author: Conley Byrd, Justice. George Rose Smith, Justice, John A. Fogleman, Justice,

text:
    INDEPENDENT INSURANCE CONSULTANTS, Inc. v. FIRST STATE BANK of Springdale, Arkansas
    5-6146
    489 S.W. 2d 757
    Opinion delivered January 15, 1973
    [Rehearing denied February 19, 1973.]

      Jones & Segers, for appellant.

      Putman, Davis ¡¿r Bassett, for appellee.
   Conley Byrd, Justice.

This litigation arises out of the conduct of Woody H. Tague an employee of appellant, Independent Insurance Consultants, Inc., immediately prior and subsequent to the death of Dale M. O’Brien. It appears that Dale M. O’Brien was the owner of the Dale M. O’Brien Insurance Agency and in that capacity contracted with Woody H. Tague to assist in the writing of the insurance business. After the employment contract was entered into the appellant was formed with O’Brien owning 60% of the stock and Tague the other 40%. Under this arrangement the insurance was written through the Dale M. O’Brien Insurance Agency but all funds in connection therewith were handled through appellant. The funds were deposited in appellee, First State Bank of Springdale, Arkansas in an account requiring the signatures of both O’Brien and Tague. A day or so before O’Brien’s death, Tague wrote a $21,000 check on appellant’s account signing both his name and the name of O’Brien and deposited the proceeds into a special account. The Administrator of O’Brien’s Estate instituted an action in the chancery court against Tague seeking an injunction to prohibit Tague from writing in his own name the business belonging to the Dale M. O’Brien Insurance Agency and for an accounting. After the action against Tague was transferred to law, appellant intervened seeking to recover the $21,000 which appellee had permitted Tague to withdraw. Appellant thereafter amended its complaint against appellee to allege that appellee had negligently and actively assisted Tague in taking over the business of the Dale M. O’Brien Insurance Agency and that as a result thereof appellant had suffered damages in the amount of $300,000.

After numerous discovery proceedings appellee filed a motion for summary judgment on the $21,000 count for the reason that the funds had been used to discharge debts lawfully owed by appellant. On March 21, 1972, the trial court granted the motion for summary judgment but in so doing dismissed the intervention. Appellant filed its notice of appeal on April 11, 1972, and on April 12th the trial court corrected its order to show only a partial dismissal of the intervention having to do with the $21,000 item and that the other issues were still pending. For reversal appellant raises numerous points including the issue that the trial court lacked jurisdiction to correct its order after the filing of the notice of appeal. We find the latter issue to be without merit — see Andrews v. Lauener, 229 Ark. 894, 318 S.W. 2d 805 (1958).

We do not reach the merits of the other points argued by appellant for lack of a final order. In Renner v. Progressive Life Insurance Co., 191 Ark. 836, 88 S.W. 2d 57 (1935) and Security Mortgage Co. v. Bell, 175 Ark. 128, 298 S.W. 865 (1927), we pointed out that an order dismissing a complaint in part and leaving a part which presented a triable issue was not an appealable order.

Appeal dismissed.

George Rose Smith, J. concurs and Fogleman, J. dissents.

George Rose Smith, Justice,

concurring. I wholly agree with the majority opinion, but I should like to set out other facts to show why the $21,000 claim against the bank is not a separable issue that can be finally determined without reference to the rest of the litigation.

This is a four-sided lawsuit involving claims and counter-claims asserted by (1) the original plaintiff, O’Brien’s administrator, (2) the original defendant, Tague, who was O’Brien’s employee and business associate, (5) the appellant-intervenor, IIC, Inc., in whose name O’Brien deposited O’Brien Insurance Agency funds, and (4) the appellee bank, which was the depository for the bank accounts in issue.

The pleadings comprise more than 300 typewritten pages. In the light of the pleadings filed so far (and there will certainly be more), the litigation requires a comprehensive accounting among the four sets of litigants. Their claims and counterclaims are so interwoven that it is impossible to pluck out one thread without affecting the rest of the fabric. Without going into great detail, here is a summary of the major contentions:

(1) O’Brien’s administrator, as plaintiff, originally charged Tague with having wrongfully converted to himself the assets and business of the O’Brien Insurance Agency, including $70,830 in premium earnings.

(2) IIC, Inc., owned 60% by O’Brien and 40% by Tague, asserted that the bank conspired with Tague to destroy IIC’s business, causing a loss of $250,000. The bank wrongfully allowed Tague to deposit to his own account more than $90,000 belonging to O’Brien and IIC. The bank wrongfully honored a $21,000 IIC check signed only by Tague, although O’Brien’s signature was also required. O’Brien’,§ administrator, the original plaintiff, adopted all IIC’s pleadings and joined in its prayers for relief against the bank.

(3) Tague filed a general denial and by cross-complaint sought judgment against IIC’s majority stockholders for conversion of corporate assets.

(4) The bank filed a general denial and sought judgment over against Tague in the amount of any judgment entered against the bank. The bank admitted that the $21,000 check was not properly signed but asserted that the money was used to pay legitimate IIC obligations. The bank listed 13 checks, totaling $26,855.16, drawn by Tague against the IIC account and asked IIC to admit that the expenditures were proper charges against IIC. IIC responded that none of the checks were used to pay legitimate claims.

At that point in the litigation the bank moved for summary judgment upon that part of IIC’s intervention which alleged that the $21,000 check had been wrongfully honored. This appeal is from a summary judgment upon that limited issue.

It seems plain that the summary judgment is not a final appealable order, because most of the litigation is still pending in the trial court. As the majority point out, it was settled by the Renner case and the Bell case that an order dismissing only part of a complaint is not final when other counts remain to be tried. That rule is demonstrably sound, especially as in almost every case the various counts in a complaint are interrelated. It will not do to say that Renner and Bell are distinguishable as having been decided on demurrer. In both cases the plaintiffs stood on their complaints, which were dismissed in part. In that situation the court’s order is ordinarily final. Davis v. Receivers St. L. L. & S. F. R. R., 117 Ark. 393, 174 S.W. 1196 (1915); Melton v. St. Louis, I.M. & S. Ry., 99 Ark. 433, 139 S.W. 289 (1911). It was not appeal-able in Renner and Bell only because other counts remained undisposed of, as in the case at bar.

Furthermore, even if the disposition of a separable cause of action could be regarded an an appealable order, the claim that the bank wrongfully honored a $21,000 check is not separable. It is alleged that the bank conspired with Tague to destroy an insurance business. The disposition of many other checks is involved in the conspiracy; the bank itself lists 13 of them. If the bank can appeal the court’s ruling with respect to one of the checks, I see no reason why it cannot take a separate appeal with respect to each one of the 13. These considerations serve simply to emphasize the fact that litigation such as this, involving a comprehensive accounting among several rival litigants, is peculiarly subject to the general rule forbidding piecemeal appeals.

Finally, this claim is not separable for yet another reason. O’Brien’s signature was admittedly required upon the check. O’Brien’s administrator also seeks judgment against the bank for its action in honoring the check, but the administrator was not involved in the summary judgment and is not a oar tv to this appeal. Consequently, even if we should decide the present appeal on its merits, our decision would be undeniably piecemeal, for the same issues could be brought to us again by O’Brien’s administrator after the case has ultimately been fried in the court below upon its merits.

John A. Fogleman, Justice,

dissenting. I agree with the policy and reasoning underlying the requirement of Ark. Stat. Ann. § 27-2101 (Supp. 1971) that an order of a trial court be “final” before it is appealable. Nothing could do more to clog the judicial machinery than piecemeal appeals, unless it is the necessity for new trials of entire cases because of trial court errors that could have been corrected upon an appeal such as this. I respectfully submit that the summary judgment in this case is final and appealable.

In order to explain the basis of my position it is necessary that I point out matters in the record in addition to those recited in the majority opinion. In the original complaint, the plaintiff, O’Brien’s administrator, asked that Tague be required to account for $70,830 in premiums converted by Tague, although due appellant. The complaint of appellant, as intervenor, adopted the allegations of plaintiff’s complaint and also sought to recover from appellee for payment of a $21,000 check on appellant’s account in that bank payable to “I. I. C. Special Account” in spite of the fact that the check did not bear a required signature — that of Dale O’Brien. Appellant contended that the proceeds of the check were deposited to the account entitled ‘I.I.C. Special Account” or in other accounts in the name of W. H. Tague or some deviation of that name on which no signature except that of Tague was required for withdrawals, so that the money from appellant was actually credited to Tague, who benefited from the $21,000, and that this would not have been possible without the bank’s having permitted the unauthorized withdrawal. Appellee denied that appellant had suffered any damages by reason of its honoring the check on appellant’s account. By a subsequent amendment to its complaint, appellant alleged that appellee had allowed Tague to deposit improperly endorsed checks amounting to $90,000 belonging to appellant in accounts of Tague, Tague Insurance Agency, or some like name, and that by so doing appellee assisted Tague in destroying appellant’s business and the loss of $250,000. Appellant prayed for judgment against Tague in the sum of $500,000, against appellee “in the sum of $21,000 as originally prayed” and against appellee and Tague jointly and severally in the sum of $540,000. Appellee moved for summary judgment “on that part of the intervenor’s complaint which seeks to recover the sum of $21,000 by reason of this third-party defendant’s alleged wrongful honoring intervenor’s check.”

Appellee alleged in its motion that Tague was vice-president of appellant, that it “verily believes and has alleged that the proceeds of the $21,000 check * * * were used solely and exclusively to satisfy and discharge legitimate corporate debts owed by the intervenor,” that the current officers of appellant are in a position to testify as to the disposition of the proceeds of the check, and that each testified that Tague was the only person who would have any knowledge as to the disposition of the funds. The motion was founded upon the depositions of these officers of appellant to this effect and upon an affidavit of Tague. The affidavit of Tague stated the following:

That the purpose of transferring said funds was to facilitate payment of outstanding and legitimate debts owed by Independent Insurance Consultants, Inc. inasmuch as the president, Dale O’Brien was gravely ill in another state and could not co-sign checks on the corporate account.
That all proceeds of the $21,000.00 check which I drew upon the regular corporate account and placed in a special account were used solely and exclusively to pay legitimate and outstanding debts owing by Independent Insurance Consultants, Inc., and said corporation received the sole and complete use and benefit of and from the proceeds of the $21,000,000 check in question.
That none of the proceeds of said $21,000.00 were used for any purpose other than payment of corporate debts owed by Independent Insurance Consultants, Inc.

Appellee filed a cross-complaint against Tague seeking judgment over against Tague for any amount recovered from it by appellant.

I do not consider the cases cited by the majority to be controlling in this case. Those appeals arose from the sustaining of a demurrer. In Renner v. Progressive Life Insurance Company, 191 Ark. 836, 88 S.W. 2d 57, and Security Mortgage Company v. Bell, 175 Ark. 128, 298 S.W. 865, the demurrers sustained raised the question that certain parts of the complaints failed to state a cause of action, i.e., admitting all facts pleaded to be true, those parts of the complaint stated no cause of action. In this case, the summary judgment was based, not upon a finding that, as a matter of law, there was no cause of action, but, upon a determination that there was no material question of fact to be resolved because the specific finding that the affidavit of Tague (that the $21,000 went to pay obligations of the intervenor) was not “countered” by appellant. Significantly, in the Bell case, we quoted the following language from Davie v. Davie, 52 Ark. 224, 12 S.W. 558, 20 Am. St. Rep. 170:

The object of the limitation is to present the whole cause here for determination in a single appeal, and thus prevent the unnecessary expense and delay of repeated appeals.

We have had many occasions to define what constitutes a final judgment or decree for purposes of appeal. In Fox v. Pinson, 177 Ark. 381, 6 S.W. 2d 518, we said that the gist of the authorities reviewed in Flanagan v. Drainage District No. 17, 176 Ark. 31, 2 S.W. 2d 70, was that a judgment or decree is final which dismisses the party from the court, discharges him from the action or concludes his rights to the subject matter in controversy.

In Flanagan, a suit was brought by landowners seeking to cancel two contracts, one between the drainage district and Flanagan for construction of certain improvements, and another between the district and one McGibbon, the manager of a security company, to purchase bonds of the district. They alleged that Flanagan was, in reality, the purchaser of the bonds, and that the two contracts were let privately, at one and the same time, for an exorbitant price without competition, and that they were actually one contract. Flanagan and McGibbon denied the allegations of fraud and irregularity and cross-complained against the district to enjoin the annulment of the contracts and later amended their cross-complaint by alleging that the district had abrogated Flanagan’s contract and repudiated McGibbon’s. Both Flanagan and McGibbon sought to recover their anticipated net profits. The chancellor rendered a decree finding the Flanagan contract valid but holding that it had been properly rescinded by the district on account of legal impossibility of performance, subject to liability for reimbursement of the contractor for expense incurred by him in preparing to perform the contract, the contract price for work done under the contract and damages sustained in connection with performance of the contract, but not to include any anticipated profits on materials not furnished or work not done. The amount of recovery was to be later determined by a master appointed by the court. The question of liability between the parties on the contract for purchase of the bonds was reserved for later decision. After considering exceptions to the master’s report, the chancery court entered a decree dismissing the complaint of the plaintiffs, fixing the amount of the recovery on the construction contract and dismissing the cross-complaint for anticipated profits. Flanagan contended on appeal that he was entitled to anticipated profits, but appellee contended that his appeal on this issue was barred because not taken from the first decree within the time prescribed by law. This court sustained appellee’s contention and held that the first decree containing a finding that Flanagan was not entitled to recover anticipated profits was final and appealable, even though it did not include any formal dismissal of the cross-complaint with reference thereto. We held that the rights of the parties to the subject matter were thereby concluded on this issue, pointing out that the decision was not on demurrer. This case is much more nearly parallel to Flanagan than to the cases cited in the majority opinion.

In Flanagan, we incorporated the language of many previous cases. Among these quotations were:

In peculiar cases, this court may decree as to certain defendants or property, while all the equities as to other defendants and property are reserved for further consideration; and yet this decree, as to certain defendants or property, may be final. If, in the course of the proceedings, final decrees vital to the interests of any of the litigants are made, an appeal may be had. Tucker v. Yell, 25 Ark. 420 (Syllabus).
The appeal is allowed * * * also where a distinct and severable branch of the cause is finally determined, although the suit is not ended. Davie v. Davie, 52 Ark. 224, 12 S.W. 558.

The following language used in Flanagan is appropriate here:

In other words, the court found that the appellants could never recover from the district any damages by way of anticipated profits, and entered a decree so holding. A reading of the whole decree will show that it was a final disposition of that issue. Nothing whatever was left to be determined concerning such issue. On the contrary, the court, by expressly reserving other issues, and giving the master specific directions to take proof and make his report at a future term of the court with reference to the sole and only issue submitted to him as designated in the decree of September 4, 1923, completely, without reservation, and finally, disposed of the issue of anticipated profits for alleged breach of the contract for the construction of No. 48. After entering the decree in this form, it was wholly immaterial that the court did not have the decree recite that the complaint of the appellants on the issue of anticipated profits was dismissed.
* * * the decree as actually rendered was tantamount to a dismissal of appellants’ cross-complaint on the issue of anticipated profits, and as completely and effectually disposed of it as if there had been a formal recital in the decree dismissing the cross-complaint for want of equity, because all parties were forever restrained from carrying out the contract for construction of No. 48; and it was decided that the appellants were not entitled to damages by way of anticipated profits, because the district would not allow the appellants to complete the construction of No. 48 under the contract. The issue, therefore, as to anticipated profits for this alleged breach of contract, was finally disposed of by the decree of 1923.

In Tucker v. Yell, 25 Ark. 420, we had rejected as overbroad the doctrine followed in the majority opiniont i.e., that, in order to be final, a decree must bring die case to an end, decide the whole matter in controversy and leave nothing further for the court to do. Quoting from that opinion we said:

It is shown by such adjudications that in peculiar cases, and under special circumstances, the court may order or decree as to certain defendants or specific property, while all the equities as to other defendants, and important claims as to other property, are reserved for further consideration. Yet, as to the particular matter or party acted on, it may be a final determination.
From a careful examination of our statutes, the above cases, and others of similar import, we are clearly of the opinion that it is not always absolutely required to dispose of the entire merits of a cause, and all the parties before the court, as a necessity to a final decree, upon certain particular conceded or established rights, either in or springing out of the matters before the court.
And, while we hold that correct practice requires a chancery court to reserve the equities arising in the cause, as far as can be without manifest injustice, until the final hearing, and then dispose of the entire cause in one decree; yet we deem it but a question of practice, and if manifest necessity requires such action, and in the course of the proceedings final decrees vital to the interests of the litigants are made, an appeal may be had. A final order dismissing a bill as to one defendant, or directing the sale of certain property, or declaring a party subject to certain burdens, or directing a particular disposition of funds in court, may destroy some of the clearest, vital and most important rights of the complainant, yet there may be other parties and other equities before the court, and the lower court has only exercised its judgment, and the remedy must be by appealing to the superior court. And the argument that parties can not be stopped in the court below to await appellate action, or the assertion that a final decree is such only as makes an end of the cause, and disposes of the whole matter in controversy, so nothing further is to be done by the court, is no sufficient answer to the law allowing appeals from any final order or decree. Courts are ministers of justice. The object of the law is to protect the rights of persons, and we are slow to construe law so as to cut off any important right of a suitor who is using all due diligence in making his defense or prosecuting his demand.

In City of Batesville v. Ball, 100 Ark. 496, 140 S.W. 712, Ann. Cas. 1913C 1317, we said:

When a lower court renders a final judgment upon which an execution may issue, or one dismissing the cause or the appeal, it thereby puts it out of the power of such court making the order after the expiration of the term to place the parties in their former condition, and thereby divests them of their rights, and such judgment or order is therefore final, and an appeal can be taken therefrom.

So far as I can ascertain, we have not departed from the rules treated so thoroughly in these cases. We have uniformly recognized that an order or judgment finally determining a distinct and severable branch of a case, or which operates to divest some right of a party so as to put it beyond the power of the court making the order to place the parties in their former condition after the expiration of the term, is appealable. Wright v. City of Little Rock, 245 Ark. 355, 432 S.W. 2d 488; Allred v. National Old Line Ins. Company, 245 Ark. 893, 435 S.W. 2d 104; Johnson v. Johnson, 243 Ark. 656, 421 S.W. 2d 605; Parker v. Murry, 221 Ark. 554, 254 S.W. 2d 468.

I submit that the order on motion for summary judgment qualified as appealable on both its termination of a distinct and severable branch of the case, i.e., the cause of action on the $21,000 check, and its operation to put it beyond the power of the court to place the parties in their former condition after the expiration of the term.

It would be deplorable if we reached a result which prevented a party from ever having a review in a case such as this, or which, at best, left the parties uncertain as to the proper time for review. Yet, if we follow the rule of the majority opinion upon the authority of the Renner and Bell cases, appellant has no right of review now. After trial of the causes of action now pending, particularly if appellant is successful, under the rules hereinabove set out, it could be said that the time for appeal had expired because the rights of the parties were concluded on this severable branch of the case by the summary judgment. We should not leave the law in such an uncertain state. If Renner and Bell are in conflict with the cases cited in this opinion, then these two cases should be overruled.

Of course, appellant’s claim for $21,000 because its deposit was paid out upon an unauthorized check was in and of itself a separate cause of action, and was so treated by the parties in their pleadings and by the court in its judgment.

If we reach the questions raised by appellant (and we should), it seems to me that we cannot reach any conclusion except that the judgment was improper. Appellant asserts, and I agree, that the circuit court erroneously put the burden of proving the extent of its loss or damage resulting from the payment of the $21,000 upon an unauthorized signature upon the check on the account for that amount. That burden was upon the bank in this case. In a case where it was alleged that payment from an account was made upon an unauthorized signature, this court took the position that a bank is held to strict accountability to pay out funds ill strict compliance with those terms and conditions, and that the burden to show that this was done was upon the bank, in spite of the contention that the “strict accountability” portion of the jury instruction approved inferred that the claimant did not have to prove that he was damaged, but that the bank was strictly accountable for the amounts paid out on an unauthorized signature. First National Bank of Springdale v. Hobbs, 248 Ark. 76, 450 S.W. 2d 298. Although I dissented in that case, I consider that this decision settled the matter and that the bank in this case is held to “strict accountability” and had the burden of proof on the question, i.e., whether the money taken from appellant’s account actually went to pay obligations of appellant, so that no damage to appellant resulted from the bank’s unauthorized act.

The burden of proof is important in determining the extent to which appellee was required to controvert the conclusions stated by Tague in the affidavit supporting the motion for summary judgment. In considering whether the supporting affidavits demonstrate that there is no genuine material fact issue so that the moving party is entitled to judgment as a matter of law, the testimony submitted with the motion must be treated in the same way it would be if the moving party had moved for a directed verdict, and viewed in the light most favorable to the party resisting the motion with all doubts and inferences resolved against the moving party. Jones v. Halliburton Company, 240 Ark. 919, 403 S.W. 2d 51; Russell v. Rogers, 236 Ark. 713, 368 S.W. 2d 89. The burden of establishing entitlement to a summary judgment lies upon the moving party. Mason v. Funderburk, 247 Ark. 521, 446 S.W. 2d 543; Deltic Farm & Timber Company v. Manning, 239 Ark. 264, 389 S.W. 2d 435. Every doubt is resolved against the granting of a summary judgment, and if there is any doubt whatever the judgment should be denied. Bull v. Manning, 245 Ark. 552, 433 S.W. 2d 145; Deam v. O. L. Puryear & Sons, Inc., 244 Ark. 18, 423 S.W. 2d 554; Wirges v. Hawkins, 238 Ark. 100, 378 S.W. 2d 646; Russell v. City of Rogers, supra. Unless the moving party has clearly met its burden of demonstrating that there are no justiciable issues, the failure of the opposing party to offer controverting affidavits is immaterial. Hervey v. AMF Beaird, Inc., 250 Ark. 147, 464 S.W. 2d 557. In determining whether a summary judgment should be granted, the court may not weigh the testimony. Beam v. John Deere Company of St. Louis, 240 Ark. 107, 398 S.W. 2d 218. Such a judgment should be entered only if the proof presents no issue for the jury. Bergetz v. Repka, 244 Ark. 60, 424 S.W. 2d 367. In short, the summary judgment procedure was not devised as a vehicle for bypassing jury trials in which the credibility of witnesses and the weight to be given their testimony is properly determined. See Poller v. Columbia Broadcasting System, 368 U.S. 464, 82 S. Ct. 486, 7 L. Ed. 2d 458 (1962); Dulansky v. Iowa-Illinois Gas & Electric Company, 191 F. 2d 881 (8th Cir. 1951).

I submit that there was a question for jury determination. Appellee bore the burden of proving that the money extracted from appellant’s bank account was expended for appellant’s benefit. It attempted to meet that burden by the testimony of Tague, against whom appellee sought judgment over for the amount of any recovery by appellant. Tague, then, was an interested party, and his testimony could not have been taken as uncontroverted or uncontradicted, on a motion for a directed verdict. Cousins v. Cooper, 232 Ark. 605, 339 S.W. 2d 316; Skillern v. Baker, 82 Ark. 86, 100 S.W. 2d 764, 118 Am. St. R. 52. The reason is that the credibility of the interested witness is a matter for jury determination. The rule was perhaps better stated in dictum in Gish v. Scantland, 151 Ark. 594, 237 S.W. 98, as follows:

* * * we have several times held that the testimony of a litigant, although not contradicted by any other witness, does not make a case of undisputed testimony, upon which the court may direct a verdict, upon the theory that the facts of the case are not in dispute. This is true for the reason that the interest of the litigant in the subject-matter of the litigation makes a question for the jury whether the testimony is true, as it is a circumstance from which an inference may be drawn unfavorable to his testimony or against the facts testified to by him.

The same reason exists for denial of a summary judgment upon the uncontroverted affidavit of an interested party.

Summary disposition should be on evidence which a jury would not be at liberty to disbelieve and which would require a directed verdict for the moving party. Sartor v. Arkansas Natural Gas Corporation, 321 U.S. 620, 64 S. Ct. 724, 88 L. Ed. 967 (1944). Before such a judgment is granted, it should be quite clear what the truth is. Poller v. Columbia Broadcasting System, supra; Wilson v. Gas Service Company, 10 F.R.D. 428 (D. C. Mo. 1950); Sartor v. Arkansas Natural Gas Corporation, supra. When credibility of the supporting evidence is involved, a summary judgment should be denied when a directed verdict would be improper. If it appears from the record that there is any genuine issue of fact, even though it may relate only to weight and credibility of testimony, the court may not enter summary judgment. Boro Hall Corporation v. General Motors Corporation, 164 F. 2d 770 (2nd Cir. 1947); Newark Evening News Publishing Company v. King Features Syndicate, 7 F.R.D. 645 (D.C.N.J. 1948). The mere fact that the witness is interested in the result of the suit is sufficient to require his credibility to be submitted to a jury. Sartor v. Arkansas Natural Gas Corporation, supra. See also, Dulansky v. Iowa-Illinois Gas & Electric Company, supra; Block v. Biddle, 36 F.R.D. 426 (D.C. Pa. 1965). The party having the burden of proof must not only offer evidence to support his allegations, he must persuade the jury to return a verdict based upon the credibility of such evidence, even though no evidence is offered by the adverse party. Wilson v. Gas Service Company, 10 F.R.D. 428 (D.C. Mo. 1950). Failure to support the bare allegations of the pleadings of the resisting party with specific evidentiary data will not justify summary judgment for the moving party where the questions of fact in dispute turn exclusively upon the credibility of movant’s witnesses. Cross v. United States, 336 F. 2d 431 (2d Cir. 1964). In Loudermilk v. Fidelity & Casualty Company of New York, 199 F. 2d 561 (5th Cir. 1952), it was held that a summary judgment was improper and that a jury whose business it is not only to hear what men say but to search for and find the roots from which the sayings spring should be afforded full opportunity to determine the truth and integrity of the case. The court said that even though the circumstances almost, if not quite, showed the critical point as a matter of law, a jury would not be bound to accept the testimony of the interested parties on the point, but could reject it, particularly their conclusions as to the effect of their acts.

Furthermore, summary judgment should be denied when there are conflicts in affidavits of a party which themselves present questions bearing upon credibility. See Peckham v. Ronrico Corporation, 171 F. 2d 653 (1st Cir. 1948). Appellant has pointed out that in a discovery deposition taken long before his affidavit was made, Tague stated that a $3,500 check dated April 14, 1969, drawn on the account in which he deposited the $21,000 check would have been an obligation of appellant, “unless it’s under the W. H. Tague Insurance Agency.” In that deposition Tague also stated that checks on the account payable to himself and four others were for salaries, “not for the Dale O’Brien Agency or Independent Insurance Consultants, Inc. It would be for W. H. Tague.” It is true that Tague, in each instance upon further examination by appellee’s attorney, stated that the proceeds of the checks were used for payment of obligations of appellant, but these apparent inconsistencies and contradictions themselves present a question of credibility for jury resolution.

For the reasons stated, I would reverse the summary judgment.

       This case was cited in Security Mortgage Company v. Bell, supra, relied upon by the majority.

       Appellant also cites persuasive extrastate authorities supporting its argument on the- burden of proof. Fargo National Bank v. Massey-Ferguson, Inc., 400 F. 2d 223 (8th Cir. 1968); Movie Films, Inc. v. First Security Bank of Utah, N. A., 22 Utah 2d 1, 447 P. 2d 38 (1968); First National Bank of Melbourne v. Sogaard & Debo, Inc., 406 F. 2d 1128 (5th Cir. 1969), These cases simply state that the burden of proving the affirmative defense that the money improperly paid went to the benefit of the depositor is upon the bank.


source: Caselaw Access Project

author: Frank Holt, Justice. John A. Fogleman, Justice,

license: Public Domain

text:
    ARKANSAS STATE HIGHWAY COMMISSION v. Harold C. JENSEN et al
    5-6124
    489 S.W. 2d 5
    Opinion delivered January 15, 1973

      Thomas B. Keys and Phillip N. Gowen, for appellant.

      Comer Boyett Jr. and Dale Price, for appellees.
   Frank Holt, Justice.

Appellant condemned for highway purposes 27.37 acres of a 119 acre tract of land which was part of appellees’ 279 acre dairy farm. Various improvements including two homes, a dairy barn and related outbuildings were included in the taking. At trial, appellees’ two expert value witnesses, Claude Wilson and Terrill Huff, estimated appellees’ damages at $107,680 and $97,098 respectively. Appellant’s two value witnesses estimated the damages sustained were $41,525 and $40,000 respectively. The jury returned a verdict of $70,000. For reversal, the appellant contends that the court erred in refusing to strike the testimony of Wilson on the ground that he had given no fair and reasonable basis for his testimony. We must agree with appellant.

Wilson, a realtor and an experienced real estate appraiser, in arriving at his before the taking value, testified as to the following values of the improvements: milk barn with equipment — $15,000, hay barn — $5,000, two homes — $12,000, shed, 3 wells, lots, driveways, corrals and fences — $4,500, making a total of $36,500. However, Wilson candidly ádmitted on cross-examination that he didn’t inspect the improvements or measure the square footage of the buildings which have been removed for some time. In fact, he testified that he wasn’t familiar with the Jensen farm prior to the taking except casually viewing it from the highway. “While it is not always necessary for an expert on real estate values to have been personally familiar with the land and its improvements before the taking of a part thereof by eminent domain, he must establish adequate familiarity with the property before he can express an opinion.” Ark. State Hwy. Comm. v. Pullen, 243 Ark. 759, 421 S.W. 2d 890 (1967). In our view, Wilson’s familiarity with these improvements was not sufficiently established to support his specific testimony as to these items.

Also, in tabulating his before the taking value, Wilson valued the condemned acreage at $1,600 per acre. His valuation was based upon his experience and knowledge of real estate. It was demonstrated on cross-examination that the per acre value was not based upon any comparable sales of land in the vicinity. He alluded to one sale in another area. No comparability was sufficiently demonstrated. Wilson stated he had relied upon conversations with “associates who have comparable sales” and an examination of the market data of his associate. These associates are not identified. As stated by appellees, Wilson obviously was referring to his associate expert witness Huff who placed, based upon comparable sales, only a before value of $400 (rather than $1,600) per acre upon the 27.37 acres actually taken. “* * * #[V]aluation must be tested by our well settled rule that the testimony of a witness, whether layman or expert, cannot be regarded as substantial evidence if he is unable to give any reasonable basis for his opinion.” Ark. State Hwy. Comm’n v. Carruthers et ux, 246 Ark. 1035, 441 S.W. 2d 84 (1969). Although we recognize that a value expert witness can rely upon hearsay in determining market values of lands in a vicinity, we believe Wilson’s testimony, in the case at bar, was improper because there was no reasonable basis demonstrated for it. On cross-examination an expert witness should be able to demonstrate that his valuation have a foundation in fact rather than mere surmise.

Appellees, citing Ark. State Hwy. Comm’n v. Ormond, 247 Ark. 867, 448 S.W. 2d 354 (1969), contend that the question as to who is competent to give an opinion is one which must be left to the discretion of the trial court. In that case we affirmed a judgment because the error (improper value testimony) obviously was disregarded by the jury and did not enhance the award; and, also, the verdict was less than an amount which was supported by substantial evidence. In the case at bar, there is, also, competent testimony of a substantial nature from which the jury could have based its $70,000 award: that of Huff, who assessed damages at $97,098. However, in Ormond the verdict ($12,000) was only a fraction of the improper damages testimony ($84,874). Therefore, we said that the evidence was harmless error or manifestly not prejudicial. In the instant case, that great disparity in Ormond between the improper damage testimony and the verdict does not exist. The verdict of $70,000 so nearly approximates Wilson’s estimate of $107,680 we cannot say with confidence that his testimony, which was without a reasonable basis, did not enhance the award and, therefore, was not prejudicial. The presumption is that error is prejudicial unless it is shown otherwise or manifestly is not. Since the appellees have not demonstrated the error was nonprejudicial, the judgment must be reversed and the cause remanded.

Reversed and remanded.

Fogleman, J., concurs.

John A. Fogleman, Justice,

concurring. I concur, but I adhere to the views expressed in my concurring opinion in Arkansas State Highway Commission v. Roberts, 246 Ark. 1216, 441 S.W. 2d 808, i.e., that the opinion of a properly qualified expert on the market value of real estate is not rendered insubstantial merely because it is not based upon comparable sales, particularly when there are no really comparable sales.


author: Carlton Harris, Chief Justice. Conley Byrd, Justice, John A. Fogleman, Justice,

text:
    EXXON CORPORATION v. Mrs. Eugene V. FLEMING widow of Eugene V. FLEMING, deceased
    5-6149
    489 S.W. 2d 766
    Opinion delivered January 22, 1973
    [Rehearing denied February 26, 1973.]

      Chowning, Mitchell, Hampton ir Chowning, for appellant.

      McMath, Leatherman & Wood, for appellee.
   Carlton Harris, Chief Justice.

Eugene Fleming, an employee of Exxon Corporation, appellant herein, was injured in the course of his employment on January 10, 1970 when he slipped on ice and received a blow on the back of his head. Medical expenses and compensation benefits were paid to Fleming, who did not return to work. Five months later, on June 12, 1970, Fleming died from an acute myocardial infarct. His widow filed a claim with the Workmen’s Compensation Commission for benefits which claim was controverted by appellant. The referee directed the company to pay all death benefits, medical, funeral expenses, and attorney’s fee. On appeal to the full commission, the award was affirmed with the modification that the payments to the widow be at the rate of $35.00 per week instead of $49.50 per week, as fixed by the referee. The Pulaski County Circuit Court affirmed the opinion of the commission, and from the judgment so entered, appellant brings this appeal. For reversal, it is simply asserted that the commission erred in determining that there was a causal connection between Fleming’s injury and his subsequent death.

The testimony reflected that Fleming was 58 years of age, employed at the time of the injury at Tanglewood Esso Service Station at Cantrell & Mississippi in Little Rock, and appeared in excellent health before the injury. Both his wife and son testified that, prior to the injury, he had never complained of chest pains, nausea, shortness of breath, or pain in his arms. During his stay at the hospital, and after his release, he suffered chest pains and shortness of breath, his condition progressively mowing worse, and he continued to get weaker, he could not walk across the room unless holding on to something; he slept sitting at the table with a pillow in front of him to lean on as he could not lie down.

Dr. Ray Jouett, a neurosurgeon of Little Rock, testified that he first saw Mr. Fleming in the emergency room at Baptist Hospital on January 16, 1970, being called into the case by Dr. Thurston Black, a practicing physician. The doctor described Fleming as “semi-comatose” at that time, agitated, his speech incoherent, and he said the patient would only respond to painful stimulation. The doctor diagnosed a convulsive seizure and a traumatic subarachnoid hemorrhage; medication was commenced to relieve swelling of the brain and prevent further convulsive seizures. The pulse rate was slow and the doctor felt that this was due to some cardiac irregularity, and he said that the type of injury would place a burden on the heart. Subsequent to Fleming’s dismissal from the hospital, Dr. Jouett saw the patient on February 25, at which time the latter complained of extreme dizziness, shortness of breath, and other symptoms which the doctor stated led him to believe “that he had what we call postural hypotension which is the lowering of the blood pressure when an individual stands or turns quickly. He got spots in front of his eyes, his vision would decrease, and the fact that he was unsteady, all made me believe that he was having episodes of hypotension.” A prescription was given to improve circulation, and he again saw Fleming in March and June.

Dr. Jouett testified with reference to the autopsy report, that report reflecting atherosclerotic cardiovascular disease, pulmonary edema and congestion, chronic passive congestion of lungs and liver, and focal encephalomalacia of the right frontal lobe. These terms were explained by Dr. Jouett who concluded that, in his opinion, there was a relationship between the injury and Fleming’s death, i.e., the injury contributed to the heart attack which resulted in death. When questioned on cross-examination as to the basis for his opinion, Dr. Jouett stated:

“Assuming that such an individual had an underlying heart disease [and this was established] and underwent a period, first of all, of convulsive seizures such as I witnessed on one occasion — he’d also had seizures before he came in — the man was difficult to control. In fact, I believe he had to be restrained in bed. These alone are two things that could aggravate an existing heart condition. Number two, individuals with preexisting arterial disease such as the patient obviously had that we’re talking about, demands more efficient cardiac output to continue his circulation because of hardening of the arteries that develops the arteriosclerosis that has been described. If there is some physiological means or reason in which this circulation is impaired, then this individual is a good candidate to have a stroke, such as a clot in one of the arteries of the brain because of the hardening roughened areas in the brain, and the same is also true of the heart. I think this man had, and this is my opinion, this man had repeated episodes of hypotension or low blood pressure manifested by the symptoms that he kept repeatedly complaining to me of, that is the dizziness, his positional incoordination,the black spots in front of his eyes, all this sort of thing that lets us know that we are dealing with a hypotensive problem. The slowing of the circulation through diseased vessels lends itself to the formation of a thombosis. That plus the fact that I observed, if I may refer to the patient, this man deteriorating in front of my eyes over a period of about four months medically, that’s how I would arrive at that conclusion.”

Under vigorous cross-examination, the doctor stated that, in giving his opinion, he was speaking of possibilities rather than probabilities. Though shown articles written by well known medical authorities wherein they disagreed with some of the views expressed by Dr. Jouett, he still said that he saw nothing in the literature which precluded the fact that a serious brain injury could be an aggravating factor in a pre-existing heart condition.

Dr. Thurston Black saw Mr. Fleming on January 14, 1970 at the request of appellant company, and he also saw Fleming while he was in the intensive care unit at the hospital. He said that Fleming was confused, able to talk, but was not entirely rational; that the patient complained a great deal of headaches and dizziness. He later saw Fleming on February 2 after dismissal from the hospital and again saw him on April 21 when he complained of indigestion, a “burning” sensation that he had after exertion. Fleming stated this would cease after he had rested for five or ten minutes. The doctor described the treatment given and he stated that the autopsy reflected a pre-existing heart disease, though there was no way of knowing how long this had been in effect. Black said, assuming that Fleming was asymptomatic as far as heart disease was concerned up to the time of the injury, and assuming that the cardiac symptoms, such as shortness of breath and pains in the chest, developed subsequent to January 10, and based upon his treatment and the history of the patient, it was possible that the brain injury received by Fleming aggravated a pre-existing condition. Further, “I think it is possible that during the time he was having these convulsions that there was an increase in pressure, particularly from the heart, that could conceivably have broken off or gotten a little rough edge on an arteriosclerotic plaque”. He also said that decreased blood pressure would present the possibility of a clot from a pooling of blood or from a slower circulation. Neither doctor stated that there was a probability that the accident triggered or aggravated a pre-existing condition that subsequently caused the death of Fleming; both only used the term “possibility”. And both, under cross-examination, somewhat modified or qualified some statements made on direct-examination — but the fact remains that both considered the connection between the injury and death to be a distinct possibility.

Appellant contends that the testimony of the doctors does not constitute substantial evidence to support an award but we disagree. The same contention was made in the case of Kearby v. Yarbrough Brothers Gin Co. and Southern Farm Bureau, 248 Ark. 1096, 455 S. W. 2d 912 where the doctor who testified on behalf of the claimant gave rather indefinite answers, several times, while discussing cause and effect, using the expression “could cause” or “might cause”, and not stating a conclusion on the causal relationship between the work and the heart attack with language stronger than there “could be” a connection. We held that the use of these expressions or similar phrases would not bar a finding of causal connection, provided that there was other evidence supporting the conclusion.

In the present case, in addition to the statements of the doctors, one circumstance is conspicuous, viz., that Fleming prior to the brain injury, was working every day, had never suffered from chest pains, shortness of breath, nor had other symptoms indicative of a diseased heart or arteries. The proof is clear that subsequent to the accident, these symptoms were much in evidence and the condition they reflected grew progressively worse from day to day. In fact, Dr. Jouett stated that he observed “this man deteroriating in front of my eyes over a period of about four months medically”. Let it also be remembered that there was no medical evidence to the effect that the injury did not, or could not, contribute to Fleming’s death, and this despite the fact that one of the doctors testifying had served as the company’s doctor in examining employees.

We hold that there was substantial evidence to support the findings of the commission.

Affirmed.

Byrd, J. concurs; Fogleman, J. dissents.

Conley Byrd, Justice,

concurring. In this case the lay testimony shows that prior to his injury on January 10, 1970, Eugene Fleming was an able-bodied man who worked every work day. Thereafter and until the time of his death on June 12, 1970, he had headaches, convulsions, chest pains and shortness of breath. In fact he did not work another day. The doctors stated that he deteriorated before their very eyes. The fact that the doctors used the word “possibly” instead of “probably” does not make the testimony as to causation speculative nor make heart insurance out of the Workmen’s Compensation law. To hold otherwise would require the Commission to disregard all of the lay testimony and the undisputed testimony of the doctors that the man deteriorated before their very eyes.

Therefore I respectfully concur.

John A. Fogleman, Justice,

dissenting. Prior to the decisions in Kearby v. Yarbrough Brothers Gin Company and Southern Farm Bureau, 248 Ark. 1096, 455 S.W. 2d 912, and Bradley County v. Adams, 243 Ark. 487, 420 S.W. 2d 900, the result reached here would not have been possible. My dissent in those cases was prompted by the realization that the court’s holding would spawn innumerable cases such as this, where the evidence is, to say the least, no more positive as to the cause of death than it was in those cases. The rules of law and authorities stated and referred to in my dissent in each of those cases should be applied here. No one would advocate that causal connection, in a death case, must be proved to a mathematical certainty. Medical science is not that exact. Reasonable medical certainty should be required and possibilities are simply not sufficient to meet the burden of proof. Otherwise, we tend to convert workman’s compensation into insurance against death from a heart attack following compensable injury. Perhaps the breach in the dam resulting from the two cases above cited can never be closed, but it should be.

In a personal injury case, Jonesboro Coca-Cola Bottling Co. v. Young, 198 Ark. 1032, 132 S.W. 2d 382, this court quoted the following from 15 Am. Jur. 413, Damages § 22, with approval:

The damages recovered in any case must be shown with reasonable certainty both as to their nature and in respect of the cause from which they proceed. No recovery can be had where it is uncertain whether the plaintiff suffered any damages unless it is established with reasonable certainty that the damages sought resulted from the act complained of. Hence, no recovery can be had where resort must be had to speculation or conjecture for the purpose of determining whether the damages resulted from the act of which complaint is made or from some other cause, # * *.

We applied the rule to approve the following instruction:

If you should find from the testimony that the illness or injury to the plaintiff, if any, might equally as well have resulted from some cause other than drinking the Coca-Cola, you will find for the defendant.

In Missouri Pac. R. Co. v. Hampton, 195 Ark. 335, 112 S.W. 2d 428, we said:

* * * where the testimony leaves the matter uncertain, and shows that any one of two or more things may have brought about the injury and death, for one of which the employer would be responsible, and for the others he would not be responsible, there can be no verdict for the plaintiff. This rule is well established, and if all the evidence showed that the injury and death might have occurred from injury or disease, there could be no recovery; * * *.

In Denton v. Mammoth Spring Electric Light & Power Co., 105 Ark. 161, 150 S.W. 572, although we were speaking of proximate cause, primarily, we quoted and relied upon language from Coin v. John M. Talge Lounge Co., 222 Mo. 488, 121 S.W. 1, 25 L.R.A. (n.s.) 1179, 17 Ann. Cas. 888 (1909), which should have application to cause of injuries (or death), just as fully as to proximate cause. The language quoted from the Missouri case was:

If an accident causing injury to a servant may have resulted from either one of two causes, for one of which the master is liable and for the other of which he is not, the servant, in an action to recover for the injury, must show with reasonable certainty that the cause for which the master is liable produced the injury; and if the evidence merely leaves this to conjecture the plaintiff must fail in his action. To the same effect, see Green v. Southern Ry. Co., 72 S. C. 398, 52 S. E. 45, 5 Ann. Cas. 165, and case note; Schultz v. C., M. & St. P.R. Co., 116 Wis. 31, 92 N.W. 377.

The above cases are tort cases, but I can conceive of no logical reason why we should have one rule in this regard for tort cases and another for workman’s compensation cases.

It should be noted in evaluating the evidence and applying the appropriate rules that this case is not one in which the matter at issue is within the realm of common knowledge. Rather, it is a case in which the answer to the question of causation lies peculiarly and wholly within the realm of medical science. It should further be remembered that this is not a case in which there is an absence of evidence of any other apparent cause which might have resulted in the employee’s death. It is clear from the evidence that there were other possibilities and that Fleming’s death from the natural progress of his heart disease was just as likely. In this cause, the commission either had to apply its own medical knowledge or resort to speculation and conjecture in order to find that the death was caused by the compensable injuries Fleming received. The commission’s findings themselves recited that Dr. Jouett recognized the possibility of other causes of Fleming’s death and that Dr. Black admitted there was a possibility that there was a relationship between Fleming’s injury and his coronary occlusion.

Fleming had been involved in a serious automobile accident in 1950, from which he suffered broken bones and contracted pneumonia. He was then off work a little over a year and one-half. Dr. Jouett related that a lumbar puncture revealed “old” blood in Fleming’s spinal fluid. He stated that later while Fleming was in the intensive care ward, his pulse became of concern because it was slow. This neuro-surgeon found the patient’s spinal pressure to be inconsistent with his pulse. In retrospect, the doctor testified the the slow pulse was attributable to cardiac irregularity instead of, as he originally thought, an intercranial blood clot, because it developed that there was no such clot. He said that the type of injury Fleming sustained would put a burden on his heart. Two months after Fleming was discharged from the hospital, Dr. Jouett saw the patient again and attributed the patient’s complaints of dizziness and shortness of breath to postural hypotension —i.e., lowering of the blood pressure when the affected individual stands or turns quickly. Other symptoms indicated that Fleming was suffering such episodes. Jouett only saw Fleming one other time. That was in June 1970, when Fleming told Jouett that the symptoms about which he had complained to this doctor had improved, but, in the meantime, he had suffered a heart attack for which he was being treated.

Jouett’s opinion that there was an indirect relationship between Fleming’s injury and death was based upon the assumption that Fleming had a heart disease at the time of the injury but that he was asymptomatic at that time. He said that an electrocardiogram run on Fleming a little over a week after the injury was normal, and in view of that fact, the slow plulse probably did not evidence cardiac irregularity. Blood pressure readings were, he said, within normal limits for a man Fleming’s age. Dr. Jouett said that the slowing of blood circulation through diseased vessels lent itself to the formation of a thrombosis which, along with the patient’s deterioration over a period of four months in front of the doctor’s eyes, caused him to arrive at his conclusion that the injury caused the death. The doctor said that a myocardial infarct caused by a thrombus or blood clot was the actual cause of death. On cross-examination, the doctor made pertinent statements that:

1. He did not think the stress of convulsion had anything to do with the formation of the blood clot that was the cause of death.
2. The autopsy report reflected that Fleming had suffered a heart attack at some time in the past, which could have been one to 10 years earlier.

Upon cross-examination, appellant’s attorney went to great lengths to determine the basis of the belief of this expert witness that circulatory difficulties resulting from the injury had something to do with the death of Fleming. These specific questions and answers appear in the record:

Q. When you speak of belief, do you speak of possibilities?
A. Possibilities.
Q. Not probabilities?
A. Possibilities.
###
(And following a question pertaining to statements from an article in Vol. 148, Journal of American Medical Association):
A. Not really. This honored gentleman uses an awful lot of probabilities, an awful lot of perhapses—
Q. Well, didn’t you recite to me that yours was strictly a possibility?
A. That’s right. Therefore, as I said, I cannot really see there is any great difference.
Q. Do you accept those statements?
A. Yes, sir.
Q. And you said his degree of expertise in this field was greater than yours?
A. Yes, sir.
Q. To the extent that there is a conflict, will you accept his views over yours?
A. Yes, I surely would.
* # *
Q. Are you saying that low blood pressure will induce the thrombosis?
A. Yes, sir. I’m saying that if we’re dealing with an individual that has arteriosclerotic vessels, it can be a precipitating factor.
###
Q. Doctor, are you attempting to persuade the Commission that there is a causal relationship between the trauma suffered by the claimant in January and his resultant death from a myocardial infarction?
A. I’m not trying to persuade the Commission of anything, first of all, except what I believe. I think I’ve stated that I believe that there is an indirect relationship of this man’s injury and his demise.
Q. An indirect relationship—
A. An indirect relationship. I do not believe that the fact that this man was hit on the head or fell or whatever his difficulty was in January, was the direct result of him having a coronary five or six months later, but I’m saying that — in postulation —that there is an indirect relationship, and I have gone through those of the condition which this individual exhibited. I went through the method in which I arrived at that conclusion, and that is all that I can tell you. It’s my personal opinion and the things that I observed.
***
Q. By postulation, it’s a surmise on your part?
A. Yes, sir.
Q. We are faced with the hard fact that the man did die of a myocardial infarction, aren’t we?
A. Yes, sir.
Q. The question is the causation?
A. Yes, sir.
Q. And the best that you’re able to present to the Commission is a mere surmise on your part?
A. Of observations. Yes, sir.
##*
Q. This is your opinion, and you’re stating it to be a possibility?
A. I’m stating it to be a possibility.
Q. Could there be other possibilities?
A. There could be other possibilities..
Q. Unlimited possibilities?
A. Unlimited possibilities.

Dr. Black testified on cross-examination that the decreased blood supply to Fleming’s heart muscles was apparently attributable to severe arteriosclerosis, which would probably indicate that this was a degenerative disease built up over several years. Dr. Black accepted the following views of Dr. Arthur M. Master expressed in Vol. 148 of the Journal of the American Medical Association with the qualifications therein stated:

The interval elapsing between an effort or trauma and the onset of coronary episode is of great importance in determining causal relationship. In coronary insufficiency symptoms usually set in immediately; if they appear after one or two hours, it is unlikely they were caused from the strain. In coronary occlusion, the sequence is less direct since it may take some time for a thrombus to form. However, one would expect some symptoms such as pain or weakness within the first day or two, if there has been a change in an artery. If there are no symptoms for 48 hours following effort or trauma, and a coronary occlusion develops later, it was probably not caused by the effort or trauma.
***
The problem becomes more complex if, following the strain and the subsequent angina, coronary occlusion occurs after several months. It is probable that there is no causal relationship between the effort and the occlusion in these circumstances.
On cross-examination Dr. Black classified his own testimony thus:
I think we would have to speculate as to whether or not the injury had any bearing on his arteriosclerotic process. This, as I say, would be a speculation. It’s possible.
###
Q. I think we are agreed, aren’t we, that the arteriosclerotic condition of this man’s coronary artery is the result of a pathological disease going back over a good long period of tíme?
A. Probably.
Q. There’s no way that this trauma could ever have contributed to that?
A. Not to have caused it. No.
Q. No. So the only thing that we’re really concerned with is whether or not this trauma produced the clot basically, and there’s no way that—
A. I don’t think the trauma would have produced the clot that killed him.
Q. That’s right.
A. The only problem is whether there were an aggravation of his preexisting arteriosclerosis, and as I say, this is a possibility, and I have no way of knowing probabilities or percentages on it.
Q. And there could have been any number of factors or other possibilities?
A. Oh, yes.
Q. He could have gotten excited watching a football game on television—
A. Could have.
Q. — or out in the yard walking around?
A. Yes.
Q. There’s no way?
A. This is true.
###
Q. Doctor, coming back to my last— We were at the point of the gap between the thrombus which we agree caused the infarction and this brain injury to which Mr. McMath just referred. At that time I understood you to say that that point — that is to say the thrombus — and the trauma in January, you couldn’t connect up?
A. I don’t think you could at that length of time unless you postulate some — some change in his arteriosclerotic process due to the injury.
Q. When you say postulate, again don’t we mean surmise—
A. That’s right.
Q. — conjecture, speculation?
A. Yes.

Each of the doctors put his own testimony in the realm of speculation and conjecture and admitted of other possibilities. The most outstanding possibility was that Fleming’s death was attributable to the natural progress of his existing disease. This simply does not meet the standard of proof required to show causal connection.

I would reverse the judgment.

       At that time Humble Oil & Refining Company.

       Fleming was to see the doctor on May 11 but was unable to go to the office because of chest and abdominal pains.

       Dr. Black testified that he examined the employees of appellant.


author: George Rose Smith, Justice. George Rose Smith, Justice,

text:
    Dennis Wayne McDONALD v. STATE of Arkansas
    5792
    491 S.W. 2d 36
    Opinion delivered January 22, 1973
    [Rehearing denied March 5, 1973.]

      Autrey ér Weisenberger, for appellant.

      Ray Thornton, Atty. Gen., by: Robert H. Crank, Asst. Atty. Gen., for appellee.
   George Rose Smith, Justice.

This prosecution for rape was defended on the ground that the prosecuting witness consented to the act of intercourse. The jury, rejecting that defense, returned a verdict of guilty and fixed the punishment at imprisonment for 30 years.

There is no merit in the contention that the verdict is not supported by substantial evidence. The prosecutrix testified that on the morning of June 19, 1971, after her husband had left to take the couple’s son to work, the defendant appeared in her bedroom, armed with a knife wrapped in a cuptowel. By threatening her with the knife the defendant forced the prosecutrix to go out to her daughter’s car, which was parked behind the garage. There she was compelled to submit to him. The defendant, testifying in his own defense, insisted that the prosecutrix consented to having intercourse with him. He admitted having picked up the knife and the cuptowel in the prosecutrix’s kitchen, but he denied having threatened the prosecuting witness in any way. His explanation was that he meant to steal the knife and take it to his grandmother’s house, where there were not enough steak knives to go around. The conflicting testimony presented a question of fact for the jury, whose verdict settles the issue.

The date of the trial was set three weeks in advance. On the morning of the trial the accused expressed dissatisfaction with his appointed attorney, stating that the attorney had talked to him only twice before the trial and had indicated that he thought the defendant should plead guilty. The trial judge expressed his confidence m the lawyer and refused to relieve him, but he did appoint additional counsel to assist in the trial.

We find no error. There is no indication that any other facts would have been disclosed by more frequent attorney-client discussions before the trial. To the contrary, the appointed attorney stated that nothing could have been accomplished by additional conferences. Even so, the court appointed a second lawyer to assist in the trial and still a third one to handle this appeal. In a matter that lies primarily within the discretion of the trial judge, who observes the conduct of counsel at firsthand, we find nothing to indicate an abuse of discretion.

The appellant complains that at the trial he was unshaven and had unusually long hair. In the court below there was no objection on the ground now urged, nor any request that the accused be afforded an opportunity to shave or get a haircut. It is now insisted, however, that his rights should have been explained to him, so that he could decide what he wanted to do.

That argument is unsound. This defendant’s appearance was not necessarily prejudicial, as may be the case when the accused is tried while wearing prison garb. Miller v. State, 249 Ark. 3, 457 S.W. 2d 848 (1970). Here McDonald evidently preferred to have his hair long, for he admitted that it was long when he was arrested. By failing to make any objection he speculated upon the possibility that the jury might be favorably or sympathetically impressed by his appearance. After the verdict proved to be adverse it is too late for him to change his mind and suggest that he would have demanded a haircut if he had known one to be available. Moreover, there is no proof that a haircut would not have been supplied had McDonald requested one while he was in jail awaiting trial. Thus there is no basis in the record for a finding of reversible error.

Next, it is argued that the knife and towel were obtained by an illegal search and should not have been admitted in evidence. The search was not illegal, being incident to a lawful arrest. Immediately after the occurrence the prosecutrix reported it to the police, who broadcast a description of the offender. Within a few minutes Officer Simmons saw McDonald (whom he recognized from the description) running down a sidewalk in the prosecutrix’s neighborhood. When McDonald jumped over a fence and started across a yard the officer drew his pistol and ordered McDonald to halt. McDonald at once returned to the sidewalk, where the officers searched him and found the knife and towel.

Counsel is mistaken in arguing that there was no arrest simply because the officers did not use the word "arrest” before making the search. It is the actual restraint, or consent to restraint, that constitutes an arrest. Sibron v. New York, 392 U.S. 40 (1968); Henry v. United States, 361 U.S. 98 (1959); Ark. Stat. Ann. § 43-412 (Repl. 1964). Here McDonald was unquestionably being restrained when the search was made. The broadcast description gave the officers probable cause for the arrest. The articles were therefore admissible, having been obtained as an incident to the arrest. Bailey v. State, 238 Ark. 210, 381 S.W. 2d 467 (1964).

We cannot say that the sentence to imprisonment for 30 years is excessive or that it constitutes cruel and unusual punishment. Formerly the punishment for rape was death or life imprisonment. By Act 362 of 1967, Ark. Stat. Ann. § 41-3403 (Supp. 1971), the legislature fixed the punishment at death or from 30 years to life imprisonment. This appellant received the minimum sentence. Inasmuch as the determination of the limits of punishment lies peculiarly within the legislative province, we have no basis for disturbing the verdict. Black v. State, 244 Ark. 37, 423 S.W. 2d 544 (1968); Osborne v. State, 237 Ark. 5, 170, 371 S.W. 2d 518 (1963).

About six months after the trial a Texarkana newspaper published a letter to the editor, written by Mrs. E. D. Ray. Mrs. Ray stated in the letter, and repeated at a hearing upon a motion for new trial, that during a recess in the trial two women who were on the jury sat down next to Mrs. Ray in the hall outside the courtroom. A man walked up to the women and said: “Well, how do you think it’s going to come out? I’m pretty .sure it’s going to be guilty.” It is now asserted that Mrs. Ray’s testimony demonstrated such misconduct on the part of the jurors as to require a new trial.

Mrs. Ray’s testimony is so vague and indefinite as to be entitled to little weight. She waited, without adequate excuse, for some six months before mentioning the matter. She did not explain how she knew the two women to be jurors, for she did not go into the courtroom, She did not identify either of the women, or the man who assertedly spoke to them. If such flimsy and incorrclusive testimony, given months later by a bystander who is unable to supply details subject to verification, mandatorily requires a new trial, then it is evident that criminal convictions lose the stability that is essential to the administration of justice. The trial court was right in refusing to order a new trial on the basis of Mrs. Ray’s testimony. That conclusion is also applicable to asserted discrepancies in the testimony of the prosecutrix’s 14-year-old daughter, who was not an eyewitness to the offense and actually gave no testimony of material value.

Affirmed.

Supplemental Opinion on Denial of Rehearing delivered March 5, 1973

Arrest — authority without a warrant — grounds.—A radio broadcast upon an informer’s tip may not be sufficiently reliable to constitute probable cause for an arrest without a warrant but when the victim of a rape reports the occurrence to police and provides a description of the offender, police officers are expected to act upon this type of complaint which constitutes probable cause.

George Rose Smith, Justice,

on rehearing. Within the time allowed for the filing of a petition for rehearing the appellant filed a pleading and brief entitled a “Motion to Commence a [Criminal Procedure] Rule 1 Hearing.” Since the motion is in substance a petition for rehearing, arguing points of law discussed in our opinion, we so treat it.

We think it appropriate to comment further on one of the points that are reargued. In our original opinion we sustained a search of the appellant’s person as being incident to his arrest. The arresting officer relied upon information contained in a police radio broadcast, which in turn was based upon the report of the crime that had been made by the prosecutrix to the police.

In the petition for rehearing there is cited for the first time the decision in Whiteley v. Warden, 401 U.S. 560 (1971). The appellant argues, on the strength of that case, that a warrantless arrest based upon a police radio bulletin is not permissible.

We cannot agree with that interpretation of the Whiteley opinion. There the radio broadcast was based upon an informer’s tip that was not shown to be sufficiently reliable to constitute probable cause for the arrest. As the court said: “[T]he record is devoid of any information at any stage of the proceeding from the time of the burglary to the event of the arrest and search that would support either the reliability of the informant or the informant’s conclusion that these men were connected with the crime. . .

“We do not, of course, question that the Laramie police were entitled to act on the strength of the radio bulletin. Certainly police officers called upon to aid other officers in executing arrest warrants are entitled to assume that the officers requesting aid offered the magistrate the information requisite to support an independent judicial assessment of probable cause. Where, however, the contrary turns out to be true, an otherwise illegal arrest cannot be insulated from challenge by the decision of the instigating officer to rely on fellow officers to make the arrest.”

We think the Whiteley rule was accurately summarized in Peterson v. State, 15 Md. App. 478, 292 A. 2d 714 (1972), where the court said:

“Whiteley stands for the broad principle that a police officer, with proper justification for an arrest or a search (with or without a warrant), may multiply his available arms and legs to excute his purpose by calling upon other policemen to aid him. . . . He does not have to impart to each of his executing agents the building blocks of probable cause that mounted up to his justification. The immediate holding of Whiteley was that, just as a justification for police action is not diminished in transmission, neither is it enhanced. If the justification is adequate at the point where the message is transmitted, it is no less so at the point where the message is received. Conversely, if the justification is inadequate at the point where the message is transmitted, that inadequacy endures and will not somehow be dissipated on the wires or on the airwaves. In transmission nothing is lost and nothing is gained.”

In the case at bar the broadcast was not based, as in Whiteley, upon an informer’s tip of questionable veracity. Here is was the victim of the rape who reported the occurrence to the police and provided a description of the offender. Firsthand information of that kind is precisely the type of complaint upon which police officers are expected to act. We have no doubt that it constituted probable cause for the arrest.

Rehearing denied.


author: Lyle Brown, Justice.

text:
    C. W. CURBO et al v. Billy N. HARLAN et al
    5-6114
    490 S.W. 2d 467
    Opinion delivered January 22, 1973
    [As Amended on Denial of Rehearing March 5, 1973.]

      Hodges, Hodges if Hodges, for appellants

      Terral, Rawlings, Matthews if Purtle and John D. Eldridge, for appellees.
   Lyle Brown, Justice.

The real parties in interest in this appeal are Jan Curbo, defendant-appellant, and Lillian Dozier, a plaintiff-appellee, she having recovered judgment for $40,000 for the death of her husband, William Dozier. Appellant sets forth twenty-eight alleged errors in the trial. Since the case is being reversed we shall touch on only those matters which might arise in another trial.

At the time of the accident, which occurred on Highway 33 a few miles south of Augusta, William Dozier was riding in the rear seat of an automobile owned and being driven by Billy Harlan. Dozier’s widow contended that the defendant-appellant Jan Curbo negligently backed out of a driveway in Harlan’s lane of traffic, forcing the Harlan car into the Curbo car and causing the death of her husband. The jury found Curbo 75% negligent and Billy Harlan 25% negligent.

Before discussing the issues it should be related that William Dozier, Billy Harlan, and Billy’s brother, had been together all the afternoon of the accident which occurred at approximately 7:30 p.m. Between the three of them they had admittedly consumed two, six-packs of beer. There was also evidence that a portion of a “fifth” of whiskey was in the car but there is no direct proof that they consumed any of it.

The first point raised by appellant Curbo is that the court erred in not submitting to the jury the contention of appellant that William Dozier was negligent. We think the point is well taken. As a passenger in the automobile Dozier was required to exercise ordinary care for his own safety. AMI (Civil) 910. It is true Dozier’s assumption of risk was submitted to the jury and the finding was that he did not assume it. At first blush it might appear that assumption of risk covered any alleged negligence by Dozier. It is true the two doctrines — assumption of risk and contributory negligence — overlap “and are intersecting circles, with a considerable area in common, where neither excludes the possibility of the other. ...The significant difference, when there is one, is likely to be one between risks which were in fact known to the plaintiff, and risks which he merely might have discovered by the exercise of ordinary care”. W. Prosser, Law of Torts (4th ed. 1971). See Hudgins v. Maze, 246 Ark. 21, 437 S.W. 2d 467 (1969). Furthermore, it could hardly be said that Dozier assumed the risk of the driver of the other car, Curbo, in backing out on the highway. As to the risks which Dozier might have discovered had he been reasonably alert, we point to that evidence which charged that Billy Harlan was traveling at an excessive rate of speed; that the Curbo car backed out of the driveway when the Harlan car was some 900 feet back down the highway; and, of course it was known to Dozier that Harlan had consumed alcoholic beverages, at least some four cans of beer.

Appellee strongly urges that we have a case that is controlling. Reed v. McGibboney, 243 Ark. 789, 422 S.W. 2d 115 (1967). The evidence we have just recited shows the facts in Reed to be considerably different than in the case at bar.

The second point for reversal is that the court erred in holding the evidence did not warrant the submission of the theory of joint enterprise between Dozier and Harlan. Suffice it is to say that the evidence does not establish the two fundamental and primary requisites of joint enterprise, community of interest and an equal right to direct the conduct of each other. Stockton v. Baker, 213 Ark. 918, 213, S.W. 2d 896 (1948).

The next point is that the court erred in not granting a directed verdict on the issue of mental anguish on behalf of the widow. It has been said that there will never be devised a definite rule by which to determine the money required to compensate for mental anguish. It rests largely within the province of the jury. Pitts v. Greene, 238 Ark. 438, 382 S.W. 2d 904 (1964). In the case before us the couple had been married 37 years and raised six children to adulthood. She stayed with him every other night and day while he was in the hospital. She saw him suffer for four morlths before his death. There are other factors we could recite but suffice it to say that we are unable to conclude the court erred in this respect.

The next point concerns the voir dire examination of the jury panel. The attorney for Mrs. Dozier questioned the jurors about their possible prejudice against the deceased for the consumption of intoxicants. Thereafter, appellant inquired whether proof offered by appellant as to the intoxication of the deceased when he was dead and not present at the trial would be offensive to the jury, thereby prejudicing Curbo. The court refused to let the jury answer. The court has wide latitude in this matter and we are unable to say it was abused. We also point out that the judge questioned the jury on the subject and we think the question and answers were sufficient to apprise the attorneys of any prejudice. However, in retrospect, it would seem to be the better practice — since appellee’s counsel was permitted to inject the subject — to permit counsel for appellant to proceed to propound the question posed.

The appellant next contends that “the trial court erred in its rulings on thirteen separate and distinct instructions.” It would unduly extend this opinion to treat the maze of technicalities raised and would be of no , useful purpose to the bench and bar generally. The court gave some 28 instructions, practically all being taken from AMI (Civil). Our review of those instructions convinces us that each and every issue was fully and fairly covered, except the failure to instruct on the alleged negligence of the deceased Dozier (which we have already discussed) and on the defense of intervening cause. As to the latter defense, there was expert testimony that Dozier died of a myocardial infarction wholly disconnected with the accident. Therefore the question should have been submitted to the jury.

We next consider the point that the court erred in requiring the attorney for Jan Curbo to produce certain statements for the attorney for appellee Dozier. The statements were taken by an investigator for the liability carrier and turned over to counsel for appellant. The court held that the statements were not the work product of the attorney. (The investigator is a licensed attorney but was not acting in his capacity as such.) In matters of discovery the trial judge has a wide latitude of discretion and we are unable to say that it was abused. Rickett v. Hayes, 251 Ark. 395, 473 S.W. 2d 446 (Nov. 15, 1971).

The next contention is that the trial court violated Rule 7 (b), Uniform Rules for Circuit and Chancery Courts, Ark. Stat. Ann., Vol. 3A, P. 105, 1971 Supp, which provides that objection should be sustained to the cross-examination of a witness by more than one attorney, “unless there is special reason for ruling otherwise”. We point out that appellant’s objection to the re-cross-examination of Dr. Carlton by a second attorney in the case should have been sustained since no special reason therefor was shown.

Appellant Curbo argues that he was entitled to a directed verdict because (1) there was no substantial evidence of negligence on the part of Curbo. There was evidence going to the issues of speed, lookout and control and that evidence was amply sufficient to take the case to the jury on that point. And (2) Curbo says there was not sufficient evidence of negligence as if would relate to causation between the negligence of Curbo and the death of William Dozier. Death did not occur until some three months after the accident. It was Curbo’s theory that death resulted from a heart attack brought on by natural causes. The evidence showed that prior to the accident Dozier had been a healthy and able bodied man all his life. Dr. Hendrickxson testified that “it was a very strong likely occurrence when Mr. Dozier struck the back seat he damaged either the origin of the superior mesentery or the superior mesentery artery itself, resulting in the eventual occlusion of the artery by a thrombosis, blood clot” and resulted in his death. “In retrospect I can relate this man’s death to nothing else”. There was medical evidence to the contrary but Dr. Hendrickxson’s testimony clearly made a case for the jury on the question of causation.

The final set of points, grouped under one heading, relate to the examination and cross-examination of a state trooper relative to an intoximeter test given to Billy Harlan. Some of the testimony was objected to and some was not. The policeman testified that the instrument did not register a sufficient amount of alcohol to justify the arrest of Harlan; hence we are unable to perceive any prejudice. As to the policeman testifying that Billy had consumed some alcohol, that fact was admitted by Billy in his testimony.

Billy Harlan obtained judgment against Jan Curbo for $575. In that connection it is argued on appeal that the finding by the jury that Harlan was guilty of only 25% negligence is against the preponderance of the evidence. We disagree. We affirm that judgment against Curbo.

Reversed and remanded.


author: John A. Fogleman, Justice.

text:
    Doris Gale RYAN (formerly Baxter) v. Herbert Henry BAXTER, Jr.
    5-6152
    489 S.W. 2d 241
    Opinion delivered January 22, 1973

      W. B. Howard and Jack Segars, for appellant.

      Kirsch, Cathey, Brown ir Goodwin, by: John C. Gregg, for appellee.
   John A. Fogleman, Justice.

Appellant and appellee were married July 13, 1962. Marital difficulties arose, and the parties separated in September, 1962. Appellant, on May 13, 1963, filed a complaint for divorce alleging nonsupport, and seeking custody of a child en ventre sa mere. Appellee, on May 16, 1963, entered his appearance and waived notice, and on June 25, 1963, the Greene County Chancery Court entered a decree awarding a divorce to appellant and giving her custody of the child, Kimberly Lynn Baxter. No support payments were sought by appellant and none was awarded. The decree denied appellee visitation rights.

At the time of the original decree, appellee was stationed overseas in the armed services. Upon his return, sometime in 1964, appellant began allowing appellee to visit with his child, and at times appellee would keep the child at his residence in Big Sandy, Tennessee. Difficulties again arose, and on December 16, 1971, appellee instituted the present proceeding by a petition seeking modification of the earlier decree to allow him reasonable visitation rights, alleging, as changed circumstances, that through his own initiative and with the appellant’s consent he had been granted visitation privileges, and that appellant now refused to allow such privileges. The answer and counterclaim of appellant filed on December 31, 1971, stated appellant’s contention that appellee’s action in not seeking visitation rights, at the time of the divorce, constituted an abandonment and required denial of relief because appellee did not come into equity with clean hands. Appellant also contended that her granting visitation privileges to appellee was not a voluntary modification of the decree, and that such privileges were no different than if she had allowed the child to visit with strangers. Finally, in her answer, appellant claims that since appellee has a common law duty to support the" child, and since appellee has contributed nothing to the care of the child, no relief should be afforded appellee until he reimburses her for expenses incurred for the support of the child during the period since their divorce. As a counterclaim, appellant sought $5,498.77 as expenses for support of the child for the three years immediately preceding appellee’s petition, and attorney’s fees. After oral testimony the chancellor awarded appellee reasonable visitation privileges, denied appellant’s counterclaim for past child support and denied appellant attorney’s fees. He also stated that, even though appellant had not sought future child support, appellee had testified that he was willing to contribute to the child’s support, so he would treat the pleadings as amended in that respect. Upon this amendment he awarded appellant $75.00 per month child support. On appeal, appellant assigns three points as error in the lower court. They are:

I. The court erred in refusing to grant judgment against the defendant for child support, expense incurred by appellant prior to hearing.
II. The court erred in failing to award appellant an attorney’s fee.
III. The court erred in modifying the decree to the extent of allowing appellee to remove the child from the jurisdiction for visitation.

We find no basis for reversal and shall discuss the points in order.

I.

A further recitation of the facts is necessary in order to fully understand this point. Both parties have remarried, appellant sometime in 1968, and appellee in 1969. Appellee has two children by his second marriage. Appellant has three other children. Appellant is unemployed, and her husband has provided the money for which appellant is now seeking reimbursement. These funds were apparently expended both as payments for essentials for Kimberly Baxter and as total general expenses for the Ryan household. The only evidence offered by appellant as to expenses incurred for Kimberly’s support consisted of estimates based on total expenditures for the household divided by six or informal valuations of Kimberly’s clothing and school expenses.

During the period between the divorce and the present action, the visitation privileges exercised by appellee took on an air of regularity, the child having an extended stay during the summer months while on vacation from school, and brief stays during the Christmas holidays; most visits were in Tennessee. Difficulties began in the summer of 1971, when appellee is alleged to have refused appellant’s request to pay for piano lessons, and in December 1971, the appellee allegedly threatened to keep the child in Tennessee. These assertions were controverted by appellee. He claimed that he agreed to pay for the child’s piano lessons if appellant would have the decree modified so as to allow him visitation privileges, and denied the alleged threats. Appellant did not deny appellee’s testimony that she never sought child support until this action was instituted.

For reversal appellant relies on cases such as Holt v. Holt, 42 Ark. 495, and Wilder v. Garner, 235 Ark. 400, 360 S.W. 2d 192, which hold that a divorce does not terminate a father’s obligation to support his child, and that the father may be compelled to reimburse the mother for amounts she has expended in support of the child subsequent to a divorce. However, appellant admits that she did not provide the funds which supported Kimberly Baxter. Thus, it might appear that the question to be resolved was confined to the narrow issue whether a father can be compelled to repay expenditures made by the stepfather for support of a child in the custody of the mother, either under a moral obligation to her, as a gift or as an obligation assumed by him. We do not reach this issue, however, as it was readily conceded by appellant, on oral argument, that appellant was not entitled to reimbursement as a matter of law, and that it was not mandatory that the chancery court allow this relief, but that she was entitled to it under the facts and circumstances revealed by the evidence. This being so, the granting or denial of such a recovery rests upon the equities in a particular case. We have, in several cases, recognized the equitable nature of such an award. McWilliams v. Kinney, 180 Ark. 836, 22 S.W. 2d 1003; Daily v. Daily, 175 Ark. 161, 298 S.W. 1012. Thus, in order to find that the chancellor committed reversible error, we would have to hold that his finding as to where the equities lay was against the preponderance of the evidence. This we cannot do.

There was ample testimony that supported the chancellor’s findings, however, the factor that we find most persuasive is appellant’s failure to demand support from appellee until a dispute arose concerning the fixing of definite visitation rights which would have deprived her of an unlimited discretion in the matter. For approximately eight years appellant seemed quite satisfied with the parties’ financial and visitation arrangements, and it was only when appellee sought to have the de facto visitation rights incorporated into a court decree that appellant sought past support moneys, and then by way of counterclaim. Furthermore, appellant had not sought the future support payments awarded by the court. Thus, it could reasonably be inferred that the appellant was merely using the support obligation of appellee to maintain her control over his visitation privilege. The failure for two and one-half years of a mother, whose child was supported as a member of a family consisting of the mother and a stepfather, to seek reimbursement of support furnished by the stepfather was considered as a factor in the denial of relief in McWilliams v. Kinney, supra. An allowance of future support was held sufficient consideration for both past and future support under the circumstances in Daily. It should be noted that the testimony on which reimbursement was sought consisted only of unsubstantiated estimates. The chancellor said that he denied the judgment for past support and maintenance that “she tried to prove.”

For these reasons, we cannot say that the findings of the chancellor were against the preponderance of the evidence.

II.

Appellant next contends that the chancellor committed error in not awarding her an attorney’s fee. The award of attorney’s fees in divorce and support proceedings is governed by Ark. Stat. Ann. § 34-1210 (Repl. 1962) which provides:

During the pendency of an action for divorce or alimony, the court may allow the wife maintenance and a reasonable fee for her attorneys, and may enforce the payment of the same by orders and executions and proceedings as in cases of contempt, and the court may allow additional attorney’s fees for the enforcement of payment of alimony, maintenance and support provided for in the decree.

Appellee would have this court interpret the last clause of this statute to require a pre-existing support award in favor of the wife before attorney’s fees can be awarded in a petition to modify a prior decree. Even if the statute should be held to apply in a case such as this, attorney’s fees are not awarded under its provisions as a matter of right. This statute has long been interpreted to leave the granting or denial of such fees within the sound discretion of the chancellor. Reibstein v. Reibstein, 220 Ark. 783, 249 S.W. 2d 847; Gladfelter v. Gladfelter, 205 Ark. 1019, 172 S.W. 2d 246, Tilley v. Tilley, 210 Ark. 850, 198 S.W. 2d 168. We find no abuse of the chancellor’s discretion which would warrant our disturbing his action, particularly in view of appellant’s lack of success in the case. See Gladfelter v. Gladfelter, supra; Tilley v. Tilley, supra.

III.

Allowance of extra-state visitation privileges and the requirement of a bond are also matters within the chancellor’s discretion. Antonacci v. Antonacci, 222 Ark. 881, 263 S.W. 2d 484, Gibson v. Gibson, 156 Ark. 30, 245 S.W. 32; Weatherton v. Taylor, 124 Ark. 579, 187 S.W. 450. In the latter two cases, we held that the matter of requiring a bond depended upon a determination whether or not there is reason to believe that the orders of the court will be obeyed and the child returned to the jurisdiction of the court pursuant to the court’s orders. Here the chancellor apparently believed the appellee’s denial of the alleged threat never to return Kimberly to her mother, and since appellant’s testimony about this threat was the only evidence of any hazard to the safe and prompt return of the child to Arkansas, we cannot say the chancellor abused his discretion.

Since we find no reversible error, we affirm the court’s decree modifying the original divorce decree.

The Chief Justice would require bond for the removal of the child from the state and would award an attorney’s fee.