text:
    James CLIFTON v. Claudia Marie BROWN by Lee Wm. BROWN, as her next friend
    5-5974
    484 S.W. 2d 884
    Opinion delivered October 2, 1972

      Charles W. Baker, William L. Owen and Sam Robinson, for appellant.

      James L. Sloan, for appellee.
   Frank Holt, Justice.

Appellant owns and operates a trailer court which was traversed by a driveway leading to a public highway at each exit. The appellee, when six years of age, while crossing the appellant’s trailer court street, was struck and injured by an automobile driven by Jack Conrad. Appellee brought this action against the owner of the trailer court, James Clifton, and Conrad, the driver, of the vehicle, to recover damages for permanent injuries suffered from the accident. The jury awarded appellee $13,940 against both defendants. Only Clifton brings an appeal.

Appellee and her parents lived as tenants in Clifton’s trailer court. Appellant required his tenants to sign a rental agreement which required them to drive at a speed limit of 5 miles per hour through the park. The appellee adduced evidence, contradicted by appellant, that no speed signs or adequate speed brakers were installed or maintained at the entrances or inside the park. There was, also, evidence that the appellant’s co-defendant, the driver of the vehicle, who was not a tenant, used the trailer court street at excessive rates of speed and that complaints were made to appellant and his son about Conrad’s driving habits. It appears that Conrad used the park road several times on some days.

It is appellant’s contention for reversal that the court erred in failing to give instruction No. 6 requested by him which would have specifically told the jury that if it found appellee was injured due to Conrad’s negligence it could not find against the appellant-owner, Clifton, unless it further found that Clifton was negligent and that his negligence was a proximate cause of appellee’s injury; also, that the court erred in refusing his instruction No. 5 to the effect that before appellant or Conrad could be liable the jury would have to find that the appellee “was injured by reason of negligence on the part of” Conrad, the driver of the vehicle, “at the time of the injury.” Even if we take the offered instructions to conform to AMI standards, i.e., not argumentative or slanted, and concede, arguendo, that appellant was entitled to have the jury so advised, we do not find any prejudicial error.

The court gave AMI 106, 203, 502 and 2111 (as modified). Our Model Jury Instructions (AMI) were designed to prevent the duplication of instructions. Appellant’s proffered instruction No. 6 contained language that would have constituted an unnecessary duplication of parts of these AMI instructions. Nor can we agree with appellant’s argument that the court incorrectly gave AMI 203 without including the final bracketed paragraph. The negligence of the appellee-claimant was made an issue in the case by way of an affirmative defense. In such a situation, the drafters of AMI, p. 13, noted: “Do not use the final bracketed paragraph when affirmative defenses such as negligence of the claimant or assumption of risk are in issue.” The note then suggests that AMI 206 be given which the court did.

Appellant further argues that his alleged negligence is inseparable and wholly dependent upon the negligence of his co-defendant, Conrad. Therefore, appellant asserts that his instruction No. 5 to that effect should have been given. The court correctly gave AMI 106 which instructed the jury that it could consider the allegations and evidence of negligence against appellant and his co-defendant separately and individually.

The evidence, based upon the pleadings, constituted issues of fact for the jury. The jury returned a general verdict, to wit:

“We, the jury, find for the plaintiff, Claudia Brown, on her complaint against James Clifton and Jack Conrad, and assess her damages in the sum of $13,-940.00.”

Obviously, the jury believed appellee’s version which was that the appellant failed to install speed signs, adequate speed breakers, and enforce the driving restrictions contained in appellant’s own rental agreement; also, that appellant was aware of Conrad’s frequent driving through the trailer park at excessive speeds and failed to use reasonable means to prevent this hazard. The instructions, as a whole, told the jury that the appellee could not recover from appellant unless appellant was negligent and his negligence was a proximate cause of appellee’s injuries. We can only construe the jury verdict to constitute a finding that Conrad was negligent and that his negligence constituted a proximate cause of appellee’s injury and that the negligence of Clifton was a concurring proximate cause. Consequently, we find that even if there was error in failing to advise the jury of the necessity of finding Conrad’s negligence to have been a proximate cause of the injury before Clifton was liable, it was harmless.

Affirmed.


source: Caselaw Access Project

author: Carleton Harris, Chief Justice, Carleton Harris, Chief Justice.

license: Public Domain

text:
    STEEL ERECTORS, Inc. and James W. GIPSON v. Buell Ray LEE
    5-6018
    484 S.W. 2d 874
    Opinion delivered July 17, 1972
    [As amended on Denial of Rehearing October 2, 1972.]

      Dobbs, Pryor & Hubbard, for appellants.

      Sam Sexton Jr. and Warner, Warner, Ragon & Smith, for appellee.
   Carleton Harris, Chief Justice,

the principal question in this litigation is whether James W. Gipson, a regular employee of Steel Erectors, Inc., an Arkansas Corporation with its place of business at Fort Smith, appellant herein, was a borrowed servant of Brown 8c Root, Inc., a construction company engaged in the performance of pipe line work for Arkansas Louisiana Gas Company, at a time when Buell Ray Lee, a Brown 8c Root employee, was injured. Steel Erectors rented a motor crane to Brown 8c Root for construction work near Driggs, Arkansas. The rental of the crane included an operator for the machine, Gipson, as stated, a regular employee of appellant. The crane is motorized and may be driven but the boom (lifting mechanism) has to be separately transported on a truck. On July 14, 1968, the crane was taken to a place near the job site, and the boom was taken to the same location on the morning of July 15, both pieces of equipment being transported by Gipson. The crane would not start and in an effort to start it, an attempt was made to connect a chain between the truck and the crane with the intention of starting the crane by pulling it. Lee was attempting to fasten the chain to the truck when that vehide commenced to move forward, catching Lee’s hand in the chain and causing the injuries herein complained of. Thereafter, appellee instituted suit against Gipson and Steel Erectors for his injuries and on trial, the jury returned a verdict in his favor in, the amount of $40,000. From the judgment so entered, appellants bring this appeal. For reversal, several points are relied upon which we proceed to discuss.

I

It is first asserted that the court erred in refusing to direct a verdict in favor of Steel Erectors on the ground that Gipson was a borrowed servant of Brown & Root, and Steel Erectors is not liable for his actions.

We do not agree, but will only refer to some of the evidence which presented a fact question and thus one for the jury to determine. There was testimony to the effect that the rent on the machine did not commence until it was in operating condition and Brown & Root would not owe any rent for any period of time that the machine was unable to operate or being repaired. At the time of the accident, and before any work was commenced, Gipson was endeavoring to start the machine. Gipson, Sonny Bowman, an employee of Brown & Root, and Lee were endeavoring to start the crane after the starter mechanism would not function. They first tried to “jump it” with cables, and then decided to pull it with the truck in an effort to get it to start. Bowman was to drive the crane, Lee was to do the tieing of the chain, and Gipson was to drive the truck. Gipson let the truck roll forward in order to take the slack out of the chain, this witness stating that he understood Lee to be signaling him to do so. Upon being asked what happened when he went forward to take the slack out, Gipson replied:

"Well, I saw Mr. Lee back there still nodding his head or trying to wave at me, looked like. So I started the truck to back up. Then I saw Mr. Lee come out from between the truck and the rig holding his hand.”

In addition to the fact that there is evidence reflecting that the accident occurred before the crane was put into operation, it also appears that the crew and equipment had not reached the actual job site. Gipson worked for four days and there is evidence that he was paid for those services entirely by Steel Erectors. In Natural Gas & Fuel Corporation v. Alotto, 178 Ark. 461, 11 S.W. 2d 769, we mentioned this as a circimstance, along with others, as indicating under whose authority Alotto was acting. There were also inferences in the testimony that a part of Gipson’s duties included looking after the crane for the benefit of Steel Erectors. Appellee argues that actually he was entitled to a directed verdict and that there is no evidence from which a jury could have concluded that Gipson was the borrowed servant of Brown & Root Construction Company; that this was not alleged as a defense in the answer, and that the sole evidence is that Gipson was engaged in an effort to get the crane started, work which was solely for the benefit of Steel Erectors. While appellant did not specifically allege that Gipson was the borrowed servant of Brown & Root, the answer did deny that he was an employee of Steel Erectors, Inc., and denied that he was acting within the scope of his duties with Steel Erectors at the time of the injury. Nor do we agree that all the evidence reflected Gipson to be acting under the authority, and within the scope of his employment with appellant company. Sonny Bowman testified that the three, Gipson, Lee, and Bowman were acting under the control and direction of Jimmy Williamson, foreman for Brown & Root, and he said that Williamson had assigned him to work with Gipson on that particular day. Lee testified to the same set of facts, stating that Williamson assigned him to work with Gipson on this occasion. Kenneth Matthews, acting as a dispatcher for Steel Erectors, Inc., testified that he dispatched Gipson, directing him to report to Brown & Root and Williamson, and follow their orders, and that neither he, nor any other person associated with appellant, as far as he knew, gave any other orders to Gipson. Gipson testified that he was directed to report to Williamson, and do whatever he was told to do during the time he was there. Of course, the question in the litigation relates to which corporation had control of, and the right to control, Gipson at the time of the accident, and we think a fact question was presented by the evidence. As stated in Arkansas Natural Gas Company v. Miller, 105 Ark. 477, 152 S.W. 147, the question was whether one Pitts, who caused an injury to another employee, was under the control of one company or another at the time of the injury. We said:

“To the extent that Pitts was working under the direction and control of the defendant, he remained the latter’s servant, and it alone is responsible for his negligence. On the other hand, to the extent that the direction and control was surrendered to the contractors for work being done by them, Pitts was in their service, even though he was in the general employment of the defendant, and the contractors alone are liable. It was the peculiar province of the jury to determine from the testimony the extent to which Pitts was acting for the defendant and was carrying out its directions, and to what extent he was performing service for the benefit of the contractors and under their direction and control.”
That language is apropos in the present case.

It is next asserted that the court erred in giving instruction number 13 (offered by appellee), the instruction being a comment on the evidence, assuming facts not shown by the evidence, unduly emphasizing evidence in favor of appellee, and in effect, directing the jury to find for appellee on the issue of borrowed servant. The instruction complained of reads as follows:

“The motor crane and the truck involved in this incident were owned by Steel Erectors, Inc.; James C. Gipson was the regular employee of Steel Erectors, Inc.; James C. Gipson was a skilled operator of the motor crane; the motor crane was a valuable piece of equipment; and, Steel Erectors, Inc. was engaged in the business of supplying the motor crane, with James C. Gipson as operator, to others. In addition, James C. Gipson was charged by Steel Erectors, Inc. with the duty of properly operating the motor crane and with making the required minor repairs.
You may consider these facts along with any other evidence in the case in deciding whether James C. Gipson was acting as an employee of Steel Erectors, Inc. and within the scope of his employment; at the time of the occurrence.”

Counsel for Steel Erectors objected to the instruction, on the grounds that it constituted a comment on the evidence and unduly emphasized certain factual elements that should be left to the argument of counsel. Those same objections are renewed here as a point for reversal.

Counsel are correct in asserting that the instruction embodies comments on the evidence. In the instruction- the court stated as a fact that Gipson was a skilled operator of the crane. There was testimony that he was very competent and qualified, and that he was experienced, but the statement that he was skilled must have been understood by the jury as the court’s interpretation of the evidence. Again, the instruction stated as a fact that the crane was a valuable piece of equipment. There was no direct testimony to that effect. Here, counsel for the appellee merely cite a statement in the record that the crane was rented for $14.50 or $14.75 an hour. The cost of operating the crane is not shown. Accordingly, the inference that the crane was valuable was necessarily the trial court’s conclusion from the proof. It is, however, the jury’s exclusive province to weigh the evidence and draw inferences of fact not established by direct proof. We conclude that instruction 13 violated the constitutional prohibition against a judge charging the jury with regard to matters of fact. Ark. Const., Art. 7, § 23. .

Since the foregoing error requires a new trial, it is appropriate that we take this opportunity to modify and limit a statement that appeared in Donahue v. Cowdrey, 246 Ark. 1028, 440 S.W. 2d 773, for otherwise that statement might lead to an additional error upon the retrial of this case or in other litigation. In the Donahue case the trial court gave AMI 701, 702, and 703. The court also gave correct instructions, in general language, explaining the difference between an employee acting for his regular employer and that employee acting as the borrowed servant of another. The instructions, which we approved, did not enumerate specific facts bearing upon the distinction in question. In affirming the judgment, however, we made these observations, as dicta: “Under.the court’s actual instructions counsel doubtless argued to the jury all those component parts of the ultimate factual question. If the plaintiffs wanted the added advantage of having the court enumerate such factors to the jury in an instruction, it was the plaintiffs’ duty to draft and submit such an instruction.”

We are now convinced that no such enumeration (beyond the basic facts contained in AMI 703) should be attempted. As this case demonstrates, a request for such an instruction imposes upon the trial judge the burden of deciding whether the facts to be, enumerated have been established by undisputed proof. Moreover, such a recital of facts tends to slant the charge in favor of one side or the other. It thus runs counter to our per curiam order approving AMI, which requires instructions to be “simple, brief, impartial, and free from argument.” See also the later case of Wharton v. Bray, 250 Ark. 127, 464 S.W. 2d 554, where we sustained the trial judge’s refusal to give an abstractly correct instruction, because it did not conform to the AMI per curiam order. We accordingly disapprove the quoted language in Donahue v. Cowdrey, supra.

Complaint is made that interrogatory No. 3 was ambiguous and does not require the jury to find whether or not Gipson was a borrowed servant. The interrogatory reads as follows:

“Do you find from a preponderance of the evidence that James W. Gipson was acting within the scope of his employment as an employee of Steel Erectors, Inc. at the time of the occurrence?
Answer Yes or No”

It is contended that the interrogatory is confusing in that it expects the jury to appreciate, understand, and differentiate between general employment and special employment or borrowed servant. Frankly, if no other error had been committed by the trial court, we would not reverse under the argument here made, but inasmuch as the judgment is being reversed under the second point, we think that the interrogatory could be stated perhaps more clearly, and more fairly, according to an alternate interrogatory suggested by appellant, viz:

“Do you find that J. W. Gipson was an employee of Steel Erectors within the scope of his employment, or was he a borrowed servant of Brown and Root?”

This interrogatory certainly covers the theories of both appellant and appellee and states them in the same sentence, precluding any possible advantage to one side or the other. This interrogatory could be given with appropriate answers supplied by the court.

It is also asserted that the court erred in failing to declare a mistrial due to alleged prejudicial testimony concerning insurance during the trial. Again, the case being reversed under point 2, there is no need to discuss this contention since appellee argues that the mention of insurance by one of his witnesses was entirely accidental, and, that being true, the asserted error will not again occur.

Finally, it is urged that the judgment was excessive, but of course, that question has now become moot.

Because of the error under point 2, the giving of instruction No. 13, the judgment is reversed, and the cause is remanded to the Logan County Circuit Court for further proceedings not inconsistent with this opinion.

It is so ordered.

Supplemental Opinion on Rehearing delivered October 2, 1973

Appeal & error — partial reversal — review.—When a judgment against multiple tortfeasors is reversed, substantial justice requires a reversal as to all defendants where it appears that a different verdict would probably or possibly have been rendered against the remaining defendant if that defendant had been sued alone, or if the jury had realized that the remaining defendant would be solely liable.

Carleton Harris, Chief Justice.

On rehearing, appellee points out that the erroneous instruction which occasioned the reversal only adversely affected the rights of appellant, Steel Erectors, Inc., and accordingly the judgment against Gipson should be affirmed. The case of Nowlin-Carr Co. v. Cook, 171 Ark. 51, 283 S.W. 7, is cited as authority. We cannot agree that this case is applicable. There, judgments were entered against Nowlin-Carr Co. and H. Flanagin. On appeal, the judgment against NowlinCarr was reversed, but the judgment against Flanagin was allowed to stand. However, the latter was found to be an independent contractor, while in the case before us, Gipson was found to be an employee of Steel Erectors at the time of the accident; this, of course, is a vastly different relationship. In addition, in Cook, the judgment against NowlinCarr was reversed and dismissed, while here the case was remanded for another trial as to Steel Erectors. It is provided in Ark. Stat. Ann. § 27-2144 (Repl. 1962) that this court may reverse, affirm, or modify the judgment or order appealed from, in whole or in part, as to any or all parties, and while we agree that a reversal as against one does not necessarily mean there should be a reversal against the other, we think the circumstances of this particular case require a reversal as to both.

In 5 Am Jur 2d, 377, § 950, Appeal and Error, it is stated:

“Although the early common-law rule was different, in most jurisdictions today, a judgment against multiple tortfeasors may be reversed as to one such defendant without affecting the judgments as to the others. This rule has been embodied in statutes in some jurisdictions. However, even under the ‘modern’ rule, the courts will not enter such a partial reversal where substantial justice requires a reversal as to all defendants, as where it appears that a different verdict would probably or possibly have been rendered against the remaining defendant if that defendant had been sued alone or if the jury had realized that the remaining defendant would be solely liable.”

In Washington Gaslight Co. v. Lansden, 172 U.S. 534 (Court of Appeals D. C.), a libel suit was instituted against a corporation and its officers. A single verdict was rendered against the corporation and two officers. On appeal, it was held that error was committed as to the corporation, but not as to the two officers. The court however reversed the case in its entirety, pointing out that the original verdict was against all three defendants and it was possible, if not probable, that if a verdict had been rendered against the individual defendant alone, it would have been for a materially lesser amount. The court said:

“At any rate, the jury has never been called upon to render a verdict against a sole defendant, and while it may be said that whether against one or against all the defendants, the plaintiff suffers the same damage and should be entitled to a verdict for the same sum, still the question arises whether a jury, in passing upon the several liability of the individual defendants, would give a verdict of the same amount as it would if both the other defendants remained. ****
Where the judgment is based upon a cause of action of such a nature that it might work injustice to one party defendant, if it were to remain intact as against him, while reversed for error as to the other defendants, then we think the power exists in the court, founded upon such fact of possible injustice, to reverse the judgment in toto and grant a new trial in regard to all the defendants.”

See also Courtney v. American Express Co., 113 S.E. 332 (South Carolina), where it was stated:

“It would be manifestly unjust, if there were no errors in the trial affecting Park, to allow a judgment of $5,000 to stand against him alone, in the uncertainty that, if not yoked up with the company, such a verdict would have been rendered against him.”

In line with the reasoning of the cases cited, we are certainly unable to say that, in an action against Gipson alone, the jury would have rendered a verdict for the same amount in damages, and we think simple justice requires a reversal in toto.

Petition denied.


author: Carleton Harris, Chief Justice.

text:
    BIRCH-BROOK, Inc., Trustee v. William T. RAGLAND, Jr., et al and THOMAS ENGINEERING COMPANY
    5-6010
    485 S.W. 2d 225
    Opinion delivered October 9, 1972

      Darrell D. Dover and House, Holmes ir Jewell, for appellant.

      Stubblefield & Matthews, for appellees.
   Carleton Harris, Chief Justice.

The pertinent facts in this case are not in dispute. In July, 1965, appellant, Birch-Brook, Inc., Trustee, an Arkansas Corporation, purchased the parcel of land in Pulaski County which is involved in this litigation (referred to in the record as “Tract B”). Appellees are heirs and devisees of the Miller and Ragland families. The sale price was $510,000, payable $50,000 in cash and $260,000 over an eight year period according to the terms of a promissory note secured by a vendor’s lien on the property. It is undisputed that up to the time of the delivery of the deed, the making of the down payment, and the delivery of the aforementioned note, both appellant and appellees were under the impression that Tract B contained 89.293 acres. This belief was occasioned by a survey prepared by Thomas Engineering Co., Inc., which bore a notation that the tract contained the above mentioned acreage. It is also undisputed that this figure was in error and that the tract of land actually contained only 81.55 acres, being 7.743 acres less than the figure used in the survey. Nearly five years after the delivery of the deed, appellant, a real estate firm, and trustee and agent for a group of real estate investors and developers, instituted suit in the Pulaski Chancery Court asserting the shortage of acreage and seeking reformation of the deed and note so as to allow appellant an abatement in the agreed purchase price. After the filing of answers by the appellees, who also cross-complained against Thomas Engineering Company seeking judgment over in favor of appellees in case appellant should recover any sum against them, and the amending of various pleadings, the case proceeded to trial and at the conclusion thereof, the court rendered its opinion denying relief to appellant and dismissing its complaint. Because of this finding, there was no necessity to rule on the statute of limitations issue raised by Thomas. From the decree so entered, appellant brings this appeal. For reversal, it is first asserted that the trial court erred in holding that the transaction was a sale “in gross” and not a sale by the acre. It is then contended that the mutual mistake as to quantity was so great as to entitle appellant to reformation and abatement as a' matter of law and the lower court erred in holding to the contrary. We proceed to a discussion of these points.

Mr. Byron R. Morse, a Vice President of Birch-Brook, Inc., testified that the company learned that the tract of land here in controversy was for sale in the fall of 1964. Company officials contacted Mr. Jack Farris of Little Rock, knowing that he generally represented the interests of the Miller-Ragland estate. The company was not aware of the acreage of the property but learned that it had not been approved for sale at any particular figure. Morse stated that Farris said that though no definite figure could be given, he would recommend to the Raglands the sale at somewhere around $3,000 to $4,000 an acre. Mr. Morse and Mr. Rector, of Rector, Phillips, Morse, Inc., had walked over the property and knew it fronted on Highway 70. The witness testified that they considered a fair market value to be $10,000 per acre for 10 acres fronting on the highway and about $3,000 per acre for the remainder of the tract; however, when first contacting Farris they were only interested in the 10 acres as shopping center property. Subsequently, they were furnished a copy of the survey and reached the conclusion that the total value was about $340,000. Morse said that it then became a proposition of “horse trading” for the best price obtainable; that appellant initially offered $150,000 for the entire tract, counter offer by Farris for $335,000, and that finally the $310,000 sale price was agreed upon, the different prices resulting from various circumstances such as who would pay for sewers, etc. He said that at all times they had access to the survey, and had a copy of it prior to making an offer. The survey described the property by metes and bounds and was correct, though it is agreed that the figure of 89.293 acres for tract “B” appearing near the upper left hand corner was incorrect, and that the property was actually short in the amount of 7.74 acres. The metes and bounds description contained in both the deed and note concluded with the words “containing 89.293 acres, more or less”.

Morse testified that the error was first discovered in the fall of 1969. The testimony of Jack Farris was in accord with that of Morse, both stating that in reaching the total price they discussed the total number of acres involved (as shown by the survey) and he said there were back and forth offers and counter-offers before the sale price was agreed upon. Arthur H. Thomas, a registered professional engineer, testified that his firm made the survey. He said that it was first delivered in July, 1964, and a copy transmitted to Mr. Farris in August, 1964. One of the employees of the company made the error, Thomas personally having nothing to do with making that computation. The witness said the error was simply in the computation of acreage, and that the dimensions and bearings shown on the survey were correct, and there is no dispute as to this fact. He said that the error was first discovered by him in October, 1969, when he received a letter from Farris asking him to check the survey.

William Trent Ragland, Jr., a resident of Raleigh, North Carolina, stated that he had only seen the tract of land one time in the past twenty years. The witness testified that in 1962 members of the family decided they would like to dispose of their property and considered that the first step was to have a map prepared in order to determine what they owned: Jack Farris, who had handled the family’s real estate business in Arkansas for many years, was contacted. Mr. Ragland never had any direct communication with the buyer of the lands and he said that Mr. Farris never communicated any offer to buy the land in question at the rate of so many dollars per acre for so many acres. He had no personal knowledge of the acreage contained.

Appellant emphasizes that the testimony of both Morse and Farris contain several references to the acreage, and that there are references to the value per acre. We attach no particular significance to that fact however, for in any land transaction involving a large tract of land tó be purchased for commercial purposes, it would seem that, acreage would be mentioned and in arriving at a price, an approximation of acreage would be considered. But we agree with the chancellor that there is no evidence that the price agreed upon and the consummation of the sale were based on a recited value per acre for an exact number of acres expressly represented to be contained in the tract. When asked how appellant reached its computation of the value of the property, Mr. Morse replied that the 10 acres in mind for the shopping center would amount to $100,000 and that the back, or industrial acreage, would amount to about $3,000 per acre or a total of $240,000, making a grand total of $340,000. The record then reveals the following:

“Q. So then it was a proposition of horse trading for the best price you could get from there down.
A. That’s correct. That’s correct. Naturally, we made a lower offer than that. ***
Q. So you and Mr. Farris started off some few thousands of dollars apart and then tried to meet in the middle, is that correct?
A. That is correct.
Q, So really your negotiations in the end were a negotiation as to value as opposed to acres involved, weren’t they?
A. Well they ended up in that particular light.”

It could be that appellant and the purchasers it represented considered that they were buying lands by the acre but the evidence is not sufficient to support this argument. Not only is there a failure of proof in that respect but the record is likewise deficient in proof that appellees intended or agreed to a sale by the acre. The owners were never asked to warrant the amount of acreage, and the negotiations appear to have been based entirely upon price of the total acreage. Of course, the burden of proof is upon the one who seeks reformation to establish his right to it by clear, convincing, and decisive evidence. In Dickson v. Wolfe, 235 Ark. 855, 362 S.W. 2d 427, this court stated:

“In explaining the meaning of the rule of ‘the proof must be clear, unequivocal and decisive’, the court said in Hicks, Special Adms. v. Rankins, 214 Ark. 77: ‘. . . in the early American case, October term 1830, United States v. Munroe, 5 Mason’s Rep. 577, Fed. Cas. No. 15,835, Judge Story, speaking for the court, said: “In cases of asserted mistake in written instruments, it is not denied that a court of equity has authority to reform the instrument. But such a court is very slow in exerting such an authority, and it requires the strongest and clearest evidence to establish the mistake. It is not sufficient that there may be some reason to presume a mistake. The evidence must be clear, unequivocal and decisive; not evidence which hangs equal, or nearly in equilibrio.”
The evidence necessary to impeach the solemn recitations of the deed must be clear and convincing. As was said in Bevens v. Brown, 196 Ark. 1177, 120 S.W. 2d 574: ‘It must be so clear that reasonable minds will have no doubt that such an agreement was executed. It must be so convincing that serious argument cannot be urged against it by reasonable people.’ Tested in the light of this rule, we do not believe the purported agreement should have been accorded that high degree of verity which must attach to alleged verbal reservations or conditions in order to overthrow solemn recitals of a deed. Business transactions must have finality. Conveyances must not be exposed to the caprice of parol, nor explained away by less than that quantum of evidence which essentially attains the dignity of clarity, impressing convictions.”

Of course, when the parties speak of reformation of the contract, the reference is to the note and deed, and not negotiations leading up to the execution of those instruments. In Leonard v. Wood, 233 Ark. 769, 348 S.W. 2d 696, we pointed out the distinction between a sale by the acre and a sale in gross, stating:

“It is well settled that the mention of quantity of acres after a certain description of the subject by metes and bounds, or by other known specifications, is but a matter of description, and does not amount to any covenant or afford grounds for the breach of any of the usual covenants, though the quantity fall short of the given amount. When the vendor conveys for a specified price a tract of land which is described by metes and bounds or otherwise, with the words added containing a specified number of acres, more or less, this upon the face of the contract is a contract not by the acre but in gross, and does not by implication warrant the quantity. In such event, should there be a deficiency in the quantity, the right of relief for such deficiency is founded upon fraud, misrepresentation or gross mistake.”

Seven earlier Arkansas cases are then cited to this effect.

Nor do we agree with appellant as to its second point. The acreage shortage, as previously stated, amounted to 7.743 acres and appellant argues that this shortage amounted to an overcharge in money of $26,881.52 (arriving at this amount by dividing the purchase price of $310,000 by 89.293, the number of acres mentioned in the deed). Accordingly, the appellant states that unless this court holds that this was only a “slight” or “trifling” error, the trial court should be reversed and the relief prayed for granted. We do not agree, nor do we think that the cases cited by appellant are controlling. Some of these cases are distinguished in Hays v. Hays, 190 Ark. 751, 81 S.W. 2d 926. In this case, the question presented was whether a shortage of approximately 15% between the acreage conveyed and the estimated acreage was of sufficient magnitude to warrant, as a matter of law, a finding that it constituted a gross mistake. In concluding that it did not, this court cited Gilbertson v. Clark, 175 Ark. 1118, 1 S.W. 2d 823, where the shortage was definitely ascertained to be more than 25% of the total acreage conveyed. In Gilbertson we said:

“It cannot be said in this case that the difference between the actual and estimated quantity of acres is so gross as to conclusively warrant a finding that the parties would not have contracted had the shortage been known It is true that the price was considerable, but, when the attending circumstances are considered, it is evident that the quantity of acres was not the controlling factor in the premises.”
Then, in Hays we added:
“Moreover, it is certain that the law does not look solely to the quantity of the shortage as the criterion in allowing to the purchaser compensation therefor, but it also takes into account all other pertinent facts and circumstances tending to show the intentions and purposes of the parties in effecting the sale and purchase, and determines therefrom whether or not the mistake was of such magnitude and importance as to warrant the court in saying that the contract would not have been consummated if both parties had known the facts. When the facts and circumstances of this case are considered in the light of the rule just stated, it is apparent that the quantity of land conveyed by appellee to appellant was not of controlling importance. Appellant’s information in reference to the location, improvements and fertility of the lands admittedly was equal to that possessed by appellee, and we doubt not but that this contract of purchase or sale would have been consummated between these parties irrespective of the subsequent ascertained shortage.”

The language just quoted is apropos to the case now before us. Here the shortage amounted to approximately 8.6% (7.743 acres) and the testimony does not justify a conclusion that the parties would not have contracted if the shortage had been known. The proof makes clear that the initial interest was occasioned by the desire to build a shopping center. It is also true that appellant’s information as to the size of the tract appeared to be equal to that possessed by appellees’ agent and greater than that of appellees themselves. We agree with the chancellor that the acreage deficiency was not a gross mistake as a matter of law, nor a gross mistake as a matter of fact when all the circumstances are considered. Certainly, there is no clear, convincing, and decisive proof that would justify reformation of the deed and note. That being true, appellant cannot prevail.

Affirmed.

Fogleman, J., not participating.

       Thomas denied the allegations and pleaded the statute of limitations.

       This computation would seem to overlook the fact that 10 acres of this tract were given a value in price of approximately one-third of the value of the total acreage.

       Other Arkansas cases cited by appellees which have denied an abatement in the agreed price because o£ deficiency in acreage are: Mobbs v. Burrow, 112 Ark. 134, 165 S.W. 269 (1914), (deficiency of 53 acres out of 564.85 acres); Daoust v. Sharum, 163 Ark. 662, 260 S.W. 709 (1924). (deficiency of 22 acres out of 320 acres); Gilbertson v. Clark, 175 Ark. 1118, 1 S.W. 2d 823 (1928) (deficiency of 19 acres out of 71 acres); Bell v. State National Bank, 158 Ark. 640, 239 S.W. 2d 17 (1952), (deficieracy of 94 acres out of 1,120 acres); Young v. Bradshaw, 224 Ark. 467, 274 S.W. 2d 466 (1955), (deficiency of 73 acres out of 200 acres).


author: George Rose Smith, Justice.

text:
    Thelma QUILLEN, Individually and as Administratrix v. TWIN CITY BANK
    5-6020
    485 S.W. 2d 181
    Opinion delivered October 9, 1972
    /. Harrod Berry, for appellant.

      Tanner ir Wallace, for appellee.
   George Rose Smith, Justice.

This suit was brought by the appellee bank to recover the unpaid balance upon two promissory notes. The original defendants were the principal debtor, United Financial Services, Inc., a second corporation, Dealer’s Supply, Inc., and four individuals, Hale Allen, C. G. Ball, Doyle Quillen, and Jimmy C. Harris, who were directors or officers of United Financial. The trial court, upon the pleadings, affidavits, and counter-affidavits, entered summary judgment for the plaintiff. This appeal from the summary judgment and from a supplementary decree was taken by Quillen and his wife, who had been joined as a party to the suit. Quillen died pending the appeal, and the cause was revived in the name of the appellant, his widow, as administratrix.

Upon this appeal the controlling question is whether the record sustains the trial court’s action in entering a summary judgment. Upon that issue it is familiar law that such a judgment is an extreme remedy, that the burden is upon the moving party to show that there is no genuine issue of fact, and that the evidence submitted upon the motion must be viewed most favorably to the party resisting the motion. Harvey v. Shaver, 247 Ark. 92, 444 S.W. 2d 256 (1969). When the foregoing principles are applied to the case at bar we are unable to sustain the entry of the summary judgment.

The pivotal question is whether Quillen’s countervailing affidavits raised substantial issues of fact. The bank’s pleadings and proof showed that on March 25, 1970, the first note to the bank, for $200,000, was executed by the two corporations and the four individuals. The latter evidently signed as guarantors, because on the same day they executed a written agreement guaranteeing the payment of the note. Of course the two instruments, being part of the same transaction, are to be construed together. Gowen v. Sullins, 212 Ark. 824, 208 S.W. 2d 450 (1948). About five months later the second note sued upon, for $75,000, was executed by United Financial alone. The bank’s proof showed the amount due upon each note.

Quillen’s counter-affidavits raised a number of defenses. We need not discuss all those defenses upon their merits, for the proof has not yet been fully developed. At this stage of the case it is enough for us to point out that the evidence with respect to at least three of the defenses raised genuine issues of fact.

First, Quillen asserted that the $200,000 note had been materially altered without his consent, in that the bank and United Financial by agreement reduced the monthly payments from $17,536.80 to $10,000, to Quillen’s prejudice. The bank does not deny the alteration of the note, but it insists that Quillen was not in a position to complain, because the contemporaneous guaranty agreement recited that the guarantors “consent that the time of payment may be extend without notice.” Construing the record most favorably to the appellant, we cannot say as a matter of law that an alteration by which the amount of the monthly payments was greatly reduced was a mere extension of the time for payment of the note.

Secondly, the $75,000 note, instead of being signed by United Financial’s president and secretary, was signed by Harris as “chairman of the board” and by Ball as secretary. Both Quillen and Allen, the latter being president of the corporation, asserted by affidavit that Harris was not authorized to execute the note on behalf of the company. That assertion was not denied by the bank, which merely argues here that the appellant’s contention is a collateral attack upon the judgment against United Financial. We cannot sustain that reasoning, which would mean that United Financial’s failure to appeal from the judgment against it would preclude Quillen from asserting his own defenses to that same judgment in favor of the bank.

Thirdly, both Quillen and Allen stated on oath that they were induced to sign the guaranty without reading it, because they were fraudulently assured by the bank’s representatives that the guaranty contract related only to the original note, without reference to any later advances. Those statements are not denied. The defense accordingly raised an issue of fact, because one party’s fraud may excuse the other party from reading a contract before he signs it. Belew v. Griffis, 249 Ark. 589, 460 S.W. 2d 80 (1970).

In closing, we should mention one other point. After the entry of the summary judgment the trial court entered a supplementary order canceling, as a fraudulent conveyance, a deed by which Quillen conveyed certain land to his wife. The court also directed that the land be sold, with the proceeds to be applied upon the judgment against Quillen. The sale was held, because the Quillens did not supersede the order of sale. Apparently the property was bought by purchasers who were strangers to the litigation.

The bank seems to argue that the Quillens’ failure to supersede the order of sale precludes Mrs. Quillen from contending in this court that the chancellor erred in setting aside the deed that was alleged to be fraudulent. That argument is unsound. A debtor’s failure to supersede an order of sale does, it is true, have the effect of protecting a third-party purchaser at the sale against a loss of title resulting from a reversal of the decree leading to the sale. Griffin v. Soloman, 237 Ark. 653, 375 S.W. 2d 232 (1964); Orem v. Moore, 224 Ark. 146, 272 S.W. 2d 60 (1954). But the debtor’s financial inability to supersede the order of sale does not and should not cause him to lose his rights altogether. Ibid. Consequently the bank is in error in insisting that the Quillens’ failure to supersede the order of sale prevents Mrs. Quillen from questioning the basis for that order.

Reversed.

Holt, J., not participating.


author: Lyle Brown, Justice.

text:
    NORTH LITTLE ROCK ELECTRIC COMPANY v. PICKENS-BOND CONSTRUCTION COMPANY and AETNA CASUALTY & SURETY COMPANY
    5-6021
    485 S.W. 2d 197
    Opinion delivered October 9, 1972

      Wright, Lindsey ir Jennings, for appellant.

      William H. Sutton and Smith, Williams, Friday, Eldredge ir Clark, for appellees.
   Lyle Brown, Justice.

This case is before us for the second time. See Pickens-Bond Construction Company and Aetna Casualty & Surety Co. v. North Little Rock Electric Co., 249 Ark. 389, 459 S.W. 2d 549 (1970).

Appellee Pickens-Bond was general contractor for construction of a manufacturing plant; Aetna Casualty was its liability carrier. North Little Rock Electric Co. subcontracted to perform the electrical work. Curtis Cornelius, an employee of NLR Electric, was injured when a kerosene burning heater (salamander) apparently caused an explosion in proximity to Cornelius. Aetna Casualty, as Pickens-Bond’s carrier, settled a personal injury claim with Cornelius and then made demand on NLR Electric for recovery of the sums paid. That demand was. based upon an indemnity agreement contained in the subcontract, which provided:

[North Little Rock Electric Company] shall be responsible for [its] own work and every part thereof, and all the work of every description used in connection therewith. [It] shall specifically and distinctly assume, and does assume, all risks of damage or injury from whatever cause to property or persons used or employed on or in connection with [its] work, and of all damage or injury from any cause to property wherever located, resulting from any action or operation under this subcontract or in connection with [its] work, and undertake to promise to protect and defend [Pickens Bond Construction Company] against all claims on account of any such damage or injury.

In the first case the trial court entered summary judgment for NLR Electric. We reversed, holding there to be a justiciable issue as to whether there was negligence on the part of Pickens-Bond which was the sole proximate cause of the accident. In the event of such negligence we held that Pickens-Bond could not recover under the indemnity contract.

In the case now before us, the court granted a motion for directed verdict at the close of all the testimony and in favor of Pickens-Bond and Aetna Casualty. That was on the theory that NLR Electric had not met the burden of showing by substantial evidence that Pickens-Bond was guilty of negligence which was the sole proximate cause. The appeal is hinged on two points, namely, that the court erred in placing the burden of proof on NLR Electric, and that there was sufficient evidence that the sole proximate cause of injury was active negligence of Pickens-Bond to compel submission of the issue to the jury.

First, we have no hesitancy in saying that the court was correct as to the burden of proof. Pickens-Bond held an indemnity contract executed by NLR Electric which, under a literal interpretation, permitted Pickens-Bond to recover. NLR Electric responds by asserting there is an exception- governing the contract which exception has beert established by case law. Therefore, NLR Electric asserts the affirmative defense that Pickens-Bond was guilty of negligence which was the sole proximate cause. We are furnished no satisfactory authority which would place the burden on Pickens-Bond to establish that they were free of negligence. To the contrary, see Chicago, R. I. and P. R. Co. v. Powers Foundation Drilling Co., 294 F. Supp. 921 (1968); Davidson v. Welch, 75 Cal. Rptr. 676 (1969). NLR Electric’s position is somewhat analogous to a defendant who relies on a breach of the contract by a plaintiff, in which situation it has been held that the defendent must plead and prove the breach. 41 Am. Jur. 2d, Indemnity, § 42. Also see Snyder v. United States Fidelity & Guaranty Co., 249 P. 422 (Okla. 1926). The same citation is authority for the position that “The broad rules of evidence applicable to civil proceedings generally apply to actions involving questions of indemnity.”

This brings us to the second point, namely, that a jury issue was made on the allegation that Pickens-Bond’s negligence was the sole proximate cause. We have examined the evidence in light of the well established rule that it should be viewed in the light most favorable to NLR Electric, and if fair-minded men might draw different conclusions therefrom it was error to direct a verdict against NLR Electric. For the evidence to be legally sufficient it must be substantial; and substantiality is a question of law. We think the trial court was correct. Someone set a gasoline can in proximity to the heater, or the heater, being movable, was moved near the gasoline can which exploded and struck Cornelius. The heater remained in its upright position and continued to burn normally. Here is an excerpt from a stipulation in the case which strongly substantiates our conclusion:

There were no Pickens-Bond employees in the immediate vicinity of the explosion although some of its employees were working on the job that day. The closest people to the stove and. fuel can were Curtis Cornelius and a North Little Rock Electric Company employee who was assisting him.
The salamander burned liquid fuel. Specified employees of Pickens-Bond were designated by it to keep the stove fueled. From time to time, employees of other subcontractors on the job would put fuel in the stove. It is not known who last filled the stove with fuel before the explosion and fire of February 24, 1965 occurred. It is not known who placed the can of fuel in the vicinity of the salamander before the explosion.

A foreman for another subcontractor, called by NLR Electric, testified that his employees moved the heater from place to place. On the day of the explosion the weather was extremely cold. In fact most of Pickens-Bond’s employees had gone home because of the weather. The claimant, Cornelius, testified that he could not say that people other than the designated laborers “fooled with’’ the salamanders; additionally he testified that there were a number of subcontractors on the job who used gasoline out of containers. Witness Bill Hughes was the superintendent for another subcontractor. He said he had some fifteen to eighteen men on the job at the time of the accident and he was sure some of them were working in the vicinity of Mr. Cornelius. He said he was sure that some of his men pulled the heaters along the floor, and that in cold weather he hada hard time keeping them away from the heaters. He said he never told any of them “not to pull the heaters along the floor.” Further recitation of evidence would serve no useful purpose. Suffice it to say there was no testimony which substantially disputed the stipulation or any of the evidence we have recited.

Affirmed.


author: John A. Fogleman, Justice.

text:
    JACOB HARTZ SEED COMPANY and GLENS FALLS INSURANCE COMPANY v. Ross THOMAS
    5-6030
    485 S.W. 2d 200
    Opinion delivered October 9, 1972

      Teague, Bramhall, Davis ir Plegge, for appellants.

      Bruce Bennett, for appellee.
   John A. Fogleman, Justice.

The sole question presented by this appeal is whether the Workmen’s Compensation Commission must conduct a new hearing on a second joint petition for final settlement of a claim after a hearing has been held on a prior joint petition but before an order disposing of the first petition has been entered. The circuit court held that the commission must hold a new hearing, and that the approval of the second petition in this case without a separate hearing did not deprive the commission of jurisdiction to entertain the claimant’s petition requesting a determination of the status of his compensation claim.

We agree with the circuit court. The first joint petition was signed on March 2, 1970. It provided for the payment of $4,910 of which $500 had been advanced by the carrier, Glens Falls Insurance Company, to appellee Thomas as consideration for the joint settlement petition. The remaining $4,410 was based upon a 20% permanent partial disability to the body as a whole, agreed upon to settle the question of the extent of the disability suffered by Thomas. A hearing was held on this petition on March IB, 1970, but the referee to whom the petition was assigned for hearing took the matter under advisement, informing the petitioner of his right to ask for a hearing of his case before the full commission if the petition was disapproved, and of the total loss of the commission’s jurisdiction of the claim if the petition was granted.

The second petition was sighed and filed on March 18, 1970. An amendment having the effect of increasing the indicated payment was then made with the approval of the carrier, but without notice to the claimant. This amended petition provided for the payment of an additional $1,705 for the joint settlement or a net recovery of $6,115 by Thomas over and above the $500 previously advanced him.

The procedure taken to dispose of this claim is authorized by Ark. Stat. Ann. § 81-1319 (1) (Repl. 1960), which reads:

Upon petition filed by the employer or carrier and the injured employee, requesting that a final settlement be had between the parties, the Commission shall hear the petition and take such testimony and make such investigations as may be necessary to determine whether a final settlement should be had. If the Commission decides it is for the best interests of the claimant that a final award be made, it may order such an award that shall be final as to the rights of all parties to said petition, and thereafter the Commission shall not have jurisdiction over any claim for the same injury or any results arising from same. If the Commission shall deny the petition, such denial shall be without prejudice to either party. No appeal shall lie from an order or award allowing or denying a joint petition.

In implementation of this section, the commission adopted its Rule 19, which provides:

The Commission strongly discourages use of the Joint Petition as a means of settling cases except in unusual circumstances. No Joint Petition will be approved unless such Petition sets forth the nature of the unusual circumstances and unless such unusual circumstances are proved at a hearing. Such Joint Petition must set forth in detail the reasons its approval will be in the claimant’s best interest as required by Section 19 (1) of the Workmen’s Compensation Act.
Joint Petition settlements under Section 19 (1) of the Workmen’s Compensation Act will be heard by the Full Commission at its offices in the Justice Building, Little Rock, Arkansas, unless the Commission determines it will be to the best interest of the parties to designate a referee to conduct said hearing for the Full Commission.
It shall be necessary for the claimant to appear and testify at any hearing. Petitions shall be signed by all parties, including the claimant, and must be verified.
Under certain circumstances, the Commission may designate referee to hold such hearing at a location convenient to the parties or may direct the taking of a claimant’s testimony by deposition or interrogatories.

The necessity for extreme caution in approving such settlements so clearly recognized by the commission’s procedural rule lies in the fact that any award based thereon finally concludes all rights of the parties, even foreclosing any right of appeal from the order of approval. This is the only procedure under our act which leaves the claimant without any further remedy, regardless of subsequent developments. See Brooks v. Arkansas-Best Freight System, Inc., 247 Ark. 61, 444 S.W. 2d 246. It is necessary that the interest of both the employee and the public be protected in these hearings. The employee is seldom as well informed in these matters as the employer or carrier. Unusual circumstances that would make approval of the first petition in the employee’s interest might not exist in the case of a second petition even though the only difference be in the amount of payment. The employer or carrier, during the intervening period, might be informed of material matters not known at the first hearing, which would prompt it to change its offer of settlement. The public, as the bearer of the ultimate burden of compensation protection, has a material interest in the minimization of the risk of an injured employee becoming the object of public charity or public relief. See Hunter v. Summerville, 205 Ark. 463, 169 S.W. 2d 579; Williams Mfg. Co. v. Walker, 206 Ark. 392, 175 S.W. 2d 380.

It is proper then that the commission withhold approval of such a settlement in the absence of proof of unusual circumstances making a final award based upon the settlement in the best interest of the claimant. It is appropriate that the commission, in order to assure that the interests of all concerned are protected, require, as Rule 19 does, that the claimant appear and testify, at any hearing. We have heretofore emphasized the importance of a hearing on final settlement petitions and of strict compliance with statutory requirements in all respects. See Georgia-Pacific Corporation v. Norsworthy, 244 Ark. 399, 425 S.W. 2d 320; Cook v. Brown, 246 Ark. 11, 436 S.W. 2d 482.

When we consider the effect of the approval of such a settlement, a liberal construction of the act favorable to the claimant clearly mandates a separate hearing upon any and all such joint petitions. We do not believe that the requirements of the statute can adequately be met if we accept appellants’ arguments. They contend that we should consider the two petitions as one, that the hearing on the petition can precede its filing, and that all matters relevant to the second petition were as fully developed in the first hearing as they might have been if another hearing had been held, especially when a larger payment to the claimant was provided for in the second petition. The reasons requiring a claimant’s presence at a hearing on one petition still exist whenever another petition is presented.

We affirm the judgment of the circuit court holding that, because no separate hearing was held on the second petition, the commission still has jurisdiction of appellee’s claim.

       In order to effectuate the beneficent and humane purposes of the Workmen’s Compensation Act, we construe and apply statutory provisions liberally in favor of the claimant, resolving all doubtful cases in his favor. International Paper Co. v. Tidwell, 250 Ark. 623, 466 S.W. 2d 488.


author: J. Fred Jones, Justice.

text:
    Sandra K. SATTERFIELD v. REBSAMEN FORD, INC.
    5-6006
    485 S.W. 2d 192
    Opinion delivered October 9, 1972

      R. David Lewis, for appellant.

      Charles W. Baker, for appellee.
   J. Fred Jones, Justice.

This is an appeal by Sandra K. Satterfield from a judgment of the Pulaski County Circuit Court in favor of Rebsamen Ford, Inc. notwithstanding a jury verdict in favor of Sandra K. Satterfield.

The facts, as gathered primarily from the pleadings, indicate that on or about May 14, 1970, Sandra K. Satterfield purchased a Ford Fairlane automobile from Rebsamen Ford, Inc. through one of its salesmen, Lonnie Davis, for the agreed purchase price of $3,760.72. Miss Satterfield traded in a 1967 Mustang automobile on the purchase of the Fairlane for an agreed credit of $511. She executed her note for the balance of the purchase price in the amount of $3,249.72, payable in 36 monthly installments of $90.27 commencing on June 25, 1970. It appears that Miss Satterfield was dissatisfied with the way the automobile drove on the highway and when it failed to pass safety inspection for the purpose of licensing within two months after she purchased it, she failed or refused to make the monthly payments so a replevin action was filed against her for repossession of the automobile.

Apparently Miss Satterfield did not resist the possessory action but she did file a counterclaim against Rebsamen Ford alleging that the salesman, Lonnie Davis, made false and fraudulent misrepresentations concerning the automobile she purchased, but it is difficult to determine from the transcript the exact status of the matter when it was finally tried in circuit court. Miss Satterfield’s pleadings consist of ten pages numbered two through twelve and are styled answer, counterclaim and cross-complaint under two separate circuit court numbers. Under each separately designated “cause of action” relief is prayed as “set out below” and then there appears as a part of the answer, counterclaim and cross-complaint, a portion designated “preliminary mandatory injunction” which indicates that Miss Satterfield may have originally filed a petition in chancery court in an attempt to restrain or enjoin the repossession of the automobile under replevin and the matter was transferred to the circuit court. In any event, the answer, counterclaim and cross-complaint conclude with a prayer for relief against Rebsamen Ford (designated as “dealer”) as follows:

“3. For fraud against dealer, compensatory damages in the amount of $3,660.72; for automobile and $2,000 for emotional distress.
4. For breach of express warranty against dealer compensatory damages in the amount of $3,660.72; for the contract damage for emotional distress in the amount of $2,000, and punitive damage in the amount of $5,000.
7. . . . for rescission against dealer, the return of the consideration of $511, damages for emotional distress in the amount of $2,000 and punitive damage in the amount of $5,000.
8. For rescission against dealer and return of the consideration in the amount of $511.”

Other elements of damage were alleged and prayed for including attorney’s fees to be taxed as cost.

This case was tried before a jury which rendered a verdict for Miss Satterfield in the amount of $511 compensatory damage and $3,000 punitive damage. Rebsamen Ford filed a motion for judgment non obstante veredicto and the motion was granted. On her appeal to this court Miss Satterfield designated the points on which she relies for reversal as follows:

“The court erred in giving a judgment N.O.V. for the appellee.
The court erred in not giving attorney’s fees to appellant’s counsel.
Appellee should pay the cost resulting from its designation of additional parts of the record.”

We agree with the appellant on the first point so we find it unnecessary to discuss at length the other two points. The statutes of Arkansas make no provision for attorney’s fees to be taxed as cost against a losing party in a case of this kind. See American Physicians Ins. v. Hruska, 244 Ark. 1176, 428 S.W. 2d 622; also Romer v. Leyner, 224 Ark. 884, 277 S.W. 2d 66. As to appellant’s third point, the record is still rather vague when we consider the portions designated by both parties, so we find no merit to appellant’s contention under this point.

Returning now to the question of whether the trial court erred in rendering a judgment n.o.v. for the appellee, we are of the opinion that the jury verdict for the compensatory damages in the amount of $511 should stand, but that the punitive damages in the amount of $3,000 should not. The statutory authority for judgment notwithstanding a verdict is found in Ark. Stat. Ann. § 29-111 (Repl. 1962) which is as follows:

“Where, upon the statement in the pleadings, one party is entitled by law to judgment in his favor, judgment shall be so entered by the court, though a verdict has been found against such party.”

In Stanton v. Ark. Democrat Co., 194 Ark. 135, 106 S. W. 2d 584, we approved the language in Scharff Distilling Co. v. Dennis, 113 Ark. 221, 168 S. W. 141, where it was stated:

“ ‘ ... if there could be any warrant for such a judgment, not based solely upon matters appearing in the pleadings or as disclosed by the record proper, the testimony justifying such verdict would have to be undisputed so that the court might declare as a matter of law that the party in whose favor the judgment was entered was entitled to it, notwithstanding the verdict in favor of the other party.’ ”

In Stanton we continued:

“But the testimony in that case [Scharff v. Dennis] was not undisputed, and for that reason it was held improper to direct a verdict in favor of the party against whom a verdict had been rendered by the jury.”

It is now well settled in Arkansas that the test for granting a motion for judgment n.o.v. is the same as the test for granting a motion for a directed verdict, and that a trial court may enter a judgment n.o.v. the same as he may grant a motion for a directed verdict, if there is no substantial evidence to support the verdict. Baucom v. City of North Little Rock, 249 Ark. 848, 462 S. W. 2d 229; Edwards v. Epperson, 246 Ark. 194, 437 S. W. 2d 480.

When we measure the evidence in the case at bar by the rules laid down in past decisions, we are of the opinion that the trial court was correct in entering judgment n.o.v. for the appellee as to the punitive damages but erred in entering such judgment as to the compensatory damages. Punitive damages may be imposed when the defendant acts with malice, Barlow v. Lowder, 35 Ark. 492 (1880), or with willfulness, wantonness, or conscious indifference to consequences from which malice may be inferred. St. Louis I.M. & S. Ry. Co. v. Dysart, 89 Ark. 261, 116 S. W. 224 (1909); Choctaw, O. & G. Rd. Co. v. Cantwell, 78 Ark. 331, 95 S.W. 771 (1906).

In the very recent case of Ray Dodge, Inc. v. Moore, 251 Ark. 1036, 479 S.W. 2d 518, a jury award of punitive damages was approved by this court under a concluding statement as follows:

“If, then, there was evidence tending to show that appellant intentionally performed a deliberate act with the intention of misleading a prospective purchaser about, a material matter to his injury, it was proper to permit the jury to consider the award of exemplary or punitive damages.”

In Ray Dodge we distinguished that case from the case of Chicago, R. I. & P. Ry. Co. v. Whitten, 90 Ark. 462, 119 S. W. 835, 21 Ann. Cas. 726, wherein we denied the allowance of exemplary damages saying that before a verdict for exemplary damages is justified, the party to be charged must be guilty of willfulness, wantonness, or conscious indifference to consequences from which malice will be inferred. We also pointed out in Dodge that in Whitten we said:

“ ‘Here the motive of the injuring party becomes material. Mere negligence, indifference, or careless disregard of the rights of others is not sufficient upon which to base a recovery for exemplary damages. The acts must be such as to evince malice. It is true that in law malice is not necessarily personal hate. It is rather an intent and disposition to do a wrongful act greatly injurious to another.’

The facts as evidenced by the record in Ray Dodge v. Moore, differ from the facts in the case at bar in two important respects. The odometer had definitely been run back in the Dodge case after the automobile was traded to Ray Dodge by the original owner and the salesman assured the purchaser that the mileage as shown on the odometer was the correct mileage. The mileage to which the odometer had been changed placed the automobile back within the manufacturer’s warranty and Ray Dodge did extensive repairs for which it received pay from the manufacturer under this rejuvenated warranty. In the case at bar it appears from the record that when the purchaser and her father observed the paint on the left fender of the automobile being slightly off-color in comparison with the paint on the rest of the automobile, they inquired of the salesman as to whether the automobile had been wrecked, and the salesman assured them that it had not been. He explained the apparent color difference as due to technique in buffing. There was no contention that Rebsamen Ford or its salesman wrecked the automobile, and there is no proof that they knew it had been wrecked. The purchaser alleged in her complaint that the vehicle had in fact been wrecked while in the possession of the original owner in Conway, Arkansas, and that it cost over $400 to repair the damage. The record reveals no effort to prove this allegation or that the salesman or anyone else connected with Rebsaman Ford even knew about it.

Mr. William B. Lyle, who was a friend of the appellant and her father, Mr. Satterfield, but who was also an automobile mechanic with 30 years experience, observed the off-color fender from a distance and advised Mr. Satterfield that the automobile had been wrecked when Mr. Satterfield complained about the way the automobile steered and performed on the road. Mr. Lyle’s opinion on this point was confirmed by raising the hood of the automobile and observing the cementing material where the fender was attached to the body of the automobile.

There is substantial evidence in the record that the automobile “shimmied” when driven at a speed of 40 or 50 miles per hour and that there was a popping noise in connection with steering the automobile. There is substantial evidence that the automobile pulled first one way and then the other on the highway when the brakes were applied. There is substantial evidence that the automobile had been “wrecked” at least to the extent that a front fender had been replaced. There is substantial evidence that salesman Davis assured Miss Satterfield and her father that the automobile had not been wrecked when in fact it had, but there is no evidence that Davis knew the automobile had been wrecked and certainly there was no evidence of malice on the part of Davis and no evidence from which malice on his part could be implied in making the statement he did in answer to the purchaser’s inquiry.

We conclude, therefore, that there was no substantial evidence on which the case should have been presented to the jury on the element of exemplary or punitive damages, so we hold that the trial court did not err in granting a judgment n.o.v. in favor of the appellee as to the punitive damages.

We are of the opinion, however, that the trial court did err in granting judgment for the appellee n.o.v. as to the compensatory damages. It is difficult to determine from the record before us the exact theory on which this case was tried. The record indicates that the automobile was delivered to Rebsamen Ford under its possessory action in replevin. The record also indicates that the appellant-purchaser voluntarily delivered and surrendered the possession of the vehicle to the appellee with the idea of canceling her contract when she was unable to get the automobile approved on safety inspection. It would appear that the jury verdict for $511 in compensatory damages was based on the value allowed the appellant on the automobile she traded to the appellee, and was in response to the appellant’s 8th prayer for relief in her pleadings, supra. Be that as it may, there was sufficient evidence to go to the jury on the question of compensatory damages, and there was substantial evidence upon which the jury could have based its verdict for $511. Mr. Charles Brush, Jr. qualified as an expert in the field of repairing and selling late model automobiles. He testified that an automobile of the make and model of the one involved in this case has a value on the used car market of approximately $2,895. He. testified that the same automobile in the condition complained of by the appellant has a market value of approximately $2,000.

The appellant did not abstract the testimony of Mr. Gene Beavers, the business manager for Rebsamen Ford, nor did she mention the fact that Mr. Beavers testified. Mr. Beavers testified that he personally inspected the automobile when it was brought in by the appellant on July 7, and the automobile was muddy and showed evidence of abuse. Among the other things Mr. Beavers found wrong with the automobile, he found that the front wheels were sitting out at the bottom which in his opinion was caused by hitting curbs “and things of this nature.” It must be remembered that Miss Satterfield only purchased this automobile on May 14 and had driven it to and from work between Little Rock. and North Little Rock for a period of less than two months when she returned it to Rebsamen Ford and it was inspected by Mr. Beavers on July 7.

We are of the opinion, therefore, that the jury could have concluded from all the evidence that the difficulty encountered with the front wheels was directly related to the front wheels “sitting out at the bottom” and that the reason for them “sitting out at the bottom” was more likely caused by the wreck requiring a new fender than by “hitting curbs and things of this nature,” and that because of the misrepresentations made by salesman Davis, the appellant suffered damage in at least the value of the automobile she traded to Rebsamen Ford in the transaction.

The judgment of the trial court as to actual or compensatory damages is reversed and this cause remanded with instructions to enter judgment for the plaintiff for $511 and costs.

Reversed and remanded.


author: Conley Byrd, Justice. John A. Fogleman, Justice,

text:
    Deward Ray ADCOCK v. Lawrence DEATON et ux
    5-5968
    485 S.W. 2d 203
    Opinion delivered October 9, 1972

      Young & Patton, for appellant.

      Tackett, Moore, Dowd & Harrelson, for appellees.
   Conley Byrd, Justice.

This is a boundary dispute between the appellant Deward Ray Adcock and the appellees Mr. and Mrs. Lawrence Deaton. The trial court concluded that, since the two parcels of land were sold by the common grantor with reference to an old fence as the dividing line, the fence line must be respected by the grantees and their successors as the division line between the two properties. For reversal appellant contends that the court erred in considering an agreed boundary since that was not pled and no evidence was offered regarding an agreed boundary.

Mr. M. E. Deaton, Sr., the common grantor of the two properties, testified without objection that properties had never been surveyed until the litigation in question arose. The old fence in question was built the day he made the deed to Mr. Castleman, appellant’s predecessor in title. He also stated that before building the fence, he talked to Mr. Castleman,and that Mr. Castleman furnished the cross-ties for the posts.

For many years upon the authority of Ark. Stat. Ann. § 27-1160 (Repl. 1962), we have held that where testimony is received without objection, a trial court in its discretion may treat the pleadings as amended to conform to the proof. We can find no abuse of discretion in this instance.

Furthermore, the case of McCall v. Owen, 212 Ark. 984, 208 S.W. 2d 463 (1948), supports the holding of the trial court on the facts.

Affirmed.

George Rose Smith and Fogleman, JJ., dissent.

John A. Fogleman, Justice,

dissenting. I would reverse this judgment. Appellant’s only point for reversal is that the trial court decided the cause upon the finding that there was a boundary by agreement, when that issue had not been raised by the pleadings or proof. My review of the record does not disclose that this question was ever in issue. The appellees relied upon adverse possession, as well as a denial of appellant’s title. I certainly agree that the pleadings should be treated as amended to conform to the proof when evidence on an issue not made by the pleadings is admitted without objection, in a proper case. That rule does not deprive the party who does not object of the basic right to be apprised of a new cause of action or defense not mentioned in the pleadings. See Dorris v. Dorris, 249 Ark. 580, 460 S.W. 2d 98. The rationale of the rule permitting the introduction of a new issue into a case because of the failure of the party against whom the issue is asserted to object is based upon waiver of the objection. Williams v. Davis, 211 Ark. 725, 202 S.W. 2d 205; Van Bibber v. Strong, 203 Ark. 1090, 160 S.W. 2d 861. See also St. Louis, A & T Ry. Co. v. Triplett, (on rehearing) 54 Ark. 304, 16 S.W. 266.

It is elementary that a waiver is a voluntary relinquishment of a known right. In this case, the evidence relied upon by the majority to raise the issue is evidence that is consistent with the defense of adverse possession which was asserted in the pleadings. Appellant would not have had any right to have the testimony excluded. I also submit that appellant could not be charged with notice that an issue not pleaded had arisen. If he had, he might have been able to produce Mr. Castleman or other witnesses to show that the fence was not built on a line agreed upon as the boundary, or that there was no agreement that it marked the boundary.

Appellees state that the parties briefed this issue in the trial court, but the record does not disclose this. Appellant relies strongly on the fact that this issue was not raised, so we cannot base any holding upon a matter not disclosed by the record.

I would reverse the judgment for a new trial.

I am authorized to state that Mr. Justice George Rose Smith joins in this dissent.


author: Conley Byrd, Justice.

text:
    William J. BOLTON, Adm’r. et al v. Eula Armstrong SMITH
    5-6026
    485 S.W. 2d 224
    Opinion delivered October 9, 1972

      Roy H. Mitchell, for appellants.

      Michael B. Heindl, for appellee.
   Conley Byrd, Justice.

This action arises out of an ante-nuptial agreement between Dessie Hamilton and Leonard Hamilton before their marriage in 1947. Pursuant to that agreement Leonard conveyed to Dessie a lot on Lake Hamilton which was erroneously described as Lot 9 of Block E, Point Lookout Subdivision. Dessie died in 1957 without issue and by her will devised Leonard a life estate in the Lake Hamilton lot with the remainder to her sister Eula Armstrong Smith. While Leonard was in possession of the lot, as life tenant, he discovered that the “Lot 9” description was erroneous. In January, 1969, he conveyed the Lot by its proper description “Lot 7” to his son and daughter-in-law, William and Delores Bolton. After Leonard’s death and the discovery of the 1969 conveyance, Eula Armstrong Smith brought this action against William and Delores Bolton and Leonard’s estate to have the 1969 conveyance set aside or in the alternative for damages. The Chancellor found that William and Delores were bona fide purchasers for value and because of the recording statute took superior title. However, he assessed the damages on the basis of the present market value of the property plus reasonable attorney’s fees. Leonard’s estate has appealed contending that under our decisions, such as O’Bar v. Hight, 169 Ark. 1008, 277 S.W. 533 (1925), the only damages recoverable for a breach of warranty is the consideration paid. We agree with the Chancellor.

The Chancellor in ruling against Leonard’s estate relied upon an exception to the rule set out in O’Bar v. Hight, supra. The exception as stated in Madden v. Caldwell Land Co., 16 Idaho 59, 100 P. 358, see also 20 Am. Jur. 2d p. 692, is to the effect that a vendor, after conveying good title, who subsequently conveys to another, who takes superior title by first recording his deed, stands in the same position of a vendor who breaches his contract and refuses to convey. Another similar exception to the rule stated by appellant is where the vendor has practiced a fraud. See Backus v. McCoy, 3 Ohio 211 (1827), Sellards v. Adams, 190 Ky. 723, 228 S.W. 424 (1921), and 20 Am. Jur. 2d Covenants, Conditions, etc. § 142. Under either exception, the Chancellor correctly assessed the damages at the market value.

Eula has cross-appealed from the Chancellor’s finding that William and Delores were bona fide purchasers for value. On the record, as abstracted, we cannot say that the Chancellor’s finding is contrary to a preponderance of the evidence.

Affirmed with all costs to be assessed against Leonard’s estate.


text:
    SOUTHWESTERN BELL TELEPHONE COMPANY v. Charles Michael THOMPSON, By his Father and Next Friend, Franklin THOMPSON
    5-6032
    485 S.W. 2d 222
    Opinion delivered October 9, 1972

      Donald K. King, Ronald T. LeMay and Charles G. Hollis, for appellant.

      Mathis & Sanders, for appellee.
   Conley Byrd, Justice.

At issue between appellant Southwestern Bell Telephone Company and appellee Charles Michael Thompson by his father and next friend, Franklin Thompson, is whether a trench dug across the yard of Michael’s grandparents was a proximate cause of the injuries he received when he fell over the grandparent’s dog. The trial court denied a motion for a directed verdict. From a $5,000 judgment on a jury verdict, the telephone company brings this appeal raising only the one issue.

The undisputed facts show that the telephone company buried a telephone service line in the grandparent’s yard through the use of a ditch digger. The trench as originally dug was about four inches wide and eighteen inches deep. The ditch was filled with loose dirt after the telephone line was laid. As a result of the weather the loose dirt sank, according to some witnesses, from two to three inches and according to Michael’s grandmother as much as twelve inches in one place.

The sole testimony on the proximate cause issue was established by Michael, a first grader in school. He stated that he was playing with his grandmother’s dog. His verbatim testimony is as follows:

“Q. And what were you doing with the dog?
A. I was throwing sticks, and he went to get them.
Q. Would he bring them back to you?
A. No.
Q. Would he go to the sticks after you threw them?
A. Yes.
Q. And then what would you do?
A. I would go after it.
Q. How did you hurt yourself out there on the day in question?
A. I fell over the dog into that hole.
Q. Into what hole, son?
A. The one that went across the front yard.
Q. How big was it? Or let me ask you how long was it, do you know?
A. Uh-uh.
Q. Was it a little short place, or a long place?
A. A long place.
Q. Did you say you fell over the dog?
A. Yes.
Q. And into the ditch?
A. Yes.
Q. What part of your body went into the ditch?
A. My arm.
Q. Which arm was that?
A. My left.
Q. Your left? Did your left arm get hurt when you fell into the ditch?
A. Yes.
Q. What part of your arm was hurt?
A. The elbow.”

The standard definition of “proximate cause” is that it is a cause “...which, in a natural and continuous sequence, produces damage and without which the damage would not have occurred.” See A.M.I. 501. In Collier v. Citizens Coach Co., 231 Ark. 489, 330 S.W. 2d 74 (1959), it was pointed out that proximate cause is a rale of physics and not a criterion of negligence. In so stating we held that forseeability had nothing whatever to do with proximate cause.

Thus, if we assume that the telephone company by its failure to properly fill the trench was negligent toward persons using the lawn, we must also find' that evidence showing that negligence caused the injuries to Michael’s elbow. On this issue, we are left, under the record, only to speculation as to the cause and effect of Michael’s broken arm. There is no evidence to show that the fall over the dog would not have been as disastrous had Michael fallen in some other place in the yard.

Perhaps the deficiency in the proof here can best be demonstrated by an analogy to a child falling out of a tree on to a loaded pistol. If we should assume that a person was negligent in leaving a loaded pistol in the yard where children play, before the child could recover against the person leaving the pistol in the yard, he would have to show that the injuries sustained in a fall were different from the injuries he would have received in falling on a toy pistol. Until such proof was made, there could be no evidence upon which it could be said that the negligence in leaving the loaded pistol in' the yard produced the injuries received. Likewise in the case at bar, there is no evidence to show how the sunken trench, “in a natural and continuous sequence,” produced Michael’s broken arm.

Reversed and remanded for a new trial. See St. Louis Southwestern Railway Co. v. Clemons, 242 Ark. 707, 415 S.W. 2d 332 (1967).