized to solicit written sealed bids for the private sale, without advertisement, of certain land in downtown Little Rock. The appellant Rogers, acting as agent for W. A. Saunders, submitted the only valid bid. The single question is whether the trustee was compelled to accept that bid and complete the sale to Saunders. This appeal is from a decree permitting the trustee to reject the Saunders bid and to proceed instead with the disposition of the property by public sale.

In 1964 the trustee bank was negotiating with the appellant Rogers, Agent, and with Louis Rosen, Agent, who were competing with each other in their efforts to buy the land from the trustee. By the terms of the trust instrument the bank could ordinarily have sold the property without judicial authorization. The bank, however, was a national bank. Under governing federal regulations the bank deemed it necessary to obtain a court order authorizing the sale, because Rosen’s principal, a corporation, had stockholders who were related to one of the bank’s directors.

The bank accordingly filed a petition in chancery, explaining the situation and asking that it be authorized to dispose of the property by private sale. The chancellor granted the petition. The order recited that the trustee “is authorized to sell [the land] by private sale without advertisement, for cash, after the Trustee has notified all prospective buyers of said property of the time and place when written, sealed proposals will be accepted and opened by the Trustee, and the Trustee is directed to report to this Court the highest offer so received for confirmation by the Court.”

Only two bids were solicited and received. Rogers, as agent for Saunders, bid $132,001.00. Rosen, as agent for an undisclosed principal, bid “$2,500 more than the highest of any other sealed bid or bids you may receive on this property.” The chancellor rightly concluded that Rosen’s offer was not a valid bid, for the reasons stated in Casey v. Independence County, 109 Ark. 11, 159 S. W. 24, Ann. Cas. 1915C, 1008 (1913), and Bank of Eastern Ark. v. Bank of Forrest City, 94 Ark. 311, 126 S. W. 837 (1910).

After receiving the two bids the bank again asked the chancery court for instructions. At a brief hearing Rogers offered the testimony of an expert witness who valued the property at $122,500.00. (We do not find this testimony to be persuasive, for it cannot be reconciled with the appellant’s obvious belief that it would be to his advantage to buy the property for almost $10,000.00 more than the broker said it was worth.) The chancellor instructed the trustee to reject both bids for the property and to proceed instead with a public sale at which the minimum acceptable bid would be $134,550.00, that being the sum the trustee would have received if the Rosen bid had been valid.

The chancellor was right. It is the policy of the law to be solicitous toward the beneficiaries of a trust. According to the majority rule a court does not abuse its discretion in refusing to approve a trustee’s sale upon the ground that the trustee has received an even higher offer in the interval between the sale and the proposed confirmation. Heller v. Lamar, 77 F. 2d 389 (App. D. C. 1935); Forester v. O’Connell & Lee Mfg. Co., 328 Mass. 377, 103 N. E. 2d 705 (1952); In re Herbert’s Estate, 356 Pa. 107, 51 A. 2d 753 (1947). Contra: Goldberg v. Strass, 11 Wis. 2d 410, 105 N. W. 2d 553 (1960).

In the case at bar we need not, and do not, intimate that the majority rule must be applied woodenly in every situation. Here the equities are decidedly against the appellant. The chancellor’s original order merely directed the trustee to solicit sealed offers from private bidders and to report the best one to the court, for confirmation. No assurance was extended to prospective bidders that the highest offer would automatically be accepted, however unsatisfactory it might be. To the contrary, the court’s reservation of the power to confirm the sale implied a correlative reservation of the power to refuse the best bid and order a new sale. We cannot say that the chancellor abused his discretion in proceeding as he did.

Affirmed.


author: Paul Ward, Justice.

text:
    Rayburn v. State
    5175
    398 S. W. 2d 909
    Opinion delivered February 14, 1966

      Shaver, Tackett & Jones, for appellant.

      Bruce Bennett, Attorney General,: R. E. “Skip” Wallin and. Fletcher Jackson, Assistant Attorneys General, for appellee.
   Paul Ward, Justice.

Appellant, charged with murder in the First Degree for killing Frankie Shipp, was convicted of murder in the Second Degree and given a sentence of twenty years in the penitentiary.

The jury’s verdict was based entirely upon circumstantial evidence. For a reversal appellant urges only one point—there is no substantial evidence to sustain the jury verdict.

Appellant and Shipp lived as close neighbors within a deer hunting area. On November 9, 1964, at about one o’clock p.m.—the opening day of the deer season—• appellant (according to his testimony) found Shipp dead (apparently having been hit by a rifle bullet) on the road about a half mile from appellant’s home. Appellant promptly notified the officers, and later admitted he shot a deer near where the body was found and at approximately the time mentioned above. He denied that he shot at Shipp or that he even saw him until he discovered his body.

A summary of the pertinent testimony is set forth below:

Appellant: I am 50 years old. I have known Shipp since 1944; We had a little trouble about nine years ago, but there has been no hard feelings since. We worked together this year. While I was hunting deer I found Shipp’s body lying in the road—I moved the body off the road and promptly notified several people, including the sheriff; when the sheriff came I told him all I knew —told him I shot at a deer and showed him the deer tracks and also pointed out where I was standing when I shot.

On Gross Examination: I have been convicted of a felony twice—once for murder in the First Degree (over whiskey); When I found Shipp I don’t remember seeing any blood; I saw other people out in the woods that day about noon and later; Shipp was killed within a quarter mile of my house; I heard some other shots that day, but not within 5 to 20 minutes of when I shot; There is quite a bit of undergrowth where Shipp was shot; I smoke cigarettes, normally Prince Albert.

Richard Bircher, Sheriff: When I arrived I saw blood spots in the road where the body had been; Appellant showed me one deer track where he said the deer (he shot at) entered the road; Found a wallowed-out place where, apparently, someone had been sitting and where there was a hand-rolled cigarette butt; Appellant said he was shooting a Marlin lever-action rifle; A bullet fired from the place where appellant said he was standing which hit the pine tree would not have been in line with the blood spots on the road.

Richard Hall, a registered engineer, who used the information furnished him by the investigating officers and by appellant, and who visited the place where Shipp was shot, prepared a large plat which was introduced in evidence as the State’s Exhibit No. 1. This plat designates (by letters, and in accord with the information obtained) the place where appellant stood (B) when he shot; the place where the deer was standing (C), and; where stains were found in the road (F.G-.H.). From the plat it is obvious that the three places did not lie in a straight line. On the other hand, the plat indicates that point (B), point (F.G.H.), and (J) (where a bullet had ricocheted off of a pine tree) did lie in a straight line. Also, the elevations shown on the plat indicate that a bullet fired from point (B) to point (J) would have passed fifty seven inches above the ground at point (F.G-.H.). The evidence shows Shipp was shot in the breast.

John Shipp, son of the deceased: I am fifteen years ■old, in the 8th grade; On Friday before my father was killed on Monday I went to appellant’s home and gave him a note asking for $15 which he owed my father for some whiskey still parts; He said he could not pay it ; I talked with appellant the following day, and he said he would burn our house down if it wasn’t for us kids, and he also said tell my father “ ... to get his hunting license and get out in the woods and hunt like the rest of the people because he was going to kill him.” This was all denied by appellant.

On appeal all the evidence submitted at the trial must be viewed in the light most favorable to a jury’s vérdiet. See: Higgins v. State, 204 Ark. 233, 161 S. W. 2d 400; Ashcraft v. State, 208 Ark. 1089, 189 S. W. 2d 374; Smith v. State, 222 Ark. 650, 262 S. W. 2d 272, and; Rollie v. State, 236 Ark. 853, 370 S. W. 2d 188.

It is also a well established rule that, in criminal ■cases, if there is any substantial evidence to support the verdict of the jury it will be sustained on appeal. See: Fields v. State, 154 Ark. 188, 241 S. W. 901; the Higgins •case, and; the Rollie case, supra.

We are not unmindful that this Court has consistently held, as pointed out in appellant’s brief, that the jury’s verdict must be reversed if it is supported solely by speculation or suspicion, and that circumstantial evidence alone is insufficient unless it is wholly inconsistent with the defendant’s innocence, but we do not think this case falls within either of these categories.

In view of the record and the rules set out above, and realizing the jury is the sole judge of the credibility of the witnesses, we are unable to say the verdict here is not supported by substantial evidence.

Affirmed.


author: Jim Johnson, Justice. George Rose Smith, J.,

text:
    Siders v. Southern Mattress Co.
    5-3759
    398 S. W. 2d 901
    Opinion delivered February 14, 1966.

      O. W. Pete Wiggins, for appellant.

      Wright, Lindsey & Jennings, for appellee.
   Jim Johnson, Justice.

This workmen’s compensation proceeding was brought under the hernia statute, Ark. Stat. Ann. § 81-1313 (e) (Repl. 1960).

Appellant Jess Siders was employed by Southern Mattress Company, one of the appellees. On the morning of January 7, 1964, appellant attempted to remove a frame from a pile of box springs and frames that was stacked quite high. It was stuck, appellant gave it a hard jerk, and felt a pain in his left side. He rubbed the lower part of his stomach and told a co-worker that he felt like he had torn something loose. They continued their work until noon, appellant still complaining. At noon appellant told his supervisor that he was in pain and going to a doctor. (Appellant testified that he told his supervisor about jerking the frame and the following pain, but the supervisor said that if so, he didn’t hear it or had his mind elsewhere on the business. He did tell appellant that if he was not able to work, he did not want appellant to work.) Appellant went home and at 1:00 that day went to a doctor who examined him thoroughly, looking, inter alia, for a hernia. In checking the prostate, the doctor apparently stirred up a latent prostate infection which erupted into epididymitis. The doctor saw him twice thereafter and because of appellant’s corpulence and swelling from the infection, had difficulty examining him. Appellant soon changed doctors. Some weeks later, at his second doctor’s suggestion, appellant went back to light work. When the fever and painful swelling had subsided, this doctor sent appellant to a surgeon on February 29th who located the hernia and advised surgery. The following Monday appellant called his supervisor, who in turn talked to the surgeon and the company doctor. The company doctor was a stockholder in Southern Mattress Company and never examined appellant. The company doctor told the supervisor to tell the surgeon to perform the surgery and for the supervisor to “turn it over to the insurance company. ’ ’

After the successful surgery, appellant’s claim for workmen’s compensation, and testimony in support thereof, was heard by the referee. His claim has been controverted throughout, appellees contending that appellant did not suffer an accidental injury arising out of and in the course of his employment, or that if he did receive an accidental injury, he failed to comply with the special provisions of the workmen’s compensation law relating to hernias.

The referee found that appellant suffered an accidental injury arising out of his employment and had complied with all the provisions of the hernia statute, pointing out that the Act “does not require that the physician give a diagnosis of a hernia immediately. ’ ’ On appeal to the full commission, without the benefit of additional evidence, the commission adopted the referee’s statement of facts. The commission’s opinion concluded as follows:

“Claimant did mention to his employer that his stomach was hurting, but, according to the employer, claimant did not give any history of hurting himself on the job. Claimant went to Dr. Wenger that same day and Dr. Wenger’s testimony is that ‘I have no record of any history of any specific injury . . . .’ Claimant’s failure to tell his employer of an on-the-job accident plus his failure to tell Dr. Wenger of any specific incident raises a serious question as to whether claimant in fact suffered an injury as alleged.”

Reversing the referee, the commission found that claimant failed to establish by a preponderance of the evidence that he sustained a compensable hernia. The ruling of the commission was upheld by the circuit court, from whence comes this appeal.

The commission imposed a heavier burden on appellant than the law calls for. Just as the Act does not require an immediate diagnosis, it also does not require that the claimant insist that the doctor’s history contain the gory details of the occurrence.

The five criteria which must be met to fall within the strict terms of the hernia statute [§ 81-1313(e)] are as follows:

“(1) That the occurrence of the hernia immediately followed as the result of sudden effort, severe strain, or the application of force directly to the abdominal wall;
(2) That there was severe pain in the hernial region ;
(3) That such pain caused the employee to cease work immediately;
(4) That notice of the occurrence was given to the employer within forty-eight (48) hours thereafter ;
(5) That the physical distress following the occurrence of the hernia was such as to require the attendance of a licensed physician within forty-eight (48) hours after such occurrence.”

Of these five, the commission appears to have denied compensation based upon a failure to comply with the fourth element, notice of the occurrence to the employer. As we have seen, the commission attempted to buttress its conclusion with an empty sandbag, the absence of a complete history of the occurrence in the doctor’s records. Obviously the doctor’s records are immaterial here on the question of notice to the employer. The evidence on notice boils down to the testimony of the employer (supervisor) and claimant (appellant). On this point, the supervisor’s pertinent testimony was as follows:

“On January 7th, as far as I know, I was in the office right close to 12:00 o’clock. I came out and met Mm there at the finishing room dopr,. He said he was hurting, he was going home and.go.to a doctor. I said, “O.K.” There might be some misunderstanding or something but I never did hear that he was hurt on the job. It wasn’t reported to me that he was hurt on the job.”

On cross-examination the supervisor testified:

“I met him at the door. I knew he was fixing to leave then. He was coming to tell me that he was going to a doctor. He said he was hurting and he said he was going to see a doctor. I do not recall where he was hurting. I believe he said his stomach was hurting. I don’t remember him saying that he thought he had torn something loose in the lower part of his stomach. If he did tell me, I misunderstood Mm. I was pretty busy and had a lot of things on my mind. It’s pretty rushing some time.”

Appellant testified that when he told his supervisor about the pain, he also told him about the occurrence (the jerk) which brought on the pain, just as he had told his co-worker.

Appellant has established a prima facie case. From all the circumstances, there is no question but that the employer had timely and proper notice of the occurrence that caused the hernia. There is no substantial evidence to the contrary. Appellant is not required to give notice that he has a hernia—he is not a doctor—the statute merely requires that appellant give notice of the occurrence which results in a hernia. Clark v. Ottenheimer Bros., 229 Ark. 383, 314 S. W. 2d 497; McMurtry v. Marshall Model Market, 237 Ark. 11, 371 S. W. 2d 4.

On the case as a whole, “if the claimant’s disability arises soon after the accident and is logically attributable to it, with nothing to suggest any other explanation for the employee’s condition, we may say without hesitation that there is no substantial evidence to sustain the commission’s refusal to make an award.” Hall v. Pittman Constr. Co., 235 Ark. 104, 357 S. W. 2d 263.

Reversed.

George Rose Smith, J., dissents.

George Rose Smith, J.,

dissenting. It is apparent from the record and from the Commission’s opinion that the Commission was not convinced by the proof that the claimant suffered the severe strain and pain that the statute requires. Dr. Wenger, who saw Siders on the day of the asserted accident, had no record of any such incident as the claimant later described in his testimony. If the severe strain and pain had occurred it is hardly possible either that the claimant failed to mention it to his doctor or that the doctor failed to include it in his case history. It is clear that the Commission, which observed the witnesses as they testified, did not believe the claimant’s testimony. In my opinion the majority are usurping the function of the Commission by passing upon issues of credibility and by drawing inferences of fact. I would affirm the judgment.


author: Frank Holt, Justice.

text:
    Fisher v. The Travelers Indemnity Co.
    5-3752
    398 S. W. 2d 892
    Opinion delivered February 14, 1966

      Griffin Smith, for appellant.

      Wright, Lindsey & Jenmngs, for appellee.
   Frank Holt, Justice.

The issue presented in this case is whether appellee breached a duty to defend its insured, the appellant, in a tort action. Appellant was sued by Kenneth Skelton who alleged that the appellant, his employer, had used more force than was necessary in ejecting him from appellant’s place of business when he went there to discuss employment conditions. The appellant called upon the appellee insurance company to defend him according to the terms of its policy. The appellee declined to defend the action npon the basis that Skelton’s complaint was predicated npon an alleged assault and battery by the insured and, therefore, was not within the coverage of the policy. The appellant then provided his own defense. Skelton’s action resulted in a verdict and judgment against appellant for $500.00 compensatory damages and $2,500.00 punitive damages. Thereupon appellant instituted the present action seeking reimbursement for the total amount of this judgment and the expense of defending the action. The cause was submitted upon stipulation with exhibits. The trial court dismissed appellant’s complaint and it is from that judgment this appeal arises.

For reversal appellant contends: “The original complaint in Skelton v. Fisher alleges negligence as a basis for recovery. * * * The fact that it alleged an additional ground, assault, did not relieve the insurer of the duty to defend, as both grounds were ultimately submitted to the jury.”

It is well settled that the allegations in a complaint, whether groundless or false, determine the obligation of the insurer to defend its insured within the coverage of the policy. Equity Mutual Insurance Co. v. Southern Ice Co., 232 Ark. 41, 334 S. W. 2d 688. See, also, 29A Am. Jur., Insurance, § 1452 and 7 Am. Jur. 2d, Automobile Insurance, § 162. Skelton’s complaint in pertinent part reads: “* * # the plaintiff was assaulted and badly beaten by the above named defendant Lewis Fisher [appellant] entirely without cause of provocation. * * * the defendant Lewis Fisher at the above named date and place willfully, wrongfully and unlawfully attacked this plaintiff and so badly beat him about the head, face, neck, shoulders and body that the plaintiff was forced to be hospitalized and forced to expend large sums for medical and hospital attention because of the severity of the injuries which he suffered as the result of this beating”; that appellant “did willfully, unlawfully, and negligently injure the plaintiff * * * that as a result of these unlawful, illegal, and wrongful acts” plaintiff suffered damages to the extent of $25,000.00; further, “that the acts of the defendant [appellant] above described were wanton, willful, deliberate and malicious ’ ’ and entitled plaintiff to punitive damages in the amount of $25,000.00.

It is appellee’s contention that these allegations do not present a claim for injuries within the meaning of the policy. The policy provided coverage for injuries “caused by accident” and, further, provided that an “assault and battery shall be deemed an accident unless committed by or at the direction of the insured.” We must agree with appellee’s contention. There is no coverage under the terms of this policy for the alleged intentional and wrongful acts committed by appellant. Thomas v. American Universal Ins. Co., 93 A. 2d 309 (R. I. 1952); McCarthy v. Motor Vehicle Accident Indemnity Corp., 224 N.Y.S. 2d 909, 16 A. D. 2d 35; Anton v. The Fidelity & Casualty Company of N. Y., 91 A. 2d 697 (Vt. 1952); Wendell v. Union Mutual Fire Ins. Co., 187 A. 2d 331 (Vt. 1963); Harbin v. Assurance Company of America, 308 F. 2d 748 (10th Cir. 1962). To hold otherwise would be contrary to the plain provisions of the policy and result in appellant escaping the consequences of his alleged intentional wrongdoing.

The appellant forcefully and ably argues that since the word “negligently” appears in the complaint, the insurer was obligated to defend him in the tort action. In Messersmith v. American Fidelity Co., 133 N. E. 432 (N. Y. 1921), Justice Cardozo aptly said: “The character of the liability is not to be determined by analyzing the constituent acts, which, in combination, make up the transaction, and viewing them distributively. It is determined by the quality and purpose of the transaction as a whole.” See, also, 7A Appleman, Insurance Law & Practice, § 4683, p. 441. It is evident that the nature of this tort action was not changed by the use of the word “negligently” one time. From an examination of the complaint and the “quality and purpose of the transaction as a whole” it is obvious that Skelton was not seeking damages for injuries to himself caused by an accident or negligence. He was seeking both compensatory and punitive damages for an alleged willful and intentional act committed upon him by the insured. A specific and unambiguous provision of the insurance policy provides that if injuries result from an assault and battery “committed by or at the direction of the insured” the insurance company is relieved of any duty to defend the insured.

Appellant relies upon our decision in Jefferson v. Nero, 225 Ark. 302, 280 S. W. 2d 884, to sustain his position that appellee was under a duty to defend the tort action against him. We do not consider that case to be analogous to the issue presented in the case at bar. The trial court was correct in dismissing appellant’s complaint.

Affirmed.


text:
    Ark. State Highway Comm. v. Schanbeck
    5-3760
    398 S. W. 2d 897
    Opinion delivered February 14, 1966

      Mark E. Woolsey, Phil Stratton and Virginia Tackett, for appellant.

      Holman & Boyett, for appellee.
   Frank Holt, Justice.

This is an eminent domain proceeding in which the appellant took 1.37 acres of appellees’ land for interstate highway construction purposes. This taking resulted in the destruction of the frontage of appellees’ property upon a county road. It is the appellees’ position that the remaining portion of their 40-acre tract is now “landlocked” because this destruction of the county road frontage makes it impossible to reach their lands without trespassing upon their neighbors’ intervening lands. The appellant contends that the lands are not “landlocked” because the landowners own a 10-acre tract which corners or is physically contiguous with their 40-acre tract in such a manner as to constitute unity of use. This 10-acre tract is accessible to a county road. The appellees presented evidence to support their theory of being landlocked and the resulting damages from the taking of their lands. The appellant then tendered testimony to establish its theory of a unity of use between the 40-acre and 10-acre tracts by the existence of a 20-foot pathway across the common corner. The trial court struck this testimony and ruled as a matter of law that the lands were not contiguous as to any unity of use.

Appellant’s proffered value witnesses or appraisers were unprepared to testify as to their opinion of just compensation based upon appellees’ theory. Appellant’s request for continuance was denied except for a brief recess. Appellant made no further offer of proof on the issue of just compensation. The court then instructed the jury to return a verdict in favor of the appellees for some amount not less than $4,000.00 nor more than $4,068.50. These amounts represent the lower and upper limits of the value of the land as established by the testimony of appellees’ value witnesses. The jury-returned a verdict in favor of the appellees in the sum of $4,050.00. From the judgment on that verdict comes this appeal.

Appellant contends for reversal that the trial court erred in instructing the jury that it must return a verdict for the appellees within the limits of the testimony of appellees’ value witnesses. We agree with the appellant that this was an erroneous application of the law. A jury has the unrestricted right to exercise its own independent thinking and judgment in translating the testimony into a finding of fact. Fulbright v. Phipps, 176 Ark. 356, 3 S. W. 2d 49. Even though opinion testimony as to value is in agreement or is uncontradicted it is not conclusive and binding upon the jury since such testimony is only advisory or an aid to the jury in resolving the issue of fact. St. Paul Fire & Marine Ins. v. Green, 181 Ark. 1096, 29 S. W. 2d 304; Western Union Telegraph Co. v. Turner, 190 Ark. 97, 77 S. W. 2d 633; American Bauxite Co. v. Dunn, 120 Ark. 1, 178 S. W. 934; Keller v. Morehead, 247 S. W. 2d 218 (Ky. 1952); State v. Shirk, 91 N. W. 2d 437 (Minn. 1958). In 20 Am. Jur., Evidence, ■§ 1206, we find: “* * * it is generally recognized that the relative weight and sufficiency of expert and opinion testimony is peculiarly within the province of the jury to decide”. [Emphasis added] And § 1208 in pertinent part reads: ‘ ‘ Opinion testimony as to value is not conclusive; when uncontradicted, it may be regarded as sufficient proof, but even in such case the jury may exercise their independent judgment. ’ ’

A jury is permitted to take into consideration not only the testimony of the witness, but the reasonableness of such testimony, the demeanor of the witness, his apparent candor and interest, and whether or not his testimony is in accord with sound judgment and common sense. In the ease at bar the jury had the right to decide the issue upon its own fair and independent judgment without being instructed to make a finding of fact within the limits of the uncontradicted opinion testimony.

We are further of the view that the appellant’s evidence as to unity of use between the two tracts of land was sufficient to constitute a fact question for submission to the jury.

Reversed and remanded.


author: Osro Cobb, Justice.

text:
    Wheaton Van Lines, Inc. v. Williams
    5-3784
    399 S. W. 2d 258
    Opinion delivered February 14, 1966

      House, Holmes & Jewell, for appellant.

      Joe■ P. Melton, Smith, Williams, Friday & Boiven, By: Robert V. Light, for appellee.
   Osro Cobb, Justice.

Appellees were injured in a highway accident occurring in the nighttime on Highway 79 in Lee County. They were driving East and stopped their vehicle in time to avoid a collision with a disabled van truck which they encountered resting in such a position as to block traffic in both directions. The van driver, Edmond James Gier, testified, by use of his deposition at the trial, that at the time of the accident he had on his truck a supply of warning flares and pots with kerosene wicks, all in good working order, and that he was under standing instructions by his employer to set up such flares and pots in case of disability of his vehicle while on a public highway at night, but that he had not done so within, the time interval of 10 or more minutes between the stopping of the van and the accident involving appellees.

Another vehicle, driven by defendant James May-field, was proceeding immediately behind appellees and crashed into appellees’ car when it stopped to avoid a collision with the disabled van.

Suit alleging negligence proximately causing the injuries to appellees was instituted against Wheaton Van Lines, Inc., their driver and employee, Gier, and James Mayfield, driver of the third vehicle.

At the conclusion of appellees’ case, appellants, Wheaton Van Lines, Inc. and Gier, moved for a directed verdict in their favor, which was denied.

Defendant, Mayfield, apparently execution proof for lack of financial means, did not bother to appear at the trial nor has he taken an appeal from the judgment rendered against him.

■ The ease, on its face, started out as a routine action against joint tort-feasors for damages. However, as it progressed, and in the absence and default of defendant Mayfield, the case became more an action against the Van Company and driver in their relationship as master and servant. Indeed, it will be observed in our discussion of contentions of appellants in regard to instructions given by the court, that no instructions were requested by either side or given by the court as to the liability of joint tort-feasors or as to apportionment of the damages assessed as between such joint tort-feasors. Furthermore, the four forms of the verdicts furnished to the jury gave the jury no opportunity to find against all three defendants jointly in any form. We quote the verdicts returned by the jury eliminating the names of the jurors.

“We the jury find for the Plaintiff Juanell Williams against Wheaton Van Lines, Inc., and G-ier, and assess her damages at $15,000.00.”
(Signed by ten jurors)
“We the jury find for the Plaintiff Bobby Williams against Wheaton Van Lines, Inc., and Gier, and fix his damages in the sum of $7,500.00.”
(Signed by ten jurors)
“We the jury find for the Plaintiffs, Bobby Williams and Juanell Williams, against James May-field in the sum of $7,500.00.”
(Signed by ten jurors)

The fourth verdict form supplied to the jury was a finding for defendants Wheaton Van Lines, Inc., and Gier, and was not used by the jury.

There is nothing in the record to indicate that when the verdicts were returned by the jury that either party to this appeal attacked same as unclear as to the intent of the jury or defective in any other respect.

The case was tried on February 19, 1965, verdicts being rendered on the same day. On March 4,1965, some 13 days after the verdicts had been rendered, appellants filed two motions, one for judgment notwithstanding the verdict in favor of both defendants, Wheaton Van Lines, Inc. and Gier, and a motion to reduce the judgments against defendants, Wheaton Van Lines, Inc. and Gier, to the sum of $7,500.00, same being the amount of the verdict and judgment against James Mayfield. On March 5, 1965, the court overruled said motions and entered judgment in accordance with the verdicts rendered by the jury.

Appellants urge three points for relief on appeal. Appellees urge one point on cross-appeal. We first discuss the points raised by appellants.

Point 1. THE COURT ERRED IN REFUSING TO DIRECT A VERDICT FOR APPELLANTS AT THE CLOSE OF THE APPELLEESCASE.

Gier, an employee of Wheaton Van Lines, Inc., while driving one of the company vans on a mission for his employer, experienced operational difficulty resulting in the large van stopping in such a position as to block the flow of traffic in both directions. This occurred at night. Ark. Stat. Ann. § 75-722 (b) (Repl. 1957) deals with the obligation and duty of such truck drivers in such situations.

• “75-722. Trucks to carry flares or emergency lighting equipment—Placement of flares. — ...
“(b) Whenever any motor truck and its lighting equipment are disabled during the period when lighted lamps must he displayed on vehicles and such motor truck cannot immediately be removed from the main traveled portion of a highway outside of a business or residence district, the driver or other person in charge of such vehicle shall cause such flares, lanterns, or other signals to be lighted and placed upon the highway, one at a distance of approximately 100 feet in advance of such vehicle, one at a distance of approximately 100 feet to the rear of the vehicle and the third upon the roadway side of the vehicle, except that if the vehicle is transporting flammables three [3] red reflectors may be so placed in lieu of such other signals and no open burning flare shall be placed adjacent to any such last mentioned vehicle.”

G-ier admitted, in portions of his pre-trial deposition read into evidence on behalf of appellees, that he had an adequate supply of lights, flares and oil pots, all in good working order, readily available on his truck but that he made no use of them during the 10 or more minute interval from the time he stopped, blocking the traffic, until the accident.

The jury alone could decide the fact question presented by the evidence as to whether the actions or in-actions of Grier constitute negligence proximately causing appellees’ injuries. Hill v. Wilson, 216 Ark. 179, 224 S. W. 2d 797; Bryant v. Thomas, 230 Ark. 999, 328 S. W. 2d 83. Furthermore, the negligence, if any, by the employee, Grier, was imputable to his employer. Gray v. McLaughlin, 207 Ark. 191, 179 S. W. 2d 686.

We find no merit in Point 1 urged by appellants.

Point 2. THE COURT ERRED IN GIVING AP-PELLEES’ REQUESTED INSTRUCTIONS NOS. 6, 7 AND 8.

We quote from page 87 of appellants’ brief.

“Appellees’ Requested Instructions Nos. 6 and 7 are based, respectively, upon Ark. Stats. §§ 75-707 and 75-722. Appellants objected to the giving of these instructions on the specific grounds that there is no evidence that these statutes were violated or that any purported violation thereof was the proximate cause of the collision (T. 108-109).”

It will be noted that the objection here is limited to lack of evidence. We disposed of the question of insufficiency of evidence to make a jury case as to all defendants in our discussion of Point 1. We, therefore, conclude that appellees’ Instructions 6 and 7 were proper in all respects.

Now as to appellees’ Instruction 8. It is noted that the original transcript was erroneous, containing language which was obviously incorrect and incomplete. This situation resulted from an error of the Court Reporter in typing the transcript, and a supplemental and corrective copy of the record was filed which reflects that the language purported to be contained in appellees’ Instruction No. 8 and which is here objected to by appellants, was not in fact included in Instruction No. 8 as it was actually given. We therefore find no merit in any of appellants’ contentions as to Point 2.

Point 3. THE COURT ERRED IN' REFUSING TO GRANT APPELLANTS’ MOTION FOR JUDGMENT NOTWITHSTANDING THE VERDICT, OR, ALTERNATIVELY, TO CORRECT THE VERDICT.

Appellants contended that since the verdict against Mayfield was for $7,500 that the verdicts against appellants should be reduced to that sum. In support of this contention they cite Wear-U-Well Shoe Co. v. Armstrong, 176 Ark. 592, 3 S. W. 2d 698; Southwestern Gas & Electric Co. v. Godfrey, 178 Ark. 103, 10 S. W. 2d 894; Spears & Purifoy v. McKinnon, 168 Ark. 357, 270 S. W. 524.

It will be noted that the most recent case cited by appellants is that of Southwestern Gas & Electric Co. v. Godfrey, supra, decided in 1928, many years before the passage of Act 315 of 1941 as amended by Act 35 of 1949. See Ark. Stat. Ann. §§ 34-1001 through 34-1005 (Repl. 1962). Briefly stated, these acts provide that: (1) a recovery of judgment by an injured person against one joint tort-feasor does not discharge any other joint tort-feasor; (2) a release by the injured party executed to a joint tort-feasor, whether before or after judgment does not discharge the other tort-feasors from liability unless the release specifically so provides.

We quote from said acts appearing as § 34-1002(4) Ark. Stat. Ann. (itepl. 1962), which authorizes the jury to apportion the damages against joint tort-feasors in relation to degrees of fault of the said joint tort-feasors and this statute also protects the joint tort-feasor who is forced to pay more than his apportioned assessment of damages by giving him a right to judgment relief against other joint tort-feasors for such excess.

“(4) When there is such a disproportion of fault among joint tortfeasors as to render inequitable an equal distribution among them, of the common liability by contribution, the relative degrees of fault of the joint tortfeasors shall be considered in determining their pro rata shares solely for the purpose of determining their rights of contribution among themselves, each remaining severally liable to the injured person for the whole injury as at common law.”

Our attention has not been invited to any case decided by the Court since the passage of Act 315 of 1941 and amendment by Act 35 of 1949, wherein we disturbed apportioned judgments for damages against joint tortfeasors. Indeed, there are many cases where such apportionment has been approved by this court. Ward v. Walker, 206 Ark. 988, 178 S. W. 2d 62 ($600 against one defendant and $900 against the other); McKennon v. Jones, 219 Ark. 671, 244 S. W. 2d 138 ($250 against one defendant and $1,250 against the other); Rawls v. Tansil, 221 Ark. 699, 255 S. W. 2d 973 ($250 against one defendant and $2,250 against the other).

In Shultz v. Young, 205 Ark. 533, 169 S. W. 2d 648, we quoted with approval from the notes of the National Conference of Commissioners on Uniform State Laws in regard to their expressed opinion as to the meaning of the measure which became Act 315 of 1941 as amended by Act 35 of 1949. Said the Commissioners:

“Under the English tort contribution act the court always makes the apportionment; but the draftsmen feel that in the United States this had best be left to a jury within the ordinary power of a court to keep the issue of negligence from a jury when the evidence indicates that submission thereto would not be warranted. ’ ’

Furthermore, in the Shultz case, supra, verdicts of $2,000 as to one joint tort-feasor and $500 of other joint tort-feasor were not disturbed.

There is another reason why the verdicts rendered by the jury in this case should not be modified on this appeal. It was 13 days after the verdicts had been rendered and the jury discharged before the form of the verdicts or the amounts of the verdicts were challenged in any way by counsel. The objections, if any, should have been properly made at the time the verdicts were rendered and before the discharge of the jury. Sledge & Norfleet Co. v. Mann, 166 Ark. 358, 361, 266 S. W. 264; Reynolds v. Nutt, 217 Ark. 543, 230 S. W. 2d 949; Johnson v. Barbour, 28 Ark. 188.

In affirming this judgment we do not imply that it is proper for the Court to permit the jury to apportion liability among the defendants, so that the plaintiff can not recover the full amount of his claim from any one of the tort-feasors. See Dunaway v. Troutt, 232 Ark. 615, 339 S. W. 2d 613. But here there was no objection to forms of verdict which in form and substance permitted the jury to make such an apportionment of liability. The point was therefore waived.

We conclude that the contentions of appellants as to Point 3 are without merit. By the same reasoning, we conclude that appellees’ contentions on cross-appeal for judgment against Mayfield for $30,000 is likewise without merit.

Affirmed on appeal and affirmed on cross-appeal.