author: Lyle Brown, Justice.

text:
    L. B. CROSWHITE et ux v. Donald L. RYSTROM
    73-247
    506 S.W. 2d 830
    Opinion delivered March 11, 1974
    [Rehearing denied April 15, 1974.]

      Putman, Davis & Bassett, for appellants.

      Sidney H. McCollum and Little & Lawrence, for appellee.
   Lyle Brown, Justice.

This suit was initiated by appellants L. B. Croswhite and wife against appellee Donald L. Rystrom. The Croswhites sought rescission of a sale and purchase contract between the parties and the deeds which were exchanged pursuant thereto. They alleged breach of warranty of title and resulting failure of consideration. Rystrom prayed for dismissal of the complaint and in case of rescission asked for monies he paid on a mortgage he assumed from the Croswhites. The chancellor found the issues against the Croswhites and dismissed their complaint. The Croswhites here contend (1) that the trial court erred in holding that the sale and purchase agreement did not merge with the warranty deed subsequently executed, (2) that there was a complete failure of title to the property conveyed to Croswhite and therefore a failure of consideration, and (3) that Rystrom would not be entitled, in the event of rescission, to a refund of monies paid on the mortgage he assumed.

Croswhite owned a one-half interest in the land and improvements operated under the name of Benton County Sales Barn, a livestock auction business. Subject to an undetermined cloud on his title, Rystrom owned a 5000 acre farm in Tennessee. Under a contract drafted by the parties and without the assistance of counsel, they bargained to exchange their properties. The contract, signed and notarized, reads:

February 1, 1967. We, L. B. and Jacqueline Croswhite agree to trade the equity in the Bentonville Livestock Auction. The balance as of Feb. 1, 1967 is $38,559.51. To Donald L. Rystrom and Evelyn for 5,000 acres of land in Tennessee. Description to Wit, possibly $10,-000.00 to be added to Sale Barn for Security of Bond to be put in Savings Account, to be transferred to Don Rystrom at time of signing Deeds. Also agreement between R. E. Allen and Don Rystrom that either Partner cannot sell his half interest before giving other Partner the opportunity to buy or his consent to sell to anyone.
Also Don Rystrom is to receive half share of money in Bentonville Livestock Custodial Account as well as the checks due not collected mentioned. The check on R. Bolin when suit is settled also goes with business.
The 5,000 acres of land in Tennessee is under observation. The deed is titled or made out to two parties. I understand that there is a possibility I might not get a clear Title which I am not holding Don Rystrom responsible. I also understand that if I have to sue Richard Cozad that I have the consent to sue through Don Rystrom. I will work the period of 90 days for Don Rystrom on Wednesdays and Saturday nights.
Deeds to Sale Barn to be signed over to Donald L. Rystrom and Evelyn as soon as suit is settled. [Reference to suit refers to local litigation by the sales auction.] Present Deed to Tennessee Land to be signed also. Possession of Sale Barn to be given as of Feb. 1, 1967 and all profits to be made payable to L. B. Croswhite and signed over to Don Rystrom. Tennessee State Land Grant Number 6173, Copy of deed being found in Warranty Deed Book 17, page 30, Register’s Office, Dunlap, Sequatchie County, Tenn. Note Book 2 page 71 Vol. 18 page 81. Special Warranty Deed from H.A.C. Development Corporation to Don L. Rystrom, recorded in the Register’s Office of Warren County, Tennessee in Deed Book 145, page 436.

Under date of February 9, 1967, a standard form warranty deed was executed by Rystrom and delivered to the Croswhites. It was never recorded. The deed to the sales barn property was executed and delivered to Rystrom on April 13, 1967. Suit was filed May 18, 1967.

Testimony for Appellants, the Croswhites

L. B. Croswhite testified that he owned a one-half interest in the Benton County Sales Barn, the other interest being owned by Sam Allen. They originally paid $100,000 for the property. At the time he delivered the deed for his interest to Rystrom, there was a balance of $38,000 owed on the property. Along with his interest in the auction sale, he conveyed his interest in the monies which were in two bank accounts. One was a custodial account to pay shippers for their livestock; the other was an expense account to pay for labor and merchandise.

Croswhite said Rystrom explained the condition of the title to the lands in Tennessee. Rystrom said he did not have an abstract but one would later be furnished by the corporation from whom Rystrom had purchased it. In the meantime Rystrom said “he would give me a deed for the land, that the land was there, I could use it, I could move on it, fence it, put cattle on it, or whatever I wanted to do with it”. The witness said Rystrom assured him that the only problem was delivery of the abstract.

It was one week after the conversation just related that the parties executed the sale and purchase contract. “One day about noon we sat down in my house between Rogers and Bentonville and wrote it out with a pen on a piece of? paper in longhand and that night my wife and I went over to Mr. Rystrom’s house and used his typewriter and my wife typed out the contract, as far as I know exactly as he and I had written it.”

About a week later the Croswhites received from Rystrom a warranty deed to the Tennesses lands. It was April before a deed to the sales auction property was delivered to Rystrom. The witness explained that the delay was because Rystrom did not want his deed until “a lawsuit on the sales barn” was concluded.

About mid-April, Croswhite went to Tennessee to look at the land. He found a new metal building on the property with fuel barrels around it, apparently used as headquarters for the servicing of trucks. On past that building he saw “where they had been using it cutting off big timber, putting out seedling pines, reseeding it and going down through the property; I don’t know what distance but there were people living on the left side, there were cattle pastured on it, new pasture that was up two or three inches, cattle was fenced in off the highway”. The witness consulted an attorney in McMinnville, Tenn., and it was stipulated at the trial that if the attorney were present he would testify that he had examined the appropriate land records and concluded that the records did not reflect good and merchantable title in Rystrom. On his return to Benton County, Croswhite said he discussed the situation with Rystrom and the latter said “to give him time and he would get it all cleared away and he worked at it. He made several phone calls to try to get the abstract squared away. To this date, it has never been squared away; I have never received good title to the property-”

With regard to the doubts expressed in the contract about the title to the Tennessee lands, Croswhite said on cross-examination that Rystrom “explained to me that this corporation was indebted to him to bring all the taxes and paperwork up to date and when he got them he would turn them over to me and he didn’t want to be held responsible for back taxes and stuff like that and that’s why we put it in there”. The witness conceded he never instituted any action in Tennessee to clear the title.

Witness Kenneth Campbell testified he heard a brief conversation between Croswhite and Rystrom wherein Rystrom said they would have to get an abstract and that in the meantime Croswhite could go ahead and fence the land and use it. He could not estimate the date of the conversation.

Testimony for Appellee Rystrom

Rystrom first introduced several written documents. One-was a special warranty deed to the Tennessee lands from H.A.C. Development Corporation. The grantor agreed to “warrant and forever defend all and singular the rights vested in it to the said premises unto the said Grantee (Rystrom), against every person whomsoever lawfully claiming or to claim the same or any part thereof, by, through and under it, but no further or otherwise”. Another exhibit was a contract between the same parties executed shortly after the special warranty deed. H.A.C. agreed to pay all unpaid taxes and to do certain curative work on the title. The third exhibit was a commitment from a title insurance company in which it agreed to issue title insurance, subject to specified curative work. One of the requirements was to produce a certain deed in H.A.C. Development’s chain of title. That deed was subsequently produced and recorded. We perceive the purpose of the recited exhibits was to show that a title company went so far as to issue a binder policy and that certain requirements for curative work were performed, all before the date of the contract between the parties to this litigation.

Rystrom testified that the reference in the contract of sale and purchase as to Rystrom’s not having a clear title was inserted to confirm the understanding between the parties that there might be defects in Rystrom’s title. The witness said Croswhite had never requested Rystrom to join in a suit to cure the title. It was not disputed that after the sales contract was signed Rystrom made several calls to Tennessee trying to help cure the title but he could not get in touch with one Cozad who seemed to be claiming some equity. Rystrom said that subsequent to those efforts he offered to cancel out the contract if Croswhite was not satisfied; however, he said Croswhite did not want to back out, that he wanted the lands in Tennessee.

On cross-examination Rystrom conceded that he had previously listed the Tennessee property with a local real estate agent, Rex Bowlin; that the latter went to Tennessee and looked into the title; that Bowlin reported back to him “that the land had been owned by and the taxes paid on it for more than twenty years by the Hiwassee Lumber Company”. Bowlin abandoned his listing. Rystrom said he told Croswhite about a claim by Hiwassee but that Croswhite still wanted to trade “as is”.

When questioned as to why he signed a warranty deed to the Tennessee lands, Rystrom said he would not deny the signature but that he did not remember signing an instrument styled “Warranty Deed”.

Rystrom took over possession of the one-half interest in the Sales Barn when he received his deed, which was April 13, 1967. Since that time, payments have been made out of the profits toward retirement of the bank mortgage. The business has concededly been profitable each year.

Rystrom said that after the deeds had been exchanged and just a few days before this suit was filed he offered to cancel the deal; he quoted Croswhite as saying he did not want the sales barn property, that he wanted the Tennessee land.

Witness Harley Clark said Croswhite had related to the witness that he had sold his interest in the sales barn in exchange for some farm property. He said Croswhite related that the title was cloudy but he thought it could be cleared.

Witness Sam Allen was the owner of the other one-half interest in the auction. He recited that some time before the sale and purchase was closed, appellee Rystrom made the statement in the presence of the witness and Croswhite that he had learned the title to his Tennessee property was worthless. Later, so the witness testified, Croswhite related that he had completed the trade and the witness inquired why he would trade his interest in the sales barn for land with a worthless title. To which question he said he received no reply. (On rebuttal, Croswhite denied both incidents.)

We have concluded that the case must be reversed. We agree with appellant that the agreement respecting the sale of the Tennessee lands merged into the warranty deed subsequently issued. Also, it is apparent that Rystrom did not own good and merchantable title to those lands.

It is hornbook law that an agreement made for the sale of lands merges into a deed subsequently executed; however, if there be a showing of mutual mistake of fact, a misrepresentation, or perpetration of a fraud, the merger is not consummated. Duncan v. McAdams, 222 Ark. 143, 257 S.W. 2d 568 (1953). The presumption is that all prior negotiations merge into the instrument of conveyance. Mills v. Deniston, 227 Ark. 463, 299 S.W. 2d 195 (1957). It became the duty of Rystrom to overcome that presumption. Duncan, supra. Rystrom did not meet his burden.

In the case at bar there is no showing, in fact no contention, that there was a mutual mistake of fact; no misrepresentation by Croswhite is alleged to have been made in the procurement of the warranty deed; and certainly fraud on the part of Croswhite was not established. It is clear to us that there may have been a mistake of law, that is, the lack of an understanding of the legal effect of executing the deed.

Rystrom here contends (as he did in the court below) that in the event of rescission he should be refunded the monies he paid the Bank of Bentonville on a mortgage executed by the sales auction barn. His contention is grounded on the theory that in case of rescission the parties should be restored to status quo. 55 Am. Jur., Vendor and Purchaser, § 603. Because of the disposition of the case the trial court did not rule on the point. Furthermore, the evidence on the point was scant, being nothing but the bare statement of the amount paid on the mortgage from Rystrom’s share of the profits of the business. Since the case is being reversed, we remand so that the trial court may rule on the question of restitution, and permit the parties, if they desire, to take further testimony thereon.

Reversed and remanded.


source: Caselaw Access Project

author: John A. Fogleman, Justice.

license: Public Domain

text:
    John B. MAY and Aileen B. MAY v. UTAH HOME FIRE INSURANCE COMPANY
    73-238
    506 S.W. 2d 123
    Opinion delivered March 11, 1974

      Rice L. Van Ausdall, for appellants.

      Douglas Bradley and Jon R. Coleman, for appellee.
   John A. Fogleman, Justice.

This is an appeal from a judgment of the Circuit Court of Poinsett County dismissing, with prejudice, appellants’ complaint seeking recovery under two insurance policies issued by appellee. The facts are not in dispute and the only question on appeal is the correctness of the trial court's interpretation of the policy provisions.

On April 21, 1972, an outdoor awning, which was attached to and in direct contact with and supported by a building owned by appellants, was damaged by a windstorm. The amount of the damage was stipulated to be $736.45. The parties also stipulated that the two insurance policies issued by appellee covering the structure were in full force and effect on the date of the loss. The only issue is whether such a loss was covered by the policies. The two policies, Uniform Standard Arkansas Form 18 (Edition November 1970), contain the following identical pertinent provisions:

SECTION I. — DESCRIPTION OF COVERAGE
A. BUILDING COVERAGE: when the insurance under this policy covers a building, such insurance shall also cover additions and extensions attached thereto; and fixtures, machinery and equipment constituting a permanent part of and pertaining to the service of the building.

This coverage also includes:

(a) outdoor awnings . . . which are attached to and in direct contact with and supported by the building (except as excluded or limited below), . . .
BUILDING EXCLUSIONS — LIMITATIONS
(2) Outdoor awnings . . . are not covered unless attached to and in direct contact with and supported by the building and subject to the 80 per cent or'higher Coinsurance Clause; or unless specifically insured under a separate item.
SECTION IV. — PERILS INSURED AGAINST

This policy insures against all direct loss caused by:

1. FIRE AND LIGHTNING
2. REMOVAL
This policy is extended to insure against loss by the following perils as hereinafter provided, only when rate and premium for EXTENDED COVERAGE are inserted in the spaces provided on the first page of this policy or endorsed hereon.

3. WINDSTORM AND HAIL . . .

Unless liability therefor is assumed in the form attached to this policy or by endorsement hereon, this Company shall not be liable for damage to the following property:
(d) When outside of buildings,
(3) awnings including their supports, . . .

Appellants contend the two preceding sections are subject to doubt as to whether Section IV. 3. (d) (3) was intended to restrict the coverage given by Section I. A. (a) and therefore any doubt must be resolved against the party who prepared the contract. Appellants argue that, since the first section limited coverage of awnings to a definite type of awning described in the section and the latter section contains no description of the awnings which would not be covered for windstorm and hail damages unless liability was expressly assumed, this latter section was intended to refer only to awnings of a type not described as covered in Section I.

Appellants correctly state our rule that any doubt as to the meaning of the language used in a contract of insurance will be resolved against the insurer. See American Republic Life Ins. Co. v. Edenfield, 228 Ark. 93, 306 S.W. 2d 321. However, the rule has no application in this case since we find there is no ambiguity in the pertinent provisions of the policy. In order to accept appellants’ premise, we would have to read into the policy a limitation that plainly is not there. When a policy of insurance is unambiguous we cannot construe it to attain a different meaning. McDaniel v. Missouri State Life Ins. Co., 185 Ark. 1160, 51 S.W. 2d 981.

This is basically a fire policy with certain “extended coverages.” Section I. sets out the extent of the coverage on the structure and its contents. Section IV. designates the seven perils, including windstorm and hail, the covered structure is insured against. Only in 3. (d) (3) of Section IV., covering windstorm and hail damages, is the coverage for awnings excluded unless expressly provided for. Damage to awnings resulting from any of the other perils insured against would be covered. Thus, the policy clearly provides that awnings of the type described in Section I. will be covered against all the perils set out in the contract except windstorm and hail, without any further endorsement, but in respect to windstorm and hail damages such awnings would not be covered unless the liability is expressly assumed in the form attached to the policy. There is no such endorsement on the policy. Any other interpretation would be contrary to the clear provisions of the policy.

The judgment is affirmed.


author: J. Fred Jones, Justice.

text:
    HARRIS CATTLE COMPANY v. Hosea PARKER
    73-257
    506 S.W. 2d 118
    Opinion delivered March 11, 1974

      Laser, Sharp, Haley, Young & Boswell, P.A., for appellant,

      Kenneth C. Coffell, for appellee.
   J. Fred Jones, Justice.

This is a workmen’s compensation case in which the employer, Harris Cattle Company, appeals from a circuit court judgment affirming an award made by the Workmen’s Compensation Commission to Hosea Parker, the injured employee. The question before the Commission was whether Parker’s disability associated with two “bulging” intervertebral discs was caused by injuries he sustained in the course of his employment. The Commission found for Parker and awarded compensation and medical benefits to be continued until the end of the healing period, still to be determined, and the award of the Commission was affirmed by the circuit court. On appeal to this court the cattle company contends that there was no substantial evidence to support the award of the Commission, because Parker failed to prove by medical evidence a causal relation between his disability and injury sustained in the course of his employment.

Parker testified that he was 64 years of age and had worked for the Harris Cattle Company since February 16, 1969, doing farm work and working with cattle. He said that in August, 1971, he was injured while engaged in hauling hay for the cattle company. He said that on that date he was engaged in unloading hay and his back was injured when he was pinned between a hay loader and the cab of a truck which had been driven, by a fellow-employee, too close to the hay loader. He said he remained pinned between the two vehicles for approximately 15 minutes before other employees were able to extricate him. He said his foreman, Mr. Moore, arrived on the scene soon after the accident and offered to send him to a doctor, but that he thought he would soon be all right and so advised his foreman. He said he continued on the job with the same employer but the pain in his back and legs continued to grow worse until on the morning of December 14 he had difficulty getting out of bed and got in touch with his foreman and was taken to the University Hospital. He said he was released from the hospital on January 6, 1972; that he attempted to go back to work on January 18 but reinjured his back in February when lifting a bale of hay and had to go back to the hospital. He said Dr. Don Williams performed an operation on his back and that he is still under the care of the doctors at the University Hospital. He said he has not been able to work since February 25; that he is still having difficulty with his back and both legs and has been advised by the doctors that he needs additional surgery. Parker testified that his employer, Mr. Harris, paid him $42.90 a week from February, 1972, until September 18, 1972, when Mr. Harris told him that the insurance people had told him to pay no more. He said that his compensation payments were started in February when he actually fell out after jerking his back and reinjuring it in handling a bale of hay. He said that when he jerked his back on this occasion, his resulting pain was at the same spot in his back where it was injured when he was pinned between the truck and the loader and where he had been having the trouble with his back all along. He said that following the February injury Mr. Harris told him not to say anything to anyone from the insurance company about his injury in August.

Will Sanford, a fellow-employee, testified that he was working for Harris Cattle Company two or three years before Parker started working there. He said he did not actually witness the accident in August when Parker was injured because he did not arrive on the scene until after Parker had been released from between the truck and hay loader. He said he does not know how long Parker remained off from work, but that he does know Parker was not able to carry his part of the work after he did come back on the job following his August injury. He said he had to carry a part of Parker’s work following the injury in August, but that prior to the injury Parker had helped him build fences and “put out” crossties without difficulty.

Charlie Moore testified that he was foreman for the Harris Cattle Company in August, 1971, and that Parker worked under his supervision. He said Parker was injured in August and while he was not an eyewitness to the accident, he arrived on the scene soon after it happened. He said Parker continued working with a truck on the day of his accident, but that the other employees did the work and Parker was just out there. He said Parker did help haul some hay following his injury in August and prior to his hospitalization in December, but that following the August accident Parker complained of his legs going to sleep. He said he took Parker to the hospital on December 14 and assisted him in getting into the building. Mr. Moore testified that he told the employer, Mr. Harris, that Parker was injured on the job in the latter part of August and so far as he knows, no one connected with the Harris Cattle Company ever denied that Parker sustained his injury while on the job.

On cross-examination Mr. Moore testified that following the August accident, Parker continued to complain of pain in his back and legs, but that he did not take Parker to the hospital until he was called and told that Parker couldn’t move. He said that Parker did not ask him to take him to the hospital until December and that as far as he knows, he did not see a doctor until then. He said that an insurance company representative contacted him in regard to the matter and took a tape recording from him. He said he told the insurance representative exactly what he knew about the accident, and that the company knew Parker got hurt in August when he got pinned against the loader.

Several medical reports were introduced into evidence by Parker without objection. A report from the Department of Neurosurgery of the University of Arkansas Medical Center over the typed names of Drs. S. Flanigan and Ron Williams shows that Parker was examined on December 15, 1971; that he had low back pain radiating to the right hip and thigh; that the pain was increased by coughing and that Parker had obtained very little relief from conservative therapy. Under the headings of “Hospital Course” and “Final Diagnosis” appear the following:

“The patient was admitted to the Neurosurgery Service on 12-30-71 and was maintained at bedrest and alangesics. [sic] On 1-4-72, a lumbar myelogram was done without difficulty. There was a large defect on the right at the L-4, L-5 interspace with a smaller defect on the left. The patient was advised that he probably had a herniated nucleus pulposus and operation was advised. He did not wish an operation at this time; however, he preferred to be discharged. He had no difficulty following the myelogram, and was discharged on 1-5-72.

Herniated nucleus pulposus.”

The subsequent medical reports reveal that on March 7, 1972, bulging discs were surgically removed from the L-3-4 and L-4-5 vertebral interspaces; that Parker’s pain was relieved by the surgery and he was discharged from the hospital on March 15, 1972.

The uncontradicted testimony of Parker and his witnesses constitutes substantial evidence that Parker sustained two accidental injuries to the same area of his back while in the course of his employment, and that pain in the injured area, associated with numbness in the legs, continued, and grew progressively worse, from the date of injury until it was relieved by the surgical removal of two ruptured or “bulging” discs.

The appellant does not seriously question the occurrence of the accidents or the extent of Parker’s disability. The appellant simply argues, in effect, that causal relation between accidental injury and physical disability must be affirmatively established by medical evidence and that Parker failed to make such proof in this case. There is substantial evidence of Parker’s injuries and his disability following the injuries. The existence and removal of the bulging discs are not questioned. The medical reports were offered in evidence without objection and without cross-examination. It is true that the medical reports do not say that Parker sustained his bulging discs when he was pinned between a hay loader and a truck in August, 1971, or when he lifted a bale of hay in February, 1972. There is substantial evidence that he suffered pain and disability following both incidents, and that the pain was relieved by the removal of two bulging discs in March, 1972. The medical reports do not say that the bulging discs and associated disability were not caused by the accidental injuries as testified to by Parker and his lay witnesses. There is substantial evidence from the testimony of Parker as well as others who were working in the field with him in August, 1971, including the testimony of his foreman, that he did sustain an injury in August, 1971, and complained of pain in his back and legs from the date of that injury until he was unable to get out of bed in December, 1971. The pain persisted and continued to grow worse until he finally underwent surgery in March, 1972, when the offending discs were removed and the pain subsided.

We deem it unnecessary to extend this opinion by quoting at length from prior opinions. The burden is, of course, on the claimant to prove a causal relation between his condition and his employment. Holland v. Malvern Sand & Gravel Co., 237 Ark. 635, 374 S.W.2d 822. We have previously indicated, and now so hold, that it is not essential to an award of benefits in every workmen’s compensation case that the causal relation between the accident and disability or condition be established or proven by medical evidence or testimony. We are of the opinion that each case should be determined on its own facts and merits as to whether medical evidence is necessary or essential in establishing causal relation and in the case now before us we conclude that it was not. In Sneed v. Colson Corp., 254 Ark. 1048, 497 S.W.2d 673, we said:

“The appellee contends that expert medical testimony is essential to establish causal relationship of the injury to the cervical condition suffered by Mr. Sneed and seems to argue that the Commission must rely on medical evidence only for such purpose. * * *
Certainly we recognize that expert medical opinion and evaluation would be desirable and perhaps beneficial to the Commission in most any type of case where physical injury is involved. Indeed it is just common sense that medical evidence may be essential to a determination of causal relation between some types of injury and some types of physical conditions following such injuries. We also recognize that expert medical testimony is expensive to an injured workman and is not essential to the exclusion of all other evidence in establishing a causal relation between some types of injury and some types of conditions following such injuries.”

In Hall v. Pittman Constr. Co., 235 Ark. 104, 357 S.W.2d 263, we said:

“Cases such as this one present problems that gradually and almost imperceptibly progress from issues of law to issues of fact. 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. Clark v. Ottenheimer Bros., 229 Ark. 383, 314 S.W.2d 497. But if the disability does not manifest itself until many months after the accident, so that reasonable men might disagree about the existence of a causal connection between the accident and the disability, the issue becomes one of fact upon which the commission’s conclusion is controlling. Kivett v. Redmond Co., 234 Ark. 855, 355 S.W.2d 172.”

See also Eddington v. City Electric Co., 237 Ark. 804, 376 S.W.2d 550; Siders v. Southern Mattress Co., 240 Ark. 267, 398 S.W.2d 901.

The 1969 Illinois case of Gubser v. Industrial Comm’n, 248 N.E.2d 75, was a compensation case with facts very similar to those in the case before us. In affirming an award by the Industrial Commission in that case, the Supreme Court of Illinois said:

“This court’s holdings are that it is primarily the function of the Industrial Commission to resolve disputed questions of fact, including those of causal connection and the extent of disability.”

Then after reviewing the claimant-appellee’s testimony as to his continued pain from the occurrence of the accident up to the medical diagnosis, the court said:

“No testimony was presented by the appellant or any evidence other than the two medical reports, to meet what would be a natural inference in support of the appellee’s claim following his testimony and consideration of the reports. * * * The reports the appellant did offer contained nothing as to the causation of the appellee’s back condition and were not inconsistent with the appellee’s testimony and medical reports..
* * *
Contrary to the appellant’s position, it was not necessary that causation be established through the testimony of a medical witness. Our observation in Union Starch & Refining Co. v. Industrial Com., 37 Ill. 2d 139, at 144, 224 N.E.2d 856, at 859, is pertinent: ‘We know of no case requiring a doctor’s testimony to establish causation and the extent of disability, especially where, as here, the record contains the company doctor’s report and hospital records showing findings of the employee’s personal physician which are consistent with the employee’s testimony.’ ”

The Illinois Court then distinguished the case before it from its decision in a previous case where the testimony offered by the employer attributed the claimant’s physical complaint to a non-traumatic degenerative process rather than to trauma sustained in employment.

The 1971 South Carolina case of Arnold v. Benjamin Booth Co., 185 S.E.2d 830, was also a compensation case of back injury with facts very similar to those in the case at bar, except in Arnold the appellee-claimant offered no medical evidence at all. In affirming an award made by the Commission, the South Carolina Supreme Court applied the “reasonable inference” doctrine and stated as follows:

“Circumstantial evidence and lay testimony can be sufficient to support a finding of causal connection in a Workmen’s Compensation case. Such evidence need not reach such a degree of certainty as to exclude every reasonable or possible conclusion other than that reached by the Commission. It is sufficient if the facts and circumstances proved give rise to a reasonable inference that there was a causal connection between the disability and the injury. Whether the absence of medical testimony is conclusive on the question of causation depends upon the particular facts and circumstances of the case. Mize v. Sangamo Electric Co., 251 S.C. 250, 161 S.E.2d 846.”

See also Rollins v. Wunda Weve Carpet Co., 177 S.E.2d 5.

We conclude that the Commission in the case at bar had a right to consider all the evidence before it in determining the causal relation between Parker’s accidental injury and his protruding discs. We further conclude that the Commission was justified in drawing a reasonable inference from all the evidence before it, that there was a causal connection between Mr. Parker’s accidental injuries and disability and disc lesions found and removed by the doctors. We are of the opinion, therefore, that there is substantial evidence in the record before us to sustain the award of the Commission and that the judgment of the circuit court should be affirmed.

The judgment is affirmed.


text:
    Orvind Clay BOWEN and Eva Jane BOWEN, Husband and Wife v. Bob Sherel PERRYMAN and Betty Joyce PERRYMAN, Husband and Wife
    73-258
    506 S.W. 2d 543
    Opinion delivered March 11, 1974

      Niblock, Hipp & Odom, for appellants.

      Evans, Carson & Ludwig, for appellees.
   J. Fred Jones, Justice.

This is an appeal by Orvind Clay Bowen and his wife from an adverse chancery court decree in a suit filed by Bob Sherel Perryman and his wife against the Bowens to quiet and confirm title to 9.31 acres of Benton County land. For convenience the parties will hereafter be referred to in the singular as Bowen and Perryman.

Both Bowen and Perryman claim title to the same portion of the 9.31 acre tract through overlapping descriptions in their muniments of title and they both deraign the title they claim to the disputed area through a common grantor, Audie Eagle. According to a surveyor’s plat offered in evidence, and for the purpose of this opinion, the entire tract actually consists of 9.91 acres lying east and west in the form of a 375 foot wide parallelogram, with its east end bounded by Springdale Ellis Ford Road. A private gravel road runs roughly in a northwest-southeast direction across the tract, thus dividing it into northeast and southwest portions with the northeast portion, as designated on the plat, containing 4.73 acres more or less, and the southwest portion containing 4.63 acres more or less. In the southwest portion of the tract there appears a plot designated three-fourths acre in the form of a parallelogram measuring 100 feet north and south by 300 feet east and west, with its south line coinciding with the south line of the entire tract. Bowen admittedly owns this three-fourths acre plot by deed not in question. The property that is in question is a part of the 4.63 acres in the southwest portion of the tract lying north and west of Bowen’s three-fourths acre plot and between it and the graveled private roadway.

It appears that on October 25, 1966, Audie Eagle and his wife acquired the entire tract of land involved here from Mr. and Mrs. Robert Luper and Ras Autry by warranty deed. The property was described in the deed as follows:

“Beginning at the southeast corner of the north 30 acres of that part of the north half of the northeast quarter of section 21, in township 18 north, range 29 west, which lies west of the. middle of the Springdale and Ellis Ford Public road as said road is now laid out and running thence west 1329.9 feet, thence south 375 feet, thence east 1121.3 feet, thence north 208.6 feet, thence east 208.6 feet, or to the middle of said public road, as now laid out, thence north 16 degrees and 42 minutes east with the middle of said road 182.9 feet to place of beginning.”

This deed description includes the three-fourths acre plot subsequently sold to Bowen and was filed for record on November 8, 1967. Bowen’s deed to the three-fourths acre was from Luper and was dated December 13, 1966, and filed for record February 6, 1967. Bowen lives on the three-fourths acre.

Under date of October 25, 1967, Mr. and Mrs. Eagle executed a mortgage on the above described property to Robert L. Spencer and his wife to secure the payment of $6,000 payable at $70 per month. On the same date, and apparently simultaneously with the execution of the mortgage, Mr. and Mrs. Eagle executed a warranty deed conveying the property to the Spencers. The mortgage was filed for record on November 8, 1967, but the deed was not filed for record until November 16, 1971. The evidence is not clear as to the details of this transaction but it appears that Mr. Eagle was employed by Spencer when Eagle borrowed $6,000 from Spencer and executed the mortgage and deed. The evidence is clear that both instruments were left in the First State Bank of Springdale where the payments were to be made. The evidence is rather clear that when Mr. Eagle concluded he would be unable to continue payments on the mortgage indebtedness, Mr. Spencer refunded a part or all of the amount Eagle had paid; recorded his deed on November 16, 1971, and four days later, on November 20, 1971, executed a warranty deed transferring the property to the appellees, Perryman and his wife Betty. This deed was Filed for record on December 2, 1971, and apparently in connection with this transaction on November 19, 1971, the Perrymans executed a mortgage on the property to the Spencers to secure the payment of $8,000 payable in monthly installments of $80 each. The mortgage was filed for record on November 30, 1971. The land description as above set out, was the same in all of these transactions and encompassed the 100x300 foot plot already referred to as belonging to the appellant Bowen.

On September 22, 1969, Mr. and Mrs. Eagle entered into a written contract with Mr. and Mrs. Bowen designated “Contract For The Sale Of Land.” This contract is copied in full and appears as follows:

“This contract made and entered onto [sic] on this the 22nd. day of September, 1969, by and between Audie Eagle and Nettie Eagle, his wife, hereinafter known as the sellers, and Clay Bowen and Eva Bowen, his wife hereinafter known as the buyers.
The sellers hereby sell to the buyers, and the buyers agree to purchase from the sellers, the following described lands situated in Benton County, Arkansas, to-wit:
Beginning at the southeast corner of the north 30 acres of that part of the north half of the northeast quarter of section 21 in township 18 north, range 29 west, which lies south of the middle of the private road running east and west said road is now layed out running west to line then south to line joining land owned by Pete Sigman then east to land owned by buyers then north to point of beginning. Land described is four and 1/4 acres more or less. Buyers agree to pay sellers the sum of $1700 with $1200 down and $25 a month, with no interest until the [sum] of $500 is paid.
Beginning 22nd. October, 1969.
Said seller agrees to furnish clear title to said land when balance is paid.”

When the contract between Eagle and Bowen was entered into on September 22, 1969, the mortgage from Eagle to Spencer was on record as of November 8, 1967, but the deed from Eagle to Spencer was not filed for record until November 16, 1971, three days before Spencer sold to Perryman. In other words, when Eagle entered into the contract with Bowen, the record title was still in Eagle subject to Spencer’s mortgage, and it was over one year before Spencer recorded his deed and sold the property to Perryman.

According to Mr. and Mrs. Bowen, they went into immediate possession of the property under their contract with Eagle. They said they built a barn, sowed pasture grass and dug a stock pond on the property; that they had no notice whatever that anyone else claimed title to the property until sometime after they built a new barbed wire fence, in place of an old one, along the south side of the private road. They said that after Perryman had the property surveyed in June, 1972, he claimed title to the property under his deed from Spencer.

On June 29, 1972, Perryman filed his suit against Bowen alleging an unbroken chain of title to the property as described in his deed. He deraigned title from the United States Government through Eagle and Spencer and alleged that he and his predecessors in title had entered into possession of the lands and established definitely defined lines and corners which had remained for more than 30 years, and he alleged pedal possession in himself and his predecessors in title for more than 25 years. Perryman acknowledged in his complaint the conveyance of the 100x300 foot plot from Luper to Bowen and alleged that, notwithstanding the description in his deed, Bowen had encroached upon Perryman’s land; had recently erected a fence thereon and “fences out 4.63 acres plus or minus of the plaintiffs’ land.” The complaint then prayed a mandatory injunction requiring Bowen to remove the fence line and replace the land in its prior condition; for $5,000 in damages for trespass committed by Bowen, and that title be quieted and confirmed in Perryman.

The chancellor found from the evidence submitted that Perryman was entitled to the relief he prayed, and title to the property as described in Perryman’s deed, with the exception of the 100 x 300 foot plot described in Bowen’s deed, was confirmed in Perryman. Bowen was ordered to remove his fence and posts from the property and was enjoined from interfering with Perryman in the erection of fences along the boundary lines of his property as confirmed in the decree.

On appeal to this court Bowen contends, for the first time, that the chancery court did not have jurisdiction of the subject matter in dispute because Perryman was not in possession of the land when his suit was filed and was, therefore, not entitled to have his title quieted in equity. We agree with Perryman that this contention is controlled by our decision in Green v. Garrett, 225 Ark. 311, 280 S.W. 2d 905, where we held, in a similar case, that the objection went to the adequacy of the remedy at law; that it was waived when not timely interposed, and was clearly too late when raised for the first time on appeal. See also Love v. Bryson, 57 Ark. 589, 22 S.W. 341. Bowen next contends that the chancellor’s finding that title should be quieted in Perryman is contrary to the law.

We agree with Bowen, that under the evidence in the record before us, he was a bona fide purchaser without notice when he entered into his purchase contract with Eagle on September 22, 1969, (signed before notary October 13, 1969) because on that date the deed from Eagle to Spencer had not been filed for record and only the mortgage from Eagle to Spencer had been filed for record. The deed from Spencer to Perryman was not even executed until November 20, 1971. There is nothing else in the record that would have put Bowen on notice that Eagle did not have good title subject to ■ the mortgage with right of redemption.

Of course, Bowen’s sale contract was not filed for record when Perryman received his deed from Spencer and when his and Spencer’s deeds were recorded. Both parties recognize ■and reh' on Ark. Stat. Ann. § 16-115 (Repl. 1968) which provides as, follows:

“No deed, bond, or instrument of writing, for the conveyance of any real estate, or by which the title thereto may be affected in law or equity, hereafter made or executed,' shall be good or valid against a subsequent purchaser of such real estate for a valuable consideration, without actual notice thereof; or against any creditor of the person executing such deed, bond, or instrument, obtaining a judgment, or decree (which by law may be alien upon such real estate), unless such deed, bond, or instrument, duly executed and acknowledged, or proved, as is or may be required by law, shall be filed for record in the office of the clerk and ex officio recorder of the county where such real estate may be situated.”

All of the transactions were for value so we are of the opinion that the question should turn on whether Perryman was a bona fide purchaser without notice when he purchased the property from Spencer. As already pointed out, there was nothing of record that would place Perryman on notice of the prior sale of the property to Bowen, so the question comes down to whether Perryman had actual notice of matters which should have put him on inquiry as to the interest claimed by Bowen when Perryman purchased the property from Spencer.

The law is well-settled in Arkansas that a second purchaser will be deemed to have actual notice if the first purchaser shows by a preponderance of the evidence, that the second purchaser had notice of such facts and circumstances as would put a man of ordinary intelligence and prudence on such inquiry if diligently pursued, would lead to knowledge of his rights. Sufficient notice to incite attention, put a party on guard, and call for inquiry, is notice of everything to which the inquiry might lead and whenever one has sufficient information to lead him to a fact, he shall be deemed conversant with it. We have also held that proof of sufficient notice to place the junior conveyee on inquiry may be established by circumstantial evidence. Wyatt v. Miller, 255 Ark. 304, 500 S. W. 2d 590, and cases there cited.

In Woods v. Wright, 254 Ark. 297, 493 S.W. 2d 129, we said:

“It was only necessary that appellee show by a preponderance of the evidence that appellant had notice of such facts and circumstances as would put a man of ordinary intelligence and prudence on inquiry which, if diligently pursued, would lead to knowledge of his rights. Grayson v. Hughes, 166 Ark. 173, 265 S.W. 836; Valley Planing Mill Co. v. Lena Lumber Co., 168 Ark. 1133, 272 S.W. 860. Such proof may be made by circumstantial evidence. Krow & Neumann v. Bernard, 152 Ark. 99, 238 S.W. 19. Whatever is notice enough to excite attention, put a party on guard and call for inquiry is notice of everything to which the inquiry might lead, and whenever one has sufficient information to lead him to a fact he shall be deemed conversant with it. Henderson v. Ozan Lumber Co., 216 Ark. 39, 224 S.W. 2d 30; Millman Lumber Co. v. Bryant, 213 Ark. 277, 209 S.W. 2d 878. See also Holloway v. Eagle, 135 Ark. 206, 205 S.W. 113; Love v. Bryson, 57 Ark. 589, 22 S.W. 341; Reynolds v. Moseley, 32 F. 2d 979 (8th Cir. 1929). We find no error in this respect.”

In Grayson v. Hughes, 166 Ark. 173, 265 S.W. 836, we stated the rule in language as follows:

“To overcome Grayson’s plea of innocent purchaser, it was only necessary for appellees to show by a preponderance of the evidence that he had actual knowledge of their equities, or that he had notice of such facts and circumstances as would lead to knowledge by inquiries made by a man of ordinary intelligence. Krow & Neumann v. Bernard, 152 Ark. 99.”

In Valley Planing Mill Co. v. Lena Lbr. Co., 168 Ark. 1133, 272 S.W. 860, we said:

“The rule is: ‘Notice of facts putting a man of ordinary prudence on inquiry is tantamount to knowledge of the facts to which the inquiry might lead.’ Holloway v. Eagle, 135 Ark. 206, and cases cited therein.”

See also Henderson v. Ozan Lbr. Co., 216 Ark. 39, 224 S.W. 2d 30; Millman Lbr. Co. v. Bryant, 213 Ark. 277, 209 S.W. 2d 878.

Mr. Harvey D. Luttrell testified that he made a survey of the property involved at the request of Mr. Perryman and made the plat which was offered in evidence. He said he was prevented from making a complete and accurate survey of the entire tract but was only able to complete an accurate survey of the 4.73 acres on which Mr. Perryman’s house was located. He said he attempted to follow the description in Mr. Perryman’s deed; that a gravel drive or roadway divided the property approximately in half, with 4.73 acres more or less on which Mr. Perryman’s house was located on the northeast side of the roadway and 4.60 acres more or less on the southwest side of the roadway. He said there was a fence along the southern edge of the gravel roadway; that there was a barn and what appeared to be cow sheds southwest of the fence. He said the gravel roadway was approximately 12 feet wide and extended completely through the property and the fence was along the south side of the gravel road.

Mr. Robert Spencer testified that he executed the deed to Perryman; that he had never been on the land and did not know that Mr. Bowen was claiming any interest in any of the land embraced in the description of the deed he gave to Perryman. He said he did not examine the deed records but only followed the same description in his deed from Eagle. Mr. Spencer was very vague and indefinite concerning the transaction between himself, Eagle and Perryman. The substance of his testimony was simply to the effect that Eagle worked for him and was about to lose the land he had purchased, so he loaned Eagle some money and Eagle gave him a mortgage and also a deed to the property; that the mortgage and deed were deposited in the bank where Eagle was to make the payments; that when Eagle was unable to continue the payments, he sold the land to Perryman and reimbursed Eagle the amount he had paid. He testified that the First State Bank of Springdale was collecting the payments from Eagle and that he was simply not familiar with the recording of the deeds. He said that when he sold the land to Perryman, he was not familiar with what he intended to convey, but that when Mr. Eagle abandoned the property, he simply refunded to Eagle $1,500 of the amount he had paid on the property and signed a deed to Perryman. He said he had been by the property but had never been over it and did not know anything about the fences or roadway across the property.

Mr. Perryman testified that he purchased the property from1 xMr. Spencer and paid for it with the money he borrowed from the First National Bank. He denied that he gave a mortgage back to Mr. Spencer. He said he; discussed the deal with Mr. Eagle and Mr. Spencer in Spencer’s office, and that Eagle told both of them that there was a little less than 10 acres in the tract. He said that he first became aware someone might have been claiming a part of his land when he saw some of Clay Bowen’s livestock on it. He said he had the land surveyed and found that about four acres of his land had been fenced out. He said his survey line ran about one inch from Bowen’s house on the Bowen three-fourths acre but he is not claiming the three-fourths acre because Bowen lives on it.

On cross-examination Mr. Perryman testified that the fence Mr. Bowen built south of the road across the property belongs to him because it is on his land, and that Mr. Bowen had him put in jail for cutting the fence. He said the fence is a six strand barbed wire fence. He said that he lived on the north portion of the property and paid rent to Mr. Eagle for one month before he purchased the property. He then testified as follows:

“Q. And you lived there a month, did you run any livestock on the premises?
A. No. Chickens was all.
Q. And then you started thinking about buying the property?
A. Right.
Q. Did you walk over it?
A. Not all of it. Cause I didn’t know where it was at.
Q. You still don’t know either, do you?
A. Yes, I do.
Q. How much of it did you walk over?
A. Well I went all the way down that road, but I didn’t go on this other property because there was livestock in there and I didn’t know for sure what the deal was on it.
Q. All right, and you walked along this road, is that road along that fence, where it was surveyed?
A. Yes.
Q. You walked on this side of the fence, on the North side of the fence?
A. Right.
Q. All the way through?
A. Right.
Q. Now does the fence stay with the road all the way through?
A. Yes..
Q. Or does it leave the road and go down in the draw, almost to the West end?
A. Almost to the West end it does, yes.
* * *
Q. Now you walked over this property here and you didn’t get over this fence because there was livestock in there and it had been cleaned off and permanent grass sowed?
THE COURT: Now that’s South?
A. I didn’t want to go on nobody else’s property until I found out where the lines was.
Q. All right, so you was out there at that time?
A. No, I didn’t go over at that time until after I decided to buy it.
Q. All right, and you dediced to buy this on the North side of the fence because you didn’t know what the status of this South of the fence was?
A. I bought just exactly what was on the deed.
Q. Just exactly what was on the deed?
A. That’s right.
Q. When did you make that decision?
A. It was in October when we decided to buy it.
Q. All right, that’s when you decided to buy it, October the 2nd you started renting out there, didn’t you?
A. Yes.
Q. So it was some time in November or later that you decided to buy it?
A. The last part of October we decided to buy it.
Q. And you had walked over this land inside or North of the fence then before you bought it?
A. No.
Q. All right, when did you do that?
A. It was just shortly after I bought it.
Q. Just shortly after you bought it?
A. Yes.
Q. And you saw these cows over there and you didn’t know what the score was so you didn’t go over there?
A. That’s right.”

Mr. Perryman denied that he had ever told anyone that the land survey made from his deed description showed more land than he thought he had purchased and as to the improvements, on cross-examination, he said:

“Q. Now what other improvements are there on the Clay Bowen property South of the fence as shown on the plat?
A. There’s a barn and some small pens, hog pen, and there’s a well.
Q. All right, is there a stock pond?
A. Yes.
Q. Has the Clay Bowen property been cleaned up and is it down in permanent pasture?
A. I don’t think it’s in permanent pasture, no.
Q. Has it been cleaned up?
A. It’s been cleaned up.
Q. And livestock has been running in there?
A. I don’t think there’s any there now.
Q. None at all?
A. Not that I know of now.
❖ * *
Q. Now does he have some other buildings just North, or outside of that three-quarter acre?
A. Yes, he has a barn.
Q. On property claimed by you?
A. Yes, the barn.
Q. And where is it located with reference to this North line of the three-quarter acres?
A. It would be North of this three-quarters of an acre. It would be North of the three-quarters of an acre.
Q. Now what size building is that, Mr. Perryman?
A. I didn’t look at it that close. I didn’t, until it was straightened out, I just figured I would stay completely away from all of that.
Q. When was it built?
A. It’s a new barn, it’s not very old.”

Mr. Bowen testified that his home is located on the three-fourths acre tract and that in 1969 he purchased the additional land here involved from Eagle. He said that following the purchase from Eagle, he went into immediate possession. He said that an old three strand barbed wire fence was along the northeast line of the property he bought and was on the south side of the road across the property, and that he erected a new six strand barbed wire fence in its place. He said he built the fence about two months after he purchased the property. He said he then built a barn on the property, cleaned up the land and sowed grass on it, and built a stock pond. He said he has livestock running on the property. He said he had only had one conversation with Mr. Perryman concerning the property and that was in 1972. He said that Mr. Perryman told him on that occasion that he thought he had bought only five acres but that according to his survey, he had purchased ten acres and that all he wanted was what belonged to him.

Mrs. Bowen testified in part as follows:
“Q. Now on the last acquisition from Mr. and Mrs. Eagle, have improvements been made on that property?
A. Yes, sir.
Q. What type of improvements?
A. We have cleaned off three of the fields, sowed it in grass, built a barn, had a pond built, and put the fence up.
Q. And where did you put the fence up?
A. Around along down the road that divided Eagle’s property from the part we bought from them.
Q. And what kind of fence was that?
A. Six strand barb wire fence.
Q. Do you know who put that fence up?
A. Yes, sir.
Q. Who did?
A. Me and my husband Clay..
Q. And what year was the fence erected?
A. Just after we bought the property.
Q. In ’69?
A. Yes.
Q. Now at the place where you located the fence that you helped to put up, was there a then fence in place?
A. Yes, sir.
Q. And what kind of fence was it?
A. There was three strands of old barb wire.”

Mrs. Bowen testified that the gravel road across the property leads to the Younger McGarrah’s land lying north of their property. She testified that she talked with Mr. Perryman when he was having the survey made and she stated as follows:

“. . . Í went out there to see what they were doing, and the surveyor, he introduced hisself, and I was talking to Mr. Perryman — I didn’t even know him at the time — and he told me who he was and he said that when he moved out there he thought it was five acres, but that it turned out to be ten, and he wanted what was his.”

Audie Eagle testified that he purchased the property in 1966 and understood there was nine and one-fourth acres in the tract. He said that Bob Perryman bought the property in 1971. He said he rented the property to Perryman before Perryman purchased it. He said he rented it to Perryman on October 2, 1971, and that Perryman lived there under the rental arrangement until he purchased it in November. He was then asked if he had sold any of the property before the Perryman transaction, and he said:

“A. Me and Clay Bowen made a deal there, and there’s a fence down across there, it was on the South side of the road there and the road went down across the land there and I could not fence across the road, and there was a bankmqnt down there that I couldn’t get up through there, so we made an agreement ourselves, and that’s the way it stood.
* * *
Q. Mr. Eagle, at the time you and Mr. Bowen made the agreement which you testified to, where do the lands that you and he agreed on lay in relation to the road that crossed the property?
A. Laid on the South side.
Q. Now where did the road run to and from that crossed this property?
A. Right to th( center.
Q. Sir?
A. Right in the center of the road, I mean field.
Q. Do you know whether or not there had been a fence there or was a fence being maintained along that road at that time?
A. Yes, sir.
Q. What kind of fence was that?
A. A three barb wire fence went right by the house on the South side of the road.
Q. Now is that fence still there?
A. Yes, sir, there’s a new fence running there.
Q. There’s a new fence there?
A. Yes, sir.
Q. What kind of fence is that?
A. It’s barb wire.
Q. Do you know who put that up?
A. Yes, sir.
Q. Who did?
A. Mr. Clay Bowen.
Q. How long was it after you and he put up the agreement that he put up the fence?
* * *
A. I’d say around, between a month and a half or two months, and I had to leave home out there at that time.
Q. Were you there when the fence was installed?
A. No, sir.
Q. How close to the location of the old fence was the new fence installed?
A. It’s right on the same property.”

Eagle was then asked about the sale price of the property to Perryman and he said:

“A. Well there never was no agreement on that. They just paid me $1,975.00.
Q. Who paid you that?
A. Well I got it from the bank down there. Bob Spencer and — 1 think is the one that paid me.”

On cross-examination Eagle testified that he had made a deed to Spencer and then testified as follows:

“Q. Then how did you sell to Mr. Perryman?
A. Well I rented the place, then I told him I didn’t have any use for it and if he wanted to buy it, and him and Bob Spencer made some kind of a deal about the place. Now I don’t know what kind of price he give for the place or nothing.”

Mrs. Etta Crane testified that she operates a grocery store and salvage yard near the property involved and is acquainted with Perryman as well as Bowen. She said she recalled when Mr. Perryman and Mr. Bowen were having some difficulty over their boundary lines. She said she knew that surveys were being made and that sometime following the completion of the surveys, Mr. Perryman was in her store and in answer to the question of what he said she testified as follows:

“A. Well the best I can remember he said he had bought five acres but he had had the surveyors in there and it was a little more than what he thought he had bought.”

She said she was not related to either of the parties and had no interest in the matter one way or the other.

On recall Mr. Perryman denied ever making remarks to the effect that his survey showed more land than he thought he had purchased.

From our view of the evidence in this case, on trial de novo, we are of the opinion that the chancellor’s decree is against the preponderance of the evidence. Mr. Bowen’s testimony as well as that of his wife and Mr. Eagle clearly indicates that Eagle sold a portion of his property southwest of the gravel road to Bowen in October, 1969; that Bowen paid a substantial amount on the purchase price and went into immediate possession. Their testimony is uncontroverted that within two months after Bowen purchased the property, he erected a six strand barbed wire fence along the south side of the gravel road as the north or northeast boundary line of his property, in the place of a three strand barbed wire fence that was already there; that he erected a barn and dug a stock pond on the property and that he cleaned it up and planted it in pasture grasses.

According to Mr. Perryman’s own testimony, he rented from Eagle and lived on the property northwest of the gravel road with the fence along the south side of it from October 2 until he purchased from Spencer on November 20, 1971. According to his own testimony, there were a barn, a few sheds, a well and stock pond on the property. He said he did not walk over all the property because he did not know where it was. He said he went all the way down the road along the fence but did not walk south of the fence and road because “there was livestock and I didn’t know for sure what the deal was on it.” He said he did not want to go on anyone else’s property until he found out where the lines were.

We are of the opinion that Mr. Perryman's own testimony reveals sufficient evidence to put Mr. Perryman on such notice of Bowen’s claim to a part of the property to have caused a reasonable person to make inquiry, and that had he made such inquiry of either Mr. Eagle or Mr. Bowen, he would have learned that Eagle had sold a portion of the property to Bowen approximately one year previously. We have not overlooked Perryman’s testimony under examination by the chancellor to the effect that it was shortly after he purchased the property rather than before when he walked over the land north of the fence and observed the cows on the south side of the fence. It seems incredible to us that Perryman did not at least observe the six strand barbed wire fence, and the buildings and improvements on the south side of it, during the month he rented and lived on the property north of the fence and during the time he was considering purchasing the property and his curiosity was only aroused shortly after he had closed the deal.

Perryman denied making statements that he had purchased more property by the description and survey than he thought he had purchased as testified to by Mr. and Mrs. Bowen and Mrs. Crane, an uninterested witness. Perryman also denied that he mortgaged the property to Spencer but the record contains a mortgage dated November 29, 1971, and filed for record on November 30, 1971, wherein Perryman and his wife executed a mortgage to Spencer and his wife to secure the payment of a promissory note of even date in the principal sum of $8,000, and bearing eight and one-half per cent interest and payable in monthly payments of $80 each, beginning on December 15, 1971.

The extent or validity of Bowen’s title under his contract with Eagle is not before us, but we conclude that Mr. Perryman was not a purchaser without notice of Bowen’s claim, and that the decree must be reversed and this cause remanded for further proceedings not inconsistent with this opinion.

Reversed and remanded.


author: Conley Byrd, Justice.

text:
    Leonard MORGAN v. C & C MACHINE SHOP, Inc., Employer and UNITED STATES FIDELITY AND GUARANTY COMPANY, Carrier
    73-269
    506 S.W. 2d 115
    Opinion delivered March 11, 1974

      Bullock & Shermer, for appellant.

      James K. Young, for appellees.
   Conley Byrd, Justice.

Appellant filed a claim for Workmen's Compensation for a hernia pursuant to Ark. Stat. Ann. § 81-1313(e) (Repl. 1960). The Commission denied his claim. For reversal appellant contends that since he called the doctor's office within 48 hours but was unable to get an appointment due to vacations, emergencies, a flood of patients, etc. in the doctor’s office he had complied with section 81-1313(e)(5). That section, in so far as is here pertinent provides:

“(e) Hernia: In all cases of claims for hernia it shall be shown to the satisfaction of the Commission: ... (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, ...”

Appellant testified as follows:

“Q. And you did not see the doctor until the following Monday?
A. The following Monday after the Thursday I got hurt, and I don’t know, as I say, I try to be an honest man, as honest as I know how to be to everybody.
Q. That’s right—
A. And it was on Saturday, I called [the doctor] about nine o’clock, and he asked me if it was an emergency. The secretary did, and I said, ‘Well I ain’t bleeding to death.’
Q. Well actually you weren’t hurting too bad, were you?
A. Well a hernia is funny. Any body that’s ever had one will tell you in a minute a hernia ain’t a real . . . when you pull it it will hurt for a little while, but then it will ease up, the pain will ease up. Well for a little while you will say maybe I pulled a muscle or something and go on about your business. If you ain’t very careful you will go on about your business.
Q. That’s what you did, wasn’t it?
A. Yes, sir, that’s what I thought.
Q. You did some welding Thursday afternoon?
A. I might have done a small bit. It wasn’t much.
Q. And then you did some welding, you worked Friday, went out on AP & L job and welded this tank?
A. Welded that oil tank.
Q. And put in a full day Friday?
A. Well I piddled around. I worked at AP & L. I can tell you exactly how long. I believe it was two hours and fifteen minutes.”

In Prince Poultry Co. v. Stevens, 235 Ark. 1034, 1038, 363 S.W. 2d 929 (1963), in construing this section of the Workmen’s Compensation Act we held that actual attendance of a physician or surgeon within the time limit was not under all circumstances a prerequisite to the allowance of a hernia claim but that the section did require that “ ‘. . . the claimant prove that the physical distress following the descent of the hernia was such as to require the attendance of a physician or surgeon . . . ’ ” within the time limit. As pointed out in Lashlee Steel Co. v. Dodridge, 250 Ark. 520, 465 S.W. 2d 691 (1971), the showing of physical distress to require the attendance of a doctor must be determined upon an objective test.

When appellant’s testimony with reference to the abatement of the pain is considered together with the fact that he continued to work for a day and a half after the occurrence, we cannot say that the Commission’s denial of his claim under Ark. Stat. Ann. § 81-1313(e) (5) is not supported by substantial evidence.

Affirmed.


author: Frank Holt, Justice.

text:
    WESTERN CASUALTY & SURETY COMPANY v. SMITH-CALDWELL DRUG STORE, Inc.
    73-245
    506 S.W. 2d 116
    Opinion delivered March 11, 1974
    11 ’right, Lindsey & Jennings, for appellant.

      Hall, Tucker & Lovell, for appellee.
   Frank Holt, Justice.

The appellee insured sought to recover #997.02 from the appellant insurer as a result of the theft of drugs from its premises after closing hours. The trial court, sitting as a jury, awarded judgment to the appellee. Appellant contends that the trial court erred in not granting its motion for a directed verdict in that the evidence was insufficient to sustain a judgment in favor of appellee. We agree that appellant is entitled to judgment as a matter of law after viewing the evidence and all reasonable inferences deducible therefrom most favorable to the appellee as we must do on appeal.

The appellant had issued to the appellee its open stock burglary insurance policy. By an amendatory endorsement, the policy required that a burglary be committed by a “felonious entry therein by actual force and violence, of which force and violence there are visible marks made by tools, explosives, electricity or chemicals upon, or physical damage to, the exterior of the premises at the place of such entry, or ... ” that similar visible signs of force and violence exist as to “the interior of the premises at the place of exit.” The testimony indicated that the thief went into a bathroom in the drug store during business hours and concealed himself in the bathroom ceiling which is suspended below the roof of the building. The building roof has no opening which would permit an entry into the bathroom ceiling. Visible signs inside the bathroom indicated that the thief managed to climb up and remove a tile in the bathroom ceiling in order to secret himself in that space until the store closed. The place of exit from the store was through the rear door by lifting a steel bar and turning the door knob. There was no evidence of force or violence on the exterior of the premises nor was there any such evidence at the place of exit. The only visible signs as to physical damage about the building indicating the presence of the thief were within the bathroom and ceiling where he hid until the store closed. Although we have no cases in our state directly in point with respect to the language in this particular open stock burglary coverage, the cases in other jurisdictions and secondary authority clearly exclude coverage in similar factual situations. The rationale for recognizing as valid the asserted exclusion of coverage is to prevent liability for “inside jobs” and to protect the insurer from fraud. 10 Couch on Insurance, § 42:129 (2d Ed. 1962). The cases are uniform in holding that where there are no visible marks or signs of force or violence at the place of entry or at the place of exit, then the unambiguous exclusionary language is controlling. Artress v. State Farm Fire and Casulaty Co., 221 Tenn. 636, 429 S.W. 2d 430 (1968), Leeds, Inc. v. Aetna Casualty and S. Co., 40 F. Supp. 966 (D.C. Md. 1941), Gray v. Great Central Ins. Co. of Peoria, 4 Ill. App. 3d 1084, 283 N.E. 2d 261 (1972), Clemmons v. Glens Falls Ins. Co., 2 N. C. App. 479, 163 S.E. 2d 425 (1968), Lacombe v. Zurich Ins. Co., 210 So. 2d 338 (La. App. 1968), Rauworth v. Commercial Ins. Co., 24 Ill. App. 2d 16, 163 N.E. 2d 846 (1959), and Lee v. Preferred Acci. Ins. Co., 216 App. Div. 453, 215 N.Y.S. 366 (1926). We cannot give to such unambiguous language an unnatural meaning. Cf., Citizens' National Bank v. Union Indemnity Company, 158 Ark. 398, 250 S.W. 329 (1923), where we held that no coverage existed when a safe was not time locked as required by the policy although it was locked by a combination lock. In the instant case since the theft was committed by stealth rather than by force or violence at the place of entry or exit, the plain and unambiguous requirements of the policy were not met and we cannot command coverage.

Neither can we agree with appellee’s contention that appellant’s motion for a directed verdict at the close of appellee’s evidence was waived when appellant’ put on evidence and failed to renew the motion after his evidence. Appellee cites the correct rule for jury trials. Price v. Daugherty, 253 Ark. 421, 486 S.W. 2d 528 (1972), McGehee Hatchery v. Rebecca Reed et al. 248 Ark. 104, 450 S.W. 2d 5 (1970), and Granite Mountain Rest Home v. Schwarz, Adm'r, 236 Ark. 46, 364 S.W. 2d 306 (1963). However, in the case at bar we are not dealing with a jury trial. We do not require a renewal of a motion for directed verdict at the close of defendant’s case in a trial where the judge is the finder of fact. Such procedure would be no more than a “useless gesture.” Manhatten Credit Co., Inc. v. Brewer, 232 Ark. 976, 341 S.W. 2d 765 (1961).

Reversed and dismissed.


text:
    Douglas Ray CHANEY v. STATE of Arkansas
    CR 73-162
    506 S.W. 2d 134
    Opinion delivered March 11, 1974

      Don Langston, Public Defender, and Hubert Graves, Dep. Public Defender, for appellant.

      Jim Guy Tucker, Atty. Gen., by: Alston Jennings Jr., Asst. Atty. Gen., for appellee.
   Frank Holt, Justice.

The appellant, charged with first degree murder, was found guilty by a jury of second degree and his punishment assessed at twenty-one years in the Department of Correction. On appeal from that judgment appellant first contends for reversal that the court erred in giving instructions on the lesser included offenses of second degree murder and voluntary manslaughter. The sufficiency of the evidence to support the jury verdict is not an issue on appeal. The thrust of appellant’s argument is that he was either guilty of first degree murder or nothing, based upon his plea of self-defense, and the instructions should be so limited. His trial strategy was to that effect. We find no merit in appellant's contention.

We have held that the procedure about which appellant complains is not error. Second degree murder is a lesser degree of murder and the giving of the instruction over appellant’s objection is not error. Smith v. State, 222 Ark. 650, 262 S.W. 2d 272 (1953), Rogers v. State, 136 Ark. 161, 206 S.W. 152 (1918), and Vasser v. State, 75 Ark. 373, 87 S.W. 635 (1905). Since second degree murder is a necessarily included lesser offense of first degree murder, it is within the trial court’s discretion to give the instruction upon request of the prosecutor even over defendant’s objection. See, e.g., Kurck v. State, 235 Ark. 688, 362 S.W. 2d 713 (1962), where we held it was not error to give an instruction for assault with intent to rape over defendant’s objection in a rape prosecution since assault with intent to rape is a necessarily included lesser offense. In the case at bar, let it be remembered that this was an adversary proceeding and the sufficiency of the evidence to support the verdict of second degree murder is not in dispute. The jury, as the fact finder, had the absolute right to evaluate the evidence. As to the voluntary manslaughter instruction, it was at most harmless and we perceive no prejudicial result from that instruction.

Appellant next contends that the trial court erred in refusing to give defendant’s proffered instruction on involuntary manslaughter. A sufficient answer to this contention is that we have held when a defendant is charged with first degree murder and convicted of that alleged offense, instructions being given on first and second degree, it is not error to refuse a manslaughter instruction. Williams v. State, 250 Ark. 859, 467 S.W. 2d 740 (1971), Walker v. State, 241 Ark. 300, 408 S.W. 2d 905 (1966), and Outler v. State, 154 Ark. 598, 243 S.W. 851 (1922). Similarly, in the case at bar, since the jury found appellant guilty of second degree murder, we perceive no prejudicial error in refusing to give appellant’s proffered instruction on involuntary manslaughter inasmuch as the jury was instructed on first and second degree murder as well as voluntary manslaughter. Further, involuntary manslaughter is not necessarily a lesser included offense of murder.

Appellant’s final contention is that the trial court erred in the modification of the appellant’s self-defense instruction. This modification consisted of the addition of the following paragraph:

Further, you are instructed that if you find that after a first quarrel occurred, that the alleged assailant, in this case Elmer Furr, had abandoned the attack but that it was later voluntarily renewed by the defendant Chaney and that Mr. Chaney then shot Mr. Furr after such renewal of the difficulty without sufficient necessity or justification as related in these instructions, and that such shooting caused the death of Mr. Furr, then the plea of self-defense would not prevail.

Appellant contends that the instruction was argumentative and a comment on the evidence. We do not agree. Ark. Stat. Ann. § 41-2236 (Repl. 1964) defines killing in self-defense:

In ordinary cases of one person killing another in self-defense, it must appear that the danger was so urgent and pressing, that in order to save his own life, or to prevent his receiving great bodily injury, the killing of the other was necessary, and it must appear also that the person killed was the assailant, or, that the slayer had really and in good faith, endeavored to decline any further contest, befort the mortal blow or injury was given. (Emphasis added.)

The undisputed evidence indicates that appellant and the deceased were involved in an altercation in a pool hall. After the appellant left, he returned armed, reentered the pool hall and the shooting occurred. Appellant’s theory of the case and evidence were based upon self-defense. The state’s theory and evidence indicated that the appellant was the aggressor. In order to properly instruct the jury it was necessary to relate and explain the applicability of self-defense. The court’s modification of appellant’s instruction simply further explained to the jury that the slayer must have “really and in good faith, endeavored to decline any further contest, before the mortal blow or injury was given.”

The trial judge’s instruction here has no such defect as in Hart v. State, 161 Ark. 649, 257 S.W. 354 (1924), upon which appellant relies. The challenged instruction points out that there must be “sufficient necessity or justification” for the shooting upon a renewal of the difficulty.

Affirmed.


author: Carletox Harris, Chief Justice.

text:
    W. W. GREIG Jr. et al v. CRAWFORD COUNTY Arkansas
    73-229
    506 S.W. 2d 523
    Opinion delivered March 18, 1974

      Batchelor & Batchelor, by: P'ines F. Batchelor Jr., for appellants.

      Floyd Rogers, Thomas B. Keys and Billy Pease, for appellee.
   Carletox Harris, Chief Justice.

This appeal relates to the condemnation of certain lands for highway purposes by the Crawford County Court. Appellants, W. W. Greig, Jr. and Eugene Symonds, along with four other landowners, filed a pleading entitled “Special Appearance and Motion to Quash”, contending, for reasons hereafter discussed, that the court had no jurisdiction. It was asserted that the taking did cause serious damage to the remaining property of the landowners. Subsequent amendments asserted that Arkansas Statutes relative to the condemnation, in conjunction with Amendment 10 to the Arkansas Constitution, violate Article 11, Section 22 of the State Constitution and the 5th and 14th Amendments to the Constitution of the United States, in that such statutes permit the taking of a defendant’s property without just compensation. On hearing, the County Court found that its order of condemnation was valid, and not violative of any statute or constitutional provision of either this state or the United States, and that the landowners had sustained no damages by reason of the entry and rendition of the condemnation order. From this order, there was an appeal to the Crawford County Circuit Court wherein that court found that it was without jurisdiction to determine the validity of the order of condemnation entered by the County Court; that “defendants did further present to this Court the question of the invalidity of Amendment 10 to the Arkansas Constitution, insofar as it permits the taking of property without compensation, if the County is without funds for the year of taking, as being violative of Article 11, Section 22 of the Constitution of the State of Arkansas and the 5th and 14th Amendments to the Constitution of the United States of America***' The court further found that despite this ruling and though noting objections, appellants thereafter had gone to trial on the question of damages to their property, and that in so doing, had waived their right to question the condemnation order. Proof was presented to the jury on the • issue of damages and a verdict returned for the county in all cases. From that judgment, appellants bring this appeal. For reversal, thirteen points are asserted which we proceed to discuss, although not necessarily in the order in which they are listed.

It is first asserted that the trial court erred in holding that it was without j”risdiction to determine the validity of the County Court condemnation order upon appeal.

The order of the Circuit Court does not state why the court held that it was without jurisdiction, and we are inclined to consider this holding erroneous. Ark. Stat. Ann. § 76-917 (Repl. 1957) provides the right of appeal by the landowner from the County Court to the Circuit Court where such landowner is not satisfied with the amount of damages allowed. In Carter v. Randolph County, 146 Ark. 221, we held that any action taken under what is now Ark. Stat. Ann. § 76-917 was appealable under the general right of appeal conferred by Section 1487. Appeals under this section are taken in the manner provided by Ark. Stat. Ann. § 27-2001 (Repl. 1962), and this section is synonymous with Section 1487 of Kirby's Digest except that the latter did not contain the words “ of the proper county” following the words “clerk of the Circuit Court”. It thus appears that this holding of Crawford County Circuit Court was erroneous, and it also appears that the court's holding to the effect that appellants had waived the right to challenge the validity of the order because of pursuing the issue of damages was also erroneous. The “Special Appearance and Motion to Quash” protected appellants against such a waiver. In Smith Chickeries v. Cummins, Judge, 224 Ark. 743, this court said:_

“It is also the rule that a defendant may, after duly making a special appearance objecting to jurisdiction, appear on the merits with the jurisdictional question expressly reserved, and retain the right to present the issue of jurisdiction on appeal.” [Citing cases.]

However, we hold that the court’s finding that it was without jurisdiction to review the validity of the order was harmless error because the county is not required to follow the steps that are necessary for a landowner initiated petition. Appellants’ “Special Appearance and Motion to Quash” prayed that the condemnation order be quashed due to failure of the county to set a hearing within 30 days of the filing of the petition for condemnation, failure to publish notice of the hearing in any newspaper, failure to serve notice of the order of condemnation, lack of a return of service by the Sheriff, and insufficient County funds to pay alleged damages. Section 76-917 provides two methods of condemnation; one by the county on its own decision without a petition, and the other being initiated by the petition of five landowners. Prewitt v. Warfield, 203 Ark. 137. Ark. Stat. Ann. § 76-917 and Ark. Stat. Ann. § 76-926 (Supp. 1973) have identical language for the most part except that the last mentioned statute also provides that the County Court Order of Condemnation be served on the affected landowner, and a return filed. Section 76-926 also sets out that the claim for damages can be filed twelve months from the date of the service of the condemnation order. The case of Arkansas State Highway Commission v. Cook, 233 Ark. 534, 345 S.W. 2d 632, points out that Section 76-917 is ostensibly defective, in that it makes no provision for the giving of notice to the landowner whose property is being taken. It is further stated that a landowner is entitled to a hearing upon the issue of compensation. It appears, therefore, that Section 76-926 was passed by the General Assembly for the purpose of correcting such defect.

The record in this case is very confusing; in fact, the 1971 County Court Order of Condemnation is not even in the record but, from the over-all picture, it appears that it was a “county originated” order. This being true, the challenge to the order by appellants relying upon statutory requirements for a “citizen petition based” order would not have any basis to defeat the validity of a “county originated” order. Accordingly, the court’s holding was harmless error since the requirements relied upon by appellants were not in issue as regards the validity of the order and their challenge could not have been sustained.

It is asserted that the trial court erred in remarking to the jury that if there was no taking of land, appellants would not be entitled to any damages. The remark was incorrect and should not have been made, though it does appear that an instruction was. given which permitted the granting of such damages. At any rate, since the case must be reversed on other points, we need not here further discuss the contention.

It is then contended that the court erred in permitting the County Judge to testify that an earlier condemnation order that established the present road, wherein certain portions of land owned by appellants were taken, called for an 80 foot right-of-way. This order, according to remarks of the court, was already in evidence; in fact, a copy of the order and amended order appear in appellants’ abstract as Exhibits 5 and 6 offered by appellants. Here again, the record is incomplete as the exhibits do not appear in the transcript. If the order had been offered into evidence, we are unable to determine how appellants could have been prejudiced.

The appellants allege error was committed by the court in holding the date of taking in this case as April 1, 1971 and in instructing the jury to that effect. The appellants cite Arkansas State Highway Commission v. Dobbs, 232 Ark. 541 as supporting their contention that the date of taking is the date of actual entry. However, they go on to state that it might well be argued that the Legislature intended to change the date of taking to the date of the order by enactment of Act 387 of 1965.. It appears that the later statement is the better view. In the cases prior to Act 387 of 1965 (Ark. Stat. Ann. §§ 76-926 — 76-928) the court required entry on the condemned land to provide notice to the landowners when they were not given actual notice of the Condemnation Order. This was held necessary to provide a hearing for damages where the time for filing claims had run during the period prior to the landowner’s notice or knowledge of the order condemning his property. Under Ark. Stat. Ann. § 76-926, a claim for damages cannot be presented after twelve months from the date of the service of the Condemnation Order, thus avoiding any possibility of a landowner being denied a hearing on damages due to the lapse of the filing period where he had no notice. It is evident that the important fact is notice, not the actual entry, though this last has been construed as actual notice. In this case it is not shown when appellants received notice of the 1971 order but they did file a claim for damages within twelve months of the entry of the order. Under the provisions of Ark. Stat. Ann. § 76-926 and the facts of this case, there appears to be no prejudice in setting the date of the order as the date of taking.

Under point V, it is argued that the court erred in admitting into evidence certain plans relating to the road. Here again, the testimony is confusing. These plans, depicting the area of condemnation, the amount of land to be taken, and other pertinent data, were offered by Mack Bolding, an independent appraiser, and appellants object because, as they assert, there was no showing that these plans were reasonably accurate and correct, and such a showing should have been required of appellee before the plans could be properly admitted. This statement of the law is correct. See Howell v. Baskins, 213 Ark. 665, 212 S.W. 2d 353. The court only permitted Bolding to refer to the plans which reflected the actual area examined by the witness, and only for the purpose of illustrating his testimony. However, it is not shown that these plans were the same plans that the Highway District Engineer had already testified from, and this, of course, should have been shown. Since the case is being reversed on other grounds, further discussion of this point is unnecessary.

Points VI, VII, VIII, and IX will be subsequently discussed.

Points X and XI relate to cerain statements made by the Prosecuting Attorney, acting on behalf of the county, in his argument to the jury. The record does not reflect what the Prosecuting Attorney said, only the objections made by appellants’ counsel. The burden is on appellants to furnish a record which would contain the facts asserted to be error, and since no such record is before us, we certainly cannot say that error was committed.

Under point XII, it is asserted that the trial court erred by making statements amounting to a comment upon the weight of the evidence. This point relates to rulings made by the court on objections made to the remarks of the Prosecuting Attorney and we do not agree that these rulings amounted to a comment upon the weight of the evidence.

Point XIII asserts that Arkansas condemnation laws and Amendment 10 to the Arkansas Constitution are violative of Article II, Section 22 of the State Constitution and the 5th and 14th Amendments to the United States Constitution. It would appear that this argument relates to a contention that 1971 funds were not available from which damages could be paid for the taking. We find this argument to be without merit. Though we cannot approve the entire finding of the Circuit Court in the judgment rendered, other than the finding that Amendment 10 is not violative of other constitutional requirements, the landowner has the right to enjoin the taking of his property until a bond or other security has been furnished to secure payment for any damages incurred. Where there is no adequate remedy at law, the landowner can go into Chancery Court and, upon proper showing, seek and obtain an injunction to prohibit the taking of his land until necessary guarantees for payment for any damages are afforded. Independence County v. Lester, 173 Ark. 796, 293 S.W. 743.

We now return to points VI, VII, VIII and IX wherein we have concluded that the court erred, thus requiring a reversal of the judgment. As to point VI, it is asserted that the court erred in holding that appellants must include in computing the before and after value of their lands, contiguous land that they claim was not affected by the taking. In Arkansas State Highway Commission v. Poteete, 245 Ark. 430, 432 S.W. 2d 774, we held that in determining whether a property owner is to be compensated for an entire tract or just that portion actually taken, the controlling principle is separate and independent utilization as opposed to a connected or unity of use. Accordingly, as here, where one of the appellants says that only 20 acres of the 40 acre tract were involved and appellee contends that all 40 acres are involved in determining damages, the court holding with appellee, error was committed, as the question of whether the total tract was affected was one that should have gone to the jury.

Points VII, VIII and IX all relate to the 1956 condemnation order which order appellee contends was not involved in the case. We cannot agree. Though no pleadings are found in the record directing an attack upon this order, the issue was evidently injected at a pre-trial conference since the record does reflect a motion by Crawford County, moving for a continuance and also moving that the cause be transferred to Equity, the motion setting out that appellee had just learned that the appellants were disputing an existing 80 foot right-of-way for Highway 162, “being 40 feet on each side of the center line, as it relates to the abutting property” of appellants; “that the existing right of way for Highway 162 is by virtue of an order of the Crawford County Court in 1956; and calls for an 80 foot right-of-way for Highway 162, being 40 foot on each side of the center line of said highway as it relates to the property of the Defendants, and Plaintiff will need additional time to prepare its case on the issue of the validity of its 1956 County Court Order”; it was further asserted that this constituted an attack upon the validity of the County Court order of 1956, as well as a title dispute dispute to the property involved, and the matter should be transferred to Equity for the purpose of having these questions determined prior to the issue of just compensation. Again, there is no order in the record to show the disposition of this motion, but it would appear, of course, under subsequent developments, that the motion was denied. Nonetheless, under the evidence, it would appear that the 1956 order was involved.

Testimony on the part of appellants reflected that it was their contention that the full amount of land condemned in the 1956 condemnation order was never entered upon or used in constructing the road; it is further asserted (by testimony) that they had no notice of the order, and since there was no actual taking to put them on notice (as they contend) damages can still be claimed for land, though condemned, but not used under the 1956 order. This is a correct statement of law. In Arkansas State Highway Commission v. Dean, 236 Ark. 484, 367 S.W. 2d 107, we said:

“This court has consistently held that an action of the State Highway Department in improving and paving an existing road is insufficient to put adjoining property owners on notice that additional lands were being taken so as to set in motion the one year statute of limitations for the filing of claims for the taking of lands under a county court condemnation order.” [Citing cases]

While there is evidence !ft the record that one of the appellants assisted in obtaining the right-of-way under the 1956 condemnation order, this appellant also disputed the location of the boundaries, stating that he had originally built his fence on the right-of-way line and that the Department, in 1971, put markers 10 to 12 feet inside of the fence. The County Judge testified that the 1956 condemnation order called for an 80 foot right-of-way, though he stated that he had no way of knowing whether notice was actually given in 1956 and he did not know whether the center of the road was located at the same place as called for in the condemnation order.

While it may well be that, under the testimony, the jury would have found against appellees, nonetheless, we think an issue pf fact was raised which required the giving of appellees’ Requested Instructions Nos. 2, 3, and 4, reading as follows:

“Land Owner’s Requested Instruction .No. 2"'
“You are instructed that if the land owners here, or any of them, received no actual or constructive notice of the entry of the 1956 Condemnation Orders until the commencement of this litigation, such owner or owners as had no knowledge or notice will be entitled to compensation for any damages sustained by reason of any additional taking, appropriating or damaging of their property now occurring, even though the 1956 Condemnation Order may have included such property, but actual possession of said property had not been taken prior to the present taking.
“Land Owner's Requested Instruction No. 3
“The burden of proof of actual or constructive notice of the 1956 Condemnation Orders is upon the county.
“Land Owner’s Requested Instruction No. 4
“The burden of proof of the location of the center line of Kibler Road or State Highway 162 at the time of the Condemnation Order in 1956 is upon the County.”

As stated, we are of the view that these instructions should have been given and because of the errors mentioned in points VI, VII, VIII and IX, the judgment of the Crawford County Circuit Court is reversed, and the cause remanded for further proceedings not inconsistent with this opinion.

       Only Grei^ and Symonds have filed an appeal in this court.

       This sdetion is substantially the same as Act 422 of the Acts of 1911 which amended Section 7328 of Kirby’s Digest.

       From the judgment: “Amendment 10 to the Arkansas Constitution neither violates Article 2, Section 22 of the Constitution of the State of Arkansas nor the 5th and 14th Amendments to the Constitution of the United States of America even though it permits taking of defendant’s property for public purposes, and prohibits the compensation for damages sustained unless there are funds for the County available for the year of the actual taking from which said damages can be paid, even though the landowners might take all actions left open to them under the laws of the State of Arkansas to prohibit such taking without just compensation therefor, ***.”

       This case refers to “Amendment No. 11 to the State Constitution”. See 1927 Supplement to Crawford & iMoses Digest (Castle). The language at issue is now found in Amendment No. 10.