author: John A. Fogleman, Justice.

text:
    Gladys Mary BARNARD, Administratrix of the Estate of Alva Leroy Barnard, deceased v. Major Harold L. KEATHLEY, Terry Keathley, Waymon Wilkins and Roger Cruse
    5-5338
    459 S. W. 2d 121
    Opinion delivered November 2, 1970

      Williamson ir Mattingly; By: Dan E. Bartell, for appellant.

      Wright, Lindsey ér Jennings, for appellees.
   John A. Fogleman, Justice.

Appellant questions the propriety of the circuit judge’s refusal to admit her testimony as to certain statements of her decedent made prior to his death, as dying declarations. She brought the action as personal representative of her late husband, Alva Leroy Barnard. She alleged that his death in his lawyer’s office on February 13, 1968, resulted from an assault by appellees on the day before. She offered the testimony of the coroner. It was to the effect that, believing the death to have been from unnatural causes, he caused an autopsy to be performed. This autopsy revealed no brain damage, no abrasions about the face and head of the deceased nor any indication that trauma caused or contributed to the death of appellant’s decedent. While the preliminary autopsy report showed no anatomical cause of death, the final report showed that this death resulted from massive myocardial infarction —a heart attack. The death certificate introduced by appellant reflected the results of both autopsies.

When the trial court’s ruling was made Gladys Mary Barnard had testified substantially as follows:

Her husband had been operating a taxi for almost two years; he had always enjoyed good health; he had never had any symptoms of heart trouble. Between 6:30 and 7:00 p.m. on February 12 he received a telephone call at their home in Jacksonville. She took it to be of a threatening nature and believed that he reported it to the Jacksonville Police. She left their home at 7:30 to go to a bingo party at St. Jude’s Church, leaving her husband and her son Eddy and returned around 9:30. Mr. Barnard was driving into their driveway. She had never seen him in such condition. He had blood on the side of his head and bruises on his face and was shaking and afraid. She had to help him in the house. Knowing that he would be unable to. drive his taxi that night, she told him to contact Lonnie Cater, his substitute driver. Barnard left and returned with Cater after almost an hour. He spent the rest of the night at home. He was up and down all night, complaining with his head. Neither of them got any sleep. She thought he was dying.

In an in camera hearing, Mrs. Barnard answered affirmatively an inquiry whether her husband stated, after she came home about 9:30 p.m., that he was going to die. In response to the question asking how many times he mentioned the fact that he thought he was going to die she answered “Several times.” During the one-hour interval he was away, he had gone to the police station. Even though she suggested that he seeek medical help, he did not do so. The next morning he got up about 6:00 a.m., but said he did not want to eat. He returned to bed where he remained until 8:00 o’clock. About 8:30 he had a driver take him to his lawyer’s office in order that he might detail the events of the previous evening to the lawyer. He did not seek medical attention at this time either. As he left home, he told his wife he was going down to the lawyer’s office to see what could be done and hoped he would be back, but wasn’t sure whether he would or not.

The court held this testimony inadmissible because it was not adequately shown that Barnard’s expressions of fear of death were made under a consciousness of impending death without hope or expectation of recovery. We do not find error in the trial court’s holding.

Appellant contends that she made a prima facie showing that her decedent had a consciousness of impending death, and that the trial court should have submitted the question to the jury. In our latest expression on this subject we said that the trial judge must determine whether a proffered dying declaration was made under such circumstances as to be competent evidence before admitting it. Miller v. Goodwin & Beevers, (April 7, 1969), 439 S. W. 2d 308. We also said that we review the trial court’s decision on admissibility by the test of substantial evidence. To say the least, we find substantial evidence to support the trial court’s holding in this case.

In order for a statement to be admissible as a dying declaration it must satisfactorily appear from the declar-ant’s express language or from inferences fairly drawn from his condition, any evident danger and other circumstances that his sense of impending death was so certain that he was without hope or expectation of recovery. Rhea v. State, 104 Ark. 162, 147 S. W. 463; Sutton v. State, 187 Ark. 870, 63 S. W. 2d 278; Comer v. State, 212 Ark. 66, 204 S. W. 2d 875. There must be an abandonment of hope of survival by the declarant and a definite expectation that life is a matter of but short duration. Pinson v. State, 210 Ark. 56, 194 S. W. 2d 190. In view of Barnard’s greater concern for obtaining a substitute taxi driver and for reporting his alleged beating to the police than for obtaining medical attention as advised by his wife and his anxiousness to consult a lawyer rather than a physician on the day of his death, we cannot say that the trial court’s holding that the requisite consciousness of impending death had not been shown was incorrect.

Appellant also argues that her testimony should have been admitted because the court later admitted the testimony of substitute taxi driver Lonnie Cater, including an alleged dying declaration of Barnard. Appellant says that her testimony as to Barnard’s sense of impending death was stronger than that of Cater and that Cater’s testimony supplemented that of Mrs. Barnard in that respect. The correctness of the court’s holding the Cater testimony admissible is not before us, so a comparison of the relative weight of their respective testimony would serve no useful purpose. The sufficiency of Cater’s testimony to supply any deficiencies in Mrs. Barnard’s is a question which is not presented to us, because appellant has not pointed out to us any attempt to offer her testimony after Cater testified. We can only determine the correctness of action that a trial court took or declined to take upon proper request. When a court rules on the admissibility of evidence, we can only evaluate its ruling in the light of matters which have been brought to the court’s attention at the time of the ruling. In passing we note that appellant made no offer of proof to show just what Barnard’s declarations to her were. It could well be that Mrs. Barnard’s testimony would have been only cumulative to that of Cater.

We have found no error in the court’s action, so the judgment is affirmed.


source: Caselaw Access Project

author: J. Fred Jones, Justice.

license: Public Domain

text:
    Albert EDMUNDSON, Jr. v. COMMERCIAL UNION INSURANCE COMPANY of New York and Mrs. Christine Jones
    5-5353
    459 S. W. 2d 112
    Opinion delivered November 2, 1970

      H. Clay Robinson, for appellant.

      Cockrill, Laser, McGehee, Sharp ir Boswell, for appellees.
   J. Fred Jones, Justice.

This is an appeal by Albert Edmundson, Jr. from a judgment of the Pulaski County Circuit Court in favor of Commercial Union Insurance Company of New York in a suit by Edmundson on an uninsured motorist insurance policy issued to him by Commercial.

While in the course of his employment by the Arkansas Employment Security Division, Mr. Edmundson sustained injuries in an automobile collision with a Mrs. Jones who was an uninsured motorist. Mr. Ed-mundson’s insurance policy was limited in coverage to $10,000 and $1,000 of this amount was voluntarily paid by Commercial on medical. The policy contained a provision as follows:

“(b) Any amount payable under the terms of this Part because of bodily injury sustained in an accident by a person who is an insured under this Part shall be reduced by ...
(2) the amount paid and the present value of all amounts payable on account of such bodily injury under any workmen’s compensation law, disability benefits law or any similar law.”

The trial court, sitting as a jury, found that Mr. Edmundson had received workmen’s compensation payments from the State of Arkansas in excess of the policy limits; that the policy was issued and delivered prior to the effective date of the uninsured motorist law, Act 464 of 1965, (Ark. Stat. Ann. §§ 66-4003 — 4006 [Repl. 1966]), and that Mr. Edmundson was barred from recovery under our decision in MFA Mutual Ins. Co. v. McKinley, 245 Ark. 326, 432 S. W. 2d 484. Mr. Edmundson relies on the following points for reversal:

“The trial court erred in holding that clause IV (Limits of Liability) (b) (2) of the insurance policy bars a recovery by the plaintiff because the effect of that clause is to reduce the damages and not the policy limit by the amount of payments from Workmen’s Compensation.
The trial court erred in holding that clause IV (Limits of Liability) (b) (2) bars a recovery by the plaintiff because the payments received by the plaintiff were not under any Workmen’s Compensation law.
The trial court erred in holding that clause IV (Limits of Liability) (b) (2) of the insurance policy bars a recovery by the plaintiff because the clause is void as against public policy.”

Under point one Mr. Edmundson argues that his proven damages exceeded $18,046.61, and that this court should adopt the view of the Michigan Court as announced in Michigan Mutual Liability Co. v. Mesner, 139 N. W. 2d 913, where an insurance policy provided “any loss payable under the terms of this Part to or for any person shall be reduced by the amount paid and the present value of all amounts payable to him under any workmen’s compensation law,” and the court held that the liability of the company is to be computed on the value of the insured’s loss, less the amount received from the workmen’s compensation carrier and in no event to exceed $10,000.

We are unable to apply such construction to the plain words of the contract in the case at bar. It is not the loss payable that is to be reduced under Mr. Ed-mundson’s contract, it is the amount payable that is to be reduced. The Michigan court applied what is considered to be the “understanding of the ordinary person” in the Mesner case and so do we in the case at bar. The amount payable could only mean the amount the insurance company is obligated to pay under the terms of the policy.

We find no merit in Mr. Edmundson’s second point. He admits in his brief that “clearly awards made pursuant to § 13-1407 (Ark. Stat. Ann. § 13-1407 [Repl. 1968]) are like workmen’s compensation,” but he argues that they are not workmen’s compensation as such. Mr. Edmundson overlooks the fact that the reduction under (b) (2) of the policy is not limited to workmen’s compensation law as such, but includes also “disability benefits law or any similar law.” The law under which Mr. Edmundson was paid, § 13-1407, supra, was certainly similar to a workmen’s compensation law. In fact, and in practice, it is a workmen’s compensation law in so far as state employees are concerned.

We find no error in the trial court’s disposition of the case under Mr. Edmundson’s third point. We agree that the reduction clause in the insurance contract was not against public policy when it was entered into and that the contract was consummated prior to the enactment of the uninsured motorist law, which became effective on June 18, 1965, and which had no retroactive effect on the contract. (MFA Mutual Ins. Co. v. McKinley, supra).

The judgment is affirmed.


author: Conley Byrd, Justice.

text:
    MILK PRODUCERS, INC. v. Mrs. Dale CAMPBELL
    5-5355
    459 S. W. 2d 114
    Opinion delivered November 2, 1970

      Thompson ir Thompson, for appellant.

      Howell, Price, Howell ér Barron, for appellee.
   Conley Byrd, Justice.

Appellant Milk Producers, Inc., (MPI) is a milk producers marketing cooperative that came into existence about Sept. 1, 1967, as a result of merger of a number of other milk producers marketing cooperatives, including Central Arkansas Milk Producers Association, Inc., (CAMPA). The appellee, Mrs. Campbell, and her husband had been members of CAMPA marketing cooperative for a number of years and some time in June of 1967, signed a proposed membership agreement with MPI which was accepted by MPI around Sept. 1, 1967. After May 1, 1968, MPI adopted ja base and overbase plan that went into effect August 1, 1968, applicable only to members producing milk as of April 30, 1968. The trial court ruled that Mrs. Campbell was entitled to assignment of a permanent Class One base of 2,500 pounds of milk per day although she was not in production on April 30, 1968.

The record shows that CAMPA, the predecessor of MPI, calculated the base for sale of milk without a penalty, on the production from September through March of each year and that MPI continued this base until its Class One base and overbase , plan went into effect on Aug. 1, 1968. The Class One base allotment has a market value of between $8.00 and $10.00 per pound among the producers in the area involved.

Mrs. Campbell testified that she and her husband had been members of CAMPA and had marketed their milk through it up until her husband’s death in 1966. She continued to operate the dairy until Sept. 18, 1967, at which time she sold her producing cows but saved about 70 heifers to be freshened later. When she sold her producing cows she rented her base to Roy Minton for the period from Sept. 1967 to July 1968. After her base was transferred to Mr. Minton she received no notices from CAMPA or MPI. In fact she testified that she was never notified that MPI accepted her membership contract. Since the Class One base is calculated on the highest production during 1966 or 1967, her base, if assigned, would be 2,500 pounds per day, having a value of $9.00 per pound. On July 1, 1968, she made a request to go back into the marketing of milk through CAMPA or MPI. The membership agreement signed by Mrs. Campbell with MPI provides in part:

(7) “Member agrees to conform to and observe the By-Laws of the Association now in force and effect, and any change or amendment that may hereafter be made in or to said By-Laws of the said Association, and agrees that the Board of Directors of Association may prescribe reasonable rules and regulations relative to the production, handling, testing, delivering, hauling, and charges for service in the marketing of milk or dairy products produced by Member, or other Members of the Association entering into like agreement with Association. Member agrees to be bound by and to comply with such rules and regulations. Member further agrees that the Board of Directors shall have the right to adopt and enter into with others from time to time, a marketing plan or plans for the marketing of milk or dairy products of Association, containing such provisions in relation to the pooling of milk or dairy products or the proceeds of the sale thereof, or equalizing the cost to different distributors or price to different members, or providing through variations in price, incentives to producers to maintain a steady supply of fluid milk to meet the requirements of the market, and any other provisions usual or customary in such marketing plan, or plans, as may be deemed advisable by the Board of Directors. The member hereby agrees to faithfully comply with any such plan, or plans, and any modification thereto, which may now be in effect or hereafter entered into.”

Testimony of MPI’s management personnel shows that the dues supporting the association are collected from the current milk producers and deducted from the milk payments. These records are kept by an IBM system. When a member goes out of production his name is placed on an inactive list. Admittedly, persons currently producing milk received notices of the informal discussions held prior to April 30, 1968. At these meetings, widely attended by the producing members, the management personnel discussed the proposed Class One base plan and overbase plan and informed the members that if adopted the plan would be applicable to persons in production on April 30, 1968. Admittedly Mrs. Campbell, being an inactive member, did not receive a mailed notice of such discussions.

When it developed on the first hearing in this matter that Mrs. Campbell had not exhausted her inter-corporate remedies, the trial court held the cause in abeyance while Mrs. Campbell pursued those remedies. Thereafter, through an intercorporate appeal, MPI tendered to Mrs. Campbell as a hardship case the opportunity to market her milk through MPI on the following basis:

"1. She will be paid the Arkansas Division base price, minus 25 cents per hundredweight for the quantity of milk calculated by multiplying her total deliveries of Grade A milk each month by 80%, with the remaining 20% of her deliveries being paid for at the over-base price.
2. This schedule of payments will continue for the first sixty months that she produces and delivers Grade A milk to MPI. For the 61st pay period and thereafter, she will be allocated permanent transferable base calculated on the basis of her average daily deliveries during this period of time not to exceed 80%. ”

Mrs. Campbell declined to accept the 80-20 ratio used in the calculation of the Class One and Class Two milk and reinstated her petition for the assignment of a permanent base. The trial court ruled that Mrs. Campbell should be placed in the position she would have been in as to permanent base had she been notified and had the opportunity to select a permanent base as did the producers who were notified. Mrs. Campbell points out that if she had been notified of the meetings she could have bought some cows and gone back in production and thus have qualified for assignment of base. In this connection she points to paragraph 9 of her agreement which provides:

“(9) Unless this agreement is cancelled as provided in the By-Laws of the Association, the same shall continue in full force and effect for successive periods of one (1) year from the date of this contract; provided, however, that cancellation of the same may be made by written notice by either of the parties given between one (1) and sixteen (16) days preceding any anniversary date after the first anniversary date of this contract; such cancellation shall become effective on the last day of the second successive calendar month following the month in which such notice is given.”

The record shows that there was 145 other inactive members in the same situation as Mrs. Campbell who received no notice of the informal discussions at which the April 30th deadline was explained in connection with the proposed base plan.

As we read the membership agreement between MPI and Mrs. Campbell, it is basically a marketing agreement for the benefit of persons producing Grade A milk for distribution. The record shows that the association is supported only by dues withheld from milk payments made to producing members. Here the record shows that MPI, for purposes of determining with whom it should discuss its management policies, classified its members as dues paying members or non-dues paying members. Cases from other jurisdictions hold that in absence of anything to the contrary in the association charter or by-laws or in the contract between the association and its members, a cooperative associattion is free to deal with its members on any reasonable basis. See Bertram v. Danish Creamery Association, 120 Cal. App. 2d 458, 261 P. 2d 349 (1953); 18 Am. Jur. 2d Cooperative Associations § 19. We cannot say that MPI’s classification was unreasonable.

For the reasons indicated the order of the trial court is reversed.


text:
    Robert Maxwell CHERRY, Guardian v. Corinne NORWOOD et al
    5-5318
    459 S. W. 2d 132
    Opinion delivered November 2, 1970

      Am is Guthridge, for appellant.

      James L. Sloan, for appellees.
   Conley Byrd, Justice.

This proceeding was commenced by appellant Robert Maxwell Cherry, as guardian of his father Charles Kress Cherry, against appellee Corinne Norwood and Pulaski Federal Savings and Loan Association to recover a $10,000 savings account in the joint names of Charles Kress Cherry and Corinne Norwood with a right of survivorship. Recovery of an automobile owned by the elder Cherry and transferred to Corrine Norwood was also sought. The trial court granted the relief prayed for in the recovery of the savings account and the automobile but awarded to appellee Norwood, on an alternative plea, a judgment of $3,600.00 as compensation for the reasonable value of her services as a housekeeper. For reversal of the judgment appellant relies upon the following points:

I. The special chancellor erred in failing to find that C. K. Cherry was incompetent, and failing to find that the appellee Corinne Nor-wood exerted undue influence in her relations with C. K. Cherry.
II. The special chancellor erred in awarding judgment to the appellee and the award is against the preponderance of the evidence, but in any event, the special chancellor awarded an excessive amount.
III. The special chancellor erred in allowing the attorney who had represented the appellant’s ward, but who filed the counter-claim for appellee, to testify, such testimony being inadmissible as incompetent.

As we view the record, points I and III, relied upon by appellant, are moot. There is no appeal from the decree awarding the property to the guaidian. Thus whether the trial court should have found that the ward was competent or incompetent or that appellee exerted undue influence on the ward is immaterial to the issues presented here. Furthermore, the testimony complained of in point III merely went to the competency or incompetency of the ward at the time the witness was dealing with him. Should we reach the merits, however, we doubt that this type of testimony is incompetent under Ark. Stat. Ann. § 28-601 (Repl. 1962).

The record here shows that Cherry was a Tayloe Paper Co. salesman for over 50 years. His first wife, the mother of his three children, died in 1933. In 1936 he married Pearl Cherry who died in 1965. Thereafter, he lived alone for about 2 years. Appellee Norwood was employed as his housekeeper on Sept. 20, 1967.

Initially Cherry was to pay Mrs. Norwood $20.00 a week. It was also understood that a maid would clean house once a week and that appellee could work elsewhere as long as she cooked his meals and did the housework. As a result, appellee also worked as a cashier for $56.00 a week. After about two months this agreement was changed by the parties and resulted in Mrs. Norwood remaining in the home and Mr. Cherry paying her bills and giving her spending money. The chronology of events thereafter shows that on April 3, 1968, Mr. Cherry executed a will which provided that if Mrs. Norwood was in his employ at his death she would receive the household furniture, his automobile and $2,500 cash. On May 31, 1968, Mr. Cherry and Mrs. Norwood had premarital blood tests done by Dr. Harlan C. Holmes. August 1, 1968, Mr. Cherry established the joint savings account with right of survivorship here involved in Pulaski Federal Savings and Loan Association, with a deposit of $5,000. September 3, 1968, Mr. Cherry executed a second will making Mrs. Norwood a co-executrix with one of his sons and giving her his household goods and automobile if she were in his employ at his death, but omitted any reference to money. April 4, 1969, Mr. Cherry made an additional $5,000 deposit to the savings account. June 12, 1969, Mr. Cherry went to the hospital. June 30, 1969, while still in the hospital, Mr. Cherry transferred his automobile to Mrs. Norwood. On July 8, 1969, appellant Robert Maxwell Cherry, was appointed guardian.

Concerning the arrangement between Mr. Cherry and Mrs. Norwood, she testified that she was to be treated as a member of the family. Mr. Cherry gave her spending money, bought her clothes and paid her doctor bills. At his request she accompanied him on trips to Conway, Beebe, Benton, Little Rock, Altheimer and England. According to her, Mr. Cherry opened the savings account in Pulaski Federal Savings to be sure that if something happened to him, she would not be left without anything. Before leaving Clarendon she made $50.00 a week while working out and $28.00 a week spending four nights a week with an elderly person under some sort of housekeeping arrangement. Following termination of her employment with Mr. Cherry she went to work at the Stuttgart Memorial Hospital for $235.00 a month.

Florida Ann Floyd, a maid who had worked for Mr. Cherry 21 years, testified that she worked one day a week for Mr. Cherry while Mrs. Norwood was employed and that when Mrs. Norwood went away she stayed with Mr. Cherry. Florida Ann said that Mr. Cherry and Mrs. Norwood got along, they were friendly and happy and Mrs. Norwood waited on him because Mr. Cherry wanted waiting on, and he wanted waiting on until this day — somebody to pet him and wait on him. Florida Ann said that Mrs. Norwood told her that she, Mrs. Norwood, was to get the furniture. When Florida Ann suggested this wasn’t enough money Mrs. Norwood said that Mr. Cherry was going to will her some money. She said that Mr. Cherry gave Mrs. Nor-wood a passbook with $10,000 in it and told Florida Ann that the $10,000 was to last Mrs. Norwood a lifetime. Florida Ann told Mrs. Norwood that if she had $1,000 she would go home. Mrs. Norwood’s retort was, “I got it made”.

During oral argument of this case before the court, counsel for appellant suggested that the record showed that appellee terminated her employment of her own accord, thus relieving the estate of any quantum meruit liability because it had lived up to Mr. Cherry’s contract until breached by Mrs. Norwood. The record does show that Robert Maxwell Cherry, the appellant, urged Mrs. Norwood to stay in the employment of Mr. Cherry but admittedly appellant had demanded a restoration of the property involved. Mrs. Norwood testified that appellant had tried to scare her into moving before that and had already scared Mr. Cherry half to death. Other testimony shows that there was someone slamming the screen door throughout the night and running over a steel plate in the driveway which Mrs. Norwood attributed to appellant. Furthermore, appellant does not dispute Mrs. Norwood’s testimony that he had taken the key away from her, that she had to call him when she wanted in the house, when she left the house, and if she wanted to take a bath.

A preponderance of the record shows that Mrs. Norwood worked for Mr. Cherry under some sort of “a master and servant relationship.” Part of the compensation contemplated in that arrangement appears to have been all or that part of the $10,000 savings account that was remaining after the death of Mr. Cherry. Under these circumstances we cannot say that the Chancellor’s finding in favor of appellee is contrary to a preponderance of the evidence either on the issue of the amount of the compensation awarded or the issue of the termination of the employment.

Affirmed.


author: Frank Holt, Justice.

text:
    STONE MILL & LUMBER CO., INC. v. Paul FINSTERWALDER
    5-5361
    459 S. W. 2d 117
    Opinion delivered November 2, 1970

      Tinnon, Crain ir Nemec, for appellant.

      Fitton, Meadows & Adams, for appellee.
   Frank Holt, Justice.

In this action the appellant seeks to establish a materialmen’s lien upon appellee’s property. Appellee entered into á contract with Karl Seiter, Jr., whereby Seiter was to construct a house for him. Under the terms of the contract, Seiter was to furnish all the materials necessary for the completion of the project. A substantial portion of the materials was purchased by Seiter from appellant. Appellant’s records indicate that the final two deliveries of the materials which it supplied occurred on March 12, 1969 and March 17, 1969. Construction of the house was subsequently completed, but Seiter failed to pay appellant for most of the materials purchased from it.

Appellant instituted this action against Seiter for a balance of $5,503.56 and, also, against appellee to impress a lien upon his newly constructed house for the sum owed. Summons was issued by the Clerk of the Chancery Court on July 11, 1969; but it was not stamped by the sheriff’s office until July 14, 1969. Consequently, a materialmen’s lien could be established only by virtue of the March 17, 1969, delivery since it alone occurred within the 120-day period prescribed by Ark. Stat. Ann. § 51-613 (Supp. 1969). Seiter neither filed an answer nor appeared, and default judgment was entered against him. With respect to appellant, the lower court found that the alleged delivery of March 17, 1969, was without sufficient proof because: (1) the delivery ticket was unsigned; (2) there was no “eyewitness testimony” evidencing the delivery; and (3) appellant was not the sole supplier to the job. Appellant brings this appeal from the denial of its asserted lien.

For reversal appellant contends that the findings and conclusions of the lower court are against the evidence and applicable law of this case. Since this is a proceeding in chancery, we cannot disturb the findings of the chancellor unless they are against the preponderance of all the evidence.

Phillip Stone, president and general manager of appellant corporation, was the only witness called in its behalf. He testified that on March 17, 1969, an order had been placed (by whom he did not know) for delivery of a small quantity of moulding and 100 linear feet of downspout to appellee’s building site. A delivery ticket evidencing this order (along with others for previous orders) was introduced into evidence. This ticket was written, according to the ordinary business procedure of appellant, when the order was taken. It did not bear a signature indicating receipt of the materials. Stone stated that, in this instance, the only way he could know whether the materials were in fact delivered would be from appellant’s truck driver, who was not present in court. He further testified that he did not know whether the exact materials ordered were actually used in appellee’s building. There was evidence that Seiter was also constructing other houses in the vicinity of appellee’s house and that Seiter had secured materials from another materialman.

In order for a materialman to establish a lien under § 51-601 et seq., he must both allege and prove that the material, on which he bases his claim of a lien, was delivered to and used in the building against which he claims his lien. United States v. Westmoreland Manganese Corp., 134 F. Supp. 898 (E. D. Ark. 1955); Lyle v. Latourette, 209 Ark. 721, 192 S. W. 2d 521 (1946). Since, however, it is unreasonable to require a material-man to follow the materials from his place of business to the building in order to make positive proof of its use therein, and because the owner of the building is in a superior position to know whether the materials were actually used, the doctrine evolved that proof by the materialman of delivery of the materials to the building site constitutes prima facie evidence of their use therein, and thereby shifts to the owner of the building the burden of going forward with evidence demonstrating non-use. This rule of law, followed in numerous Arkansas cases, was first enunciated in this jurisdiction in Central Lbr. Co. v. Braddock Land & Granite Co., 84 Ark. 560, 105 S. W. 585 (1907), where the court held:

The fact that materials contracted for were delivered at or near the place where the supposed building for which they were purchased was to be erected or is in course of erection, at the place pointed out or designated by the contracting party, and the building was thereafter actually completed, and was constructed of materials of the same description of those furnished, is prima facie evidence of the fact that they were used in its construction; and the burden would then be upon the owner, if such was not the fact, to show that they were not so used # * *.

In the case at bar, certain materials were ordered from appellant on March 17, 1969, apparently for use in appellee’s building, according to appellant’s business records in the form of an unsigned ticket order. The lower court found that there was a failure of proof in that the delivery ticket was not signed, and that there was no eyewitness testimony of actual delivery, and concluded that “it would be entirely speculation to hold that these materials were delivered to and incorporated in [appellee’s] home.” Therefore, the burden of going forward with the evidence, as well as the overall burden of proof, remained with the appellant concerning the actual use of those materials allegedly delivered on March 17, 1969. Appellant did not meet this burden either. The findings and decree of the lower court are further fortified by the fact that appellant was not ap-pellee’s sole supplier which thereby raises “a suspicion that the materials * # * were elsewhere obtained # * *.” See Central Lbr. Co. v. Braddock Land & Granite Co., supra.

We cannot say that the chancellor’s findings are against the preponderance of the evidence.

Affirmed.


author: Carleton Harris, Chief Justice.

text:
    Hurshel LONG and Frank A. ROGERS & CO., INC. v. Ruth HENDERSON
    5-5354
    459 S. W. 2d 542
    Opinion delivered November 9, 1970

      Pickens, Pickens ¿r Boyce and Barnett, Wheatley, Smith & Deacon, for appellant.

      Hodges, Hodges ir Hodges, for appellee.
   Carleton Harris, Chief Justice.

Ruth Henderson, appellee herein, was injured on June 16, 1967, when the automobile in which she was riding was struck from the rear by a pick-up truck, the automobile having stopped, waiting for a farm tractor pulling overwidth equipment to clear a bridge. The truck was owned by Frank A. Rogers & Company, Inc. and was operated by its employee, Hurshel Long. Suit was instituted by Miss Henderson for personal injuries which she alleged were sustained as a result of the accident. Appel-lee also asserted that fifteen months following this accident, she fell while climbing out of the bed of a pickup truck, breaking her right leg, and it was contended that this fall was proximately related to a knee injury sustained in the automobile accident. When the case was called for trial, appellants first moved to exclude any reference to the broken leg, either in testimony, or by opening statement of counsel. It was contended that the fall was so remote in time that, as a matter of law, this occurrence could not be proximately related to the automobile accident, but was rather a result of intervening acts of the appellee. Appellants’ counsel took the position that this evidence would be highly prejudicial, but the motion was overruled. Subsequently, testimony was presented regarding this broken leg, and the pain and disability connected with it, and at the conclusion of all the evidence, appellants again moved to withdraw from the jury’s consideration any evidence relating to the broken leg, and they moved that the jury be instructed that the broken leg or any alleged damages flowing therefrom should not be considered. The court thereupon granted the motion. A verdict in the amount of $25,000 was returned for appellee and from the judgment so entered, appellants bring this appeal. For reversal, four points are relied upon, which will be discussed in the order listed.

It is first asserted that the verdict is excessive and is not supported by sufficient evidence. Miss Henderson, 56 years of age, when the automobile accident occurred, had been operating a grocery store with her brother prior to March, 1967, at which time the store burned, and she did not work in the interim between March and June. She testified that when operating the store, the only money drawn from the business was an hourly wage paid to the witness and her brother, her wage being $1.60 per hour. Appellee said that she drew $3,-328.00 for the year’s work when the store was in operation, but following the accident, her sole employment was at the Rorex Grocery. The witness stated that she earned $331.00 for the last half of 1967, $1,685 in 1968, and nothing during the year 1969, “I haven’t been able to work”. Miss Henderson detailed the nature of her injuries, relating that she was thrown out of her seat against the front seat severely injuring her right knee, was terribly bruised, and suffered a whiplash injury to the neck. She was not hospitalized, stating that she “had good help at home”, this statement referring to her sister and brother with whom she lived. She said that she stayed in bed “about all the time” during the month of July, and that she endeavored to go back to work in the latter part of August. Appellee stated that she had suffered pain constantly as a result of injuries received in the car wreck. Her brother and sister testified that appellee had suffered severe pain since the automobile accident and had worn a knee brace or knee bandage constantly since that time; that at night it was necessary that she soak her foot and leg because of the pain. Ollie Brown, a friend, testified that she had visited appellee many times after the accident; that most of the time Miss Henderson wore a knee brace and bandage; that she appeared to be experiencing great pain.

Dr. T. E. Williams, a general practitioner in Newport, testified that his diagnosis of injuries sustained by Miss Henderson from the automobile accident, included a whiplash injury to the cervical spine, synovitis, which is an inflamation of the lining of the right knee joint on a traumatic basis, a hemorrhage in the right knee, and a tearing of the right knee ligaments. “The type of injury that she had in 1967 is something like a football injury, a tackle injury in which you get a number of associated injuries to the joint and that is what happened with the ’67 injury, the tearing of the ligaments.” The doctor said that he had told her that a knee brace would help, and he had advised that she stay in bed as much as possible. In his opinion, working or standing on her feet for eight hours a day would aggravate the injury that she had received. The witness testified that she was suffering from traumatic arthritis as a result of the automobile accident and thát her condition would worsen as she grew older. He was emphatic in stating that her condition was a result of the June, 1967, automobile accident. Counsel for appellants objected to this testimony on the basis that, as a general practitioner, Williams was not qualified to express an opinion, stating:

“Dr. Williams is a fine Doctor and he is respected here in the community, but he is not an orthopedic surgeon and he is not the treating doctor on the broken leg and I object to his testimony in relating that to the automobile accident in 1967.”

The court sustained the objection, but substantially the same question was asked several times later, and answered, without objection. Williams testified:

“There is about three-quarters of an inch motion in this leg of the knee joint. You can move the knee joint about three-quarters of an inch laterally on either side showing such a terrific amount of instability to this area.”

His views, summarized, were that Miss Henderson had received a permanent disability from the automobile accident, being total disability of the leg, and 50% disability to the body as a whole. He said that she was not able to work and would not be able to work in the future.

Appellants offered the testimony of Henry Turner, who had worked at the Rorex Super Market during the time that Miss Henderson was employed. He said that she performed her duties and never complained. Jerry Smith, store manager at the time, testified that when she first started work, he did not need her services full time, but that she gradually worked more until she worked a full day. He said she was a good worker and never complained about her knee bothering her during working hours, but he did remember that several times she would comment that when she got home, the knee bothered her. He said that he did not recall seeing Miss Henderson wearing a knee brace.

It is argued that the amount of the verdict establishes that the evidence relating to appellee’s fall in September, 1968, in which she broke her leg, was considered in determining the amount of damages she should recover. Of course, the court held this testimony inadmissible, and instructed the jury to disregard it. There was no motion for a mistrial, and appellants were apparently satisfied by the action taken by the trial court. It is mentioned that medical expenses of Miss Henderson between the time of the automobile accident and the time in which she fell and broke her leg, were somewhat small when compared to the size of the verdict, and this, argues appellant, is a strong circumstance indicating that her injuries at that time were not severe. Though a circumstance, we do not agree that it carries the weight argued by appellants. In Caldwell v. Shoptaw, 238 Ark. 930, 385 S. W. 2d 799, we upheld an award of $24,000 where the injuries do not appear to have been much more severe, nor the disability much greater, if any, than in the case before us. In Williams v. Clark, 238 Ark. 447, 382 S. W. 2d 366, a case bearing some similarity to the one at hand, Faye Clark was awarded $25,000 in damages. There, appellee was injured when the car in which she was riding was struck from the rear, and she testified that she was thrown forward on her knees, her right foot being “twisted” underneath her. The testimony relative to injuries was related by the court as follows:

“In addition to the testimony of appellee about the injury to her foot and ankle, its continued duration, the later inversion of her foot requiring a special cast and still later orthopedically-corrected shoes, the pain, swelling and discomfort she has continued to have, the irritability, tension and depression apparently resulting from the trauma of the accident, appellee and her husband testified how her injuries prevented appellee from performing many of her duties in their business and at home. He also corroborated her testimony about her physical and emotional damage. Three doctors testified that appellee had a permanent residual disability of 25% of the foot and ankle as a result of the severe mid-tarsal joint sprain, possible fracture and severe liga-mentous injury. Appellee’s family doctor testified that the permanent disability would be from 25% to 35% and that he was ‘more inclined to 35%’; that while he was not qualified to testify about personality changes, ap-pellee was more upset and nervous since the accident, suffered from agitated depression, had required various tranquilizers and on occasion sleeping tablets, and had lost 15 pounds in a two-month period following the collision. A Little Rock neurologist testified that from his examination and history, appellee had some predisposition toward acute chronic depression prior to the accident, that a chronic depressing reaction with anxiety was precipitated by the accident and, based upon his experience in the field of neurology, that these acute episodes of depression would tend to gow in severity in the future and should require treatment.
Appellant offered no medical or other testimony in contravention of appellee’s damages.”

In the present case, let it be remembered that the Doctor’s testimony was that appellee had suffered permanent disability to the leg and 50% disability to the body as a whole. It is true that no orthopedist testified, but of course appellants could have had Miss Henderson examined by such a specialist prior to the trial had they so desired. We have concluded that, though the award is liberal, it cannot be declared excessive.

It is next asserted that the court erred in submitting to the jury the issues of future medical expenses, future loss of earnings, and loss of ability to earn in the future. Dr. Williams testified that Miss Henderson was not able to work and would not be able to work in the future. In Check v. Meredith, 243 Ark. 498, 420 S. W. 2d 866, we said:

“Where there is proof that the plaintiff, at the time of the trial, is still unable to work or is unable to earn as much as he did before he was injured, an instruction upon the loss of future earnings is proper, (citing cases)”

We also disagree with appellant on the question of future medical expenses. Dr. Williams found Miss Henderson to be permanently injured and he testified that, at the time of the trial, she was still suffering from synovitis, i. e., an inflammation of the lining of the right knee joint, and from traumatic arthritis, both occasioned by the automobile accident in June, 1967. In Vogler v. O’Neal, 226 Ark. 1007, 295 S. W. 2d 629, this court, quoting an earlier case, said:

“The measure of damages for a physical injury to the person may be broadly stated to be such sum, so far as it is susceptible of estimate in money, as will compensate plaintiff for all losses, subject to the limitations imposed by the doctrines of natural and proximate consequences, and of certainty, which he has sustained by reason of the injury, including compensation for his pain and suffering, for his loss of time, for medical attendance, and support during the period of his disablement, and for such permanent injury and continuing disability as he has sustained. Plaintiff is not limited in his recovery to specific pecuniary losses as to which there is direct proof, and it is obvious that certain of the results of a personal injury are unsusceptible of pecuniary admeasurement, from which it follows that in this class of cases the amount of the award rests largely within the discretion of the jury, the exercise of which must be governed by the circumstances and be based on the evidence adduced, the controlling principle being that of securing to plaintiff a reasonable compensation for the injury which he has sustained.”

In Holmes v. Hollingsworth, 234 Ark. 347, 352 S. W. 2d 96, this court commented:

“Appellant also claims that there is no evidence that Mrs. Hollingsworth will have any future pain or damages; and on this contention the appellant is also in error. Dr. Stone, one of the physicians who treated Mrs. Hollingsworth, testified that she received, inter alia, a whiplash injury; that she had to wear a neck collar for some time; that at the time of the trial (over fifteen months after the injuries) she was still in need of tranquilizer drugs; that she would continue to need them in the future; and would probably also have a recurrence of pain in the neck. In view of this and other testimony in the record, we cannot agree with the appellant’s claim that there was no evidence to support an instruction on future pain, suffering, damages, or medical expense.”

Certainly, the doctor’s evidence as to the inflamed knee, and traumatic arthritis, which he testified would worsen as time went on, justified the instruction on future pain, suffering and medical expense.

• It is next contended that the court erred in permitting counsel for plaintiff to portray Ruth Henderson as a helpless cripple in closing argument to the jury. Several pages of the transcript are devoted to reporting the argument, but the record reflects only one objection by counsel for appellants, as follows:

“We object to counsel for the plaintiff arguing loss of future earnings and future medical expenses when all the testimony shows that shortly after the accident Ruth Henderson resumed working and continued to work until the subsequent accident and that she had no permanent disability from the automobile accident and the court has already ruled that she is not entitled to any damages because of the subsequent accident in September 1968.
BY THE COURT:
Objection overruled as long as argument is confined to the automobile accident.”

There are about three instances where appellee’s counsel referred to the fact that she was unable, in her present condition, to do any work. We find no merit in this contention. In the first place, we have already set out the only objection made during the course of the argument, and we do not interpret this as a continuing objection. In the next place, the doctor did testify that she was not able to work, and would not be able to work in the future, her condition, according to Williams, resulting from the automobile accident.

Finally, it is urged that the court erred in granting appellee’s petition to tax the Reporter’s fees for taking depositions as costs in the case. Following the entry of the judgment, appellee petitioned the court to tax the reporter’s fees for taking the discovery deposition of one of the appellants, and the evidence deposition of a Dr. Sisk, as part of the costs to be recovered by appellee. This was done and appellants assert that this was error. We agree. This court has held many times that costs are a creature of statute and may not be taxed unless the same are specifically provided for statutorily. Grayson v. Arrington, 225 Ark. 922, 286 S. W. 2d 501. There is no statute applicable to civil cases at law which provides that the above mentioned fees are a proper item of court costs. Ark. Stat. Ann. § 27-1728 relates only to the presentation of proof in chancery cases, and there is no statute authorizing the taxing of such costs as far as discovery depositions are concerned.

Appellee asserts that the coürt erred in excluding consideration of the evidence relating to the broken leg received by Ruth Henderson in her fall, contending that the evidence linked the 1967 automobile accident with the 1968 fall from the truck. However, she says, “Appel-lee wants the issues on the cross appeal decided but does not want a remand if a direct appeal is affirmed”. We decline to grant the request to determine this issue, having stated that we do not render advisory opinions. Kays v. Boyd, 145 Ark. 303, 224 S. W. 617.

In accordance with what has been said, the judgment dated October 7, 1969, is affirmed, but the order of November 25, 1969, insofar as it relates to the taxing as costs the reporter’s fees for the taking of the two depositions herein mentioned, is reversed.

It is so ordered.

       She did not work at all after she fell and broke her leg in September, 1968.

       The evidence reflected that Williams, for about four years, made disability evaluations for the government.

         Coca-Cola Bottling Co. of Arkansas v. Adcox, 189 Ark. 610, 74 S. W. 2d 771.

       “And if you think she is ever going to be able to work again in the condition she is in right now, you have seen her and talked with her, her testimony about her condition. * * * * She cannot work at this time. * * * * When she comes up to the second floor of the courthouse today there is pain and suffering.”


author: George Rose Smith, Justice.

text:
    Elizabeth E. WOOD v. Thomas H. LATHROP et al
    5-5359
    459 S. W. 2d 808
    Opinion delivered November 9, 1970
    [Rehearing denied December 14, 1970.]

      Ulys A. Lovell and Putman, Davis and Bassett, for appellant.

      Crouch, Blair, Cypert ir Waters, for appellees.
   George Rose Smith, Justice.

Edwin Hawley, the appellant’s stepfather, was married at least twice. After the death of his wife Beatrice (the appellant’s mother), Haw-ley agreed to make a will leaving to the appellant an undivided half interest in a certain lot in Springdale. Later on, however, Hawley and his wife Harriet, whom he had married after the date of his agreement with the appellant, conveyed the lot to Thomas H. and Dorothy E. Lathrop, appellees. The Lathrops brought this suit against the appellant, Mrs. Wood, to quiet their title to the property. This appeal is from a summary judgment in favor of the Lathrops. The ultimate question is whether it is an undisputed fact, as the chancellor found, that the Lathrops took the title free of any claim on the part of Mrs. Wood.

The facts, as developed in the motions for summary judgment, are of controlling importance. Edwin and Beatrice Hawley owned the lot as tenants by the entirety at Beatrice’s death on March 19, 1963. Mrs. Wood asserted a claim to the lot and to other property, by virtue of an antenuptial agreement between Edwin and Beatrice Hawley. The matter was settled by Haw-ley’s agreement that he would execute a will leaving an undivided half interest in the lot to Mrs. Wood.

Thereafter Edwin Hawley married Harriet Hawley, now an appellee. On March 14, 1964, Edwin and Harriet Hawley created a tenancy by the entirety in the lot by conveying it to Doris Hilburn, who reconveyed it to them on the same day. Those deeds were recorded on March 16, 1964.

In August, 1965, Mrs. Wood brought a suit in the Washington chancery court, No. 17215, against Edwin Hawley, asserting certain property rights. That suit terminated on February 8, 1966, with the entry of a consent decree which directed Edwin Hawley to execute a will leaving the agreed half interest to Mrs. Wood. On the day after the entry of the consent decree a lis pendens notice was filed by Mrs. Wood. On the following day, February 10, Edwin Hawley executed a will in compliance with the decree. That will was filed for record in the county recorder’s office on February 24, 1966.

By a deed dated July 3, 1967, and recorded November 22, 1967, Edwin and Harriet Hawley conveyed the lot to the Lathrops. On December 1, 1967, the Lathrops filed this suit against Mrs. Wood, asking that the consent decree and the lis pendens notice be canceled as clouds on the Lathrops’ title and that the title to the lot be quieted in them. By cross-complaint Mrs. Wood brought Edwin and Harriet Hawley into the case. Mrs. Wood asked that the Lathrops be declared trustees of a constructive trust to the extent of Mrs. Wood’s half interest in the lot, and, alternatively, that Mrs. Wood have a money judgment against Edwin Hawley for $7,500 as the fair market value of the half interest in the lot. Edwin Hawley died on August 20, 1968, while the suit was pending. Harriet Hawley, as his administratrix, was substituted for him as a cross defendant.

Both Mrs. Wood and the Lathrops filed motions for summary judgment, setting forth the facts substantially as we have outlined them. We may say at this point that we do not agree with the appellees’ contention that a party who files a motion for summary judgment after his adversary has filed such a motion thereby concedes that no material issue of fact exists in the case. That argument is opposed both to reason and to authority. When such cross motions are filed each movant is contending for the purpose of his own motion that there is no material issue of fact in the case, but there is no reason at all to say as an inflexible rule that he also admits the nonexistence of any factual issue with respect to his adversary’s motion. Our summary judgment statute was copied from Rule 56 of the Federal Rules of Civil Procedure, with respect to which this statement is made in Barron and Holtzoff’s Federal Practice & Procedure, § 1239 (Wright’s Ed., 1958):

The fact that both parties have moved for summary judgment does not establish that there is no issue of fact. A party may concede that there is no issue if his legal theory is accepted and yet maintain that there is a genuine dispute as to material facts if his opponent’s theory is adopted. Thus, both motions should be denied if the court finds that there is actually a genuine issue as to a material fact.

The chancellor, in granting the Lathrops’ motion for summary judgment, stated his reasoning in a memorandum that is paralleled here by the arguments in the appellees’ brief. That reasoning accepts the premise that the contract between Edwin Hawley and Mrs. Wood, being valid, would be binding upon Hawley’s successors in title unless they were transferees for value and without notice. That is unquestionably a correct statement of the law. See Naylor v. Shelton, 102 Ark. 30, 143 S. W. 117, Ann. Cas. 1914A, 394, with annotation (1912); Page on Wills, § 10.23 (Bowe-Parker Ed., 1960).

The question, then, is whether the Lathrops are entitled to the protection accorded to bona fide purchasers. It was asserted by Mrs. Wood in her unverified counterclaim, and has not yet been denied, that the Lathrops had both actual and constructive notice of Mrs.. Wood’s contractual rights when the Lathrops acquired the lot from the Hawleys. In view of the assertion that the Lathrops had actual notice we need not explore the validity of constructive notice stemming from the consent decree, or from the lis pendens notice filed a day after the entry of that decree, or from the recordation of Hawley’s will in the circuit clerk’s deed records. Such sources of constructive notice would of course be immaterial if the Lathrops had actual notice of Mrs. Wood’s claim.

The chancellor, in his memorandum, laid aside the whole matter of the Lathrops’ actual or constructive notice; for he concluded that their position as successors in title to Harriet Hawley was unassailable. We quote from his memorandum:

There is nothing in the record now before the court even faintly suggesting that Harriet was not an innocent and unknowing participant in this whole affair. It is true that, according to [Mrs. Wood’s] affidavit in support of her motion for summary judgment, her agreement with Edwin Hawley to be a devisee in his will was made after her mother, Beatrice Hawley, died, and before Edwin married Harriet, and thus, necessarily, before Harriet became a tenant by the entirety by the deed from Doris Hilburn to her and Edwin.
But, there is no record of this agreement in any form which would convey notice to anyone, and especially to Harriet, before she became owner as tenant by the entirety, nor is it alleged that she had any notice. As far as this record is concerned, the first time Harriet could have had notice was at the time of filing of suit by defendant (as plaintiff) against Edwin Hawley, in cause No. 17215, in which the existence of the agreement was alleged, found to be a fact, and Edwin Hawley ordered to fulfill it. But at this time, Harriet’s rights as a tenant by the entirety had become fixed.
In the absence of knowledge by Harriet of the agreement between Edwin and Mrs. Wood, and not being a party to case No. 17215, where any charge upon her interest in the property, and her privity with her husband could properly have been litigated, but was not, the decree of the court, and Edwin’s will pursuant thereto, did not limit the quality of her tenancy by the entirety. She was free to join her husband in the deed to plaintiffs, effectively to convey to them her interest in the property, unsullied and undiluted by Edwin’s will. In the immutable course of events, Edwin did die before Harriet. Had there been no conveyance to anyone, or knowing, as she must have, of the decree in No. 17215, upon Edwin’s death, Harriet’s sole title would have been complete, with no charge laid upon it by Edwin’s will. The Lathrops stand in as good a position.

Thus the chancellor reasoned that, even if Edwin and Harriet Hawley had not conveyed the lot to the Lathrops, Harriet would have eventually acquired a perfect title, as the surviving tenant by the entirety, owing to two circumstances in her favor: First, Harriet had no notice of Mrs. Wood’s contract when Harriet became a tenant by the entirety by virtue of the Doris Hilburn deed; and, second, Harriet was not m^de a party to the suit in which Mrs. Wood obtained a consent decree giving effect to her contract with her stepfather, Edwin Hawley.

We are unable to attach to either circumstance such an immunizing effect as to place Harriet Hawley in the position of a bona fide purchaser. It is fundamental that a bona fide purchaser must not only take the property without notice but must also give value. Cramer v. Remmel, 132 Ark. 158, 200 S. W. 811 (1918). There is no indication in the record that Mrs. Hawley was other than a volunteer in the straw-man transaction with Doris Hilburn. There is a possibility, of course, that Mrs. Hawley paid her husband for the creation of the estate by the entirety, but no such suggestion has yet been made in this case.

The second circumstance — Mrs. Wood’s failure to join Harriet Hawley as a party to the suit against Edwin Hawley — is somewhat more involved.

To begin with, we point out that the doctrine of merger, by which a cause of action merges into a judgment, is not applicable. That doctrine applies to money judgments only. The- reason for its inapplicability to a situation such as this one is fully stated in the Restatement of Judgments, § 46 (1942):

Where a plaintiff obtains an equitable decree against the defendant by which the defendant is directed to do an act other than to pay money, the plaintiff’s claim is not merged in the decree. A plaintiff who has obtained a judgment for the payment of money, either in an action at law or in a suit in equity, can maintain an action upon the judgment or decree (see § 47). Where, however, by a decree in equity the defendant is directed to do something other than to pay money, the plaintiff cannot maintain an action on the decree, either in the same State or in another State. He cannot maintain an action at law on the decree where it is not for the payment of money; no debt is created, as it is in the case of a judgment or decree for the payment of money. Moreover, a suit in equity will not lie on the decree.
Since the original cause of action is not merged in a decree in favor of the plaintiff which is not a decree for the payment of money, the plaintiff is not thereby precluded by the doctrine of res judicata from maintaining an action at law or a suit in equity upon the original cause of action.

The avoidance of a merger is peculiarly appropriate in a case such as this one, for a suit against the promisor is often not in itself an adquate remedy upon a contract to make a will. It may later be necessary to enforce the contract by a seizure of the property, through the device of a constructive trust, when it is discovered after the promisor’s death either that he did not make the promised will at all or that he revoked it in violation of his agreement or of the court order. Annotation 31 Ann. Cas. 403 (1914).

There being no merger, Mrs. Wood’s cause of action was not limited to a mere enforcement of the decree by which the chancery court directed Hawley to execute a will in Mrs. Wood’s favor. She was entitled to bring an action upon the original agreement, to recover the property from anyone not occupying the position of a bona fide purchaser.

The remaining question, then, is whether Mrs. Wood is barred from recovering her interest in the lot by reason of her failure to make Harriet Hawley a party to the suit against Edwin Hawley. We have no hesitancy in holding that omission not to be fatal. All that Mrs. Wood needed to do at that time was to strengthen and confirm her oral contract by transforming it into a permanent judgment in a court of record. There is no suggestion that Mrs. Hawley was asserting any claim hostile to Mrs. Wood’s rights under her contract with her stepfather. No statute of limitations had begun to run, for Mrs. Wood had no claim during Edwin Hawley’s lifetime either to the title or to possession of the lot in question. In fact, it is difficult to see what matured cause of action Mrs. Wood could have asserted against Mrs. Hawley had Mrs. Hawley been joined as a defendant in the case. Certain it is that Mrs. Hawley was not misled or prejudiced in any way by the omission!

We conclude that the Lathrops’ claim of title through Mrs. Hawley, in the absence of proof that Mrs. Hawley was a bona fide purchaser, does not entitle the Lathrops to a summary judgment. Their own position as bona fide purchasers depends upon whether they gave value for the property, which has not yet been alleged, and whether they took without actual or constructive notice of Mrs. Wood’s rights, which is a disputed issue of fact. Hence both motions for summary judgment should have been overruled.

Reversed and remanded for further proceedings.


author: Lyle Brown, Justice.

text:
    Thelma Jeanne MAYNER v. FLYER GARMENT COMPANY et al
    5-5357
    459 S. W. 2d 413
    Opinion delivered November 9, 1970

      Jeta Taylor and Franklin Wilder, for appellant.

      Warner, Warner, Ragan if Smith, for appellees.
   Lyle Brown, Justice.

The Workmen’s Compensation Commission ruled that appellant, Thelma Jeanne May-ner, failed to establish that her alleged injuries arose out of the course of her employment with Flyer Garment Company. The circuit court affirmed. For reversal appellant contends (1) that there was no substantial evidence to warrant the denial of compensation, and (2) that the commission acted in excess of its powers.

Flyer Garment Company, engaged in the manufacture of wearing apparel, occupies a single building in Ft. Smith. Most of the approximately seventy women employees work on the first floor. There is a “cutting room” upstairs in which five of the women work, and that is where claimant, Mrs. Mayner, was employed. She testified that she came down the stairs at quitting time; that the stairs were littered with patterns and materials; and that she slipped on the debris and fell down the last four steps, landing on the first floor. She complained of injuries to her shoulder, right arm, and “most of the time my hand is asleep.” Mrs. Clara Marts, who also resides at Ozark, explained that she happened to come to the building to apply for a job; that she heard a “thump” and saw appellant land on the floor; and that she assisted appellant to her feet.

There were other circumstances produced by appellant and which might be said to corroborate her contention that a fall occurred. (1) She reported the incident to the plant manager within minutes; (2) she related the fall to another worker shortly thereafter; and (3) the following day she went to the doctor, reported the incident, and was hospitalized overnight. Additionally, the doctor corroborated the visit. (He did not observe any outward evidence of injury at that time but at a later date observed a bruised spot on her lower left side.)

We turn now to the evidence which caused the commission to conclude in effect that the fall was not established. Howard Campbell has been plant manager since 1946. He testified that five employees regularly come down the stairs from the cutting room at quitting time. The time clock is about thirty feet from the bottom of the stairs on the first floor and Campbell said that all employees come to that point at quitting time. He testified that he was stationed downstairs when the quitting bell rang and that he was in such position that he could have seen or heard the fall had it occurred; and that he neither heard nor saw any unusual occurrence. He further asserted that no person other than claimant mentioned such incident to him.

Reva Redden was one of the five workers in the upstairs cutting room. She testified that she followed appellant down the stairs and only a short distance behind, stating that she and appellant arrived at the punch clock at approximately the same time. She said she witnessed no fall, at the same time conceding that she did not keep an eye on appellant at all times; nevertheless, the substance of her testimony was that had there been a fall she could and would have seen it. This witness was also questioned about the presence of witness Clara Marts at the scene. The witness said she did not see Mrs. Marts, and believed she would have seen her had she been present.

Another worker in the upstairs cutting room was Barbara Mixon. She testified that on the day in question she preceded appellant down the stairs and that these two workers arrived at the punch clock at about the same time. The witness asserted that she did not see or hear appellant fall.

A layout of the first-floor was introduced by agreement. It corroborates the commission’s conclusion that it would have been extremely difficult for appellant’s witness, Mrs. Marts, to have eyewitnessed a fall down the stairs. Her view could well have been obstructed by a number of tables, a rest room, and the stair enclosure itself. The plat also reveals that a stranger entering the building seeking employment would have to pass by the front office and the manager’s office before ever reaching the working area. Of course the logical stop for one seeking work would be at one of the offices. Mrs. Marts conceded that she did not talk to anyone, after she entered the building, about the possibility of a job. Howard Campbell said at the time of Mrs. Marts alleged entry he was standing in a position from where he would have recognized a stranger entering the building, and that he saw none.

The commission, in its written findings, pointed up several instances which led it to conclude that “claimant’s testimony in this case is anything but candid.” We have examined those inconsistencies and suffice it to say that the conclusion cannot be said to be illogical.

Viewing the facts and circumstances in the light most favorable to the commission’s findings, as we must, and using the long established substantial evidence rule, we hold that appellant’s first point is without merit.

To support her second contention for reversal — that the commission acted in excess of its powers — appellant actually combines these arguments. We shall treat them singularly.

First, appellant suggests substantial irregularity in the oral argument proceedings. That argument was heard by Commissioners Woolsey and Holmes. Commissioner Mays was not present because of illness. Chairman Woolsey subsequently disqualified in the case and it was decided by Commissioner Holmes and Mays. Thus it is true that of the two commissioners who decided the case, only one of them heard the oral argument. There was no objections made to Mr. Mays’ absence from oral argument, nor was it suggested that the argument be rescheduled for a time when he could be present. Further, we are cited to no rule which requires the presence of a particular number of commissioners at oral argument. We should also point out that no additional testimony was tendered at the time of argument.

Secondly, appellant contends that the commission affirmed the opinion of the referee and at the same time conceded that the referee had committed error. The referee concluded that the evidence was evenly balanced and “as a result the claimant failed to meet her burden of proof.” The commission pointed out that the statement was legally erroneous, stating that when the evidence is evenly balanced the claimant is entitled to the benefit of the doubt. However, the commission did agree with the referee that the claim should be denied, but on the basis that appellant had not met her burden of proving a compensable injury arising in the course of her employment. The commission did agree that the referee’s opinion set forth a fair summary of the testimony. To that summary of testimony the commission added what it considered to be many inconsistencies in appellant’s evidence. Thus when the commission concluded its opinion with the statement, “the opinion of the referee is herewith affirmed,” it is readily apparent that the conclusion of the referee that the claim should be denied was being affirmed.

The third facet of the last point for reversal is devoted to an analysis of the facts and circumstances which led the commission to conclude that appellant’s evidence was less than credible.

For example, appellant testified that she had engaged in no gainful employment since the accident. Ap-pellees established that she had in fact worked a week in Ft. Smith. Then again, the commission considered it difficult to believe that Mrs. Marts could have entered the plant, witnessed the accident, and assisted appellant to her feet without being seen by some other person. The commission also questioned how such an incident could have occurred when so many other workers were in the immediate vicinity, yet none of them saw appellant fall. The recited circumstances, along with others mentioned by the commission, were appropriately matters for evaluation in resolving the credibility of the witnesses.

Affirmed.