author:
George Rose Smith, J. Carleton Harris, Chief Justice.
      Ed. F. McFaddin, Associate Justice,

text:
    Walton v. Tull.
    5-2533
    356 S. W. 2d 20
    Opinion delivered March 26, 1962.
    [Rehearing denied April 30, 1962.]

      Cockrill, Laser <& McGehee for Richard A. Walton; Wright, Linclsey, Jennings, Lester <& Shults for Luther S. Tull; Parker Parker for Herman Glenn.

      Terral & Rawlings and Gail O. Matthews for D. A. Brigham.
   George Rose Smith, J.

This is a tort case arising out of two successive traffic collisions, involving three cars. In the trial court there were various cross actions between the parties. Here there are appeals by two of the defendants and a cross appeal by the plaintiff. It will be simplest to identify the parties as we relate the facts.

On October 3, 1959, Luther S. Tull and his wife, Richard A. Walton and his wife, and a third couple were returning to Little Rock after having driven to a football game at Fayetteville. They were riding in a station wagon that was in effect being furnished by Tull, as the vehicle belonged to a company of which he was the president and a substantial stockholder. At Clarksville the group stopped so that Tull could attend a night game there. When the others picked up Tull after the game Walton was driving, and he remained at the wheel thereafter. Tull rode in the right front seat.

A few miles south of Russellville Walton overtook and started to pass a car being driven by D. A. Brigham. Just then Brigham started to turn left off the highway, and the two cars, traveling at moderate speeds, had a minor side-to-side collision, with no personal injuries. Brigham testified that he signaled his intention to turn left, but there is other testimony that no signal was given. On this phase of the case the jury attributed 66 per cent of the negligence to Walton and 34 per cent to Brigham. There is no appeal from this part of the judgment, which has been satisfied.

After the first collision the two cars came to a stop on the lefthand shoulder of the highway, facing in their original direction of travel. Brigham’s car, in front, was completely off the pavement. The Tull station wagon was at a slight angle, with the front wheels off the pavement and the right rear wheel encroaching on the pavement a foot or two. Both cars had their lights on, it being almost eleven p. m.

From this point we disregard conflicts in the proof and state the facts in the light most favorable to the verdict. About ten seconds after the station wagon came to a stop Tull, who was in the right front seat, opened the door on his side and started to get out. As he extended his left leg toward the pavement the open door was struck by a car traveling in the direction opposite to that of the other two vehicles. This third car was being driven by Herman Glenn, who was so drunk that he mistakenly thought it was raining and did not fully realize that he had struck another car. Tull was painfully and seriously injured.

The plaintiff Tail brought suit against all three drivers, Walton, Brigham, and Glenn. The jury fixed Tull’s damages at $27,500 and assigned 60 per cent of the negligence to Glenn, 20 per cent to Walton, 10 per cent to Brigham, and 10 per cent to Tull. The court credited the award with a $10,000 compromise payment previously agreed upon between Tull and Glenn and entered judgment for the balance against Walton and Glenn. There was a proviso that if either defendant should pay more than his proportionate share of the total judgment he would be entitled to contribution from the other. The court refused to allow Tull to recover any judgment against Brigham, because they were equally at fault.

The defendants Walton and Glenn have separately appealed, and Tull has cross appealed from the court’s refusal to permit him to recover from Brigham. The case presents an unusual number of interesting questions in the field of tort law.

I. Although Glenn settled with Tull before the trial he is still pecuniarily interested, owing to his liability to Walton for contribution. Glenn first insists that, despite his intoxication, he was traveling in his proper lane of traffic and was, as a matter of law, free from negligence. We cannot accept this argument. Had Glenn not been almost insensibly drunk he might have realized that a collision had taken place between the other two cars and accordingly have approached the scene with caution. Even if Glenn should not have actually witnessed the mishap he might have understood the warning significance of two lighted vehicles facing in his direction on what was to them the wrong shoulder of the road. Again, had Glenn been in control of his faculties he might have been able to avoid hitting Tull. Questions of this kind are typically issues of fact for a jury. We hold there is substantial evidence to support the jury’s conclusion that Glenn’s drunken driving was a proximate cause of Tull’s injuries.

II. Glenn’s second contention is that he is not liable to Walton for contribution, for the reason that there was no service of summons upon Walton’s cross complaint against Glenn. This point was not raised below. Glenn participated actively in the trial; his attorney cross-examined Walton. This conduct was a general entry of appearance. Purnell v. Nichol, 173 Ark. 496, 292 S. W. 686. If Glenn had prevailed the judgment in his favor would have ended the matter. He cannot be allowed to speculate upon the chance of a favorable outcome, without objection, and then demand a second trial when he loses.

III. Walton insists that his negligence in attempting to pass Brigham in disregard of the latter’s signal was not a proximate cause of Tull’s injuries when he was later struck by a third car. It is argued that the negligence of Glenn and of Tull was a superseding cause that broke the connection between Walton’s negligence and Tull’s injuries. Walton’s counsel endeavor to show how difficult it would have been for Walton to foresee that his attempt to pass the Brigham car would set the stage for the later events that caused Tull to be hurt.

That Walton could not have foreseen the exact manner in which Tull was to be injured is not alone a sufficient reason for relieving Walton of liability. Rest., Torts, § 435. As a direct result of Walton’s carelessness Tull was put in a position the jury were entitled to regard as hazardous. The vital question is whether the subsequent conduct of Glenn and Tull became a superseding factor.

This general subject was discussed at some length in Hill v. Wilson, 216 Ark. 184, 224 S. W. 2d 797. There we approved this statement from § 447 of the Restatement of Torts: “The fact that an intervening act of a third person is negligent in itself or is done in a negligent manner does not make it a superseding cause of harm to another which the actor’s negligent conduct is a substantial factor in bringing about, if ... a reasonable man knowing the situation existing when the act of the third person was done would not regard it as highly extraordinary that the third person had so acted.”

If, as a result of Walton’s negligence, the station wagon had come to a stop entirely upon the pavement and had immediately been hit by a third vehicle in its proper lane of traffic it cannot be doubted that a jury would be justified in finding that Walton’s negligence was an actionable cause of Tull’s injuries. In the actual case Tull was placed in a position of peril in that the station wagon was partly on the pavement. One ordinarily assumes the righthand door to be a safe exit, but here that way out exposed Tull to immediate danger. From the fact situation as a whole the jury might well have concluded that Tull’s impulse to open the door and leave the car, in circumstances where he might understandably have been excited or confused, was not “highly extraordinary.” Nor was the jury bound to say that it was highly extraordinary that Tull should have been struck by a passing car. Viewing the evidence in its entirety, with all its permissible inferences, we think the court was right in submitting the question of Walton’s negligence to the jury.

IV. Walton contends that it was a question of fact whether Tull was a guest at the time he was injured; if so, he could not recover without proof of willful and wanton misconduct on Walton’s part. Ark. Stats. 1947, §§ 75-913 et seq. It is accordingly urged that the court erred in taking this issue from the jury and permitting Tull to recover upon proof of simple negligence.

Tull’s company owned the station wagon; so, as far as Walton was concerned, it really belonged to Tull. Thus the situation in effect presents the question of to what extent a person may be a guest within his own car.

This problem has provoked a variety of solutions in the jurisdictions where it has arisen. We lay aside those eases turning upon a business relationship, as where the owner takes a ride with a garage mechanic to see if repair work has been done satisfactorily. Gage v. Chapin Motors, Inc., 115 Conn. 546, 162 A. 17; Thomas v. Hughes, 177 Kan. 347, 279 P. 2d 286, 65 A. L. R. 2d 306. The case at bar involved a purely social relation; so we limit our consideration to cases where the owner has simply permitted someone else to take the wheel upon a social occasion.

The principal case finding an owner to have been a guest in his own car is Phelps v. Benson, 252 Minn. 301, 90 N. W. 2d 533. There two couples were sharing-expenses upon a vacation trip. The court upheld a jury verdict finding that the owner was a guest while the other man was driving. The court was influenced by two considerations: First, the statute in question was to be liberally construed (whereas most guest statutes are considered to be in derogation of the common law and therefore to be strictly construed); and, secondly, the statute was passed to prevent collusion, and that possibility is equally present whether or not the driver happens to own the car. The only other case that we find holding the owner to have been a guest is Murray v. Lang, Iowa, 106 N. W. 2d 643, where the court seems to have concluded that any one who is not actually a passenger for hire is a guest.

The great majority of cases have reached the conclusion that the owner was not a guest in his own car. The leading case is an early one, Gledhill v. Connecticut Co., 121 Conn. 102, 183 A. 379. There the court made no mention of the fact that the statute was intended to prevent collusion and noted only that its purpose was to deny a recovery to a social guest who had accepted another’s hospitality. Since the owner was not the recipient of the driver’s hospitality the court held that the owner was not a guest. Other cases reaching this result include Leonard v. Helms, 4th Cir., 269 F. 2d 48; Wilson v. Workman, D. C. Del., 192 F. Supp. 852; Ahlgren v. Ahlgren, 152 Calif. App. 723, 313 P. 2d 88; Henline v. Wilson, 111 Ohio App. 515, 174 N. E. 2d 122; and Lorch v. Eglin, 369 Pa. 314, 85 A. 2d 841.

We think the soundest approach to be found in any of the cases is that taken in Naphtali v. Lafazan, 8 App. Div. 2d 22, 186 N. Y. S. 2d 1010, affirmed 8 N. Y. 2d 1097, 171 N. E. 2d 462. There two couples, the Naphtalis and the Lafazans, took a vacation trip in a car owned by Mr. Naphtali, who “in the main” paid the expenses of the trip. Both the Naphtalis were injured when the car overturned while Mr. Lafazan was driving. The court held that Naphtali was not a guest.

The court pointed out that the guest statutes have a two-fold purpose, “to activate the view that it is unfair for a guest to seek damages from one who has benefited or accommodated him and to furnish an antidote to fraudulent claims against insurance companies conceived by collusive host and guest.” Having recognized the dual aim of the statute the court was reluctant to give weight to only one of its purposes, either by saying, as the Minnesota court did, that the owner was a guest as a matter of law or by saying, as the Connecticut court did, that he was not. The court preferred a middle ground, observing that no court has held it to be impossible for an owner to be a guest in his own automobile. This statement is sound. If, for instance, a man should lend his car to a friend for a week, with the borrower paying all the costs of operation, a jury might readily find the owner to have been a guest if he accepted a ride in the car during the week.

In the Naphtali case the court reviewed a number of cases and concluded that the effect of the Gledhill case and at least two others was to hold that an owner who merely allows another to drive upon a social occasion is presumably not a guest “in the absence of evidence to the contrary.” It was noted that in the Minnesota case, Phelps v. Benson, supra, the couples were sharing expenses, so that each man was regarded as the host while he was driving. It was finally concluded in the Naphtali case that there were present no special facts “that would impel a court to hold that the general rule is not applicable, that is, that under ordinary circumstances an owner is not a guest.” Naphtali was therefore held not to have been a guest of Lafazan.

We approve the reasoning of the New York court. In the case at hand Walton was driving when Tull was picked up after the game at Clarksville. Tull says that Walton asked him if he wanted Walton to drive, and Tull replied, “O. K.” Walton quotes Tull as having said, “If you don’t mind I would like for you to drive on.” In either case it is a typical instance of a person other than the owner doing part of the driving on a social occasion, for his own pleasure or as an accommodation to the owner. We think some additional facts would have to be shown before a jury would be justified in finding Tull to have been a guest in his own automobile.

On this' point Walton also argues that the court erred in ruling that Walton was, as a matter of law, Tull’s agent in driving the car. It is insisted that this ruling prevented Walton from developing all the facts bearing upon Tull’s status as a guest. We do not intimate that the court’s ruling was correct (see, e. g., Schweidler v. Caruso, 269 Wis. 438, 69 N. W. 2d 611), but Walton has not shown that he was prejudiced. He made no offer to prove any facts that would have indicated Tull to be a guest; so we are not in a position to say that Walton was adversely affected by the ruling. City of Prescott v. Williamson, 108 Ark. 500, 158 S. W. 770.

V. Before the trial Tull settled his claim against Glenn. Tull agreed that, in return for a payment of $9,000, he would satisfy to the extent of $10,000 any judgment he might recover against any of the tortfeasors and, further, that he would make no effort to collect any additional judgment he might obtain against Glenn. Walton now insists that the trial court should have allowed him to introduce the settlement agreement in evidence. It is argued that the matter would have affected Tull’s credibility, since he might be tempted to slant his testimony against Walton and Brigham, whom he had not released.

The court was right in excluding proof of the compromise. In Gien v. Williams, 215 Ark. 705, 222 S. W. 2d 800, the payment by one joint tortfeasor was considered by the jury, apparently without objection, but we did not hold that procedure to be proper in all eases. The fact of settlement might have had a slight bearing upon Tull’s credibility, but this reason for admitting the proof is outweighed by the arguments for its exclusion. The evidence would have informed the jury that one of the defendants had admitted liability and might also have been used as a basis for an argument that Tull had accepted the amount of the settlement as fair compensation for his injuries. The Uniform Contribution Among Tortfeasors Act contemplates that each tortfeasor will be credited with amounts paid by other joint tortfeasors, Ark. Stats., § 34-1004, but the statute is silent about how the matter is to be handled. In their note to this section the Commissioners state that the method of letting the jury apply the prior payment in reduction of their verdict is less satisfactory than the method of letting the court credit the payment upon the final judgment. 9 U. L. A. 242. We think the court below was right in following the latter course.

VI. Finally, Tull’s cross appeal raises a perplexing question of first impression in Arkansas. The jury apportioned the total negligence in the ratio of 60 per cent against Glenn, 20 per cent against Walton, 10 per cent against Brigham, and 10 per cent against Tull. The trial court refused to allow Tull to recover from Brigham, because their percentage of fault was equal. On cross appeal Tull argues that the comparison should not be made between the plaintiff and a single defendant; it is contended that the plaintiff should recover if his negligence is less than that of all the defendants combined.

The statute is open to either interpretation. It provides that contributory negligence shall not bar a recovery “where the negligence of the person injured or killed is of less degree than the negligence of any person, firm, or corporation causing such damage.” Ark. Stats., § 27-1730.1. If the reference to “any person . . . causing such damage” is taken to mean each separate person the trial court’s ruling was correct. But if the reference to any person is taken to include the plural as well as the singular, which by statute is a permissible interpretation, Ark. Stats., <§ 1-202, then the ruling was wrong.

The few decisions elsewhere are not helpful. In Georgia it has been the law for more than a century that a plaintiff cannot recover from any tortfeasor whose negligence did not exceed that of the plaintiff. This result was reached by a judicial interpretation of two statutes having no resemblance to our comparative negligence act. Smith v. American Oil Co., 77 Ga. App. 463, 49 S. E. 2d 90. In Wisconsin the statute is more nearly like ours, declaring that contributory negligence is not a bar to recovery “if such negligence was not as great as the negligence of the person against whom recovery is sought.” Wis. Stats., § 331.045. The court construes this act to mean that the plaintiff cannot recover from any tortfeasor whose negligence does not exceed the plaintiff’s, even though the plaintiff’s negligence is less than that of all the tortfeasors put together. Walker v. Kroger Gro. & Bakery Co., 214 Wis. 519, 252 N. W. 721. Professor Prosser has pointed out that the results reached in the Georgia and Wisconsin cases have not been very satisfactory. Prosser, Comparative Negligence, 51 Mich. L. Rev. 465, 507.

In the only published discussion of this particular question under the Arkansas statute Dan B. Dobbs has taken the position that in the situation now presented the plaintiff ought not to recover. It is his thought, presented without much supporting analysis, that the legislature did not intend for there to be a recovery if, for example, the plaintiff and the two defendants were each found to be guilty of one third of the total negligence. Dobbs, Act 296, Comparative Negligence, 11 Ark. L. Rev. 391.

It seems to us that this result does not give effect to the basic legislative intention and is in fact demonstrably unjust to the person who is injured by the concurring negligence of several tortfeasors.

Our first comparative negligence statute, usually called the Prosser Act, allowed the plaintiff a proportionate recovery no matter how greatly his negligence exceeded that of the defendant. Act 191 of 1955. In the various studies of that act it was generally agreed that its basic purpose was to achieve complete abstract justice by apportioning the total damages of all the parties in the ratio of their respective degrees of fault. Hence the approved procedure was to distribute the total liability so that each party would bear his fair share, taking both his injuries and his percentage of fault into account. Dobbs, Act 191, Comparative Negligence, 9 Ark. L. Rev. 357, 366 et seq.; Leflar, Comparative Negligence, 10 Ark. L. Rev. 54, 62 et seq.; Panel on Comparative Negligence, 10 Ark. L. Rev. 88, 92 et seq. Under the Prosser Act if all three parties were equally at fault there would still have been a partial recovery by the one or two who had suffered more than a third of the total damages.

We think the basic purpose of the present statute to be essentially the same as that of the Prosser Act; it is still to distribute the total damages among those who caused them. The present act provides, however, that the plaintiff can recover only if his negligence is of less degree than that of any person, firm, or corporation causing his damage. We are not convinced that the legislature meant to go any farther than to deny a recovery to a plaintiff whose own negligence was at least 50 per cent of the cause of his damage. To refuse redress to an injured person whose negligence was only 10 per cent of the total would be almost a return to the common law doctrine of contributory negligence.

We realize that where some of the tortfeasors are insolvent or unavailable our conclusion may require a single defendant to pay the entire judgment, even though his negligence was comparatively slight. (The Uniform Act leaves open the matter of equitable contribution when not all the tortfeasors are solvent. Commissioners’ Note to § 2 of the 1939 Uniform Contribution Among Tortfeasors Act, 9 U. L. A. 235.) But this possibility of disproportionate liability always exists when some of the wrongdoers cannot be made to pay their fair share. At common law if the plaintiff was free from contributory negligence he could recover his entire damages from any defendant whose negligence, however slight, was a concurring proximate cause of his injuries. We cannot adopt a narrow construction of our comparative negligence statute in the vain hope of avoiding inequitable situations due to insolvency. Obviously either the plaintiff or the solvent defendant must suffer, and the loss has traditionally fallen upon the wrongdoer.

We have said that the rule contended for by Brigham in this case is demonstrably unjust. Suppose that a plaintiff fails to stop his car at a through street and is hit by a drunken driver traveling at an excessive speed. If the jury attributes 33 1/3 per cent of the negligence to the plaintiff for having run the stop sign and 66 2/3 per cent to the defendant the plaintiff recovers the greater part of his damages. This is fair.

But now suppose that upon the same facts it develops that a third person had been negligent in lending his car to the drunken driver. The owner of the car becomes a joint tortfeasor. The plaintiff may still be found guilty of 33 1/3 per cent of the total negligence, for his conduct has not been changed. But no matter how the jury apportions the other 66 2/3 per cent the plaintiff’s recovery, under Brigham’s theory, is reduced. In fact, if the jury should divide the remaining negligence equally between the owner of the car and the drunken driver the plaintiff could recover nothing at all! We should be hard put to explain to a layman why it is that a person hit by a drunken driver can recover if the wrongdoer was driving his own car but cannot recover if some third person had also been at fault in lending the car. The plaintiff’s conduct is so plainly identical in both instances that it is only common sense for it to have the same effect upon his recovery. We accordingly hold that Tull is entitled to judgment against Brigham.

Affirmed on direct appeal and reversed on cross appeal.

Harris, C. J., and MoFaddin, J., dissent as to the cross appeal.

Carleton Harris, Chief Justice.

I respectfully dissent to the reversal on cross-appeal, because I feel that no recovery should be allowed a plaintiff against a defendant whose negligence is less, or no more, than that of the plaintiff.

I recognize that there is some merit in the position taken by the Majority, but I do not believe that the General Assembly intended for a plaintiff to recover from any defendant whose negligence was no greater than his own. Our statute, in full, provides:

“Contributory negligence shall not bar recovery of damages for any injury, property damages or death where the negligence of the person injured or killed is of less degree than the negligence of any person, firm, or corporation causing such damage.”

The Majority say this statute is open to two interpretations. I do not agree, for I interpret the language clearly to have reference to separate persons. The Act says “any person, firm or corporation causing such damage,” —not “any persons, firms, or corporations causing such damage,” In other words, if the Legislature intended the interpretation given the Act by the Majority, it was only necessary that it use the plural instead of the singular. The language of this statute has the same meaning to me as the language of the Wisconsin Statute, which provides that-contributory negligence is not a bar to recovery “if such negligence was not as great as the negligence of the person against whom recovery is sought. ”. As pointed out in the Majority opinion, the Wisconsin Supreme Court, in the case of Walker v. Kroger Grocery and Bakery Company, 214 Wis. 519, 252 N. W. 721,92 A. L. R. 680, construed the Act to mean that a plaintiff cannot recover from any tortfeasor whose negligence did not exceed that of the plaintiff, even though the plaintiff’s negligence was less than that of all the tortfeasors combined. I agree thoroughly with the position taken by Mr. Dobbs in his Legislative Note found in 11 Ark. L. Rev. 391, to the effect that the Legislature did not intend a recovery against any defendant whose negligence was not greater than that of the plaintiff. In fact, I have found no case to the contrary. It appears to me that the position taken by the Majority may well work an undue hardship on a defendant who may have had but little to do with injuries sustained by a plaintiff. For example, let us say “A” sues “B” and "C” as joint tortfeasors, and the jury finds defendant "B” guilty of 74% negligence, defendant "C” guilty of 1% negligence, and plaintiff ‘ ‘ A” guilty of 25% negligence. ' A’s ” damages are fixed at $40,000. "B” is insolvent. Under the Majority holding, plaintiff "A”, though 24% more negligent than defendant “C”, can collect 75% of his damages from “C” (his own 25% negligence being deducted). This results in ££C” having to satisfy ££A’s” judgment to the extent of $30,000, though his own negligence was at the very minimum. Again, using another illustration, plaintiff ££A” sues ££B” and ££C” as joint tortfeasors. The jury finds defendant ££B” guilty of 98% negligence, defendant ££C” guilty of 1% negligence, and plaintiff ££A” guilty of 1% negligence. ££B” is insolvent. Under the holding of the Majority, ££A” can collect his entire judgment, less his own 1% of negligence, from ££C”, i.e., ££C” is financially responsible for 99% of the damage suffered by ££A”, though he was only responsible for 1% of the actual damage.

I cannot believe the Legislature intended such a result. I would affirm on the cross-appeal, and therefore respectfully dissent.

Ed. F. McFaddin, Associate Justice,

dissenting.

The jury found the four parties negligent as follows:

Glenn 60 per cent.
Walton 20 per cent.
Brigham JO per cent.
Tull 10 per cent.

It is my view that regardless of the inter sese relationship between Tull and Walton, nevertheless, as concerns Glenn and Brigham, the negligence of Walton is imputed to Tull. With Walton’s negligence imputed to Tull, the above figures become:

Glenn 60 per cent.
Tull 30 per cent.
Brigham 10 per cent.

We come then to the application of the Comparative Negligence Statute (which is Act 296 of 1957, compiled as §§ 27-1730.1 — 27-1720.2 • Ark. Stats.). When we apply the Comparative Negligence Statute to the last set .of figures detailed above, we find that Tull’s negligence, being 30 per cent., is greater than Brigham’s negligence of 10 per cent.; and it is my view that under the Comparative Negligence Statute Tull cannot recover anything from Brigham. As to Glenn, whose negligence is 60 per cent., Tull has already settled with him out of court for a figure of $9,000.00.

It is my view that the Comparative Negligence Statute, being an Act of 1957, modifies and affects the Uniform Tortfeasors’ Contribution Act, which is Act No. 315 of 1941; and in this case results in (1) Brigham being exempt from all liability to Tull; and (2) Glenn being liable for only 30 per cent, of the damages which have already been settled. As between Walton and Tull, there would only be 10 per cent, due by Walton to Tull. These results are because I think the Comparative Negligence Statute modifies and affects the Uniform Tortfeasors’ Contribution Act.

       The Supreme Court of Georgia has taken the same position, though the Georgia Act is not similar to our own.

       The Lower Court ruled that Walton was, as a matter of law, the agent of Tull. The Majority Opinion so recites.

       Section 2 of the Act provides: “In all actions hereafter accruing for negligence resulting in personal injuries or wrongful death or injury to property, the contributory negligence shall not prevent a recovery where any negligence of the person so injured, damaged, or killed is of less degree than any negligence of the person, firm or corporation causing such damage; provided that where such contributory negligence is shown on the part of the person injured, damaged or killed, the amount of the recovery shall be diminished in proportion to such contributory negligence.”


source: Caselaw Access Project

author: Paul Ward, Associate Justice.

license: Public Domain

text:
    Shaw v. Brewer.
    5-2658
    356 S. W. 2d 17
    Opinion delivered March 26, 1962.
    [Rehearing denied April 30, 1962.]

      Caldwell T. Bennett, for appellant.

      Ivan Williamson, for appellee.
   Paul Ward, Associate Justice.

This litigation was initiated when appellant, Gladys K. Shaw, petitioned the probate court to probate the will of George K. Shaw, deceased, and to be appointed personal representative of his estate. In doing so, appellant represented to the court that she was the widow of George J. Shaw. In appellant’s petition she first asked the court to discharge Dexter Brewer (one of the appellees) who had already been appointed public administrator.

Appellant’s petition was opposed, in appropriate pleadings, by one of the appellees, Minnie Margaret Shaw, who contended that she was the widow of said George J. Shaw, deceased.

On the issue of which one of the women was in fact and in law the widow of said George J. Shaw the trial court heard testimony presented by both sides, and then found, in effect that (a) appellant failed to prove she was the widow; (b) that Minnie Margaret Shaw had not asked to be appointed administrator; and, Brewer should be retained as public administrator.

Because of the conclusion we have reached, as hereafter explained, we deem it necessary to set out only a brief summary of the testimony. Appellant showed, by original documents, that she was married to the deceased on August 13, 1945. She testified that she had lived with Shaw as his wife until he died April 25, 1961; that she understood Shaw had secured a divorce before marrying her; and, that Minnie Margaret Shaw (and also her children by the deceased) visited in her home in Stone County prior to Mr. Shaw’s death but said nothing about his failure to get a divorce. On the other hand Minnie Margaret stated (undenied) that she married George J. Shaw many years prior to 1945 and that they lived together and raised six children. She further testified that the records, in the places where they had lived, failed to show any divorce.

We have concluded that the cause should be reversed because, during the hearing, the trial court erroneously placed the burden on appellant to prove, by direct proof, that George J. Shaw had secured a divorce from his first wife when she (appellant) married him in 1945. At one place the court, in addressing appellant’s attorney, said: “. . . it will be absolutely essential that you prove the dissolution of a former marriage . . .” At another time the court, in referring to the testimony appellant had introduced and was trying to introduce, said: “If that sums up your case, why, you are out the window right now.” Again the court said: “. . . when they make proof of a former marriage then you can make proof of the dissolution of that marriage by direct proof, but not by such things as this”.

In many cases' of this nature this Court has held that the burden was on the first wife or spouse to show the absence of a divorce; that there is a strong presumption in favor of the validity of the second marriage; that a marriage ceremony performed pursuant to statute carries' with it a presumption of legality, and that the burden is on the party attacking such marriage to prove its illegality. For these and other similar statements see: Latham v. Latham, 175 Ark. 1037, 1042, 1 S. W. 2d 67; Missouri Pacific Railroad Company et al v Harris, 196 Ark. 974, 975, 120 S. W. 2d 720. In the early case of Estes v. Merrill, 121 Ark. 361, 181 S. W. 136, the Court, at page 368 of the Arkansas Reports, used this language:

“So strong is this presumption and the law is so positive in requiring the party who asserts the illegality of a marriage to take the burden of proving it, that such requirement obtains even though it involves the proving of a negative, and although it is shown that one of the parties had contracted a previous marriage, and the existence of the wife or husband of the former marriage at the time of the second marriage is established by proof, it is not sufficient to overcome the presumption of the validity of the second marriage, the law presuming rather that the first marriage has been dissolved by divorce, in order to sustain the second marriage. ’ ’

We are aware, as held in Watson v. Palmer, 219 Ark. 178, 240 S. W. 2d 875, that this strong presumption in favor of the validity of the second marriage is a rebut-table one. This means, of course, that the trial court should hear all the relative testimony and then weigh the same after applying the rules of law heretofore mentioned.

It is obvious the trial court did not, in this case, attempt to follow the rules above indicated, and that it has not made a decision on the merits under all the testimony. For that reason we have concluded that justice would best be served by remanding the cause for another hearing. In reaching this conclusion we are aware of the fact that we consider a case of this kind de novo and usually dispose of it on the merits, but here there are some additional reasons, set out below, which have also influenced our decision to remand.

(a) Mr. Shaw left a will and the question was raised, but not decided, where it should be probated, (b) Certain proof was offered but refused that on rehearing might be relevant, (c) The record discloses that Mr. Shaw and appellant bought some real estate in Stone County, and it is possible additional testimony would be required to settle all claims arising relative to it.

Accordingly, the judgment of the trial court is reversed and the cause is remanded for further proceedings.


author: Sam Robinson, Associate Justice. George Rose Smith, J.,

text:
    Hood v. State.
    5-2466
    356 S. W. 2d 28
    Opinion delivered March 26, 1962.
    [Rehearing denied April 30, 1962.]

      Norton & Norton, for appellant.

      Frank Holt, Attorney General, by Russell Morton} Asst. Attorney General, for appellee.
   Sam Robinson, Associate Justice.

This is an appeal from a bond forfeiture in a criminal case. The appellant, Ted Hood, is a professional bondsman with his office in Little Rock. In January, 1958, one Johnny Puckett was arrested in St. Francis County on the charges of forgery and uttering. Hood made his bail bond in the sum of $2,000.00. The case was set to be tried on February 24, 1958 in the St. Francis Circuit Court at Forrest City.

On February 18, 1958, Puckett was admitted to the State Hospital for Mental Diseases at Little Rock as a voluntary patient on authority of Act 411 of 1955, Ark. Stats. 83-713. Hood was notified that Puckett was in the hospital and Hood’s wife, who acts as his secretary, phoned the Clerk of the St. Francis Circuit Court and notified him that Puckett was in the hospital. Pursuant to Mrs. Hood’s conversation with the Clerk, who is now dead, Hood obtained from the hospital authorities a certificate showing Puckett was in that institution. The certificate is as follows: “This is to certify that Johnny D. Puckett was admitted to the State Hospital on February 18, 1958, on a voluntary commitment under the provisions of Act No. 411 and at the present time is still a patient in this hospital, /s/ M. T. McMurry, Assistant registrar, For the Superintendent.” Hood sent the certificate to the Clerk of the Court who referred the matter to Mr. Fletcher Long, Deputy Prosecuting Attorney. On February 20, 1958, Long wrote to Hood as follows: “Your letter and enclosure, mailed to Mr. T. E. Christopher, Clerk, has been referred to me. You are informed that from the State’s point of view, there is nothing for the Court to consider at the present .time, but the question of forfeiting your bond on Monday, February 24. If a motion for continuance is framed and presented because of the contents of the letter from the State Hospital, the State will perhaps concede the point. I suggest that you consult your attorney or Puckett’s Little Rock attorney in this matter, inasmuch as we are informed that Mr. West, local counsel for Puckett has relieved himself of further responsibility in the matter. In the event that the motion is properly presented, and is granted, you are hereby informed that we will make application for a much larger bond, on the basis of Puckett’s past record, and the more severe punishment which could result from our amendment to bring this ease under the habitual criminal statute.”

It appears that Puckett had engaged a lawyer in Forrest City and also a Little Eock attorney to represent him, but on February 18, 1958 the Forrest City lawyer withdrew from the case because his fee had not been paid and he so notified Puckett. There is no showing as to what arrangements were made with the Little Eock lawyer. In any event, no motion was made to continue the case which was called for trial on February 24, 1958.

On February 28, 1958, the Court ordered the bond forfeited. On January 7, 1959, Hood obtained custody of Puckett and surrendered him to the officers of St. Francis County. Hood filed a petition to set aside the bond forfeiture alleging that Piickett was not present when his case came on for trial because he is insane. Hood also moved for a jury trial. Both the petition to set aside the bond forfeiture and the motion for a jury trial were overruled. Hood appealed to this Court and we held that he was entitled to a jury trial and reversed the judgment of forfeiture. Hood v. State, 231 Ark. 772, 332 S. W. 2d 488.

On remand a jury trial was had and there was a verdict for the State on the issue of whether, because of insanity, Puckett failed to appear on February 24, 1958, when his ease was called for trial. This is the second appeal.

First, did the Court err in not setting aside the bond forfeiture as the Court could have done under authority of Ark. Stats. 43-729 which provides: “If, before judgment is entered against the bail, the defendant is surrendered or arrested, the court may, at its discretion, remit the whole or part of the sum specified in the bail-bond.”

When the case was called for trial on February 24, 1958, the defendant was not present and no one appeared in his behalf to ask that the case be continued, but no bond forfeiture was ordered at that time. An alias warrant was issued for Puckett’s arrest.

On February 26, two days later, two officers from Forrest City came to Little Rock to arrest Puckett and return him to' St. Francis County. They went to the State Hospital where they had been told Puckett was confined, but he was not there. He had been released to a lawyer in Little Rock. The officers went to the lawyer’s office and were informed that Puckett had fled. The officers returned to Forrest City and on February 28, the Court ordered a forfeiture of the bond. Under these circumstances we do not think there was an abuse of discretion by the trial Court in refusing to remit the bond forfeiture or any part thereof.

The trial Court had good reason to believe that Puckett entered the hospital on February 18 for the purpose of avoiding a trial on February 24. Puckett’s admission to the hospital was voluntary. No doctor signed anything to the effect that Puckett was insane. One of his lawyers testified that he forcefully conducted Puckett to the hospital on the night of February 18 because his condition indicated insanity, but the hospital record show that Puckett was admitted in the middle of the day. This was six days before the case was to be tried. Two days after the case was to be tried, Puckett was released by the hospital to one of his lawyers and promptly disappeared. One of those in charge at the hospital testified that Puckett would not have been admitted to the hospital in the first place if it had been known that a criminal ease was pending against him, and that he would have been released to attend the trial on the 24th if the request had been made. It has been suggested that later Puckett was sent to the penitentiary from Pulaski County and was then transferred from the penitentiary to the State Hospital and is now there confined.

Perhaps Puckett is insane, but tbe issue of whether he was absent when his case was called for trial because of insanity was submitted to a jury. At all times Puckett was represented by counsel. The lawyer, who according to the record, was representing him in the case at Forrest City at the time of the forfeiture, and who was not present to move for a continuance, was not called as a witness in the ease at bar.

In his petition filed on April 18, 1958, to set aside the bond forfeiture, appellant alleged that Puckett was unable to appear in court because of insanity. This allegation raised an issue that called for a jury trial, since the appellant requested such a trial. Upon the trial on remand the Court, by Instruction'No. 1 told the jury:: “You are instructed that if you find from a preponderance of the evidence that the defendant, Johnny Puckett, was confined in the Arkansas State Hospital For Nervous Diseases on February 24, 1958, because of' his insanity, and was unable to attend his trial on said date in this Court because of such confinement and insanity, then you will find for the defendant, Ted Hood. On -the other hand, if you find from a preponderance-of the evidence that the defendant, Johnny Puckett, was-admitted to the Arkansas State Hospital for Nervous. Diseases as a voluntary patient under the provisions of' Act 411 of 1955 for treatment for alcoholism, and if you further find he could have been released if he had requested it, or if the hospital authorities had been informed that criminal charges were pending against him,, then you will find for the plaintiff, State of Arkansas.”

This instruction was correct. The issue was whether appellant was unable to attend Circuit Court on February 24, 1958 because of insanity. He had asserted no other valid reason for not being present when his case was called. The only evidence of insanity was the testimony of his wife that he acted “crazy” and the testimony of one of his lawyers to the same effect. No other witness testified that he was insane and it was shown that he was released from the hospital two days after the case was called for trial. The burden was on the appellant to prove that Puckett was not in court when his ease was called for trial because he was insane. He failed to establish such allegation to the satisfaction of the jury.

Affirmed.

George Rose Smith and Ward, JJ., dissent.

George Rose Smith, J.,

dissenting. Before final judgment was entered against Hood he succeeded in obtaining custody of Puckett and surrendering him to the officers of St. Francis county. Under the statute the fact that the accused had been surrendered entitled Hood to invoke the trial court’s discretionary authority to remit the forfeiture in whole or in part. Ark. Stats. 1947, § 43-729. We have recently observed that the giving of bail bonds is to be encouraged and that the court’s power to remit the forfeiture is intended to provide the bail with an incentive for securing the arrest of the defendant. Central Cas. Co. v. State, 233 Ark. 832, 346 S. W. 2d 193.

In the case at bar the circuit court did not actually exercise its discretion, for it denied the motion for remission of the forfeiture upon the single ground that the bondsman had sought and been granted a trial by jury. The jury, however, had no power to remit any part of the forfeiture; it merely decided as an issue of fact whether Puckett was really insane when he entered the State Hospital. Hood had a constitutional right to have that issue determined by a jury, but surely his insistence upon a jury trial did not preclude him from seeking other relief that only the court could give. An analogous situation is that in which the accused in a criminal case asks for a jury trial upon the merits; that request does not prevent him from first seeking a change of venue, which can be granted only by the court.

Here the trial court summarily denied the bondsman’s request for a remission of the forfeiture. The majority, as I understand their opinion, affirm the circuit court’s action upon the ground that Puckett willfully sought to avoid trial by resorting to a subterfuge as a means of gaining admission to the State Hospital. The bail is punished because the defendant was not unavoidably absent when the case was called for trial.

This is a harsh rule. It used to be the holding in the federal courts, solely because the governing statute was construed to deny relief to the bondsman if the accused had been guilty of a willful default. In United States v. Kelleher, 2d Cir., 57 F. 2d 684, 84 A. L. R. 414, Judge Learned Hand applied the federal rule with reluctance, pointing out that it was a strained construction of the statute and, further, that the state courts uniformly reject this harsh view. Later on the federal rule was changed by the Rules of Criminal Procedure to conform to the state practice. Smaldone v. U. S., 10th Cir., 211 F. 2d 161.

Our statute contains no language whatever to indicate a legislative intention that the bondsman should suffer for the defendant’s willful failure to appear for trial. No doubt the accused’s absence is willful in almost every instance; I see no real difference between a case in which the accused conceals himself to avoid a trial and one in which he fraudulently enters the State Hospital for the same purpose. Surely the majority do not mean to hold that the defendant’s absence must be unavoidable, for in that case the bail may be entitled as a matter of right to a complete remission of the forfeiture.

Here Hood was not guilty of conspiring with Puckett to avoid trial. To the contrary, Hood persevered in his efforts to recapture Puckett and was finally successful in returning him to St. Francis county. There the authorities were so little interested in the case that they did not even bring Puckett to trial; instead they turned him over to Pulaski county for trial upon similar charges pending there. In the 'circumstances I would remit at least half the amount of the forfeiture.

Ward, J., joins in this dissent.


author: Jim Johnson, Associate Justice.

text:
    Ark. Towing Co. v. Colvin, Judge.
    5-2618
    355 S. W. 2d 287
    Opinion delivered March 26, 1962.

      Henry W. Gregory, Jr., H. Murray Clayoomb and Bridges, Young & Matthews, for petitioners.

      Max M. Smith and George H. Holmes, for respondent.
   Jim Johnson, Associate Justice.

This is an original action seeking an order prohibiting the Circuit Court of Cleveland County from proceeding to try the case of Mrs. J. E. Langford, Administratrix of the Estate of J. E. Langford, deceased, v. C. J. Picton and the Arkansas Towing Company.

The complaint alleges that C. J. Picton, the Arkansas Towing Company, and Max Linthicum were doing business in Arkansas on June 26, 1959, and were jointly engaged in the construction of a loading dock on the Ouachita River at Moro Bay in Bradley County, Arkansas, and that J. E. Langford was killed when a fishing boat in which he was riding was overturned, allegedly because of the joint negligence of the defendants in operating a tugboat.

Picton and Linthicum are residents of the State of Texas and the Arkansas Towing Company is a Texas corporation. Service of process was attempted on all three defendants under Arkansas Statute § 27-340.

All three of the defendants filed separate motions to quash which were heard by the Cleveland Circuit Court on September 1, 1961. The Court granted the motion of Max Linthicum on the ground that at the time of the accident he was a bona fide resident of the State of Arkansas and though thereafter he became a nonresident, he was not subject to the provisions of Arkansas Statute § 27-340. The Court overruled the motions to quash of Picton and the Arkansas Towing Company. From such order comes this Petition for Writ of Prohibition.

The evidence adduced at the special hearing on the motions revealed that the Arkansas Towing Company was formed in April of 1959 by C. J. Picton, Max Linthicum and E. B. Picton. It has never qualified to do business in Arkansas. The Towing Company entered into a contract with the Moro Gravel Company, an Arkansas corporation, on June 3, 1959. The first section of the contract is as follows:

“First party [Moro Gravel Company] does hereby grant unto second party [Arkansas Towing Company] the exclusive right and privilege to haul by water all sand and gravel excavated and shipped by water by First Party at Moro Bay, Arkansas, for a period of one year beginning on the 1st day of August, 1959, and terminating on the 1st day of August, 1960. Said sand and gravel shall be hauled by tug and barge to Monroe, Louisiana, a distance of approximately one hundred (100) miles and Second Party does hereby agree to haul sand and gravel said distance upon the following terms and conditions:”

The Towing Company leased several barges to fulfill this contract and made arrangements to use a tugboat owned by C. J. Picton and a tugboat owned by Max Linthicum. The barges and the two tugboats were taken to Moro Bay in June of 1959. The loading facilities, which under the contract were to be constructed by Moro Gravel Company, were not completed when the tugboats and barges arrived at Moro Bay.

One of the leased barges and the tugboat owned by C. J. Picton was used “roughly a period of ten days” in the completion of the construction of the loading facilities. The loading facilities extended from the land out into the water “a piece”. A pile driver had been placed on the barge and the tugboat was used to locate the barge at the proper place and to steady the barge in place while piling was being driven. It was while the loading facilities were being so constructed on June 26, 1959, that J. E. Langford drowned, allegedly as a result of the hazard caused by the backstream of the tugboat which was owned by Picton and being operated at the time by Max Linthicum. There was evidence to the effect that only a day or so before the drowning C. J. Picton had been captaining his own tugboat with his own crew which he paid from his own funds and performing the same duties in the construction of the loading facilities as were being performed by Max Linthicum at the time of the drowning.

Petitioners contend that they received no compensation for the use of the barge, tugboat and men during the construction operation, yet on cross-examination Max Linthicum testified as follows:

“Q. I understand, but let me ask you this, The whole operation and your part of it there was all through mutual agreement between you and Mr. Picton and the Arkansas Towing Company. Is that correct? Whether it was individually or a partnership or a joint enterprise. You were all jointly interested in it?
“A. We were interested. We certainly weren’t out there sweating for free.”

From all the evidence presented the trial court surely could have concluded that the work performed by petitioners in the construction of the loading facilities was for the mutual benefit of petitioners and Moro Gravel Company.

Petitioners further contended that they were not doing business or performing any character of work or service in Arkansas, and that they were in Arkansas for the sole purpose of engaging in interstate commerce, and loading facilities being constructed were an instrumentality of interstate commerce.

There was no evidence’to the effect that the loading facilities were to be used solely for the loading of barges for shipment of sand and gravel in interstate commerce. There was evidence showing that petitioners had made a shipment to a place other than Monroe, Louisiana. Certainly the trial court could have found the facilities were such as could be used by the domestic corporation, Moro Bay Company, to service local or intrastate shipments. There was also evidence tending to show that petitioners maintained an office at Calion, Arkansas. Their business stationery listed a post office box in Calion. One of petitioners’ witnesses on cross-examination testified to the effect that there was an office at Calion and that they had a telephone listing and advertisement, not only in Calion but in El Dorado and several other cities in that area of Arkansas. Surely this evidence raised the question of fact as to whether petitioners were holding themselves out to do business in the areas in which the evidence tended to show they advertised. There was further evidence from which the trial court could have concluded that the petitioners had not begun their operations under the contract: That they had not hauled a single shipment: They undertook to help the local producers construct its facilities which they were under no obligation to do under their contract to transport the products: That nothing had been transported in interstate commerce prior to the time the tort complained of was committed: That none of the acts of interstate commerce under the contract had occurred, and that there was no link in the chain of transportation involved in the work that was being done.

It follows, therefore, from what has been said above that jurisdiction of the court was determined by contested facts in which case we have repeatedly held that prohibition will not lie. See Co-Ark. Construction Company v. Amsler, Judge, 234 Ark. 200, 352 S. W. 2d 74; Clement v. Williams, Chancellor, 227 Ark. 199, 297 S. W. 2d 656; Twin City Lines, Inc., v. Cummings, Judge, 212 Ark. 569, 206 S. W. 2d 438; Murphy v. Trimble, 200 Ark. 1173, 143 S. W. 2d 534; Metropolitan Life Ins. Co. v. Jones, 192 Ark. 1145, 97 S. W. 2d 64; Stockburger v. Combs, 190 Ark. 338, 78 S. W. 2d 816; Merchants & Planters’ Bank v. Hammock, 178 Ark. 746, 12 S. W. 2d 421. See also Judge Leflar’s “The Law of Conflict of Laws”, Chap. 4, § 34, p. 56.

Writ of Prohibition denied.

Harris, C. J., and Ward, J., dissent.


author: Neill Bohlinger, Associate Justice. Carleton Harris, Chief Justice.

text:
    Washington v. Johnson.
    5-2599
    355 S. W. 2d 273
    Opinion delivered March 26, 1962.

      William H. Drew, for appellant.

      D. A. Clarke, for appellee.
   Neill Bohlinger, Associate Justice.

The appellants in this case are man and wife who own 20 acres of land in Desha County. Being indebted to the appellee, T. H. Johnson, on January 19, 1956 the appellants executed to the appellee a mortgage on 20 acres of land to secure an indebtedness of $420.98. This indebtedness and interest was paid in full after the tractor notes hereinafter referred to were made but before this suit was filed. The mortgage contained the further provision that it was also security for any other indebtedness of whatsoever kind that the grantees or the holder of the mortgage might hold against grantors by reason of future advances made thereunder by purchase or otherwise to the time of the satisfaction of the mortgage.

On April 23, 1956, the appellee sold to J. D. Washington, one of the appellants, a tractor and equipment and J. D. Washington at that time executed two promissory notes in the sum of $825.00 each payable on October 15, 1956 with interest. The notes executed by J. D. Washington for the tractor are in the usual form of title retaining notes and recite the contingencies under which the owner of the note may take possession of the chattel and a provision for sale of the property in the event of default in payment.

On March 20, 1961 the appellee filed his complaint in the Desha Chancery Court against the appellants, J. D. Washington and Nola Washington and attached to his complaint the two promissory notes given by J. D. Washington in the purchase of the tractor. He alleged that no payments had been made on the notes and that same were past due and unpaid and he prayed judgment in the sum of $2,295.92; that such judgment be decreed a lien on the lands described in the mortgage, a copy of which together with copies of the notes was attached to the complaint, and he asked that the land be sold to satisfy his debt.

Summons was issued and duly served on both the appellants who failed to plead within the time provided by statute and the appellee filed his motion to strike the answer which had been subsequently filed, which motion was granted by the chancellor and judgment and decree of foreclosure on the land was entered on June 15, 1961. From that judgment and decree of foreclosure comes this appeal.

The filing of the answer was not timely and the chancellor was correct in striking it and the only thing we can consider here would be objection to the jurisdiction of the court over the subject matter or the objection that the complaint does not state facts sufficient to constitute a cause of action. The matter of jurisdiction is not open to question and we address ourselves to the objection that the complaint does not state facts sufficient to sustain the judgment in this case. [Manhattan Credit Company v. Bond, 223 Ark. 480, 266 S. W. 2d 815.]

We note first in that connection that the mortgage is made security for advances made to grantors, Nola Washington being one of the grantors. The sale of the tractor was a separate transaction by J. D. Washington who alone signed the notes. The notes are obligations of J. D. Washington only and not the grantors and the record in this case does not link Nola Washington with the transaction in any manner.

The testimony of the plaintiff, offered at the trial and not in the record before us, could not have changed or altered the terms of the mortgage. Furthermore, the complaint did not allege that Nola Washington signed the tractor notes or that she in any way had agreed to pay them, so no proof could have been offered looking to that effect. In the absence of any such allegations the court could not render judgment against Nola Washington on the tractor notes and they constitute the only indebtedness sued on since the original land note was paid long before this suit was instituted.

The record before us is silent as to the title to the land. While there are some statements in the briefs on that point, there is nothing from which we can judicially determine what the interest of Nola Washington is but certain it is that while the appellee would be entitled to judgment in whatever amount the trial court might find due on the tractor notes, the interest of Nola Washington in the land cannot be subjected to the payment of a separate debt of J. D. Washington.

We conclude that the chancellor is in error in holding that the mortgage covers the notes sued on and this cause is therefore reversed and remanded with directions to enter judgment against J. D. Washington in favor of the appellee for such sum as the trial court finds due on the notes but such interest as the trial court may find the appellant Nola Washington has in the lands described in the mortgage will not be subjected to the payment of the notes sued on herein.

It is so ordered.

Harris, C. J., George Hose Smith and Johnson, JJ., dissent.

Carleton Harris, Chief Justice.

I do not agree with the Majority for the following reasons. The complaint unquestionably, in my mind, states a cause of action against both defendants, for it alleges that both are indebted to appellee Johnson. Subsequent to the striking of the answer, which the Majority concede was not filed in time, the court entered its decree, which contains, inter alia, the following language:

“On this day, being a day heretofore set for the irial of this cause by order of this Court dated May 25, 1961, this cause comes on to be heard, the plaintiff appearing in person and by his attorney and announced ready for trial, and the defendants appearing in person and by their attorney, John F. Gibson, this cause is submitted to the Court upon the complaint with its exhibits, summons served on said defendants on March 21, 1961, together with all other pleadings filed herein, the testimony of the plaintiff and other matters and things before the Goiort, from all of which the Court finds: * * *.”

While it is true that Nola Washington did not sign the notes, this fact alone does not necessarily free her of any liability on the indebtedness. This Court has no way of knowing the evidence that was presented before the Chancellor. It may well be that the evidence showed a ratification by the appellant, Nola Washington. As was said in Phillips v. Tidwell, 26 Tenn. App. 543, 174 S. W. 2d 472, a party may execute an instrument, such as a note, which he never signed or authorized to be signed, or he may ratify it afterwards. The Majority state: “The record before us is silent as to the title of the land.” It could well have been shown before the trial court that Washington and his wife owned the land as an estate by the entirety, and that the use made of the tractor and other equipment (for which the notes were executed) was as much of a benefit to Nola Washington as to her husband, and that she, by word or act, ratified the execution of the note.

It seems to me that the Court is assuming that no sufficient evidence was offered to establish liability on the part of Nola Washington, while, under my understanding of the law, the assumption is to the contrary, i.e., where evidence was taken, but is not included in the record, we indulge the presumption that the decree rendered was supported by the evidence. See Watson v. Jones, 233 Ark. 203, 343 S. W. 2d 415, and cases cited therein; Haynie v. Dicus, 210 Ark. 1092, 199 S. W. 2d 954.

In fact, I am firmly persuaded that the record itself supports my view. While the answer was stricken, and therefore not considered, it, of course, remains a part of the record, and it is quite significant to me that no defense is offered by Nola Washington that she did not execute the notes; rather, the defense offered (after a general denial) was, “Further answering, defendants state that they have paid T. H. Johnson the debt alleged in the complaint.”

For the reasons herein set out, I respectfully dissent.

1 am authorized to state that Justices George Rose Smith and Johnson join in this dissent.

       Emphasis supplied.

       This is not a case where the record was abbreviated by agreement. The entire record was designated by the appellant, so apparently the testimony taken was not transcribed.

       Emphasis supplied.


author: Heartsill Ragon, Special Justice.

text:
    Stobaugh, Admx. v. Hubbard, Admr.
    5-2556
    355 S. W. 2d 283
    Opinion delivered March 26, 1962.

      Mehaffy, Smith & Williams, by Pat Mehaffy, Hersehel H. Friday, Jr., and Robert V. Light, for appellant.

      Cochrill, Laser é McGehee, for appellee.
   Heartsill Ragon, Special Justice.

At approximately 5:00 A. M., while returning to McCrory from Newport, Arkansas, after a sociable evening, Joe P. Stobaugh was killed while a passenger in a car driven and owned by J. M. Hubbard. Hubbard was also killed and Edward E. Peebles, a passenger, was seriously hurt.

The administrator of Stobaugh’s estate sued Hubbard’s estate and the owner of the truck with which Hubbard’s car collided. At the conclusion of the evidence, a verdict was directed against the administrator of Stobaugh’s estate in the action against Hubbard’s estate, resulting in the appeal herein.

If there was any substantial evidence presented, then it was the duty of the court to submit the question for consideration by the jury. The evidence and all reasonable inferences deducible therefrom should be viewed in the light most favorable to the appellant in determining if there is any substantial evidence. Callett v. Loews, 203 Ark. 756, 158 S. W. 2d 658; Smith v. McEachlin, 186 Ark. 1132, 57 S. W. 2d 1043.

Appellant argues, first, that Stobaugh, at the time of the accident was not a guest within the provision of the Arkansas Guest Statute, Ark. Stats. § 75-913 et seq, and was, therefore, entitled to have the actions of Hubbard in driving the automobile reviewed in the light of ordinary negligence, rather than the wilful and wanton negligence. This is predicated upon the contention that the preceding evening’s activities were of a business character rather than social. The sole evidence adduced in this regard was the testimony of Peebles that Hubbard owned a motel patronized by Stobaugh and that Hubbard and Stobaugh had previously known each other.

This is insufficient to overcome the admitted fact that the parties were engaged in spending the evening and early morning pursuing their mutual pleasure and companionship. Under the authority of Ward v. George, 195 Ark. 216, 112 S. W. 2d 30, and subsequent cases, there is presented here a case within the purview of the Guest Statute.

It is then insisted that if Stobaugh was a guest, there is substantial evidence that Hubbard was guilty of wilful and wanton negligence constituting a proximate cause of Stobaugh’s death. Such a finding must be based upon the allegation of the complaint which reads as follows:

“Alpheus Hubbard was wilfully and wantonly negligent in that he operated his vehicle wantonly and recklessly at a speed greatly in excess of that which was reasonable and prudent under the circumstances then existing and with a conscious disregard of the consequences of his acts with reference to the rights and safety of others.”

At approximately 8:00 P. M. the three men left McCrory to go to Newport. Considerable time was spent in two taverns in Newport where a fifth of whiskey purchased by Peebles and Hubbard was consumed by them and others. Stobaugh drank several bottles of beer. Appellant’s Statement of Pacts fairly sets forth the circumstances of the collision.

‘ ‘ Sometime after 2:00 a.m. these three men went to Phillips Cafe at Newport and remained there for a period of time variously estimated from one to two hours, and they all ate breakfast and had coffee. Mrs. Phillips, operator of the cafe, testified that she visited with them during the time they were in her cafe, and Hubbard and Stobaugh showed no indication of any impairment of their faculties due to intoxicants. She stated that she could tell that Peebles had had a drink, but he wasn’t drunk.
‘ ‘ Sometime before 5:00 a.m. the three men left the cafe to return to McCrory with Hubbard driving, Stobaugh in the right front seat and Peebles asleep in the back seat. They proceeded south on Highway 17 to Shoffner, approximately 11 miles south of Newport, where the Hubbard car struck the rear of a 1% ton truck. Hubbard was killed in the collision, Stobaugh sustained fatal injuries and died 85 days later, and Peebles was injured. John Hall, the only eye witness to the collision, testified that the truck was on the highway without lights and that its lights were turned on only an instant or two before the collision. He further stated that the Hubbard automobile had its lights on and was traveling not in excess of 65 miles per hour. The driver of the truck testified that his lights were on at the time of the collision and had been on since he left Newport.
“Pertinent physical facts in evidence were that the Hubbard car made 23 feet and 5 inches of skid marks before the point of impact, and traveled 81 feet after impact. The highway at this point is straight and level except for a very minor curve which does not materially affect the vision of drivers on the highway as demonstrated by pictures in the Record. Almost all witnesses were in agreement that it was dark at the time of the collision, and the driver of the truck testified that there was fog in the vicinity. The front of the automobile was almost completely demolished and the truck came to rest 300 feet from the point of impact.”

The evidence, construed most favorably to appellant and based upon her pleadings, is insufficient to support a finding that Hubbard was guilty of wilful and wanton negligence in operating his vehicle at a speed in excess of that which was reasonable and prudent under existing circumstances.

The applicable test is set forth in Poole v. James, 231 Ark. 810, 333 S. W. 2d 833.

In arriving at the conclusion herein, all evidence by all parties has been considered.

The action of the lower court is accordingly affirmed.

The Chief Justice and Justices McFaddin and Bohlinger not participating.

Justice Johnson and Special Justice J. L. Shaver dissent. Special Justice E. A. Henry joins in the majority opinion.


author: Carleton Harris, Chief Justice.

text:
    U. S. F. & Gr. Co. v. Employers Mutual Casualty Co.
    S 5-2643
    355 S. W. 2d 613
    Opinion delivered April 2, 1962.

      Wendell O. Epperson, for appellant.

      William C. Gilliam and Gannaway & Gannaway, for appellee.
   Carleton Harris, Chief Justice.

This litigation results from an automobile collision between a vehicle driven by Leo Eason, and a vehicle owned by his son, Thomas Franklin Eason, and driven by his daughter-in-law, Nancy Eason, the collision occurring south of Malvern. Mrs. Paul Irvin was riding in the automobile with Nancy Eason. Mrs. Irvin subsequently instituted suit against both Nancy Eason and Leo Eason, seeking damages for injuries allegedly sustained. Mrs. Eason answered, denying the allegations of the complaint, and filed her “cross-claim” against Leo Eason alleging that Leo Eason was negligent and that “if it should be determined that she was negligent in any degree, then, in that event, that her negligence, if any, be prorated along with the negligence of Leo Eason, and that she be awarded judgment against Leo Eason based on the degree of Ms negligence.” Leo Eason likewise answered denying any negligence, and also filed Ms “cross-claim” against Nancy Eason, asserting “that if it should be determined that he was negligent in any degree, then and in that event that his negligence, if any, be prorated along with the negligence of Mrs. Nancy Eason and that he be awarded judgment against Mrs. Nancy Eason based on the degree of her negligence, * * On trial, the jury found Mr. Eason fifty per cent negligent, and Mrs. Eason fifty per cent negligent, and rendered judgment against Leo Eason and Nancy Eason, jointly and severally, in the amount of $5,000. The judgment further provided “that the party paying same shall have and hereby is awarded a judgment against the other defendant in the amount of one-half of such sums as shall be paid in order to satisfy the aforesaid judgment in full; for all of which execution may issue.” Subsequently, Mrs. Irvin instituted suit against the United States Fidelity & Guaranty Company, appellant herein, and alleged, “That execution issued against Leo Eason and Mrs. Nancy Eason by the Circuit Court of Hot-Spring County, Arkansas, and return by the Sheriff of Hot Spring County indicates that Leo Eason and Mrs. Nancy Eason have no property upon which to levy.” It was further alleged that the insurance company referred to had issued a policy of insurance covering the automobile driven by Leo Eason, and judgment was sought against United States Fidelity & Guaranty Company for the $5,000 plus interest, penalty, and attorney’s fee. As a result of the filing of the suit, the company paid Mrs. Irvin $5,000 in full satisfaction of the judgment, and thereafter, sought contribution from Employers’ Mutual Casualty Company, appellee herein, alleging that this latter company had liability coverage on the automobile driven and operated by Mrs. Nancy Eason. Employers’ Mutual answered, admitting that the company had issued a policy, but asserting that such policy excluded injuries sustained by an employee of Thomas Franklin Eason or his wife, Nancy Eason; that at the time the injury was sustained, Mrs. Irvin was a domestic employee of Mr. and Mrs. Thomas Franklin Eason, and was engaged within the scope of her employment when the collision occurred. On trial, the court found that Mrs. Irvin was a domestic employee of the insured; that the policy excluded injuries to such an employee, arising out of and in the course of employment, and entered its judgment denying contribution. From such judgment, comes this appeal.

Appellee had issued its policy to T. Franklin Eason, d/b/a Eason Mobil Station. The policy, inter alia, provided under Coverage “A”, bodily injury liability coverage on behalf of the insured, and under division one of Coverage “C”, provided “To or for each person who sustains bodily injury, sickness or disease, caused by accident, while in or on, or while entering into or alighting from an automobile which is being used by the named insured or with his permission, if insurance for such use is afforded under coverage “A”. Subsection (d) under “Exclusions” provides that the policy does not apply “under coverage 'A’ and division I of coverage ‘C’ to bodily injury to, or sickness, disease, or death of any employee of the insured arising out of and in the course of his employment by the insured, * * *.” Subsequently, an endorsement was placed on the policy to provide coverage for the use of other automobiles owned by the insured, and this endorsement was issued to T. Franklin Eason as an individual. Under this endorsement, the term “insured” was defined as the holder of the policy and his spouse (if a resident of the same household). Liability coverage is further provided for a chauffeur or domestic servant of the insured.

Mrs. Irvin was employed by Mr. and Mrs. Franklin Eason as a domestic servant, helping with the housework and looking after three small children. Appellant vigorously argues that the proof does not reflect that Mrs. Irvin was engaged in domestic duties or acting within the scope of her employment at the time the injury was sustained. It appears from the testimony that at the time of the collision, Mrs. Eason was driving to town, with Mrs. Irvin and her daughter, and Mrs. Eason’s three children in the car. The purpose of the trip actually seems to have been two-fold, i.e., Mrs. Irvin was to help Mrs. Eason with the laundry, or look after the children while the latter was engaged at the launder-mat, following which Mrs. Eason and her daughter planned to attend a show. Mrs. Eason’s testimony was to the effect that Mrs. Irvin was to look after the children while she (Mrs. Eason) did the laundry, and that Mrs. Irvin and her daughter were then going to the show. She testified that the matter of Mrs. Irvin taking care of the children had not been discussed; that at times when she took the children to town, Mrs. Irvin would look after them, and at other times, her mother-in-law would look after them. From the testimony:

“Q. But your mother-in-law wasn’t there on this occasion ?
A. Yes, sir, and it was taken for granted that she would take care of them.
Q. It was taken for granted that while you did the laundry Mrs. Irvin would take care of the children?
A. Yes, it hadn’t been discussed, but I’m sure it would have been.
Q. That was the purpose that you were going to come to town?
A. Well, there were two purposes, yes, sir.
Q. It was a dual purpose, you wanted to have your laundry done and she was going to take care of the children and then Mrs. Irvin and her daughter were going to the show, isn’t that right?
A. Yes.”

Mrs. Irvin was much more definite in her testimony. From the record:

“Q. Mrs. Irvin, you had been employed by Mrs. Eason since August of ’59, is that correct?
A. That’s right, 17th of August.
Q. 17th of August, 1959?
A. Yes.
Q. And on this day that you all were coming into town, Mrs. Irvin, you were coming in to do washing, is that right?
A. We were going to wash some diapers for the babies.
Q. And you and your daughter were also coming into town?
A. That’s right. * * *
Q. But, now, on this day this happened were you planning on going to the show, you and your daughter?
A. After the laundry was done, yes.
Q. But you were planning on going to the show to celebrate her birthday, is that right?
A. That’s right, because we knew that we wouldn’t get to come into town on Tuesday night.
Q. So you were going to do that on Saturday when you came in?
A. After we’d done the laundry.”

Janet Irvin, daughter of Mrs. Irvin, testified likewise that she and her mother were only going to the show after the laundering was completed. We are of the opinion that whether Mrs. Irvin was acting within the scope of her employment at the time of the collision, was a question of fact, and we are unable to say that the trial court’s determination was erroneous, or not supported by substantial evidence.

The endorsement can be of no aid to appellant, for the portions mentioned in appellant’s argument, provide no bodily injury benefits to the insured, chauffeur or domestic servant; rather, only liability coverage is provided when they are operating an automobile covered in the endorsement, i.e., protection is afforded for injury caused to a third party. It then follows, as found by the Circuit Court:

“Under the exclusion of the subject policy the following pertinent language appears: ‘This policy does not apply . . . (subsection “d”) under coverage A and division 1 of coverage C, to bodily injury to or sickness, disease or death of any employee of the insured arising out of and in the course of his employment by the insured; . . .’

It might well be that this clause is inserted by the insurer with the intention that it exclude only the employees of Franklin Eason doing business as a service station operator and such employees being engaged in the furtherance of the service station business; however, the Court can find nothing in the policy limiting this exclusion to garage employees, and in the absence of this, the Court must find that the policy of insurance affords no protection to Nancy Eason against liability to an employee for injuries sustained.”

Affirmed.

       This question was mentioned by the Circuit Court in its findings as follows: “From the record in the case which was submitted to a jury it appears that the Court in effect found Mrs. Irvin an employee of the defendant, Nancy Eason. This is indicated from the Court’s refusal to submit the question of Mrs. Irvin’s being a guest to the jury. After carefully reading the record the Court cannot see that an error was made in this decision.”


author: Ed. F. McFaddin, Associate Justice.

text:
    Curtis v. Curtis.
    5-2654
    355 S. W. 2d 601
    Opinion delivered April 2, 1962.

      Jack, Holt, Jr., for appellant.

      Dean R. Morley, for appellee.
   Ed. F. McFaddin, Associate Justice.

This is a contest between parents for the custody of their little 10-year-old daughter, named Bebecca. In December 1960 Mr. Curtis was awarded a divorce from Mrs. Curtis on the ground of indignities; but Mrs; Curtis was awarded the care and custody of Bebecca, with Mr. Curtis given certain visitation rights.

In August 1961 Mr. Curtis filed his petition for the custody of the child, alleging facts designed to show (a) change of circumstances, and (b) the best interest of the child required a change of custody. The petition was heard by the Chancery Court in September 1961, and Mr. Curtis was awarded the custody of the child, with Mrs. Curtis to have certain visitation rights; and it is from that decree that Mrs. Curtis prosecutes this appeal.

These child custody cases always present a most serious problem. As we said in Servaes v. Bryant, 220 Ark. 769, 250 S. W. 2d 134: “A ease of this nature is among the most difficult that comes to us for decision. It is our duty to try it de novo, and unless we find that the preponderance of the evidence is against the Chancellor’s findings, we must affirm;”

In the present case Mr. Curtis showed, that since the divorce decree he had remarried and now had a home for little Rebecca; and that she had visited in the home and knew the stepmother and desired to be with her father and stepmother. We come then to the best interest of the child; and that is the polestar in these child custody cases. (Kimberling v. Rogers, 227 Ark. 221, 297 S. W. 2d 772; and Smith v. Smith, 213 Ark. 636, 212 S. W. 2d 10.) The Chancellor who heard this case was the same Chancellor who had rendered the original decree of divorce and the original child custody order in December 1960. He remembered very clearly that when he awarded the custody to Mrs. Curtis he had given the admonition that Mrs. Curtis was not to entertain her employer in her home while the little girl was present ; and it was conclusively shown in the present hearing that Mrs. Curtis had not obeyed the admonition of the Court in this regard. (See Widders v. Widders, 207 Ark. 596, 182 S. W. 2d 209.)

The Chancellor concluded that it was for the best interest of the child that the custody be changed. There is no need for us to detail the testimony, all of which we have carefully studied. The point is that the Chancellor was familiar with this case: he remembered the testimony in the divorce case, which is not in the present record; he saw the witnesses and heard them testify; and he reached the conclusion that it was for the best interest of the child that the custody be changed. In reaching that conclusion, he and the attorneys had a long conference with the little girl, all of which is on record. The Chancery Court, seeing the parties, is in a much better position to determine this matter of custody than are we when we see only the printed page. So, although the mother has made a strong case on appeal, we cannot say that she has convinced us that the Chancellor’s decision is against the preponderance of the evidence. Therefore, the decree is affirmed.

Robinson, J., dissents.


author: George Rose Smith, J.

text:
    Watkins v. Johnson.
    5-2624
    356 S. W. 2d 655
    Opinion delivered April 2, 1962.
    [Supplemental Opinion on Rehearing, May 14, 1962, 235 Ark. 85.]

      Parker Parker, William H. Schulze and Robert E. Irwin, for appellant.

      Lupardus, Holliman S Huffman, Tnlsa, Okla.; J. M. Smallwood; Martin, Logan, Moyers, Martin & Conway, Tulsa, Okla.; Jess W. Van Ert, Okla. City, Okla.; John F. Curran and M. Danvin Kirk, Tulsa, Okla.; Ray Thornton; Williams & Gardner; Mehaffy, Smith S Williams, for appellee.
   George Rose Smith, J.

This is a suit by the appellants, the heirs of Lewis L. Watkins, to establish their title to a 120-acre tract that was owned by Watkins at Ms death intestate in 1901. The chancellor sustained a demurrer to the complaint, holding that it showed the plaintiffs to be barred by limitations and laches. The proceeding was accordingly dismissed.

WatMns was survived by his widow and five children, the oldest child then being eight years old. The plaintiffs in this case are the four children now living and the three daughters of the fifth child, who died sometime before this suit was begun in 1960.

After Watkins’ death in 1901 his widow, Jennie, continued to live on the land now in controversy. She remarried and had another cMld, Oliver Woods, by her second husband. Upon the death of Jennie Watkins Woods in 1905 her brother, William H. Johnson, who was named as a defendant, was appointed by the probate court as guardian for the five Watkins children.

The complaint asserts two alternative causes of action against Johnson and those who claim under him. It is first alleged that during the minority of the Watkins children their guardian, Johnson, wrongfully obtained from each of them a quitclaim deed to an undivided one-sixth interest in the land now in dispute, each deed having been executed within a year or two before that particular grantor attained his majority. In asking for a cancellation of the deeds the plaintiffs assert that Johnson defrauded and overreached his wards by paying an inadequate consideration for the land, by concealing from the minors all knowledge of their legal rights and of the fact that he had mismanaged and embezzled their funds, and by dealing at all with the wards while he was their fiduciary. It is also alleged that in 1915 Johnson-as guardian redeemed the land from an earlier tax forfeiture.

The demurrer to this first count in the complaint was properly sustained, for the plaintiffs’ delay of almost forty years is fatal to their rights. A suit to set aside a conveyance by a minor must ordinarily be filed within seven years after the grantor becomes of age. Walker v. Ellis, 212 Ark. 498, 207 S. W. 2d 39. The fact that Johnson wrongfully acquired an interest in the property of his wards would entitle them to impress the land with a constructive trust, Williford v. Williford, 102 Ark. 65, 143 S. W. 132; Waldstein v. Barnett, 112 Ark. 141, 165 S. W. 459; but the statute of limitations runs in favor of the trustee of such a trust. Matthews v. Simmons, 49 Ark. 468, 5 S. W. 797; Rest., Trusts, Ark. Anno., § 219.

In seeking to avoid the bar of the statute the appellants cite a section of the Revised Statutes, repealed by the Probate Code, which provided that a guardian ££ shall not dispute the right of the ward to any property that shall have come to his possession as guardian.” Rev. Stats., ch. 72, § 23; Ark. Stats. 1947, § 57-353. A sufficient answer to this argument is that the statute by its terms applies to property possessed by the guardian as such, not to property claimed by him individually through a transaction with his ward. There is a similar common law rule by which a tenant is estopped to question the title of his landlord, but of course this principle does not prevent the tenant from buying the property from his landlord and asserting the title so acquired.

In their second count the plaintiffs seek to recover a one-sixth interest in the land. It is asserted that J ohnson obtained quitclaim deeds, each conveying an undivided one-sixth interest, from the five Watkins children and from Oliver Woods, their half brother. It is alleged that the Watkins children inherited the entire fee simple title from their father and that Oliver Woods had no interest whatever in the land. Hence it is said that the five deeds from the Watkins children conveyed only an undivided five-sixths interest in the land, leaving them with a sixth which they held as tenants in common with their guardian and his grantees.

This part of the complaint is not demurrable, for it does not show on its face that the cause of action is barred. The complaint indicates that the defendants have been in possession of the land, but the possession of a tenant in common is not adverse to Ms cotenants until notice of a hostile claim is brought home to them. Singer v. Naron, 99 Ark. 446, 138 S. W. 958. There is no allegation of such a notice to these appellants. The appellees rely upon the fact that the complaint alleges that Johnson conveyed the land to his son in 1943 and that the grantee took possession. Even so, the younger Johnson would have had to claim title to the whole, openly and notoriously, in order for his conduct to have amounted to an ouster of his cotenants, Parsons v. Sharpe, 102 Ark. 611, 145 S. W. 537, and there is no allegation to that effect. On demurrer doubts are to he resolved in favor of the sufficiency of the complaint.

As to the first count the decree is affirmed; as to the second it is reversed and the cause remanded with directions that the demurrer he overruled.


text:
    Taylor v. Bean, Chancellor
    5-2749
    355 S. W. 2d 602
    Opinion delivered April 2, 1962.

      McMath, Leatherman, Woods & Youngdahl, for petitioners.

      Jack Rose and Robert E. Irwin, for respondent.
   George Rose Smith, J.

Ten days ago the peth tioners, as representatives of the Communication Workers of America, an unincorporated labor union, applied to this court for a temporary writ of prohibition to restrain the respondent from proceeding further in a case pending in the Pope chancery court. The writ was granted by a per curiam order which explained that a written opinion in the matter would be delivered later. This is that opinion.

Eighty-one employees of Western Arkansas Telephone Company, Inc., filed the suit below against their employer and against the petitioners as representatives of the union. The complaint alleged that the plaintiffs constituted a majority of the company’s 113 employees and that they did not wish to be represented by the union in collective bargaining with the employer. The prayer was that the defendants be enjoined from engaging in any labor-management negotiations that might affect the rights of the plaintiffs.

When the complaint was filed the chancellor issued a temporary order enjoining the employer and the union from negotiating with respect to the rights of the plaintiffs. At a hearing a few weeks later the chancellor overruled the petitioners’ objections to the court’s jurisdiction and continued the preliminary order in force. The present application for prohibition was then filed here.

It is conceded that the employer is engaged in interstate commerce to an extent sufficient to make its labor relations subject to the Taft-Hartley Law, 29 IJSCA. §§ 151 et seq. On November 15, 1960, the National Labor Relations Board, after having conducted an election among the company’s employees, certified that this labor union had been selected as the exclusive bargaining unit by a vote of 61 to 59. This is the authority under which the union now asserts the right to represent the telephone company’s employees in negotiations for a labor contract.

The federal law provides that a new election cannot be held until at least a year has elapsed since the last valid election. 29 USCA § 159 (c) (3). Accordingly on December 12, 1961, which was about thirteen months after the first election, the 81 dissatisfied employees filed with the National Labor Relations Board what is referred to as a decertification petition, asking that a new election be conducted to determine whether the union was still favored by a majority of the workers. 29 USCA § 159 (c) (1) (A) (ii). This petition was dismissed by the Board because there was then pending before the Board a charge by the union that the employer had been guilty of unfair labor practices. It is the established policy of the Board not to consider an application for an election until such charges have first been disposed of. Upon the dismissal of their decertification petition the 81 employees filed the suit in equity, asking, among other things, that the chancellor determine whether the union now represents a majority of the telephone company’s employees.

The Supreme Court of the United States has repeatedly held that in some areas of labor law the state courts have concurrent jurisdiction with federal agencies, but in other areas Congress has completely preempted the field, to the exclusion of any jurisdiction in state tribunals. In determining whether the states’ jurisdiction has been superseded it is important to consider the extent to which Congress has expressly vested authority in the National Labor Relations Board and also the extent to which conflicts might arise of concurrent jurisdiction were recognized. Garner v. Teamsters etc. Union, 346 U. S. 485, 98 L. Ed. 228, 74 S. Ct. 161; Weber v. Anheuser-Busch, Inc., 348 U. S. 468, 99 L. Ed. 546, 75 S. Ct. 480.

In the case at bar it is clear that the federal law has pre-empted the field. The Taft-Hartley Act provides that the bargaining representative chosen by the majority of the employees in a unit “shall” be the exclusive representative of all the employees. 29 ITSCA § 159 (a). The Board “shall” decide in each case what is the appropriate bargaining unit. § 159 (b). When a petition is filed, either for an original election or for a decertification as here, the Board “shall” investigate the matter and, if a question exists, “shall” direct an election by secret ballot and certify the results. § 159 (c). The language of the act is mandatory in every particular and plainly expresses a legislative intention to invest the Board with the sole power to act. It is quite apparent that concurrent jurisdiction would frequently lead to conflicting decisions, since in a close case the sentiment for and against the union might vary almost from day to day. Congress evidently concluded that industrial peace would best be achieved by making the outcome of each election binding upon all concerned for at least a year.

In a very similar case, Bethlehem Steel Co. v. N. Y. State L. R. B., 330 U. S. 767, 91 L. Ed. 1234, 67 S. Ct. 1026, it was held that the Board’s determination of the appropriate unit for bargaining purposes was controlling and left no room for a decision in the matter by a. state labor relations board. That holding, together with many similar ones, convinces us that the state court is without jurisdiction in the present dispute. The writ of prohibition was accordingly granted.