text:
    Pauline Adams Harper v. Elgin C. Hannibal et ux
    5-4009
    408 S. W. 2d 591
    Opinion delivered November 28, 1966

      Smith, Sanderson, Stroud & McClerkin, for appellant.

      Audrey & Qoodson, for appellee.
   Gut Amsler, Justice.

The appellees, Elgin C. Hannibal and his wife Gladys own and reside on a 150 acre farm-ranch located inside the horseshoe formed by “Adams cut-off lake” in Little River County, Arkansas. Due to a change in the river channel caused by flood waters some years ago the land is presently situated on the Miller County side of Red River. Appellees’ property is located in Section Twenty-Six (26), Township Thirteen (13) South, Range Twenty-Seven (27) West.

Appellant, Mrs. Pauline Adams Harper, owns considerable acreage to the west and south of appellees in Sections Twenty-Seven (27) and Thirty-Four (34), Township Thirteen (13) South, Range Twenty-Seven (27) West. This litigation involves the use of a road that runs from appellees’ home across appellant’s farm and out through her barn yard to a public road that connects with “the loop road,” near appellant’s home.

Appellee, Elgin Hannibal, purchased his land in two transactions — one parcel in 1937 and the other in 1944. Title to the Harper land has been in appellant’s family for over 100 years (Mrs. Harper was a daughter of L. C. Adams, the previous owner). Appellees moved into an old house on their property in early 1946 and later built a new home. During the period that Elgin Hannibal was in the military service in World War II his brother Fred (now deceased) looked after the place for him and proof is that by permission of Mr. Harper (appellant’s deceased husband) Fred, at times, used the road in dispute.

At the time appellees moved onto their porperty it could be reached from the north over the Shults place or across the Harper plantation. In 1947 the road leading north “caved” into the river and thereafter the only access to appellees’ property was over the Harper farm. There were some half dozen gates, cattle guards and gaps between the first gate near Mrs. Harper’s home, and the gate farthest north which was on the property line between the parties. Some of these gates were kept closed all of the time and others only during periods when cattle were grazed in certain areas. There were times when one (or more) of the gates was kept locked, when Mr. Harper who died in 1957 was living, wih all parties having access to a key or keys.

The road across appellant’s farm, which is referred to as “originally being a log road”, is now (and has for many years been) used daily by appellees and their families and friends. Elgin Hannibal (one appellee) works at the Red River Arsenal and travels over the road twice each Avnrk day in going to and from his employment. Appellees have three children of school age who travel this route to reach the school bus that runs close to appellant’s home. The road is also used in transporting stock and farm products to market and for such other travel as is normally done by an average family and their friends.

Effective April 15, 1965, appellant gave appellees notice that she would no longer permit them and their visitors to pass through the gates and other enclosures on her land, and that if they undertook to do so they would be considered trespassers.

Thereafter appellees instituted proceedings in equity seeking injunctive relief against appellant and alleging that a public and private easement across appellant’s lands had been established because:

(a) The prescriptive use of plaintiffs and their predecessors in title and by the public for over 40 years.

(b) It has been worked by the county (Ark. Stat. Ann. § 76-101).

(c) Of Ark. Stat. Ann. § 76-104 relating to most direct route to the County Courthouse of 10 or more families.

(d & e) It is used as a mail and school bus route (Ark. Stat. Ann. §§ 76-105 and 106).

(f) It constitutes a way of necessity.

(g) Defendant (appellant) is estopped because of:

“. . . . the long and continued reciprocal use of the said roadway by the Defendant and her predecessors in title across the said lands of the Plaintiffs to that portion of the lands of the Defendant and her predecessors in title north of Adams Cut-Off Lake in the said Section thirty-five (35) above described. ’ ’
(h) “An easement in favor of the Plaintiffs has been established by estoppel as a result of the Defendant and her predecessors in title encouraging the said Plaintiffs to make substantial improvements upon the said roadway from time to time and to expend at one time an amount in excess of one thousand five hundred ($1,500) dollars for gravel and grading work on the roadway on the Defendant’s lands.”
(i) “The Defendant and her predecessors in title have granted a perpetual easement in the said roadway to the Plaintiffs and their successors in title and the same has been taken out of the Statute of Frauds by part performance by the Plaintiffs in their expenditure of substantial sums upon the said roadway and in their continued use of the said roadway for more than twenty-five (25) years under claim of right.”

The relief sought was that appellant be enjoined temporarily and finally from:

“interfering with the use of the said roadway for ingress and egress to and from Plaintiffs’ home and lands by the said Plaintiffs, their children, and the Plaintiffs’ social and business invitees.”

that she:

“be restricted to the use of only such cattle gaps, cattle guards, and cattle gates as may be reasonably necessary for her use of said lands; that Plaintiffs be permitted, at their expense, to construct suitable cattle guards in said roadway as replacements for cattle gaps and gates found to be reasonably necessary for the Defendant’s use of her land and that said Plaintiffs be allowed to make reasonable maintenance and repairs to said roadway.”

and that she be:

“restrained from interfering with the maintenance and repair of said roadway by Miller County, the State of Arkansas, or any other Local or State Governmental Unit which is willing to perform maintenance and repairs to the said roadway.”

Prior to trial the parties agreed that the road running from the “loop road” to the mail boxes located near appellant’s home was a public roadway so that the controversy is reduced to a dispute over that part of the traveled way extending from the appellant’s front yard, across her farm to the property line between the parties.

The lower court issued a temporary order on April 14, 1965, and then on the following January 17th issued its final decree granting appellees substantially the relief sought. The case is here on timely appeal.

Appellant relies on four principal points for reversal and appellees cover three points in their brief. In our view the two crucial questions in the case are whether appellees have established a prescriptive right to use the roadway and whether appellant is estopped to deny appellees passageway over her property.

The attorneys have, in their excellent briefs, cited literally dozens of authorities from this and other jurisdictions and to undertake comparing, distinguishing and analyzing all of them would be redundant and add little of value to our opinion.

In considering the question of appellees’ claimed prescriptive right we are at the outset confronted with a brief statement contained in the opinion of Special Justice Sol F. Clark in Johnson v. Lewis, 47 Ark. 66, 14 S. W. 466, ivhere in commenting on the acquisition of a prescriptive right across another’s land he wrote: “It should be occupied and used' as a right, and not merely as a favor or privilege granted by the owner of the servient lands.”

The Supreme Court of the State of Washington stated the rule more succinctly:

“A user AAdiich is permissive in its inception cannot ripen into a prescriptive right, no matter how long it may continue, unless there has been a distinct and positive assertion by the dominant owner of a right hostile to the owner of the servient estate.” Northwest Cities Gas Co. v. Western Fuel Co., Inc., et al, 123 P. 2d 771.

And our own court in the late case of Still v. Still, 239 Ark. 865, 394 S. W. 2d 733, said:

“It is well settled that the holding of land by permission can not ripen into an adverse or hostile right until notice is brought home to the owner and holding has continued thereafter for the statutory period. Fry v. Grismore-Hyman Co., 151 Ark. 44, 235 S. W. 373; Fulcher v. Dierks Lumber & Coal Co., 164 Ark. 261, 261 S. W. 645; Harp v. Christian, 215 Ark. 833, 223 S. W. 2d 778; Bailey, Trustee v. Martin, 218 Ark. 513, 237 S. W. 2d 16.”

For cases from other jurisdictions see Adverse Possession Key No. 60, American Digest System.

The legal principle being well established we must then determine how the law squares with the facts in the case at bar. In reality there is not a great measure of factual difference reflected by the evidence.

Appellee Elgin C. Hannibal’s brother Fred had looked after Elgin’s farm while Elgin was away on military duty and during that time had arranged with Mr. Harper (appellant’s deceased husband) to use the farm road in dispute. Elgin knew of this arrangement. It appears that this road also caved into the river once or twice and that Elgin, with Mr. Harper’s permission selected another location and had some work done on the new road. Appellees say they never discussed the use of the road with appellant.

A review of the evidence of witnesses for both parties points up the fact that appellant at all times undertook to maintain constant control over the use of the road in question.

A witness for appellees who “worked a little bit” of their land in 1950 used the road across the Harper property for traveling back and forth while doing the farming. He was asked, “She (Mrs. Harper) rides herd on that road pretty closely, does she not?” His answer was, “I think so.”

Another witness for appellees, who had known the parties and their farms since he was eight years old and whose father had leased the Hannibal land some years back, now lives on Route 4 out of Texarkana. He stated that during the fishing season, “I’d go back over there all the time to visit the Hannibals or fish. ’ ’ Then:

“Q. Have you had any difficulty in driving over there to the Hannibals any of the time since you have been going over there getting through the roadway?
A. You mean difficulty from them or the road, or what?
Q. Yes, Mr. Harper or Mrs. Harper?
A. I’ve been stopped about going in there; I mean, they never did just tell me absolutely I couldn’t.”

This witness also testified that he didn’t believe that Mrs. Harper had ever caught him going in, but that Mr. Harper would tell him it was a private road, “but he never did just tell us we absolutely couldn’t go through. ’ ’

Appellee Elgin Hannibal testified that some of the gates were closed part of the time and that one (perhaps two) was closed all the time. A significant bit of evidence by this witness was adduced to the effect that he cautioned his visitors to not leave gates open:

“Q. That’s people who came in to see you and your ownself?
A. Yes, sir, and all the people that come to see me I said, ‘Take care of Mrs. Harper’s gates; don’t let nothing in or out.’ ”

A witness for appellant (defendant below) who bought some timber from appellees in 1962 was concerned about a route for hauling the timber out so he discussed the matter with appellee, Elgin Hannibal. He testified:

“ Q. At that time did you and he have a discussion as to how you could haul the timber out, the logs out?
A. Yes, sir.
Q. As nearly as you can, relate the conversation, the words you used, and the words Mr. Elgin Hannibal used at that time, about how you were going to haul the logs out.
A. I asked Mr. Elgin how I was going to haul that timber out, and he said, ‘Back up the road there.’ He said, ‘The old road that you came in there before, it’s all in the river. You will have to go out through Mrs. Harper’s place.’ I said, ‘Do you mean to tell me’ I says, ‘all those gates is posted?’ He says, ‘She doesn’t mind it.’ I said, ‘But the road goes right through her yard. ’ He says, ‘ She doesn’t mind it.” He says, ‘You can ask her; she is a mighty nice lady. I don’t think she will object.’ I did ask Mrs. Harper, and she gave me permission. ’ ’

Appellees say the county did work on the road and this appears to be true but there was never any effort by the county judge or appellees to comply with statutory requirements for establishing a public road. It is to be noted that even with respect to this work the determined will of Mrs. Harper was controlling.

Judge B. B. Lanier, who served as Miller County Judge from 1953 to 1963, after explaining that he arranged with Mrs. Harper to straighten the road leading from the loop road up to her house (and for making a turn around) testified:

“Q. She said she didn’t want a public road in where now?
A. On into her farm.
Q. From what spot?
A. From the gate.
Q. Turn-around gate ?
A. From the turn-around gate.
‘ ‘ Q. What instructions did you give your road crew about going beyond the turn-around road that you talked about?
A. I told them to talk to Mrs. Harper; I didn’t want to get crossways with her, and she told me what to do and that’s what I did.”

Members of the road crews that worked under Judge Lanier and other county judges with rare exceptions testified that they graded the road in dispute only when told to do so by the county judge.

Perhaps the most damaging circumstance against appellees is the continued maintenance of gates across the roadway by Mrs. Harper. It is undisputed that the gates (and “gaps”) were there and that some, if not all, of them bore “Posted — No Trespassing” signs.

In the ancient ease of Jones v. Phillips, 59 Ark. 35, 26 S. W. 386, this court dealt with a problem very similar to the one confronting us here. From 1860 to 1884 or 1885 a road passed through the fee owner’s field (Jones) with a gate where the road entered the field and a gate as the road left the field. Sometimes the gates were locked with keys furnished the owner’s neighbors who would use the road; other times the gates were not locked and anyone could use the road who pleased.

The trial court decided that the public had acquired prescriptive rights to use the road. In reversing, this court said in part:

“But while they permitted the public to thus use this piece of road through their field, there is no evidence that they surrendered any of their rights or dominion over the same in any manner whatever, but continued at all times to exercise just such control over the same as any farmer would over a private road through his plantation, which he is willing that his neighbors and such of the public as chose to do should make use of for their convenience.
“The owners of this property have never ceased to keep gates or fences where it (that is, the road) enters this field on either side. They have, therefore, never ceased to exercise dominion absolute or qualified over this passageway. The public, therefore, cannot be said to have held at any time adversely to the owner.”

We think the rationale of Jones v. Phillips, supra, is sound and that it is controlling in this case regarding the prescriptive rights claimed by appellees.

Appellees say that appellant is estopped because they (appellees) spent $1,500 or more in improving the road over the years that it has been used by them and that appellant “stood by” and knowingly permitted them to expend this money. Appellees’ own proof refutes this contention. When Elgin Hannibal was asked if he said anything to Mr. or Mrs. Harper about putting gravel on the road he replied, “No, sir. Never said anything about it.” Again, “I don’t think I said anything to nobody — I didn’t discuss it with anybody but the man who hauled the gravel. ’ ’ He also testified that Mr. Harper saw the gravel after it was spread, but whether this information was conveyed to Mrs. Harper is not revealed. It seems clear that the road was improved for appellees’ convenience rather than for the purpose of establishing any claim of right antagonistic to appellant.

A recent case involving the creation of a prescriptive right by estoppel is cited by appellees, Craig v. O’Bryan, 227 Ark. 681, 301 S. W. 2d 18. The Craig case is easily distinguished on the facts. A turn-row road ran across Craig’s open field (no gates). This road was the only access to an area on “Old River” where a number of landowners wanted to construct homes. They revealed their desires to Mr. Craig who granted them permission to cross his farm. Eelying on this assurance these people graveled the road and expended large sums in constructing homes on the lake front. We held under those circumstances that Craig was now estopped to deny the lake-shore owners use of the road. In the case at bar appellees claim no assurances or promises from appellant.

We have said that estoppel may be invoked when a party who, “by his acts, declarations or admissions, either deliberately or with willful disregard of the interests of another, induces him to conduct or dealings which he would not have otherwise entered upon is estopped to assert his rights afterwards to the injury of the party so misled.” (citing authorities) Thomas v. Spires, 180 Ark. 671, 22 S. W. 2d 553.

In the same opinion is this statement, ‘ ‘ The underlying principle is that the conduct of the party misleading the other involves fraud, and the remedy is available for the protection of the party induced to act to his injury by reason of the fraudulent conduct and declarations of the other.”

We are convinced that a preponderance of the evidence does not establish an estoppel against appellant.

The fact that appellees have no other access to their home doubtless weighed heavily on the conscience of the good chancellor. However, the proof is simply not sufficient to justify granting appellees relief under the rule governing “a way of necessity.” Craig v. O’Bryan, supra, and cases there cited.

Accordingly the case is reversed and remanded. The Chancery Court is reinvested with jurisdiction for allowing appellees a reasonable time within which to pursue the statutory method [Ark. Stat. Ann. § 76-110 et seq. (Eepl. 1957)] for establishing a private road that will afford them ingress and egress. Quality Excelsior Coal Company v. Reeves, 206 Ark. 713, 177 S. W. 2d 728.


source: Caselaw Access Project

author: Hugh M. Bland, Justice.

license: Public Domain

text:
    C. P. Harris, Adm’r, etc. v. Searcy Fed. Savings & Loan Assn. et al
    5-4044
    408 S. W. 2d 602
    Opinion delivered November 28, 1966

      W. J. Fungan, for appellant.

      John F. Eldridge, for appellee.
   Hugh M. Bland, Justice.

On January 6, 1961 Glenn D. Harris deposited $5,000.00 with the Searcy Federal Savings & Loan Association in a savings account which was given Number 1982. This account continued in force and operation under No. 1982 until the death of Glenn D. Harris on April 1, 1965. During the continuance of the account Glenn D. Harris enlarged the amount on deposit by adding the dividends as they accrued and making new deposits of $1,850.00 on January 2, 1962 and $1,500.00 on January 2, 1964. The last enlargement was made by adding the accrued dividend on December 31, 1964 in the amount of $199.00. So the total balance in the account amounted to $9,564.60. In opening the account he designated Geneva Jeffries, a niece, as joint owner. Geneva Jeffries died on October 31,1963 and thus terminated the joint ownership of account No. 1982 and left Glenn D. Harris as the sole owner.

On January 2, 1964 the account was changed by Glenn D. Harris with a direction to pay the fund to “Glenn D. Harris or at death to Johnnie Chaney.” On the death of Harris, April 1, 1965, the Probate Court of Woodruff County appointed C. P. Harris, his brother, as administrator of his estate on April 12, 1965. The administrator being unable to reach an agreement as to the ownership of the savings account, the probate court made an order directing him to make a demand on the Searcy Federal Savings and Loan Association for payment to him as administrator of the savings fund. This demand was made and resulted in the litigation here under review.

On January 4, 1966 the Searcy Federal Savings & Loan Association filed a bill of interpleader in the Chancery Court of Woodruff County, Arkansas and named C. P. Harris as administrator of the estate of Glenn D. Harris and Johnnie Chaney and Horace Chaney, Jr., as defendants. An amendment to the bill of interpleader was filed showing that Horace Chaney, Jr., was not in the designation and, hence, not a proper party defendant. Answer and cross complaint were filed by Johnnie Chaney and after that a motion for summary judgment. Cause was heard on April 20, 1966 and a decree was entered awarding the funds deposited in court by Searcy Federal Savings & Loan Association in the total sum of $9,975.40 to Johnnie Chaney.

Appellant brings appeal to this court and for reversal relies upon three points:

“Point 1. Act 343 of 1939 General Assembly of the State of Arkansas (Digested as 67-820 (b) of Arkansas Statutes (1947) Annotated) became an integral and non-severable part of the Contract and savings account, No. 1982, when made on January 6, 1961, and this continued, under the same number and record keeping, to the date of the death of Glenn D. Harris on April 1, 1965. During this period of time the Searcy Federal Savings & Loan Association and Glen D. Harris, nor either of them, had the authority or power to deal with, or in any way alter, the contract and savings account, established on January 6, 1961, except as authorized and provided by Act 343 of 1939. * * *
Point 2. Act 343 of 1939 General Assembly of Arkansas [67-820 (b) Arkansas Statutes (1947) Annotated] provides for and authorizes the making of contracts for savings accounts, and without this law the Searcy Federal Savings & Loan Association and Glenn D. Harris could not have made the contract and established the savings account number 1982 on January 6, 1961. This Act and law authorized the Searcy Federal Savings & Loan Association to make a contract with Glenn D. Harris individually or with Glenn D. Harris and a joint owner of the account. It did not authorize the Association to permit Glenn D. Harris to establish or to change the designation to ‘Glenn D. Harris or at death Johnnie Chaney’ as was attempted in this case. We will contend this designation to be ineffective and that the account was in the name of Glenn D. Harris only at his death on April 1, 1965.
Point 3. The Chancellor committed error in decreeing: ‘on January 2, 1964, the deceased, Glenn D. Harris being the holder of a savings account, number 1982, executed a new signature card directing that the account should be paid on death to Johnnie Chaney; that under Act 227 of 1963, which was in effect on January 2, 1964, upon the death of the said Glenn D. Harris title to the funds in said savings account vested in Johnnie Chaney, defendant herein, whom the court finds to be entitled to the proceeds deposited in the court by the Searcy Federal Savings & Loan Association.’ ”

We find no merit in any of these contentions.

In 1963 the Legislature passed an omnibus bill governing Federal and State Savings and Loan Associations. This became Act 227 of 1963 and is digested as Chapter 18 of Volume 6 of Arkansas Statutes (Repl. 1966) §§ 67-1801 — 1862. This Act became effective March 13, 1963. Section 38 of Act 227 (§ 67-1838), insofar as it relates to the facts in this proceeding, provides as follows:

‘ ‘ Section 38. Savings accounts in the names of two or more persons. Savings accounts may be opened in any association or a Federal Association in the names of two or more persons, either minor or adult, or a combination of minor and adult, and such savings accounts may be held:
5. If a person opening or holding a savings account shall execute and file with the Association a designation that on the death of the person named as holder, the account shall be paid to or held by another person or persons, the account, and any balance thereof which exists from time to time, shall be held as a payment on death account and unless otherwise agreed between the person or persons opening the account and the Association:
(a) Upon the death of the holder of the account, the person or persons designated by him and who have survived him shall be the owners of the account (as joint tenants with right of survivorship if more than one) and any payment made by the Association to any of such persons shall be a complete discharge of the Association as to the amount paid: ...
(b) The person to whom such account is issued may change during his lifetime the designation of any of the persons who are to be holders at his death, by a written direction accepted by the Association ;
(c) The person to whom snch account is issued may pledge; withdraw or receive payment and any such payment made by the Association shall be a complete discharge as to the amount paid.”

The real issue before us is whether the disposition of the funds on deposit with the Savings Association is governed by Act 343 of 1939, the statute in force when the account was established on January 6, 1961, or by Act 227 of 1963 which was enacted into law and signed by the Governor on March 13, 1963.

Appellant, in contending that Act 343 of 1939 governs this account, overlooks the fact that when Geneva Jeffries died in October, 1963, Glenn D. Harris became the sole owner of this account with the right to make any valid designation he desired. The character of the account had changed. Act 227 of 1963 became effective before the death of Geneva Jeffries. The signature card signed by the decedent on January 2, 1964 was a new contract between decedent and the Searcy Federal Savings & Loan Association and could not be affected by any provisions of Act 343 of 1939 because at that time this Act had been superseded by Act 227 of 1963. Section 64 of Act 227- of 1963 provides:

“Antecedent Legislation Repealed. Sections 1, 3, 4, 12, 16, 17, 18, 20, 22, 25, and 36 of Act No. 128 of 1929 and all other Acts of the General Assembly of the State of Arkansas and parts of Acts inconsistent with the provisions of this Act are hereby repealed.”

Finding no error, the decree .of the chancery court is affirmed.


author: Carleton Harris, Chief Justice.

text:
    Robert T. Walker v. Wittenberg, Delony & Davidson, Inc. et al
    5-4008
    412 S.W. 2d 62
    Opinion delivered December 5, 1966
    [Supplemental opinion on rehearing delivered March 3, 1967, 242 Ark. 97.]

      Hoioell, Price & Worsham, for appellant.

      Coclcrill, Laser, McGehee & Sharp; Bose, Meelc, House, Barron, Nash & Williamson; House, Holmes & Jeioell, and Bobert M. McHenry, for appellees.
   Carleton Harris, Chief Justice.

Sometime prior to December, 1961, Ruebel and Company, Little Rock funeral directors, decided to construct a funeral home on West Markham Street. Wittenberg, Delony and Davidson, Inc., Little Rock architects, were employed to design the building, and in furtherance of the employment, these architects prepared plans and specifications. In doing so, they designed the outer walls to be built from pre-cast concrete slabs. The architects then sent their proposed design to Harter Marblecrete Stone Company, Inc., the proposed manufacturer, for suggestions. Harter made some suggestions for change in the design of the slabs, and thereafter manufactured them in accordance with these changes. The architects let the contract for construction to Cone and Stowers, and agreed with Ruebel, for an additional fee, to supervise and inspect the construction. The exterior walls of the building were to be these pre-cast slabs, 10 feet high, 8 feet wide, and 3 inches thick.

Robert Walker, appellant herein, was a brick mason, who had been engaged in the task of laying’ light aggregate blocks behind the pre-cast concrete slabs. After these blocks had been laid on the east wall of the building, nearly to the top, the bracing, which had been holding the slabs upright, was, at the direction of the assistant superintendent for Cone and Stower, removed in order for the top two courses of blocks to be laid. Walker was standing on top of the wall, and when the last brace had been removed, the wall fell outward, and appellant suffered the injuries for which he subsequently brought suit. Complaint was instituted against the architects, it being alleged that said architects were negligent in failing, under their contract, to prepare proper plans, and in failing to supervise construction after award of the contract. Subsequently, the complaint was amended to make Ruebel and Company a defendant, it being alleged that this company was negligent in failing to .have a licensed architect to supervise the work as provided by Little Rock Ordinance No. 204, and still later, Harter Marblecrete Stone Company, Inc., was made a defendant, it being alleged that the pre-cast stone panels were of faulty design; that Harter negligently failed to warn of the inadequacy of the design and the danger created thereby, and also negligently failed to submit specifications for the use and erection of said panels to prevent them from falling during construction. After the filing of answers, amendments and interrogatories, the case proceeded to trial, and at the conclusion of appellant’s evidence, the court instructed the jury to return a verdict for both appellees. From the judgment so entered, appellant brings this appeal.

We think the court erred in directing a verdict for the architects. In the first place, an architect’s liability for negligence which results in personal injuries or death may be based upon his supervisory activities. 5 Am. Jur. 2d 688, Paragraph 25. It is undisputed that Wittenberg, Delony and Davidson, in addition to preparing the plans and specifications, were also employed to supervise the construction, and for this they received a special fee. The employment of the architects was done under Little Rock City Ordinance No. 204, which requires that an owner engaged in the erection of a building where the estimated value exceeds $25,000.00, shall employ a registered architect, or a licensed engineer, to supervise the construction of the building. The A.I.A. General Conditions were explicitly made a part of the specifications in the contract (with the construction company), stating, “A.I.A. Document No. A-201, 1952 Edition of the American Institute of Architects, are hereby made a part of this specification to the same extent as if bound herein. ’ ’ Article 38 of the A.I.A. General Conditions of the contract provides, inter alia:

“The Architect shall have general supervision and direction of the work. He is the agent of the Owner only to the extent provided in the Contract Documents and when, in special instances he is authorized by the Owner so to act, and in such instances he shall, upon request, show the Contractor written authority. He has authority to stop the work whenever such stoppage may be necessary to insure the proper execution of the Contract.”

It is the contention of appellant that, since the architects agreed with the owner to supervise, and inspect, and were paid a fee for it, they had a definite duty to supervise the work, including the responsibility of taking steps to secure the safety of the workmen. Witnesses for this appellee admitted that the owner had no one else to inspect the work and see that it complied with ordinances, regulations, etc., and it was further admitted that no one from the architectural firm performed any supervisory activities. Mr. Tom Gray, an employee of Wittenberg, Delony and Davidson, testifying for these appellees, agreed that a free-standing wall, i. e., a wall that does not have any lateral support, is not stable, and when braces are removed, such a wall will not stand.

The architects defended primarily on the contention, and they argue here, that their duty was to supervise and inspect only to the end that when completed the building would conform to plans and specifications, and they were also to determine that the construction was in compliance with the Little Rock Building Code. They assert that there was no duty upon them to direct or control the contractor in reference to the temporary support of the panels during construction. It is further contended that they were only required to make periodic visits to the job site (as a matter of determining that, when completed, the building would conform to the plans and specifications); that they were not responsible for the “on the spot” directions given by the assistant supervisor for the contractor, Henry Bowden, who directed that the braces be removed from the east wall; they were not present when the order to remove the bracing was given, had no knowledge thereof, and accordingly, cannot be held legally responsible.

It is true, of course, that if there was no obligation upon the architects to be present during construction, this argument would be valid. The contention that the sole duty of the architects was to supervise to the end that the building would conform to plans and specifications when completed, was likewise the principal defense in Erhart v. Hummonds, 232 Ark. 133, 331 S. W. 2d 869, but we upheld a judgment against the appellant architects in that case. These appellees say there is a distinction between the present case and Erhart, for there, in setting out the duty of the contractor to shore and protect walls of excavations, there was additional language, “or as directed by the architects,” and here, there is no specific reference to the architect in Article 12 of the General Conditions. We do not agree that these particular words preclude any possible liability on the part of architect appellees, for under A.I.A., as heretofore stated, the jury could have found that there was a responsibility on Wittenberg, Delony and Davidson to supervise in a manner consistent with appellant’s contention. Appellant, and architect appellees, apparently are far apart in their interpretation of the meaning of the word, “supervise,” and it is interesting to note that Webster’s Third New International Dictionary shows the word, “supervise,” (among other definitions, as meaning) “To look over, inspect, oversee, * * * to coordinate, direct, and inspect continuously and at first hand the accomplishment of.”

The architects insist that they were not derelict in any duty that they owed to the owner, but we stated in Erhart:

“* * * The issue here, we think, is not whether the architect breached any duty to the owner, but whether there was a breach of duty owed to the workmen by the architect arising out of the safety provisions of the contract. ’ ’

Appellee cites cases (nearly all from other states) in support of the position taken, but, as stated, we think Erhart is applicable.

We hold there is a fact question here as to the duties imposed upon the architects under the term, “supervision.” Does this term prescribe only such supervision as contended by appellee! Is there significance in the omission of the phrase appearing in the contract in Erhart, “or as directed by the architects,” or, on the other hand, was there a duty, as contended by appellants, upon the architects, under the term, “supervision,” to take positive steps to insure the safety of workmen during the construction! To some extent, the agreement is ambiguous, and where a contract is ambiguous, a question of fact is created to be passed upon by the jury. El Dorado Real Estate v. Garrett, 240 Ark. 483, 400 S. W. 2d 497. We think sufficient evidence was offered to submit the question to the jury.

We agree with the trial court that appellant’s proof was insufficient to make a jury question as to the liability of appellee Harter Marblecrete Stone Company, Inc. There is no proof that the slabs were defectively designed or manufactured, and, in fact, this question (which was an allegation in the complaint) is not argued in the brief; as a matter of law, we agree with the trial court that these slabs were not inherently dangerous, nor was it reasonably foreseeable that a use would be made of the slabs which would cause injury to some individual. Similar contentions are discussed in our case of Lilly v. Riggs Company, 238 Ark. 1027, 386 S. W. 2d 488. There, Roy Lilly was killed while endeavoring to repair a broken cable on a Caterpillar machine. His widow instituted suit against the tractor company, alleging that proper warnings were not given as to the safe manner for unsnarling a broken cable, and that the failure to give proper instructions and warnings constituted negligence on the part of the company, its agents, and employees. On trial, the court directed a verdict for the company, and Mrs. Lilly appealed. After discussing the function and manner of operation of the Caterpillar, this court, in affirming the action of the trial court, said:

“Appellant asserts that the Caterpillar was inherently dangerous, hut we do not agree. Black’s Law Dictionary, Fourth Edition, Page 921, defines ‘inherently dangerous’ as ‘danger inhering in instrumentality or condition itself at all times, so as to require special precautions to prevent injury, not danger arising from mere casual or collateral negligence of others with respect thereto under particular circumstances.’ Of course, no citation of authority is necessary to support the statement that the mere fact that one is injured by a machine, or instrument, does not mean that the machine or instrument is inherently dangerous. It has been said that a product is inherently dangerous where the danger of injury stems from the nature of the product itself. An automobile, driven at a high rate of speed — or without proper brakes — or, if at night, without headlights — or if operated by one who is intoxicated — can certainly become a highly dangerous instrument, capable of causing death and crippling injuries. Yet, there is a general agreement among the jurisdictions that motor vehicles are not inherently dangerous (Annot. 74 A.L.R. 2d 1111). Numerous articles or substances, which have been held not to be inherently dangerous within the meaning of the rule, include an electric body-vibrating machine, an electric stove, a chain, a haybaler, a flat iron, a gas stove, a porch swing, a sofa, a refrigerator, and others too numerous to mention. See Defore v. Bourjois, Inc., 105 So. 2d 846. Still, all of the articles or instruments mentioned can, by particular use, cause death or severe injury. In fact, as this court stated in Reynolds v. Manley, 223 Ark. 314, 265 S. W. 2d 714, ‘It is possible to use most anything in a way that will make it dangerous.Of course, certain substances or articles are inherently dangerous, such as dynamite, nitroglycerin or other explosives, poisons, and many others. In the case before us, we are definitely of the opinion that the Caterpillar itself was not inherently dangerous; it was the manner of repairing that created the danger, i. e., it was the fact that the cable was deliberately cnt, causing the spring to pull the ejector sharply back, that caused Lilly’s death, rather than the fact that the Caterpillar was equipped with a cable and spring.”

We think the reasoning in that case is applicable to this phase of the present litigation. It was not a manufacturing defect that caused the east wall to fall — rather the collapse of the wall was occasioned by the fact that the bracing, which had been holding the manufactured slabs upright, was removed. The designed wall met all requirements of the building codes of the city of Little Rock. Nor do we think that Harter could have for-seen that the bracing would be removed from the slabs while the wall was still being worked on. After all, Harter sold these concrete panels to a licensed and experienced contractor, and there was no reason to assume that the panels would not be handled with ordinary care and in accordance with good construction procedures. As Harter states in its brief: “This panel is no more an inherently dangerous object than a ladder which will fall if not placed against a steady object.” As stated, there is no evidence that the panels contained any latent defects, nor any proof that they were in any manner dangerous when used in a manner consistent with the use for which they were made. We find no showing of negligence on the part of this appellee.

In accordance with what has been said, we affirm the holding of the Pulaski County Circuit Court (Second Division) in dismissing appellant’s complaint against Harter Marblecrete Stone Company, Inc., but that portion of the judgment dismissing the complaint against Wittenberg, Delony and Davidson, Inc., is reversed and set aside, and the cause of action against this defendant is remanded back to the trial court, with directions to proceed in a manner not inconsistent with this opinion.

Amsler, J., disqualified.

      Wittenberg, Delony and Davidson is incorporated, but we shall refer- to this appellee in the plural.

      On trial, the undisputed proof reflected that Ruebel employed Wittenberg, Delony and Davidson in a supervisory capacity, and tbe complaint as to Ruebel was dismissed without objection.

      A.I.A. is an abbreviation for American Institute of Architects.

       Article 12 sets out the requirements which are imposed upon the contractor to take necessary precautions for the safety of employees during the construction.


author: Ed. F. McFaddin, Justice.

text:
    Bessie McGinty, Adm’x v. Ballentine Produce, Inc.
    5-4006
    408 S. W. 2d 891
    Opinion delivered December 5, 1966

      Elwyn L. Cady Jr., for appellant.

      Shaw, Jones & Shaw, for appellee.
   Ed. F. McFaddin, Justice.

A. traffic mishap occurred in the State of Missouri on October 14, 1962, resulting in the death of Mr. Marvin Click. On October 8, 1965 this present action was filed in the Crawford Circuit Court by appellant, Bessie McCinty, as administratrix of the estate of Marvin Click, against the appellee, Ballentine Produce, Inc., which is an Arkansas corporation with a place of business in Crawford County.

The complaint alleged that the mishap occurred solely because of the negligence of the driver of the Ballentine vehicle. Damages were sought by the administratrix for the benefit of those claimed entitled to recover under the Arkansas statutes. To this complaint the appellee, Ballentine Produce, Inc., filed a demurrer stating:

“I. The complaint does not state facts sufficient to constitute a cause of action.
“II. There is another action pending between the same parties for the same cause.
“III. The causes of action alleged in the complaint are barred by the statute of limitations.”

From the order of the Trial Court sustaining the demurrer and dismissing the complaint, there is this appeal in which appellant urges three points:

“I. Demurrer contending that the complaint failed to state a cause of action was faulty under modern conflict of laws principles of forum preference.
“II. Demurrer grounded on a claim of res ad judicata was improper since there was not the requisite identity of parties and the pleading relied on was held to have omitted essential allegations.
“III. Demurrer based on interposition of the defense of the statute of limitations was erroneous inasmuch as the action was filed within applicable limitation periods.”

Without separately discussing each point, it is sufficient to say that we have concluded that the Trial Court was correct in sustaining the demurrer. There has been other litigation arising from the same traffic mishap here involved. See Glick et al v. Ballentine, 343 F. 2d 839, cert. denied, 382 U. S. 891, 86 S. Ct. 184; 151 L.Ed. 2d 149; and Glick v. Ballentine (Mo. S. Ct.), 396 S. W. 2d 609, Ap. di& 385 U. S. 5, 87 S. Ct. 44, 17 L.Ed. 2d 5. These cases afford interesting information and sidelights on the present case. We start with the fundamental fact that the traffic mishap resulting in Mr. G-lick’s death occurred in the State of Missouri. At common law no cause of action survived for wrongful death, and the only cause of action that arises is because of wrongful death statutes, which must be strictly adhered to in determining the cause of action, the parties, and the period of limitations. Both the Missouri Court and the Arkansas Court have so held. For Missouri cases see: Knorp v. Thompson, 352 Mo. 44, 175 S. W. 2d 889 (1943); Nelms v. Bright, 299 S. W. 2d 483 (Mo. en banc 1957); Plaza Express Co. v. Galloway, 365 Mo. 166, 280 S. W. 2d 17 (1955). For Arkansas cases see: Smith v. Mo. Pac. RR. Co., 175 Ark. 626, 1 S. W. 2d 48; Vines v. Ark. P. & L. Co., 232 Ark. 173, 337 S. W. 2d 722.

If the Arkansas wrongful death statute is the applicable law in the case at bar, then there would be a cause of action that could be brought by the administratrix, just as was here done, and this cause of action would have been timely filed within the applicable period of limitations in Arkansas. Ark. Stat. Arm. § 27-906 et seq. (Bepl. 1962). If the Missouri wrongful death statute applies to this, case, then § 537.080 et seq. Vernons Annotated Missouri Statutes governs; and the cause of action must be brought by the surviving spouse within six months, or the minor children within one year; and the amount of recovery is limited. The Missouri wrongful death statute has a built-in statute of limitations. See Forehand v. Hall (Mo.), 355 S. W. 2d 940. Therefore, the prime question for decision in this case is whether the Missouri statute governs, or the Arkansas statute governs.

In the case of Wheeler v. Southwestern Greyhound, Lines, Inc., 207 Ark. 601, 182 S. W. 2d 214, we had this identical question before us, and we there said:

“An action for wrongful death is based on the statute of the place where the injury occurred that caused the death, that is, the lex loci delicti. Earnest v. St. Louis, M. & S. Ry. Co., 87 Ark. 65, 112 S. W. 141; Tipler v. Crafton, 202 Ark. 351, 150 S. W. 625; 15 C. J. S. 899; Leflar on ‘Conflict of Laws/ § 79. In the case at bar the injury causing tbe death occurred in Missouri, so the Missouri law governs. Midland Valley Ry. v. LeMoyne, 104 Ark. 327, 148 S. W. 654; American Ry. Express Co. v. Davis, 152 Ark. 258, 238 S. W. 50, 1063.”

In Wheeler v. Southwestern Greyhound Lines, supra, we also said:

“The period of limitations (one year) contained in the Missouri statute is a part of the law governing the cause of action and must be enforced in this State. Earnest v. St. Louis, M. & S. Ry. Co., 87 Ark. 65, 112 S. W. 131; 25 C. J. S., § 28, p. 1100. . . .
“So we conclude that since the cause of action of the plaintiffs was barred by limitations when the action was filed, and this fact appeared on the face of the plaintiff’s pleadings, therefore the defense of limitations could be raised by demurrer. McGinnis v. Less, 147 Ark. 211, 227 S. W. 398; Cullins v. Webb, ante, p. 407, 180 S. W. 2d 835.”

With admirable candor the appellant’s learned counsel concedes that in order to agree with the appellant and reverse the Trial Court in the present ease, we would be required to overrule our holding in Wheeler v. Southwestern Greyhound Lines, and also all the other cases so holding. We are asked to do this on the claim that the old holdings on “lex loci delicti” are archaic, and that the more recent cases have abandoned the ‘ ‘ lex loci delicti” rule (that is, the law of the place where the mishap occurred) and have embraced the hew and modern rule sometimes called “the better rule of law” or the “choice of law” rule. We copy this pertinent sentence from the appellant’s brief:

“Appellant makes this direct appeal for justice by asking this Court to choose its modern, realistic and salutary law of wrongful death over the outmoded, unrealistic and anachronistic law of Missouri.”

This “choice of law” rule urged by the appellant is sometimes also called the “forum preference” rule. Appellant lists the following cases and Law Review articles, among others, as supporting the contention: Griffith v. United Airlines, Inc. (Pa.), 203 A. 2d 796; Babcock v. Jackson (N. Y.), 191 N. E. 2d 279; Clark v. Clark (N. H.), 222 A. 2d 205; and Kilberg v. Northeastern Airlines, 172 N. E. 2d 526; and also the following Law Review articles: ‘ ‘ Choice-influencing considerations in conflicts law,” 41 N. Y. University Law Review, p. 267; “Conflicts of Laws — torts—the passing of the lex loci delicti,” 19 Ark. Law Review, p. 168; “State’s rights in conflict of laws,” 19 Ark. Law Review, p. 142; “Conflict of Law — Torts—What Law Governs,” 18 Ark. Law Review, p. 96; “Choice of the applicable law,” 52 Columbia Law Review, p. 959; “The Lex Fori — Basic rule in the conflict of laws,” 58 Mich. Law Review, p. 638; and “Comments on Babcock v. Jackson. . . .” 63 Columbia Law Review, p. 1212.

We recognize that some courts, and a growing number of Law Review writers are going to the so-called “forum preference” rule. We cannot now say whether this Court will, in a stronger case than the one here presented, abandon the “lex loci delicti” rule in favor of the “forum preference” rule; but in the case at bar we adhere to the lex loci delicti rule, just as we held in Wheeler v. Southwestern Greyhound, supra. Here, the deceased was not a resident of Arkansas; the administratrix was not appointed by any court in Arkansas; the traffic mishap did not occur in the State of Arkansas. The only contact that Arkansas had to the mishap was the fact that the defendant has a place of business in Arkansas. All of the other factors — residence of the deceased, place of mishap, the appointment of the administratrix — had their locale in Missouri. Under such circumstances we feel that the plaintiff should not be allowed to “shop around” to find some forum (Arkansas, in this instance) which has a more favorable statute than that of Missouri. And we certainly feel this is true after the Federal Court of Missouri had denied relief in the interrelated case of Glick v. Ballentine, 343 F. 2d 839. There is no escape from the logic and the conclusions stated by the Court of Appeals for the 8th Circuit in Glich v. Ballentine, when, in speaking of what the United States District Judge (Duncan) had held, the Circuit Court of Appeals stated:

“From what has transpired, we believe Judge Duncan was justified in concluding that ‘the sole reason for attempting to maintain the action in Arkansas is [because] the laws of the jurisdiction are more favorable to the elements of damage than * * * the laws of Missouri.’ Appellants concede as much. Although they seemingly have recognized from the beginning that their complaint was deficient under Missouri law, they obstinately refused the opportunity to amend their complaint to state a cause of action. Perhaps they are more desirous of attempting to establish a new principle. Be that as it may, on this record and in the light of the controlling legal principles, we are required to affirm the judgment of dismissal.”

We adhere to our holding in Wheeler v. Southwestern Greyhound, supra. The Missouri wrongful death statute had a built-in period of limitation, as previously stated. This cause of action arose in Missouri and the Missouri law governs; and the cause of action is barred by the Missouri statute. It thus becomes unnecessary for us to discuss the other points urged by appellant.

Affirmed.


text:
    Wiley Lee Baker et al v. Mrs. C. L. Matthews
    5-4040
    408 S. W. 2d 889
    Opinion delivered December 5, 1966

      Ike Allen Laws Jr. and Mobley & Bullock, for appellant.

      James K. Young and Robert J. White, for appellee.
   Ed. F. McFaddin, Justice.

When the plaintiffs rested their case the Trial Court directed a verdict for the defendant, and from that judgment of dismissal the appellants prosecute this appeal. At the outset, we mention our well known rule that in such a situation we view the evidence in the light most favorable to the party against whom the verdict was directed. Baratti v. Koser Gin Co., 206 Ark. 813, 177 S. W. 2d 750; McCollum v. Graber, 207 Ark. 1053, 184 S. W. 2d 264; Dolly Parker Motors, Inc. v. Stinson, 220 Ark. 28, 245 S. W. 2d 820; and Ben Pearson, Inc. v. The John Rust Co., 223 Ark. 697, 268 S. W. 2d 893.

The plaintiffs-appellants are Wiley Lee Baker, a minor, by his father and next friend, Lee R. Baker; and Lee R. Baker, individually. The defendant-appellee is Mrs. C. L. Matthews. On the date of the traffic mishap (March 27,1964) Wiley Lee Baker was a minor, 15 years of age, and was riding his motor scooter south on Boston Street in Russellville, Arkansas; and Mrs. Matthews was driving her automobile east on “K” Street in said city. At the intersection of “K” Street and Boston Street there was a collision between the automobile and the motor scooter; and Wiley Lee Baker received serious and painful injuries. This action was filed by the minor and his father claiming that the traffic mishap was the direct result of the negligence of Mrs. Matthews. She denied all liability and the cause proceeded to a jury trial.

Neither side seems to have introduced evidence as to which street in Russellville had the right-of-way over the other, or as to any regulation of speed of vehicles on these particular streets. Wiley Lee Baker (supported in some respects by other witnesses) testified that he was proceeding south on Boston Street at a speed of 25 miles per hour; that Mrs. Matthews was coming from the west on “K” Street at a rapid speed; that he “tilted” his motor scooter to the left in an effort to avoid the collision; that nevertheless the left front bumper of Mrs. Matthews’ car struck the right side of the motor scooter. The boy’s right leg was severely injured, and the damage was to the right side of the motor scooter. The boy was thrown southeast, and the motor scooter was thrown northeast. The boy testified:

“Q. Now, is it true that the car hit you, or that you slid into the side of the car?
“A. The car hit me.
“Q. You’re positive of that?
“A. Yes, sir.”

One of the City Policemen of Russellville who investigated the traffic mishap was called by the plaintiff and he testified that he talked to Mrs. Matthews at the scene of the mishap shortly after it occurred; and here is the germane portion of such testimony:

“Q. Now, Mr. Ferguson, did you talk with either of the parties there at the scene of this accident?
“A. I talked with Mrs. Matthews and her daughter.
“Q. Did Mrs. Matthews make any statement to you concerning the accident, or whether she saw the boy prior to the accident?
“A. Yes, sir.
“Q. What did she say specifically?
“A. She said that as she approached the intersection, the closer she got the more she wondered if the boy was going to stop or not.
“Q. Did she state whether or not she saw the boy?
“A. Yes, she said she saw the boy coming.
“Q. And then what?
“A. That the closer she got to the intersection the more she wondered if the boy was going to stop or not.”

There was some evidence that the motor scooter ran into the side of the Matthews car about the left front hubcap. The motor scooter was introduced in evidence as an exhibit and has been brought to this Court, and an examination of the motor scooter shows that it was struck on the right side and that it did not run head-on into the automobile.

Further detailing of the evidence is unnecessary. The question to be decided was which party was negligent, and if both were negligent then which was the more negligent. Such is the effect of our comparative negligence statute, as found in Ark. Stat. Ann. § 27-1730.1 et seq. (Repl. 1962). We have unanimously concluded that it was the province of the jury to determine the negligence, if any, or degree of negligence of each of the parties.

The judgment is reversed and the cause is remanded.


author: George Eose Smith, Justice.

text:
    Cathey Thomas Summers et al v. Ava Dawn Summers et al
    5-4064
    408 S. W. 2d 887
    Opinion delivered December 5, 1966
    O. H. Hargraves and McKnight & Blackburn, for appellant.

      Fletcher Long and Carroll C. Cannon, for appellee.
   George Eose Smith, Justice.

Leland Summers died testate in 1964, leaving his property to his widow and an adopted daughter, the principal appellees. At his death Leland was in possession of the 49 acres now in dispute. The appellants, Leland’s seven children by his first wife, brought this suit for partition of the property. They contend that Leland received, under his father’s will, only a life estate in the property, with the fee simple passing at Leland’s death to all his children. The chancellor rejected this contention, holding that Leland owned the land in fee simple. The sole question is that of determining what estate vested in Leland under his father’s will.

Leland’s father, Y. L. Summers, owned the land at his death in 1932. Y. L. evidently prepared his own will, which was written in longhand. In quoting the will we have twice italicized one word, the pronoun “they,” because the only real problem in the case is that of deciding to whom V. L. meant this pronoun to refer. Here is the will:

March 24 — 1930
To who this may concern.
I this day do write my last will and testiment. That my wife and my son Leland Summers shall have all my land stocks or money what ever or where ever it is or what ever it may be now or in the future of any kind.
And that they shall not be required to make bond of any kind.
That my wife Page Summers shall have the land or the rent her comon life to do as she will and that after all dets and all my dets has been paid and the dets of my wife Page Summers, my son Leland shall take the whole of the remainder, and shall keep same till all his children is of age and then if they wish they shall have the write to sign their write a way to who ever they may wish and their deed shall be good to all who ever or what so ever. This is my last and only will.
March 24 — 1930. Y. L. Summers.
Witness C. T. Moore
Witness C. E. Willis March 24, 1930

We think it clear that the pivotal pronoun was meant to refer to Page and Leland, not to Leland’s children. When the will is so construed the testamentary scheme is stated with simplicity and clarity, despite Y. L.’s limited education. He directed that his widow (who died in 1949) have a life estate, with the remainder going to Leland. Leland was to keep the property until his children became of age. At that time “they,” meaning Page and Leland, would have the right to sell the property “to who ever they may wish and their deed shall be good.” Quite evidently V. L. did not mean for their deed to be good immediately after his own death; so he added this precautionary clause to avoid any uncertainty about his intentions.

By contrast, if the pronoun “they” is construed as a reference to Leland’s children, the will lacks both simplicity and clarity. Under that view the explicit remainder to Leland would be reduced to a life estate, even though V. L. plainly realized that the two estates were not the same. Moreover, the asserted devise of the remainder to Leland’s children would have to be tortured, by inference and indirection, from the beneficiaries’ declared right to sign their rights away. No doubt it is true, under the strict rules of grammar, that the antecedent of a pronoun is usually the nearest preceding noun, but that rule ought not to be woodenly applied to defeat what clearly appears to have been the testator’s intention.

Affirmed.


author: Paul Ward, Justice.

text:
    Deola Fisher Sr. v. State of Arkansas
    5220
    408 S. W. 2d 894
    Opinion delivered December 5, 1966

      Hall, Purcell, Boswell & Tucker, for appellant.

      Bruce Bennett, Attorney General; H. Clay Robinson, Asst. Atty. Gen., for appellee.
   Paul Ward, Justice.

Appellant, Deola Fisher Sr. was charged and tried for murder in the first degree for the killing of Peter Collier by shooting him with a pistol. The jury returned a verdict of murder in the second degree and fixed the punishment at fifteen years in the penitentiary.

Collier was shot about seven p.m. while he was standing in front of a cafe in Benton. Nearby witnesses saw the shooting. Collier was rushed to a hospital where he later died. Appellant makes no contention here that there is any insufficiency of evidence to sustain the conviction for murder in the second degree.

On appeal, appellant argues fourteen separate points for a reversal, however, we find that all issues raised can be more conveniently and just as adequately treated under the eight subdivisions hereafter discussed.

One. We find no reversible error in the trial court’s failure to continue the trial. Appellant was charged on November 5, 1965, and the trial was set for December 7, 1965. On Motion of appellant the case was continued until January 3, 1966, but on December 27, 1965 appellant asked for a continuance until March 29, 1966 (the beginning of the next term of court). This request was denied, but the court did grant a continuance until February 14.

The granting of a continuance is largely in the discretion of the trial court, as we have frequently held. We are unable to say the court abused its discretion in this instance. The only specific cause urged by appellant for a continuance was “that one eye witness, Robert Higgs, who was probably closer to the scene of the encounter than anyone else was absent . . . .” although he had been subpoenaed. However, no showing is made as to what the absent witness’ testimony would have been or whether it would be corroborative, as is required under our decisions. Gallaher v. State, 78 Ark. 299, 95 S. W. 463 and Caldwell v. State, 214 Ark. 287, 215 S. W. 2d 518. The record here discloses that the absent witness was only one of several who saw the shooting.

Two. During the trial appellant, on six separate occasions, asked for a mistrial, and each time the request was denied by the court. These are alleged to constitute reversible error, but we do not agree.

(a) At the beginning of the trial and in preparing to select the jurors, the judge asked the members of the special panel if there was any reason why they could not serve. He then said it would be to their benefit te serve because they would be excused from jury service for the next two years. It appears the judge was in error in the last statement, but even so we see no possible prejudice resulting to appellant, and none is pointed out by appellant.

(b) On voir dire examination of the jurors the court stated that both the deceased and appellant were members of the Negro race, and then the prospective jurors were asked if they knew of any reason why they could not give the defendant a fair trial. Their answer was in the negative. It appears to us that this information would tend to help and not to hurt appellant because the jury was certain to know he was of the Negro race.

(e) The Prosecuting Attorney asked one of his witnesses a question, and the answer received was a “surprise”. Then the witness was asked: “Do you remember telling me anything different from that, John”? The District Attorney then stated: “Your Honor, I am surprised. This witness has made a different statement to me”, but the trial court refused to allow the matter to proceed further. In the first place, since the witness appeared hostile, we think it would have been proper to allow further questioning. Ray v. State, 102 Ark., 145 S. W. 190, and Shands v. State, 118 Ark. 460, 177 S. W. 18. Also, we think the matter tended to help rather than hurt appellant.

(d) During the closing argument of the State’s Attorney he mentioned the fact that never before in that county had a member of the Negro race, upon conviction, received a life sentence. At that instant appellant moved for a mistrial, which was refused, and the court was not asked to admonish the jury. It is well settled by many decisions of this Court that the trial judge is vested with wide discretion in determining the propriety of counsel’s remarks to the jury. Greene v. State, 38 Ark. 304; Lemuels v. State, 113 Ark. 598, 166 S. W. 741: Head v. State, 221 Ark. 213, 252 S. W. 2d 617. Moreover, the verdict shows the jury was not persuaded by the remarks.

We have examined other contentions by appellant that a mistrial should have been granted, but find no reversible error in any of them.

Three. Appellant challenged two jurors for cause, but was refused by the trial court. The only basis for the challenge was that these jurors were employed at the same place where the deceased was employed. It is admitted by appellant that no actual prejudice was shown, and we think none was indicated.

Four. In preparing its case the State took a statement from one of its witnesses whose name was on the information. Appellant requested the trial court to compel the State to turn the statement over to him. The court refused the request, and we think properly so. In the case of Edens v. State, 235 Ark. 178, 359 S. W. 2d 432, this same issue arose and we said:

“, . . The defendant was not entitled to receive copies of the statements that the prosecuting attorney had obtained from the various witnesses for the State, as this was a part of the prosecuting attorney’s work papers . . . .”

Five. At the trial the Chief of Police was allowed, over the objections of appellant, to testify concerning a certain statement appellant had made to him after the arrest was made. At the time of the arrest the officer asked appellant why he killed the deceased, and the prompt reply was that he needed killing. It is not contended any force, promise or persuasion was used to induce appellant to talk, but it is contended that the error consists in the failure to show appellant was first advised of his constitutional rights — such as to keep silent and to be represented by an attorney.

We think no reversible error has been shown, based on our holding in the case of Turney v. State, 239 Ark. 851, 395 S. W. 2d 1. In the case (as shown at page 854 of the Ark. Eeps.) the arresting officer asked the accused why he would get involved “in something like this”, and the accused promptly replied he didn’t know and that he must have been out of his mind. In holding the officer’s testimony regarding that incident was proper, we said: “The simple statement, above quoted, was responded to by the spontaneous admission of guilt by Turney”.

We also point out this case was tried in February, 1966 and therefore is not controlled by the Miranda case which did not (according to Johnson v. New Jersey, 384 U. S. 719) become applicable to cases tried before June 13, 1966.

Six. Appellant contends it was reversible error for the trial court to allow the former employer of the deceased to sit behind the witness stand. Appellant makes no attempt to show any actual or suspected prejudice against him. This was a matter which addressed itself to the sound discretion of the trial court, and we cannot say he abused such discretion in this instance. In fact it was not known that he would be a witness until he was called to testify.

Seven. Reversible error is predicated on the failure of the trial court to give an instruction on manslaughter. It is true the court refused one such instruction, but this was not error because the court had already given instruction No. 2 on manslaughter, as requested by appellant.

Eight. Finally it is urged that the trial court erred in limiting, in time, the argument of one of appellant’s counsel, but again we cannot agree. Here is substantially what occurred during the argument:

“The Court: Mr. Boswell, how much longer do you propose to argue?
“Mr. Boswell: I didn’t know the Court had put a time limit on argument.
“The Court: I didn’t put a time limit on it. I am going to give your associate time to argue in the morning. It is after five o’clock. We are going to finish with yours this afternoon if we stay til nine o’clock.”

Due to the lateness of the hour, we think the court’s question was pertinent.

Finding no reversible error, the judgment is affirmed.

Affirmed.


author: Osro Cobb, Justice.

text:
    James E. Johnston v. Mary G. Johnston
    5-3981
    408 S. W. 2d 885
    Opinion delivered December 5, 1966

      James E. Stein and Bernard Whetstone, for appellant.

      Spencer & Spencer and Don Gillaspie, for appellee.
   Osro Cobb, Justice.

The parties were divorced in September, 1963. Prior to the divorce they entered into a written property settlement, which included a substantial allowance for alimony and child support. Both parties asked the court to incorporate the terms of their property settlement into the decree of divorce, which was done.

On July 19, 1965, appellant filed his petition seeking to amend and reduce his decreed obligations as to alimony and child support, based upon changes in his financial condition.

On hearing it developed that appellant had remarried ; that his new wife earned $3,600.00 per yeai’ and that appellant’s personal gross income had been $16,-511.70 in 1963; $22,537.13 in 1964 and $23,000.00 in 1965.

The trial court found that it was without jurisdiction to amend a decree as to alimony based upon a written agreement of the parties fixing the alimony as part of their property settlement contract. We quote from the findings of the court:

“The Defendant’s testimony further reveals that his most valuable assets at the time of the property settlement were the retirement fund held by the Equitable Life Assurance Society, and the value of future commissions to be received from renewals of insurance policies written in Equitable Life Assurance Society and Occidental Insurance Company. The Plaintiff, in the property settlement agreement gave up any claim that she might have had to these assets in return for the provisions for her benefit contained in the property settlement agreement, including the child support and alimony payments therein provided.
“* * * In this case, the Defendant does not attempt to show any change in the needs and necessities of his family and the evidence in regard to his personal income shows that it has increased in amount, rather than decreased since the date of the property settlement agreement as entered into and incorporated into the Decree of this Court.” (Emphasis supplied)

Appellant conceded that the needs of the children had not changed and the only issue on review here is whether the court erred in refusing to reduce the previously decreed alimony payments to appellee of $325.00 per month. This is the dispositive question on this appeal.

We have many times recognized the rule of law that, while the court is not bound by the contract of the parties in effecting a property settlement, once it enters a decree awarding support money upon the agreed property settlement, it thereafter has no power to modify the decree as to alimony. Reiter v. Reiter, 225 Ark. 157, 278 S. W. 2d 644 (1955); Bachus v. Bachus, 216 Ark. 802, 227 S. W. 2d 439 (1950); McCue v. McCue, 210 Ark. 826, 197 S. W. 2d 938 (1946).

The rule has always reserved to the court the right to review and modify in accordance with changing circumstances awards for support of children, increasing or reducing same as warranted. Lively v. Lively, 222 Ark. 501, 261 S. W. 2d 409 (1953).

Of course, where payment of part or all of the alimony becomes an impossibility through no fault of the party obligated to pay, the court will not invoke contempt proceedings against the party for such default; this rule, however, being without prejudice to the rights of the party due arrearage in alimony to a remedy at law to collect the balance due under the contract, (Property Settlement Agreement). Pryor v. Pryor, 88 Ark. 302, 114 S. W. 700 (1908).

We do not recede from the rule announced in the cases cited. Eefusal of the trial court to entertain modification of the contract of the parties as to alimony was proper.

The decree of the Chancellor is therefore affirmed.

Affirmed.


text:
    Union Bankers Ins. Co. v. Natl. Bank of Commerce of Pine Bluff, ex’r
    5-4014
    408 S.W. 2d 898
    Opinion delivered December 5, 1966

      John B. Plegge and Perry V. Whitmore, for appellant.

      Bridges, Young, Matthews & Davis and Eugene S. Harris, for appellee.
   Osro Cobb, Justice.

On December 3, 1962, William R. Felkins purchased a policy of insurance from appellant purporting to cover certain medical and hospital expenses thereafter incurred by Felkins and his wife-The annual premium for the policy was substantial— $149.20 for the primary policy and $14.40 for a physician’s supplement.

When Felkins applied for this insurance coverage, he set forth as a part of his past medical history that he had suffered from a stomach ulcer which required surgery, and that he had made complete recovery. The company attached two exclusionary riders to the policy.

In 1964 Mr. Felkins developed a jejunal ulcer. Such an ulcer is in an area outside the stomach and within the second portion of the small intestine which extends from the duodenum to the ileum. Felkins was hospitalized and received treatment, including surgery.

In February, 1965, Mr. Felkins was hospitalized for a circulatory embarrassment of the small intestine which resulted from a blood clot in the superior mesentery artery. Radical surgery was again performed. Mr. Felkins did not survive the second operation and appellee, National Bank of Commerce of Pine Bluff, was appointed executor of his estate.

Appellee made seasonable demand upon appellant for policy benefits as to both periods of hospitalization. Appellant denied any coverage and suit was instituted. The case was tried to the court sitting as a jury. The policy was introduced in evidence and proof was made of the exact amount of the hospital and medical expenses alleged to be reimbursable under the provisions of the policy.

Appellant in its answer admitted the issuance of the policy and the payment of all premiums due thereon during the lifetime of W. R. Felkins; admitted the period of hospitalization and made no effort to contest the accuracy of the medical and hospital bills which were offered in evidence. Appellant denied liability upon the contention that the periods of confinement to the hospital were caused or contributed to by physical conditions for which coverage was excluded under the terms of the policy.

Appellant called Dr. Raymond A. Irwin, Jr., general surgeon, Pine Bluff, Arkansas, and Dr. Walter J. Wilkins, Jr., also a surgeon, who testified concerning their treatment of Mr. Felkins and the surgery performed.

Neither side requested written finding’s of fact by the trial court and the court following hearing entered a judgment for appellee for all sums claimed to be due and owing under the policy, together with statutory penalty and a reasonable attorney’s fee. It is from this judgment that appellant brings the appeal, urging that the trial court erred in that it misconstrued or interpreted the provisions of the policy erroneously.

Appellant does not contend that the primary policy did not provide the coverage as claimed by appellee, but insists that the coverage for all claims asserted by appellee was excluded by the provisions of the two riders attached to the policy.

We are therefore required to construe the riders attached to the policy to determine whether the trial court committed error in entering judgment against appellant.

TEE FIRST POLICY RIDER. We set forth the pertinent language of this rider, as follows:

<<# # * the insured agrees to waive any claim for indemnity on account of any loss or disability hereafter sustained which shall be caused or contributed to by Stomach ulcer or any disease or affection of the digestive tract, and/or any complication therefrom * * (Emphasis supplied)

It has long been the established rule of this Court that any intent to exclude coverage in an insurance policy should be expressed in clear and unambiguous language, and the burden is upon the insurance company to present facts at trial that come within the stated ex-elusion. It has also been an established rule of this Court that any ambiguity in an exclusionary , clause must be construed strictly against the insurance company and liberally in favor of the insured. State Farm Mutual Insurance Company v. Baker, 239 Ark. 298, 388 S. W. 2d 920 (1965).

It is equally well settled that the findings of the trial court sitting as a jury will be sustained if there is any substantial evidence to support them. Mid-South Insurance Company v. Dellinger, 239 Ark. 169, 388 S. W. 2d 6 (1965).

The ancient rule of ejusdem generis, frequently invoked by this Court, is applicable here. This rule is defined in Black’s Law Dictionary, Fourth Edition, as follows :

“EJUSDEM GENERIS. Of the same kind, class or nature.
“In the construction of laws, wills, and other instruments, the “ejusdem generis rule” is, that where general words follow an enumeration of persons or things, by words of a particular and specific meaning, such general words are not to be construed in their widest extent, but are to be held as applying only to persons or things of the same general kind or class as those specifically mentioned. Black Interp. of Laws, 141; Goldsmith v. U. S., C.C.A. N. Y., 42 F. 2d 133, 137; Aleksich v. Industrial Accident Fund, 116 Mont. 69, 151 P. 2d 1016, 1021. The rule, however, does not necessarily require that the general provision be limited in its scope to the identical things specifically named. Nor does it apply when the context manifests a contrary intention.
“The maxim “ejusdem generis” is only an illustration of the broader maxim, “noscitur a sociis”. State v. Western Union Telegraph Co., 196 Ala. 570, 72 So. 99, 100.”

In Jones v. State, 104 Ark. 261, 149 S. W. 56 (1912), this Court approved a terse statement of the ejusdem generis rule, which we quote:

“When general words follow an enumeration of particular things, such words must be held to include only such things or objects as are of the same kind as those specifically enumerated.”

See also Hempstead County v. Harkness, 73 Ark. 600, 84 S. W. 799 (1905).

The stomach is a recognized, primary and essential part of the digestive tract. If it had been the intent of the rider to exclude all diseases and complications of all diseases along the entire digestive tract, it was unnecessary to single out and isolate the stomach as one of multiple parts of the entire digestive tract. To say the least, the language employed in the rider is specific and certain as to the stomach but unclear and uncertain in other respects. We must resolve such uncertainties in favor of the insured.

We have therefore concluded that the effect of this rider was to exclude claims arising solely from ulcers and diseases of the stomach and complications therefrom. Appellee’s claim for medical and hospital services which were required because of his jejunal ulcer were properly allowed by the trial court.

THE SECOND POLICY RIDER. We set forth the pertinent language of this rider, as follows:

■“* * * the insured agrees to waive any claim for indemnity on account of any loss or disability hereafter sustained which shall be caused or contributed to by any disease or affection of the car dio-vascularrenal system or any part thereof, and/or any complication therefrom * * (Emphasis supplied)

Dr. Walter J. Wilkins, Jr., who was called as a witness for appellant, testified in part on direct examination as follows:

“Q. Dr. Wilkins, what, in yonr opinion, was the main reason that Mr. Felldns was hospitalized on February 2nd ’65 to March the 1st ’65?
“A. Circulatory embarrassment of the small intestine.
“Q. What was this brought about by?
“A. By a blood clot in the superior mesentery artery that provides the circulation to this portion of the digestive system.
“Q. And this is a disease or malfunction or infection of the cardiovascular-renal system, is this correct?
“A. It is.” (Emphasis supplied)

Dr. Williams testified in part on cross examination as follows:

“Q. Now what caused the clot?
“A. We actually have no proof as to what caused the clot per se, in this particular instance.
“Q. Well then, the loss of circulation which caused these other problems was caused by the clot, but you are not able to say what caused the clot?
“A. In this instance we are not.
“Q. In a general sense is a clot a disease? ■
“A. Normally that would depend on when a clot forms and why it occurs, whether it’s the cause or the effect of the circumstance. A clot that forms when one cuts oneself is a healthy normal reaction and the formation of .a clot or the coagulation of the blood is basically not an abnormal reaction. It’s suppose to be a normal function of tbe body. If a clot doesn’t form it’s an abnormal reaction, and actually here one would say the formation of a clot is not a disease because one can find clots in other portions, other areas, however, what the clot resulted in is a disease.
“Q. What it resulted in, the clot itself is not?
“A. Yes sir.
‘' Q. Doctor, when you take the terms digestive system and the cardiovascular-renal system in their broad medical meanings are there any major systems of the body left?
“A. The muscular skeleton system is left and the nervous system.”

We note that Dr. Wilkins, during his direct examination, confirmed that the blood clot in this case could have been one of three things — a disease, a malfunction or an infection. However, on cross examination, he stated quite clearly that he was not able to state any cause for the clot and went further to explain that a blood clot could be a normal function of the body. It was established in this case that the blood clot in the superior mesentery artery caused the insured’s terminal disabilities and hospitalization. What is totally unclear is the cause of jthe clot in the first instance. It is certain that Dr. Wilkins did not testify that this clot was caused by a disease of the cardiovascular-renal system. It could have been a malfunction or accident.

We therefore find substantial evidence in the record to support the action of the trial court in entering judgment for appellee for claims asserted under the policy by reason of disabilities and hospitalization resulting from the blood clot.

"We find no error in the action of the trial court in entering judgment for appellee and the judgment is affirmed.

Affirmed.

Harris, C. J., disqualified and not participating; George Rose Smith, J., dissenting.

      Dr. Wilkins, a witness for appellant, testified that eliminating the entire digestive and eardiovaseular-renal systems in their broad medical meanings, the only major systems of the body remaining were the muscular skeleton system and the nervous system. Section 3 of Part 10 of the insurance policy involved in this case specifically excluded any coverage of nervous disorders without demonstrable organic disease. If we had accepted the interpretation of the policy riders insisted upon by appellant, the insured could have been limited as to certainty of coverage to his bones and muscles, and then only if there was no disturbance or complication involving a blood vessel, however minute, in supplying the bone or muscle.


author: Guy Amsler, Justice.

text:
    Johnnie Gilchrist v. State of Arkansas
    5212
    409 S. W. 2d 329
    Opinion delivered December 5, 1966
    [Rehearing denied January 9, 1967.]

      Harry G. Robinson, for appellant.

      Bruce Bennett, Attorney General; Fletcher Jaclcson, Asst. Atty. General, for appellee.
   Guy Amsler, Justice.

Appellant, Johnnie Gilchrist, was tried in the Circuit Court of Pulaski County, on a charge of murder in the first degree and convicted of murder in the second degree. The jury fixed his punishment at 21 years imprisonment in the State Penitentiary. Motion for a new trial was overruled and appeal was perfected in due time. The only point relied on is that “The court erred in refusing to charge the jury on the lesser offense of manslaughter.”

The background facts as reflected by the proof may be briefly stated. Sometime during the early morning of August 21, 1965 (the exact time is uncertain because of conflicts in the evidence) appellant Johnnie Gilchrist and his brother Walter got into a “ruckus” at their mother’s home on Raines Road outside the city limits of Little Rock. They were “quieted down” by other members of the family. Later the brothers went their separate ways on different missions and returned to their mother’s around 9:00 a.m. During their absence from home Johnnie procured a pistol someplace and fetched it home with him. Johnnie was in the home of his sister and Walter (the deceased) was at his mother’s house. The houses are some 100 to 150 feet apart. Walter had returned to his home with a nephew Leon Parr. When he entered the house his sister, Alice Gilchrist, warned him not to' go out the hack ‘ ‘ door because Johnnie said he was going to kill him,” but that he went anyway. She said Walter did not have a gun, and Leon Parr said he saw no gun.

There was no eye witness to the shooting other than appellant and his version is somewhat different. His testimony was that he told his niece that he was going to take the pistol back to his nephew’s and when about to leave he saw Walter out in the back yard with a .22 rifle, and that his brother, the deceased, told him to come on out he (Walter) “was going to kill me.” He says that he then went hack and told his niece (not corroborated by her) “that fool was standing ont there with a gun,” and while he talked with his niece a few minutes, “I figured he’d go and put it up,” and then:

“Q. Okay. Now, what happened when you went out, or did you go out the door then?
A. Yes, I went out the back door.
Q. Okay, then what happened?
A. When I came out, I shot him, That’s all I know what happened.
Q. How many shells did you fire?
A. Twice.
Q. You fired twice?
A. Yes, sir.
Q. How many times did your brother fire?
A. He didn’t get a chance to fire. Not then he didn’t. He had already shot before then, before I went in the house talking to her.
Q. How many times did he shoot?
A. He didn’t shoot hut one time.
Q. And you say he told you to come out of the house, that he was going to kill you?
A. That’s right.
Q. And when you came out the door you had your mind made up that you were going to protect yourself?
A. That’s right.”

He further testified that “I felt like if I would shoot him in the leg or something to make him drop that gun.” Appellant then left and reported to the officers that he had shot his brother. He also delivered the pistol to the deputy sheriffs and they found four spent cartridges in it. He never reported to the officers that his brother had a gun at the time he shot the deceased.

The instructions which appellant contends should have been given read:

“Manslaughter is the unlawful killing of a human being without malice, express or implied, and without deliberation.
“Manslaughter must be voluntary upon a sudden heat of passion, caused by a provocation apparently sufficient to make the passion irresistible. That is voluntary manslaughter.”

Three cases are cited in support of appellant’s argument. Collins v. State, 102 Ark. 180, 143 S. W. 1075, may be distinguished on the facts. Collins and Jones were riding by Yarbrough’s (the deceased) home in a buggy, at night, when one of them fired a pistol (apparently into the air). Yarbrough came from his house toward the buggy, with gun in hand and ordered the occupants of the buggy to halt. Both sides started firing and Yarbrough was killed. Collins was indicted for and convicted of murder. The trial court refused to instruct on voluntary manslaughter and we held this to be error. Justice Frauenthal wrote:

“Both Jones and the defendant were surprised by the appearance of the deceased near the buggy and by his attack made with gun in hand, and, not knowing who he was, they feared either that they would be robbed by him or receive injury to their persons from him; and that by reason of this fear and surprise Jones fired at the deceased. This, in short, is the testimony of the defendant himself, which though contradicted in many material points by other evidence in the case, nevertheless presented an issue which, under the law, he had a right to have submitted to and be determined by the jury upon proper instructions. It appears that the court instructed the jury relative to murder in the first and second degrees, but did not instruct them at all in reference to the crime of manslaughter or the punishment for that degree of homicide, although requested to do so by the defendant. The grade of a homicide may be reduced from murder to manslaughter by reason of a passion caused by a provocation apparently sufficient to make the passion irresistible. The passion may consist of anger or fear or terror. These are the causes from which the passion springs; and, whether induced by the one or other of these causes, it will reduce the grade of the homicide from murder to manslaughter. It is perfectly proper to show that in a given case the passion did exist for the reason that it was induced by anger suddenly aroused, or by surprise, or by fear, or by terror; and where there is any evidence tending to show that the defendant was guilty of a lower grade of homicide than murder, the trial judge should instruct the jury in reference thereto when requested by the defendant.”

In the instant case we have a distinctly different set of facts. Appellant was not confronted with a ‘ ‘ surprise ’ ’ situation which might be calculated to create a sudden heat of passion, fear or terror. He seemingly was in a perfectly safe place — his sister’s home. His conversation with his niece (which, according to the proof, may have lasted some 15 or more minutes) indicates neither fear nor terror and his act of deliberately walking out the back door into the very “mouth of the cannon” so to speak, does not indicate any great measure of fear on his part. If his brother, gun in hand, (as he says) was standing in the adjoining back yard some 50 to 100 feet away threatening to kill him his (appellant’s) conduct (under his own testimony) may best be categorized as poor judgment or willfully intentional rather than charged to a sudden heat of passion, fear, surprise or terror. We do not consider the Collins case beneficial to appellant’s contention.

Pickett v. State, 91 Ark. 570, 121 S. W. 732, is relied on. Henry and Wilson Pickett were indicted on charges of first degree murder for killing Charles Abbott and were convicted of second degree murder. The court refused an instruction on voluntary manslaughter and this was held to be error.

On the 8th day of December, 1908, Henry Pickett went to the store of Bunk Abbott and reported that he (Pickett) had a bale of cotton at the gin for which he wanted credit on his store account. Abbott told Pickett that he (Abbott) “would go down there and get the cotton.” That evening about supper time Pickett was sitting on his front porch when Charles and Bunk Abbott drove up in a wagon. Justice Hart narrates Pickett’s version of what happened:

‘ ‘ and Mr. Abbott says: ‘ Henry, come out here and get in this wagon, and go back to town with me.’ I said: ‘Mr. Abbott, you have plenty of help without me.’ He says: ‘Damn that! This is your cotton, and I want you to go back to town and unload it.’ I started to tell him something, and he said again: ‘Come out here.’ I started to go out there, and then concluded I had better stay where I was, and said to him that I had better stay where I was, as he did not look right. He says: ‘You damned son of a bitch, come out of there! ’ And I told him I was not coming, and he said: ‘If you don’t come out of there, I am coming in there.’ He said: ‘You may think I have no right to come in there, but I will show you.’ I said: ‘I have got nothing to say about that.’ He then pulled his gun out and started in. He got about half way between the gate and the doorsteps where I was sitting. I was still sitting there, and he had the gun in his hand. I did not think he was going to shoot me, and I just stayed there. I stayed there until he stepped up to me, and when he gets up to me he says: ‘By God, you get up and come out of here.’ I sat there just a second and then I gets up and whirls right quick in the house. He then shoots at me three or four times, maybe five, and then he started in the house. Mr. Bunk was running in this way shooting, and Mr. Charlie was shooting this way (indicating). My children was running around after me hallooing and screaming. And they were just shooting every way. ... I ran to the corner where I generally kept my gun, and I did not find it, and I ran to the bed and found my gun where they had put it while they were cleaning up. I grabbed my gun, and began shooting at them. I did not have but one shell, and I shot it, and then I ran back and got my rifle. My brother did not shoot at all. He had nothing to do with the difficulty. I did not have any pistol that day; never owned one in my life. After the shooting I ran out of the back door and into the field where we saw Mr. Porter.”

The third case offered by appellant as supporting his position is Ringer v. State, 74 Ark. 262, 85 S. W. 410. Ringer owned a country store in Yell County. On Christmas Bay several persons gathered at the store for a “turkey shoot.” York McCullom and his son John were there and John had an air gun. A shot from the air gun entered the store and when Ringer went out the front door to warn the boys he and John got into a fight. John cut Ringer in the back with a knife and chased him back into the store. Ringer thinking the boy was still in pursuit grabbed his Winchester rifle, wheeled and fired from the back of the store. York McCullom who was in the store during the altercation had started to walk out the door. Ringer’s bullet struck him in the back and he died- Ringer was indicted and tried for the killing. The testimony was in conflict as to whether the homicide was intentional or an accident.

The trial court refused an instruction on “involuntary” manslaughter and we held this to be error.

It is readily apparent that neither of the foregoing cases presents such factual pictures as confronted the trial court in the instant prosecution. We think that they are distinguishable on either the facts or the law, if not both.

We have numerous cases holding that it is not error for the trial court to refuse an instruction on “lesser degrees” of an offense when the evidence does not justify doing so. McGarrah v. State, 217 Ark. 186, 229 S. W. 2d 665; Washington v. State, 181 Ark. 1011, 28 S. W. 2d 1055; Allison v. State, 74 Ark. 444, 86 S. W. 409.

Having concluded that the record reflects no proof that would require an instruction on voluntary manslaughter and no other error being urged the case is affirmed.


text:
    Ralph Fuller v. Eunice Fuller
    5-4039
    408 S. W. 2d 884
    Opinion delivered December 5, 1966

      Laws & Schulze, for appellant.

      Gordon & Gordon: By Charles H. Eddy, for appellee.
   Guy Amsler, Justice.

This contested divorce suit resulted in denial of a divorce to either party. Appellee Eunice Fuller filed her complaint in the Chancery Court of Pope County on September 10, 1965, for a divorce on the grounds of indignities. Appellant Ralph Fuller, on October 6, 1965, counter-claimed for divorce alleging indignities. Appellant has had custody of the parties’ three children since this litigation commenced, with visitation rights for appellee. Custody is not in issue here.

The chancellor heard testimony on January 6, and March 3, 1966, and refused to grant either party a divorce. An earlier order on custody, alimony and visitation rights was continued in force and both parties have appealed.

Appellant’s evidence to support his petition for divorce consists primarily of appellee’s alleged mistreatment of their children, and his intervention on their behalf. Appellee and their oldest daughter engaged in a rather violent hairpulling contest in the backyard, with a number of their neighbors looking on. Appellant broke this ruction up by slapping appellee a couple of times. There was some other evidence of mistreatment and disagreement.

Appellee admittedly is not in the best health. She suffered a brain concussion in an automobile accident in 1960, and had had major surgery a few months prior to that. Both parties testified that she at times required strong medication (demoral shots) to control her headaches. Appellee’s principal testimony on appellant’s alleged intolerable conduct was that he refused and neglected to pay their bills, so that she was harassed by bill collectors and was under much tension in trying to get appellant to pay the bills.

Appellee is now residing in Morrilton where she is in training for what appears to be very favorable employment so it may be that the chancellor discerns some possibilities of a future reconciliation. Anywise be observed and beard tbe parties and witnesses and is in a better position to evaluate tbeir testimony and determine what later action will best serve tbe interest of tbe parties than are we. Tbe situation is admittedly an unfortunate one but where tbe evidence does not preponderate in favor of either party, we will not disturb the chancellor’s decree. Appellant is to pay tbe costs of appeal.

Affirmed.