text:
    Nichols v. Wilson.
    5-3625
    393 S. W. 2d 861
    Opinion delivered September 20, 1965.

      W. Q. Hall, for appellant.

      James B. Hale, for appellee.
   Carleton Harris, Chief Justice.

This is a will contest. Cora Wilson, a resident of Huntsville, executed her will on January 27,1961, and died on June 13, 1963. The will was admitted to probate by the Probate Court of Madison County, and appellees, in due time, filed a petition contesting the provisions of Item 16 of the instrument. Numerous bequests are provided in prior sections, but are not at issue here. The contested provision is as follows:

“I direct that the rest and residue of the assets of my.estate be used to finance the construction and completion of a Church House (which at this time has the foundation completed) at the Wesley Cemetery at Wesley, Arkansas, along with the installation of a reasonable number of seats in said Church House and I direct that Mr. Boyd Roberts of Huntsville, Arkansas, be given preference to do construction of such building and said Executrix is to contract with him for the construction of such building as such Executrix sees fit, and such is to be built, after the above bequests, only if and under the express conditions that said Church House be available for any and all denominations and, further, that it be designated and called the ‘Robert Wilson Memorial Church’ and, provided further, that the costs of said completion shall not exceed the value of that portion of my estate which I have herein provided for that purpose.”

Item 17 sets out that a piano, owned by Mrs. Wilson, shall be placed in the church, when the building is completed, and shall become a part of the church property. Item 18 reads as follows:

“If any or all of the above bequests should fail or lapse or be found invalid for any reason, I devise and bequeath the rest and residue of my estate to my four nephews by marriage, Noid Wilson, Leo Wilson, Earnest and Clyde Wilson, in equal parts, it being my main and one desire that said Church be built, but in the event that it not be for any reason, then I desire that my said nephews by marriage have the rest and residue of my estate. ’ ’

The background of this litigation is as follows:

R. B. Wilson purchased lands (containing the acre here in question) in 1915 from J. A. Wilson and other Wilson heirs. Subsequently, R. B. Wilson married Cora, and in 1944 conveyed one acre to the Wesley Memorial Chapel and Elbert Mitchell for the following purposes:

‘ ‘ That all Christian Denominations or Organizations may have the free use of said building for such purposes and shall arrange by and through the trustee, above named, his successors and assigns and the Christian Organizations who desire to conduct services in said building, the day and date which each Christian Organization, aforesaid, shall conduct their services in said building and providing that there be no conflict between the day and dates of said services. It is further intended that said buildings may be used in which to conduct funerals and general community gatherings. That no church nor organizations, as above defined, shall have the exclusive right to the use or occupancy of said building which would conflict with the provisions of said Deed. It is further understood that if said building is not erected within five years after the cessation of World War #2, that the land above described shall revert to the Grantors, their heirs, executors, administrators’ and ■assigns.”

Cora Wilson relinquished all of her interest and dower rights in the property. It might be here stated that nothing was ever constructed on this one acre except a foundation for a building, which, according to testimony, was “more than twenty years ago.” Thereafter, this particular area grew up in weeds, brush, and trees.

On September 1, 1945, R. B. Wilson executed a deed to his wife, Cora, purportedly conveying the lands obtained by the grantor in 1915. Appellants, in their brief, however, concede that this deed did not convey any title since only a part description was used. R. B. Wilson died intestate and without issue in 1946 or 1947.

The evidence establishes that Mrs. Wilson subsequently deeded the property (purportedly conveyed to her by her husband) to Lavon Watson, but this deed does not appear in the record. There is testimony from Watson that he thought Elbert Mitchell had deeded the one acre (received from R. B. Wilson) back to Cora, but such a deed does not appear in the transcript, has never been found, and apparently did not exist.

Several questions are raised relative to the validity of Section 16 of the will, but we are of the opinion that one contention definitely disposes of the litigation, and accordingly, a discussion of other allegations is unnecessary. The contention referred to is simply the fact that Cora Wilson does not appear to have held title to the one acre upon which she directed that the building be placed.

If the deed from R. B. Wilson to Elbert Mitchell, trustee, was not void because of violation of the rule against perpetuities, or because of inadequate description (and it is not argued by any party that this deed was invalid), the property reverted back to the heirs of R. B. Wilson, since the requirements in the original deed from Wilson to Mitchell were not complied with. The record does not reflect who constructed the foundation, but it is made clear that this was as far as any construction was advanced, and apparently those interested in constructing the building abandoned the project. The property certainly did not revert back to Cora Wilson, since she only held a dower interest at the time of the conveyance to Mitchell, and the greatest interest that she could have held in the one acre at the time of her death was as a tenant in common with Wilson’s collateral heirs. This would also be true if the 1944 conveyance from Wilson to Mitchell was originally void. Of course, Mrs. Wilson could not legally nor properly direct that a building be placed on lands in which a legal interest was held by others.

We agree with the Chancellor’s finding that the deed from R. B. Wilson to his wife, Cora, was void for uncertainty (because of the deficient description). It might also be pointed out that simple logic would indicate that Wilson had no intention of conveying the one acre (on which the building was to be constructed) to his wife, since his conveyance to Mitchell was only about a year earlier than the one to his wife — and, under the first deed, persons interested in constructing the building (under terms set out in the deed), still had five years (counting from the end of hostilities) to complete construction.

While the above finding disposes of the litigation, it might be of interest to note that, from the record, no desire is evidenced in the community to enforce Provision 16 of the will, since no witnesses were presented to testify as to the need of the local populace to take advantage of the bequest. In fact, one of the cemetery trustees testified that a building would not be desirable, and that he did not want the gift. No other trustee came forward to contradict this testimony.

We are unable to say that the court’s findings were against the preponderance of the evidence.

Affirmed.

       There is no reference to any particular amount, or portion of the estate, for the construction of the building, at any place in the will.

       Mitchell was a trustee of the chapel. While it seems to have been understood that a building was to be constructed on the one acre, no specific direction to this effect is included in the deed. Subsequent provisions quoted in the body of the opinion make clear that this was to be done.

       Hostilities in World War II ceased in August, 1945, but the war was not officially over until December 31, 1946.

       In such event, her interest would have amounted to an undivided one-half.


source: Caselaw Access Project

author: Ed. F. McFaddin, Associate Justice. Carleton Harris, Chief Justice

license: Public Domain

text:
    Durham v. Clark.
    5-3600
    393 S. W. 2d 769
    Opinion delivered September 20, 1965.

      Wootton, Land & Matthews, for appellant.

      Travis Mathis, for appellee.
   Ed. F. McFaddin, Associate Justice.

This is a malpractice case. Linda Clark was a little girl eight years of age when the appellants, Drs. Durham and Murray performed an operation on her leg in June 1962, which operation is the cause of this malpractice action. When Linda was fifteen months old she suffered an attack of poliomyelitis, which retarded the growth of her left leg. From 1957 to 1962 the appellants examined Linda from time to time, and finally recommended an operation on Linda’s right leg, which was the good one. Linda’s left leg had not grown in length as rapidly as had her right leg. It was the opinion of the appellants that they would perform an operation on the right leg, known in medical terminology as “Blount staple epiphyseal arrest,” whereby staples were to be inserted in the epiphyseal plate to arrest the growth in the right leg. It was the prognosis that the left leg would continue to grow and the operation would retard the growth of the right leg, and thus in a few years Linda would have both legs equal in length.

The operation was performed on June 29, 1962, in a hospital in Hot Springs, but appellants operated on the wrong leg. This fact they frankly admit. As a result of the operation Linda claims that her condition was worsened instead of improved; and by her father (John Clark), as next friend, she filed this action for damages for malpractice.

The appellants in their answer frankly conceded that they operated on the wrong leg: “they admit that the left leg which was the leg in which there was a retarded growth was inadvertently stapled when it was the right leg that was intended to be stapled.” We can find nothing in the record that shows how the mistake occurred. But the appellants claim that no damage resulted from the mistake and they prayed that the complaint against them be dismissed. Trial to a jury resulted in a verdict and judgment in favor of Linda and against the appellants in the sum of $50,000.00; and on this appeal the appellants urge only these two points:

“I. There was no permanent damage to Linda Clark.
“II. The award of $50,000 in favor of Linda Clark, a minor, was grossly excessive,. contrary to all of the medical testim'ony in the case, and should be reduced to such sum as would fairly represent the damages as proven by the evidence.”

We will have no necessity to consider the matter of legal liability for malpractice since the only points relate to the evidence as to damages and the amount of the verdict; and we will consider these two points together. Appellants insist that the mistake in the operation was discovered while Linda was still in the recovery room; that she was returned to the operating room, again anesthetized, and within 45 minutes the six staples were removed, which had been mistakenly placed in her bad leg ; and that they thereby prevented permanent damage to Linda. The appellants testified that Linda has not and will not suffer any permanent injury from their mistake. A number of doctors supported the appellants in this latter point, and one could almost conclude that some of the witnesses would lead the jury to believe that the mistake made by the appellants was a benefit to Linda rather than a detriment. But the jury saw the little girl and there was ample evidence that the operation was a detriment; that as a result of it Linda will be permanently impaired; and that she has suffered and will suffer mentally and physically as a result of the malpractice. Linda testified, without objection:

“Q. Now, Linda, before the operation could you get around and play with the other children, like to play ball and other games with the children?
“A. Yes, sir.
“Q. Can you do that now?
“A. No, sir.
“Q. Before the operation, Linda, did you have to support your knee in any way to walk around ?
“A. No, sir.
“Q. After you walk around now — walk for a distance now, do you have to support your lmee?
“A. Yes, sir.
“Q. How do you do that, Linda?
“A. Well, I put my left hand on my left leg.”

Linda’s father, Mr. John Clark, testified:

‘ ‘ Q. Have you observed any difference in tbe manner in which she gets around now than she did before the operation?
“A. Yery much so.
“Q. Would you describe to the jury the difference that you have noted?
“A. Well, before they operated on her she used to be able to get out and run and play ball, and walk and do most anything that any other normal child could do; but since that time, even up to now, it gets worse. She can’t get around near as good as she did. If she walks a block and a half or two blocks, well, her leg gets tired or something. She puts her left hand on her knee to support it, and she don’t run. and play ball with the boys like she used to because she just can’t get around.
‘ ‘ Q. Did you ever notice her place her hand on her knee for support before the operation?
“A. No, sir.”

Linda’s mother, Mrs. John Clark, testified:

“Q. Now, have you noticed any difference in the manner in which she gets about now and the manner in which she got about before the operation?
“A. Yes, sir.
“Q. And explain to the jury what difference you have noticed.
‘'A. Well, she just can’t run and play like she used to. She used to get out and play ball with the boys, and well, do almost everything that normal children do, but she just can’t do it now. She can walk just a little piece, maybe a block and a half or two blocks at the most, and that leg begins to hurt, and she just can’t do it. She just can’t walk any further, or play like, other children.
“Q. Does she in any way support her leg?
“A. Yes, she does, with her hands.
“Q. Have you noticed any difference in her attitude now after she has walked for some distance than her attitude before?
“A. I most certainly have. She gets gripy and grumpy and just won’t walk. She complains that her leg is tired and she just gives out.”

A qualified orthopedic specialist had examined Linda in October 1963, in January 1964, and again in August 1964. He testified:

“Q. All right. Now, Doctor, my question again is, based upon your background and training, your experience, and your examination of Linda Clark, do you have an opinion based upon a reasonable medical certainty, as to the cause of this knock-kneedness and the condition you found upon her in August ?
“A. The cause is obvious. I mean, you can’t operate on anybody without inflicting a certain amount of trauma.
“Q. And do you attribute the condition which you found in August, 1964, as being a result of the operation performed on June 28, 1962?
“A. It . . . appears'to be so.
“Q. What is your opinion, Doctor?
“A. I think it is.”

There is evidence of an increasing physical defect and the opinion of the expert that the condition is the result of the malpractice operation. While the appellants had a vast amount of expert opinion to the contrary, the jury was free to decide whom to believe; and there is ample competent evidence to support the jury verdict both as to permanent damages and the amount thereof.

Affirmed.

The Chief Justice would reduce the judgment to $25,000.00.

Carleton Harris, Chief Justice

(dissenting). I would reduce the amount of judgment to $25,000.00 for the reason that I do not feel that Linda Clark suffered permanent injury because of the error made by the surgeon. Dr. John H. Hundley testified that the major portion of disparagement in leg length could he corrected; i.e., there was no permanent damage. Dr. Joe F. Shuffield stated that he did not attribute any of the shortness as a result of the pinning, and did not think that the stapling of the left leg in any way produced a weakness. It was his opinion that Linda’s condition was due solely to the polio attack. Dr. Samuel B. Thompson likewise attributed her muscular weakness to poliomyelitis rather than the operation. Dr. Walter P. Blount of Milwaukeé, former President of the American Academy of Orthopedic Surgeons, and present Vice-President of the International Orthopedic Society, testified that, in his opinion, the error committed had no ill effect on the limb, other than to produce scars. He also stated that the growth of the left thigh hone was temporarily accelerated. It was his opinion that Linda had not sustained any weakening of the left leg as a consequence of its having been stapled. Dr. Blount also testified that there was still time to correct the disability caused by the polio.

The only doctor who disagreed at all with these findings was Dr. Bennett. However, even Dr. Bennett testified that he felt the condition which he found could be corrected:

“I told her that we Avould probably have to wait until about summer before we would know. It looks like that approximately this summer that you can work on the good leg, then at that time correct the knock-knee on the bad leg. I think it Avill probably he this summer. It may be that she will wait a little longer. It depends on hoAv much she develops.”

The testimony of the doctors referred to convinces me that even if the mistake made in operating on Linda’s left leg, instead of the right, caused any damage, there is (or was at the time of the trial) still plenty of time remaining in which to correct the condition.

As stated, I would reduce the judgment to $25,000.00.

       Her father and mother, Mr. and Mrs. John Clark, also sought damages, hut the only verdict was for Linda individually and that is the one here involved.

       Still no pins were placed in the good leg, as was the original purpose of the operation.

       The stapling procedure used on the normal leg, and which was the purpose of the operation on Linda, is named after Dr. Blount, and is known as “Blount staple epiphyseal arrest.”

       Dr. Blount has written several medical articles relating to this subject, and some have been translated into French and German. He has studied in clinics in Europe, South America, and Canada, in addition to numerous clinics in this country.


author: George Rose Smith, J. Cart.eton Harris, Chief Justice Paul Ward, Associate Justice

text:
    Rush v. Smith.
    5-3611
    394 S. W. 2d 613
    Opinion delivered September 20, 1965.
    [Rehearing denied November 1, 1965.]

      Hardin, Barton, Hardin S Jesson, for appellant.

      Thomas Harper and Franklin Wilder, for appellee.
   George Rose Smith, J.

On April 23, 1962, the appellant, Virginia Rush, brought suit against her husband, Paul Rush, for a divorce on the ground of personal indignities. Three days later Paul Rush purportedly sold certain corporate stock to his sister, the appellee Frances R. Smith. Paul Rush was murdered on May 13,1962. (Paul Rush’s stepson, Fred Rush, was convicted of the murder, but we reversed the judgment and remanded the case for a new trial. Rush v. State, 238 Ark. 149, 379 S. W. 2d 29 [1964].) In June of 1963 Virginia Rush brought this suit to set aside the purported sale of the stock as a fraudulent transaction. After an extended trial the chancellor upheld the sale and dismissed the complaint for, want of equity. The principal question here is whether the decree is against the weight of the evidence.

The facts must be narrated in some detail. Paul and Virginia Rush were married in 1949. For about seven years before their marriage they had been business associates in making furniture. They eventually organized two corporations, one of which operated a furniture manufacturing plant at Fort Smith and the other a .similar plant at Waldron. Both Paul and Virginia Rush devoted their full time to the business, which prospered.

In 1957 about 61% of the stock in each company stood in Paul Rush’s name. The other 39% was owned by third persons and is not involved in this case. In the year mentioned, 1957, the Rush 61% of the total stock was reissued in about equal shares to Paul and Virginia, he receiving a little less than 31% and she a little more than 30%. It is Paul Rush’s part of the stock that is now in dispute.

As we have said, Virginia Rush filed suit for divorce on April 23,1962, asserting that the parties had separated on April 20 of that year. The complaint asked that Virginia be awarded a half interest in all property that was owned jointly and in all property standing in Paul’s name only, which would include the stock in question. Paul was served with a summons on April 24.

On April 26 Paul Rush and his attorney went to the First National Bank of Fort Smith, with which Paul did business, and ostensibly sold the stock to Paul’s sister, Frances Smith. She, however, was not present. Rush and his attorney effected the purported sale with Sam B. Stevinson, the bank’s trust officer. Paul Rush’s stock appears to have been worth at least $200,000. Paul professed to sell this valuable stock to his sister Frances for its stated par value, which was $50,550. The bank purported to advance the purchase money as a loan to Frances, but it is evident that she never had dominion over the money or the stock. The bank retained the stock as collateral security for Frances’s note for $50,550 (which she sighed the next day). The bank deposited $550 of the purchase money to Paul Rush’s account. It invested the remaining $50,000, at Paul’s direction, in U. S. Treasury bills, which it held for Paul. Thus when the transaction was completed the bank had possession of the stock, the purchase money, and' the Treasury bills. Paul had an added $550 in his bank account. Except for the fact that the stock had been reissued in her name Frances had nothing to show for her participation.

We think it almost too plain for argument that the supposed sale was in fact a sham that did not divest Paul Rush either of his ownership of the stock or of his control, over it. A husband’s colorable disposition of assets to defeat his wife’s property rights in a pending or anticipated divorce suit may be found to be fraudulent. Dowell v. Dowell, 207 Ark. 578, 182 S. W. 2d 344 (1944); Wilson v. Wilson, 163 Ark. 294, 259 S. W. 742 (1924); Austin v. Austin, 143 Ark. 222, 220 S. W. 46 (1920). It cannot be doubted that Paul Rush’s ostensible sale to his sister was intended to hinder Virginia Rush in the assertion of her property rights. In fact the banker, Stevinson, testified that he understood from his conversation with Paul Rush at the time of the sale that Rush hoped that the divorce suit would be withdrawn and that the sale of the stock would then be rescinded.

There are several other indications of a fraudulent intent. The transfer was to a close relative of Paul Rush. Farmers’ State Bank v. Foshee, 170 Ark. 445, 280 S. W. 380 (1926). The recited consideration was decidedly less than the value of the stock. Smith v. Arkadelphia Milling Co., 143 Ark. 214, 220 S. W. 49 (1920). Paul Rush in effect retained possession of the stock, for we have no doubt that the bank would have cooperated in a rescission of the transaction. Continued possession by the vendor is a badge of fraud. Wasson v. Lightle, 188 Ark. 440, 66 S. W. 2d 652 (1933). It is not shown that Frances Smith was financially able to enter into a $50,550 purchase agreement. Finally, Paul Rush continued to act as general manager of the companies until his death, despite the fact that he had supposedly disposed of his interest in the business. After considering the proof as a whole we are convinced that the entire transaction was demonstrably a sham. Paul Rush was therefore the actual owner of the stock at his death. His widow is entitled to assert her claim to dower.

Other arguments made by the appellees merit discussion. There is testimony that Virginia Rush, soon after her husband’s death, stated that he and she had divided their ownership of the corporations in 1957 and that thereafter neither had any interest in the other’s stock. It is now insisted that these admissions by Mrs. Rush establish a valid postnuptial property settlement that precludes her from claiming dower in the corporate stock. We are cited to cases involving property settlements, such as Godwin v. Godwin, 231 Ark. 951, 333 S. W. 2d 493 (1960), and Dunn v. Dunn, 174 Ark. 517, 295 S. W. 963 (1927).

Virginia Rush’s statements about the division of the stock in 1957 fall decidedly short of establishing a binding property settlement. The law has always been solicitous of a widow’s dower. An antenuptial or postnuptial marriage settlement must be in writing. Ark. Stat. Ann. § 55-301 (1947); Sims v. Roberts, 188 Ark. 1030, 68 S. W. 2d 1001 (1934). Mrs. Rush’s generalized references to the 1957 division of the stock do not indicate either that there was a written agreement or that it was intended to be in lieu of dower. We are unwilling to lay down a precedent that a widow’s right to a share in her husband’s estate may be lost as a result of such vague admissions as those appearing in this record.

Next, a meeting of the stockholders in each corporation was held on June 21,1962 — about 40 days after Paul Bush’s death. At that meeting the stockholders adopted a resolution reciting that Paul and Virginia Bush had owned, as tenants by the entirety, certain trucks used by the corporations. The resolution confirmed Virginia’s ownership of this property as the surviving tenant by the entirety. There is no indication whatever that the recitations in this resolution were not true; so the appellees can derive no benefit from the fact that Virginia Bush accepted the trucks. She was entitled to them.

At this same meeting the stockholders also adopted a resolution reciting Paul Bush’s so-called sale of his stock to his sister, pointing out that he was sane and solvent at the time of that transfer, and noting the fact that the stock had been reissued to Prances Smith and had been voted by her. The resolution concluded by declaring that the sale by Paul Bush to Prances Smith “be approved.” All the stockholders, including Virginia Bush, signed this resolution. The appellees now rely heavily upon Virginia’s joinder in the resolution as a basis for an estoppel against her present claim.

We are not impressed by this argument. It is plain that Mrs. Bush was not informed of her legal rights in the matter. Everyone else at the meeting, including the companies’ lawyer, appears to have been hostile to Mrs. Bush. The very fact that such an unusual resolution was offered for her approval indicates pretty clearly that its proponents were attempting to strengthen their decidedly weak position. The meeting'went on for four hours before Mrs. Bush finally joined in the resolution. She testified that she declined to approve the resolution until she had consulted a lawyer. It was suggested that she consult the bank’s assistant trust officer, Charles Beasley, who was also an attorney. She did so, but he was (understandably, we think) unwilling to advise her about the resolution. She then discussed it with Stevinson. who, according to her testimony, told her that the sale to Frances Smith was valid and could not be set aside. Her testimony is corroborated by Beasley himself, who states without contradiction that he heard Mr. Stevinson tell Mrs. Rush that he saw nothing wrong with her signing the resolution. In the circumstances Mrs. Rush’s assent to the resolution was not a waiver of her rights, for she could not voluntarily abandon rights of which she was ignorant. Sirmon v. Roberts, 209 Ark. 586, 191 S. W. 2d 824 (1946). Nor is her conduct a basis for an estoppel, for there is no indication that anyone relied upon it to his detriment. Schlumpf v. Shofner, 210 Ark. 452, 196 S. W. 2d 747 (1946).

The appelles also argue with ingenuity (a) that Mrs. Rush cannot assert that the pretended sale was a fraud upon her right to a property settlement in her divorce suit, because that suit abated upon the death of Paul Rush, and (b) that Mrs. Rush cannot assert that the sale was a fraud upon her right to dower, because Paul Rush did not deliberately intend by the colorable sale to deprive his widow of dower. This argument is not sound. In the divorce case Paul’s answer was a general denial, with no prayer for affirmative relief. Thus if Paul had lived and the case had been tried, Virginia would either have received her property rights if the divorce had been granted or would have retained her claim to dower if the divorce had been denied. Paul Rush’s death had the effect, in the same instant, of abating the divorce suit and of bringing his widow’s .dower rights into choate existence. We are unwilling to say that in this instantaneous transition Mrs. Rush somehow lost her rights altogether.

It is also insisted that the bank, as administrator of . Paul Rush’s estate, was the proper plaintiff in a suit to set aside the fraudulent conveyance. Ark. Stat. Ann. § 62-2402 (Supp. 1963). We agree with the chancellor’s conclusion that inasmuch as it is apparent that the bank would not have brought the suit it was proper for Mrs. Rush to bring it and to join the administrator as a defendant.

We reverse the decree and remand the canse for further proceedings. It appears that Mrs. Smith has paid interest to the hank upon her note. On the other hand, the principal of the loan represented by the note was invested in Treasury bills that seem to have provided income to Paul Rush or to his estate. These offsetting equities should be considered together in the final decree. It also appears that the two corporations have been liquidated and that, despite the disadvantages of a liquidating sale, more than $165,000 has been realized and paid into the registry of the court as liquidating dividends attributable to the stock now in dispute. The final order of distribution will adjust the equities to the end that neither Mrs. Smith nor the Paul Rush estate will reap a profit as a result of the abortive attempt to defeat Virginia Rush’s rights. The court’s purpose will be, as far as possible, to restore all concerned to their original position.

Reversed and remanded.

Supplemental opinion on rehearing P. 874.

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

Cart.eton Harris, Chief Justice

(dissenting). I feel that this court is in error in reversing this case. The overwhelming weight of the evidence, in my opinion, is to the effect that Virginia Rush, from the beginning, recognized that she had no right to, or interest in, this stock. Charles Beasley, Vice-President and Trust Officer of the First National Bank of Fort Smith, Sam Stevinson, another vice-president, and Pauline Plummer, the only natural child of Paul Rush, all testified that Mrs. Rush had told them that she had made a settlement with her husband in 1957, and, at that time, Paul Rush had given her approximately one-half of all his stock in the corpora-tions here involved as her full share of all property claims against him. I can see no reason for these people to misstate the facts, since all stood to gain financially if the transfer to appellee Smith were set aside. As an heir of the estate, Mrs. Plummer, of course, would get a much larger share from the estate if the stock sale be set aside, and likewise, of course, the First National Bank, administrator of the estate, would get a larger administrator’s fee, if the size of the estate were increased. The statements of these witnesses are disputed only by appellant, and there are discrepancies in her testimony. It is also noticeable that Mrs. Rush waited over a year after her husband’s death before instituting suit to set the sale aside. Likewise, her explanation for signing the resolution,. recognizing Mrs. Smith as the owner of the stock in question, is to the effect that she was pressured or coerced into signing. Again, we have only her statement, and this is denied by the others, except that, as pointed out in the majority opinion, Mr. Stevinson told appellant that he saw nothing wrong in her signing the resolution. I would hardly call such a statement pressure or coercion —and, since I am convinced that appellant originally recognized that she had no right to this stock, and the institution of the suit was based on an afterthought— I too would have to say that I see nothing wrong in her having signed the resolution.

In this case, we again have a situation where the Chancellor personally heard the testimony, observed the witnesses, and had every opportunity to notice their demeanor upon the stand, and to form his conclusions as to who was telling the truth. The trial court thus had an advantage that we do not have, and it is evident, from his decision, that he did not place full credence in all that was said by appellant.

I would affirm the case, and therefore, respectfully dissent. I am authorized to state that Justice McFaddin joins in this dissent.

Paul Ward, Associate Justice

(dissenting). I agree with the majority in discarding five contentions made by appellees to affirm the decree of the trial court, but I am unable to agree with the one reason for reversing. As a ground for reversal the majority say: “After considering the proof as a whole we are convinced that the entire transaction ivas demonstrably a sham. Paul Rush was therefore the actual owner of the stock at his death. ’ ’

There is no direct proof that Paul Rush never intended to sell the stock to his sister — no direct proof that the transaction was a sham. The trial court found it was not a sham. If it was a sham, one of two conclusions must follow: either Paul Rush deceived his own attorney and the vice-president of the First National Bank of Fort Smith, or those two persons participated in the deception. There is, to my mind, convincing evidence that Paul Rush did in fact transfer the stock to his sister, Frances. She signed a note to the bank for $50,550 which the bank still holds. The vice-president testified Frances negotiated the loan to purchase the stock, and that he “personally gave her $50,550 in cash” (quote taken from the abstract) . Frances testified she loaned Paul $5,000 to start the business, and that she was one of the original stockholders in the Rush Company and the Waldron Company; that Paul came to her home very much upset over the divorce action, and said he was going to sell his stock and get out of the business; that she tried to reason with him, telling him things might work out; she told Paul she couldn’t buy the stock for what it shows on the books, and he said he never did have any faith in those figures; that they discussed the fact that the company was losing money, the effect of the divorce suit and the result of his leaving- the company, and that she offered him par value for his stock. She further stated that she had kept the interest on loan paid, and that the stock certificates are in custody of the bank.

Under the above state of the record I feel that the trial court’s decree is supported by the weight of the evidence, and that the decree should be affirmed.


author: Paul Ward, Associate Justice.

text:
    Whorton v. Gaspard.
    5-3628
    393 S. W. 2d 773
    Opinion delivered September 20, 1965.

      W. Q. Hall, for appellant.

      Bob Scott, for appellee.
   Paul Ward, Associate Justice.

On November 23, 1964 Joseph B. Gaspard and Otto Smith (appellees herein) requested that the County Clerk of Madison County grant permission to copy the lists showing who had voted (including those who had aplied for absentee ballots) in the general election held on the third of that month. This request was denied, and two days later appellees filed a petition for a Writ of Mandamus in chancery court to require Charles Whorton, Jr., the County Clerk, to comply with their request. The trial judge, after a full hearing, granted the writ.

Only the three parties mentioned above testified in the trial court, and there is no dispute about any material fact. The principal issue concerns the proper interpretation of Ark. Stat. Ann. § 3-919 (Eepl. 1956).

For a reversal, appellant relies on only one point: The court erred as a matter of law in granting the Writ of Mandamus.

Section 3-919 referred to above provides that in every election held in this state the precinct officials shall make an accurate list of all persons voting in such precinct and file the same with the county clerk. The section then provides:

‘ ‘ The original of such list filed with the county clerk shall be kept on file by said clerk in his office and shall be a public record subject to inspection of any . . . person interested therein. ...” (Emphasis added.) Ark. Stat. Ann. § 3-1133 requires the county clerk to also keep a list of all those voting by absentee ballots, and paragraph “Third” of the section provides such list “shall be made available for public inspection. ...”

The above mentioned lists are the ones that appellees sought to copy, and are the lists included in the court’s order. It is our conclusion that the trial court was correct, under the facts here presented, in ordering appellant to allow appellees not only to inspect but to copy (or photocopy) the lists in question.

We have repeatedly held that, ordinarily, public records are open for inspection by interested persons. See Bowden v. Webb, 116 Ark. 310, 173 S. W. 181; Brooks v. Pullen, 187 Ark. 80, 58 S. W. 682; and, Baker v. Boone, 230 Ark. 843, 327 S. W. 2d 85.

After a careful consideration of numerous authorities we are of the opinion that, in cases of this nature, the right to inspect public records carries with it the right to copy such records, with certain general limitations hereafter mentioned. In 45 Am. Jur. page 426 § 15, Eight to Copy, it is stated:

“The right to inspect public records commonly carries with it the right to make copies, without which the right to inspect would be practically valueless.”

The above statement is approved in cases from other jurisdictions cited and discussed in 84 A. L. R. 2nd at page 1265 et seq. We think the general rule above stated is reasonable. We also think, as was stated in the authorities just mentioned, that the rule is subject to certain limitations. In this connection we adopt the language used in § 16, 45 Am. Jur. at page 427:

“Without doubt, reasonable restrictions and conditions may be imposed with respect to the right to use public records. Even in the absence of any specific restrictions, the right implies that those exercising it shall not take possession of the registry or monopolize the record books so as unduly to interfere with the work of the office or with the exercise of the right of others, and that they shall submit to such reasonable supervision on the part of the custodian as will guard the safety of the records and secure equal opportunity for all.”

Appellant argues that the rule above stated should not apply in this case because (as is shown by the record) he draws no salary. His remuneration comes from fees charged for making certified copies of records. He also says the rule should not apply here because appellees, who are members of the Republican party, wanted the records for no lawful purpose but only wanted to harass- and annoy him. We find no merit in these arguments.

By statute appellant is allowed to charge for making certified copies of records but only when requested to do-so, and no such request was made by appellees here. There is no evidence that appellees intended to harass, appellant, but the record does affirmatively show appellees desired to make a study to determine if there had been any irregularities in the recent general election. We know of no law to prevent such a study.

Appellees, on cross appeal, contend the trial court erred in assessing the costs below against them, but we do not agree. Many times we have said that, in chancery cases, this is a matter within the sound discretion of the trial court. Lyle v. Latourette, 209 Ark. 721, 192 S. W. 2d 521; Wilson v. Wilson, 211 Ark. 1030, 204 S. W. 2d 479; Thomas and Ozan Lumber Company v. Smith, 215 Ark. 527, 221 S. W. 2d 408. We are unwilling to say the trial court abused its discretion in this instance.

Appellees further contend the trial court erred in failing to order appellant to permit them to make a copy of the list of those who applied for absentee ballots. We cannot agree for two reasons. The evidence fails to show appellees made such a request, and a cross-appeal on this matter, according to the record, was not perfected.

The order of the trial court is affirmed, and appellant is charged with the cost of this Court.

Affirmed.


author: Sam Robinson, Associate Justice.

text:
    Goins v. Edens.
    5-3613
    394 S. W. 2d 124
    Opinion delivered September 20, 1965.
    [Rehearing denied October 25, 1965.]

      Grumpier & O’Connor and Richard H. Mays, for appellant.

      Brown, Compton & Prewett, for appellee.
   Sam Robinson, Associate Justice.

In the year 1952, the appellant herein, who is now Doyee Olene Goins, married Murrell Edens. Three children were born of the marriage; a daughter, Deborah, 11; a son, Donald Glenn, 10, whose custody is involved in this litigation; and a daughter, Linda Karen. 9.

In September, 1958, appellant was granted a divorce from Edens. By agreement of the parties, appellant was awarded custody of the two girls, and Edens was awarded custody of the boy. Later, Edens married the appellee herein, Vera Nelle Edens; at a still later date, appellant married Bill C. Goins.

In June, 1964, Edens died, and appellant, Doyce Goins, natural mother of Donald Glenn, immediately attempted to get custody of the little boy, but Mrs. Edens, the stepmother, would not agree that the natural mother should have his custody. Hence, Mrs. Goins filed this action alleging the death of the natural father, Murrell Edens, and asked that she be awarded custody of her son. Vera Nelle Edens, stepmother of Donald Glenn, resisted the natural mother’s petition and asked that she (Mrs. Edens) be awarded custody of the child. The child’s paternal grandparents intervened and also asked that the stepmother be awarded custody. From an order awarding the stepmother, Vera Nelle Edens, custody of the little boy, the natural mother, Doyce Olene Goins, has appealed.

From the evidence it appears, without a doubt, that either party, Mrs. Goins, the natural mother, or Mrs. Edens, the stepmother, is a suitable person to have custody of the child. Both are good women, fully capable from every standpoint of rearing the little ' boy in a proper manner. In a situation of this kind, the law is firmly established that the natural mother has preferential rights to custody of the child.

Hancock v. Hancock, 198 Ark. 652, 130 S. W. 2d 1, was a similar situation; a contest between the natural mother and stepmother for the custody of a 13 year old boy. As in the case at bar, the trial court awarded custody to the stepmother. On appeal the decree was reversed. Judge Frank Smith, speaking for the court, said:

“The recent case of Holmes v. Coleman, 195 Ark. 196, 111 S. W. 2d 474, announces the rule which we think is applicable here. We there said: ‘Courts are very reluctant to take from the natural parents the custody of their child, and will not do so unless the parents have manifested such indifference to its welfare as indicates a lack of intention to discharge the duties imposed by the laws of nature and of the state to their offspring suitable to their station in life. . . .’ ”

In other cases this court has said:

“There is no doubt but that both the grandmother and mother are attached to the child, and it has affection for them. That is not unusual. ‘The law recognizes the preferential rights of parents to their children over relatives and strangers, and where not detrimental to the welfare of the children, they are paramount, and will be respected, unless special circumstances demand that such rights be ignored.’ Johnston v. Lowry, 181 Ark. 284, 25 S. W. 2d 436; Loewe v. Shook, 171 Ark. 475, 284 S. W. 726; Herbert v. Herbert, 176 Ark. 858, 4 S. W. 2d 513.” Pfifer v. Pfifer, 198 Ark. 567, 129 S. W. 2d 939.
“Where not detrimental to the welfare of children, the law recognizes the preferential rights of parents to them over relatives and strangers. Paramount rights of parents will be respected, unless the special circumstances demand that such rights be ignored.” Herbert v. Herbert, 176 Ark. 858, 4 S. W. 2d 513.
“There is no question in this case about the moral fitness of either the natural or the foster parents to properly rear the child. They are all described by their neighbors as ‘Good people.’ It is probably true that the Holmes are in position to give the child better advantages ; but this question will not be considered unless and until it be established that its parents should be denied its custody. The natural parents will not be deprived of their child because some other person is willing and able to give it better advantages.” Holmes v. Coleman, 195 Ark. 196, 111 S. W. 2d 474.
“We have concluded that a ease was not made which would warrant or require us to deprive the father of his presumptive right to the custody of the child, . . .” Grinder v. Harrell, 208 Ark. 947, 188 S. W. 2d 307.
“ ‘There can be no question in the law that, as between a mother and grandparents, the mother is entitled to the custody of her child, “unless incompetent or unfit, because of poverty or depravity, to provide the physical comforts and moral training essential to the life and well-being of her child,” . . .’ Loewe v. Shook, 171 Ark. 475, 284 S. W. 726.” Servaes v. Bryant, 220 Ark. 769, 250 S. W. 2d 134.
“Unless abandonment is clearly shown, or unless unnatural proclivities upon the part of the parents is established, such as cruelty or negligence amounting to parental indifference, the superior claim of a father or mother is given first consideration.” McGraw v. Rose, 224 Ark. 96, 271 S. W. 2d 912.

There is no substantial evidence in the record indicating that Mrs. Goins abandoned her child or that she is not a proper person to have his custody. She is, therefore, according to many decisions of this court, entitled to his custody.

• Reversed with directions to award custody of the child, Donald Glenn Edens, to his natural mother, the appellant herein.


author: Jim Johnson, Associate Justice.

text:
    Rowe v. Fisher.
    5-3620
    393 S. W. 2d 767
    Opinion delivered September 20, 1965.

      Roy Mitchell, for appellant.

      Curtis L. Ridgway, Jr., for appellee.
   Jim Johnson, Associate Justice.

This is a boundary line dispute between adjoining landowners. In 1942 appellee Junnie Luker Fisher purchased from one W. T. Weaver a parcel of land which was bounded on the west by a section and range line. In 1946, one Grim purchased the property adjoining, on the west side of the section line, from Weaver. In 1948 Grim sold a strip of land 200 feet wide and over 600 feet in depth, lying on the west of the section line, to appellant Mildred Rowe Alewine for road access for appellants’ land to the south. There existed on the west property (appellants’ property) a fence which ran roughly parallel with the section line, varying from 30 to 90 feet west of that line. In late 1960 and early 1961, appellants removed the fence and constructed a new fence on the section line, following a survey which appellee had ordered, paid for, and later disclaimed. It is undisputed that appellant Alewine had record title up to the section line. ‘Appellees, claiming title to the property up to the old fence line by adverse possession, filed suit on June 28, 1961, in Garland Chancery Court to enjoin appellants and to quiet title in appellees. Trial was held August 1 and 3, 1962, deposition of the county surveyor was taken February 13, 1963, and final decree was rendered November 24, 1964, which found that appellees had acquired title to the disputed strip of land by adverse possession and permanently enjoined appellants from encroaching on the property. From this decree appellants have prosecuted this appeal, urging that the chancellor erred in holding that appellees had acquired title by adverse possession.

The fence which appellees claim as a boundary line fence was an old field fence existing when Weaver owned all of the property here mentioned. There was testimony that it was one of several field fences dividing Weaver’s property into small pastures. (He operated a dairy there at one time.) There was also testimony that Weaver had once raised a garden on the strip in question, which is of no benefit to appellees’ claim of adverse possession since Weaver owned all the property. The record contains no satisfactory evidence that this field fence was ever intended to be the dividing line between these two pieces of property. The fence meandered, was sporadically maintained, and its various locations are not clear from the record. Even appellee Fisher testified that part of the fence burned one time and it was patched by stringing barbed wire across near-by trees. Appellee made the bare assertion that “I have owned, cultivated and used the property up to that fence, and I understood when I bought it, that was my property.” There was no further testimony on possession — no testimony of the type of cultivation, crops or use to which appellee alluded, with one exception. Appellee testified that three years before trial she let a Mr. Murphy use her property as a pasture for a year or less. He strung a “hot-wire” fence (apparently a single strand electrified wire) to contain his cattle. The location of the hot-wire, which existed about a year, is not clear from the record.

Reviewing the record before us as we do on trial de novo, we find that appellees have failed to meet their burden of proof to establish all of the essential elements of adverse possession. Smith v. Kappler, 220 Ark. 10, 245 S. W. 2d 809. “In order that adverse possession may ripen into ownership, possession for seven years must have been actual, open, notorious, peaceable, continuous, hostile, and exclusive. It must be accompanied with an intent to hold adversely — in derogation of and not in conformity with the right of the true owners.” Terral v. Brooks, 194 Ark. 311, 108 S. W. 2d 489. “The owner must have knowledge or notice that possession is hostile.” Id. Appellees’ sole act of possession, if it was that, was permitting Murphy to use the property for pasture. “Where actual possession is relied upon to support a plea of limitation or to establish title to land by limitation it must be shown that such possession was continuous, as well as notorious, adverse and exclusive. Mere fitful or intermittent possession is not sufficient.” Teer v. Plant, 238 Ark. 92, 378 S. W. 2d 663. This single act, well within seven years prior to this lawsuit, without more is insufficient to establish adverse possession of the disputed strip of land. The decree of the trial court is, therefore, reversed and remanded for entry of a decree consistent herewith.


author: Frank Holt, Associate Justice.

text:
    Oliver v. Fletcher.
    5-3624
    393 S. W. 2d 775
    Opinion delivered September 20, 1965.

      M. V. Moody, for appellant.

      Howell, Price & Worsham, for appellee.
   Frank Holt, Associate Justice.

The appellant brought an action against appellee to recover damages for personal injuries inflicted upon him by appellee. Appellee responded that his actions were justified and in self-defense. A jury verdict was adverse to the appellant and he brings this appeal from the judgment on that verdict. For reversal appellant first contends that the trial court erred in refusing to give appellant’s Instruction No. 9. This instruction told the jury “that the evidence is undisputed as to the fact that the Defendant committed an assault and battery upon the Plaintiff, and no complete justification therefor has been shown;” and that the appellant was entitled to an award of damages.

According to the appellee’s evidence the appellant had communicated and personally voiced threats of bodily harm to appellee and his family; that on one occasion appellee’s wife had to call the police when appellant appeared at their home; that appellant deliberately rammed his race car into appellee’s during a stock car race in an effort to run him over the hump and off the race track; that when appellee crawled out of his car and onto the hood of appellant’s and questioned him about his action, the appellant replied with an oath that he was trying to kill him and then reached toward the floor of his race car for an object, later identified as a pipe two inches in diameter and twenty-four inches long. Thereupon appellee, using his crash helmet, struck the appellant about the head causing his injuries. This evidence was corroborated by other witnesses. It was denied by the appellant who offered evidence that the attack upon bim was unprovoked and occurred when he was defenseless sitting strapped in his race car following an accidental collision.

We think the trial court correctly rejected the requested instruction since the instruction, in effect, told the jury to disregard the testimony of appellee and his witnesses. This was a binding instruction and failed to incorporate appellee’s theory of justification and self-defense. We have held that a binding instruction must contain all the essential conditions in the case. Reynolds v. Ashabranner, 212 Ark. 718, 207 S. W. 2d 304; Phillips Co-op Gin Co. v. Toll, 228 Ark. 891, 311 S. W. 2d 171. An instruction which, ignores a material issue about which evidence is conflicting and permits or directs a jury to return a verdict without considering that issue is erroneous. George v. George, 191 Ark. 799, 88 S. W. 2d 71.

Appellant next urges for reversal that: “The evidence in the within case is insufficient to support the verdict. The assault upon appellant by appellee was precipitated by appellee and was not in his necessary self-defense.” On appeal the evidence must be viewed in the light most favorable to the jury verdict. Harkrider v. Cox, 232 Ark. 165, 334 S. W. 2d 875. We do not disturb the finding of fact by a jury on conflicting evidence if there is any substantial evidence to support it. St. Louis-San Francisco R. Co. v. Bishop, 182 Ark. 763, 33 S. W. 2d 383.

In the case at bar there was ample evidence of a substantial nature upon which the jury could have based its verdict for the. appellee.

The judgment is affirmed.


author: Carleton Harris, Chief Justice.

text:
    Henson v. State
    5124
    393 S. W. 2d 856
    Opinion delivered September 27, 1965.

      Parker Parker, for appellant.

      Bruce Bennett, Atty. General, By: Beg E. Wallin, Asst. Atty. Gen., for appellee.
   Carleton Harris, Chief Justice.

Phillip H. Henson, A/K/A Bobert Victor Scheick, appellant herein, was charged by Information with the crime of rape, it being-alleged that Henson forcibly, violently, and against her will, raped a young- woman of the age of 20 years in Yell County on June 8, 1964. The case proceeded to trial on June 30, 1964, and at the conclusion of the evidence, the jury found Henson guilty, and fixed his punishment at life imprisonment. From the judgment entered thereon, Henson brings this appeal. For reversal, appellant relies upon eight points, but inasmuch as we are of the opinion that the judgement must be reversed, a discussion of each alleged error becomes unnecessary.

Let it first be stated that there is ample evidence to sustain the jury finding. The prosecuting witness testified that she met Henson at a talent contest in Dover, and won first prize, which entitled her to sign a recording contract with Nimrod Records (a partnership with which he was connected). Subsequently, according to her testimony, Henson went to her home, and the two left together in an automobile, ostensibly for the purpose of Henson’s introducing her to the other partners of the record concern. She testified that he later stopped on a side road, slapped and choked her, pinned her arms behind her, and then proceeded to rape her. The witness stated that he thereafter raped her a second time. Several witnesses verified the fact that her back was skinned and bruised, her neck and throat swollen, and that there were bruises also on her waist, legs and breasts. Dr. Douglas Lowrey of Russellville, who examined the prosecuting witness, testified that the hymenal ring had been torn within eight to twelve hours previous to his examination; that numerous spermatozoid were observed through a microscope in secretions inside the vagina. He likewise stated that she was bruised on both shoulders and the left thigh. The doctor was also of the opinion that she had been a virgin, stating,

“The hymenal ring had definitely been penetrated shortly before I saw this girl. There’s no question about that. As to whether or not it had been penetrated before, I could not say absolutely and without any question. I would say, however, that from the appearance at that time, that it did not ever — it did not indicate that it had ever been pentrated before.”

Henson admitted having intercourse with the prosecuting witness, but insisted that it was done with her consent. This conflict of evidence, of course, was for the jury to determine. The evidence was definitely sufficient to support the jury’s findings.

Appellant asserts that the court erred in not granting a motion for change of venue. It is sufficient to state that no proper showing was made that appellant could not obtain a fair trial in Yell county, and the trial court did not abuse its discretion in refusing to grant the motion.

It is also alleged that the court committed reversible error in permitting Dr. Walter Harris, of Danville, to testify. This alleged error is predicated on appellant’s contention that Harris’ testimony was based on privileged communications between the doctor and Henson. On June 14, 1964, a petition was filed on behalf of appellant, asking that he be committed to the State Hospital for a 30-day period of observation. The court then ordered that Henson be examined by two doctors, one of which was Dr. Harris. Subsequent to an examination made by Harris, the motion was withdrawn, but the examination had already been made. Dr. Harris testified that, from his examination, it was his opinion .that Henson was a sexual psychopath, and the doctor then stated that “a sexual psychopath is an individual, neither insane nor mentally deficient, but in a state of mental apprehension that renders him unable to control the impluses in sex offenses.” Dr. Harris testified, “A patient suffering from this disorder may obtain partners either willingly or by force, fraud or some other method, and I think that they could be dangerous.” We do not agree with the contention that the admission of this testimony constituted error. In 58 AM. Jur., Section 418, Page 239, it is stated that privilege does not attach when a consultation with, or examination by, a physician is not for the purpose of treatment, but rather for some individual purpose known to the person examined.

“It follows that a physician who at the direction of a prosecuting attorney or a court makes an examination of a defendant for the purpose of determining his physical condition is competent to testify regarding the information he gained if he does not assume to act as the physician for the defendant or proffer to the latter his professional aid.”

In City and County of San Francisco v. Superior Court, 231 P. 2d 26 (Cal.), Justice Travnor, speaking for the court, stated:

“The confidence that is protected is only that which is given to a professional physician during a consultation with a view to curative treatment; for it is that relation only which the law desires to facilitate. ’ ’

Likewise, in State v. Fackrell, 271 P. 2d 679 (Wash.), quoting from State v. Winnett, 92 P. 904, it said:

‘ ‘ There is nothing here tending to show that the relation of physician and patient existed between them, or that any confidential relation -whatever existed. The record does not indicate, but presumably, the examination -was made at the instance of the state, and was made for the purpose of publishing the result of the examination. No confidential relation appears to be violated. The case does not come within the spirit or reason of the law -which prohibits physicians from giving information acquired in attending a patient, and no error was committed in admitting the testimony objected to.”

It is urged that the court erred in failing to quash the warrant of arrest, since the appellant was arrested without a warrant. This did not constitute error. Our statute (Ark. Stat. Ann. 43-403) permits a peace officer to make an arrest where he has reasonable grounds for believing that the person arrested has committed a felony. We think the evidence obtained by Sheriff Brink-man in his investigation on the night of June 8 clearly indicated that the prosecuting witness had been raped, and that the officer had reasonable grounds for believing that appellant had committed the offense.

We are of the view that prejudicial error was committed by the court in permitting two young women to testify for the state on rebuttal. The circumstances were as follows: In an effort to establish his good character, appellant offered the testimony of Carol Jan Gray, Ann Page (both by deposition), and Mollie Mayhan. Miss Gray testified that she had been alone with appellant at times, and that he had never made any improper advances toward her. Miss Page testified that she took guitar lessons from Henson, and that he had never made any improper advances. Miss Mayhan stated that she had worked as a babysitter for Henson and his wife for about two and a half months, and that appellant had never made any advances toward her. Over objection, the court then permitted the state to offer in rebuttal (to the evidence of Misses Gray, Page and Mayhan) the testimony of the two young women mentioned in the opening sentence of this paragraph. One testified that Henson, whom she had just met, had asked her to go to Little Eock with him for the purpose of making a record; that appellant raped her twice on this tirp, but that it was never reported to the authorities because she did not want to “get in a scandal.”

The other young woman testified that appellant also raped her in an automobile after placing a knife to her throat. All of this testimony — both on the part of the defense and the state — was inadmissible. In 20 Am. Jur., under “Evidence,” § 326, pp. 305 and 306, it is pointed out that the generally prevailing rule is that testimony to prove the good or bad character of a defendent in a criminal prosecution

“must relate and be confined to the general reputation which such person sustains in the community or neighborhood in which he lives or has lived. Thus, evidence on behalf of the state in a criminal prosecution attacking the character of the accused for the purpose of impugning him as a defendant, where he puts his good character in issue by introducing evidence to sustain the same, must be confined to his general reputation for the particular traits involved in the offense charged. Evidence of specific acts or of conduct of a person upon particular occasions, bearing upon his character, is usually held to be inadmissible. The admission of such evidence would raise collateral issues and divert the minds of the jurors from the matter at hand. It is manifestly unfair to compel a party to defend specific acts alleged as proof of bad reputation or character, although he must be prepared to defend his general reputation. This rule is applicable to evidence in rebuttal as Avell as to original testimony. Thus, the state in rebutting the evidence of the defendant’s good character is confined to evidence showing his general reputation as to having a bad character, and not to specific acts derogatory to his good character. ’ ’

Our rule in Arkansas is in accord. In Shuffield v. State, 120 Ark. 458, 179 S.W. 650, this court stated that “it is well-settled that neither good nor bad character can be proffered by specific acts or deeds.” The state defends the introduction of this evidence on the basis of the fact that appellant had first offered specific instances of good behavior, thus opening the door for the prosecution to offer specific instances of bad behavior as a matter of counteracting appellant’s testimony. However, two wrongs do not make a right. The evidence offered by appellant was clearly inadmissible, but this did not justify the state in offering inadmissible evidence. In United States v. Beno, 324 F. 2d, 582 (1963), after the government had concluded its case in chief, the court permitted the defense to offer testimony relating to the question of the defendant’s character. Thereupon, three witnesses testified of specific instances, where Beno acted honorably, but it was clear that none of the witnesses were competent to testify as to the defendant’s community reputation for honesty, veracity, or any other trait commonly classified as relevant to character. Thereafter, the government proceeded to offer evidence of specific instances of conduct on the part of the defendant, which amounted to criminal violations. In reversing the conviction, the court said:

“We are left to determine whether the defendant, by calling witnesses Candee, McCracken and Nagle to testify as to specific occasions on which Beno acted honorably, thereby ‘opened the door’ to all of the testimony offered, both on cross-examination and through the prosecution’s rebuttal witnesses, as to the specific instance on which his conduct was improper in one fashion or another. In determining this issue, we must first distinguish two different situations from the present case. It is true, as the government has noted that where a defendant, in his direct testimony, falsely states a specific fact, the prosecution will not be prevented from proving, either through cross-examination or by calling its own witnesses, that he lied as to that fact. (Citing cases) The rationale behind this rule is not difficult to perceive, for even if the issue injected is irrelevant or collateral, a defendant should not be allowed to profit by a gratuitously offered mistatement.
“Further, where a defendant has offered proper character testimony through witnesses who testify to his good reputation in the community, it is permissible to ask these witnesses whether they have ‘heard’ of rumors which could injuriously affect their evaluation, provided . that the prosecution acts in the good faith belief that the incidents to which the questions allude actually occurred, and the jury is instructed as to the limited weight which such ‘evidence’ may be given. (Citing cases) The often-stated purpose for permitting such questions, even when they refer to a defendant’s prior arrests, is that they better enable the jury to evaluate the character testimony which has been proffered. If a witness has heard of these damaging ‘rumors’ and adheres to his statement that the defendant’s .reputation is good, some light will have been shed upon the standards which he has employed; alternatively, if he has not heard of these ‘rumors,’ some doubt will have been cast upon his ability to speak on behalf of the community.
"But neither of these rules suggests that once a defendant has offered irrelevant and incompetent evidence on certain specific facts, the prosecution is immediately-entitled to explore without restraint and at great length any specific occurrence Avhich might tend to create an abhorrent image of the defendant. (Citing cases) For it makes little sense to insist that once incompetent evidence is erroneously admitted, the error must of necessity be compounded by ‘opening the door’ so wide that rebutting collateral, inflammatory and highly prejudicial evidence may enter the minds of the jurors In short, a small advantage improperly obtained does not compel the exaction of a gross disadvantage in penalty, particularly where a tarnished verdict is the inevitable result.
"As we have already indicated, a criminal defendant is entitled to have his guilt or innocence determined on the specific offense charged and not risk the possibility of conviction for a series of prior specific acts collectively suggested that his career had been reprehensible. The force of this principle, which lies at the heart of our criminal law system and seems a vital part of our definition of due process of law, is in no way blunted merely because a defendant has, in seeking acquittal, introduced evidence of less than questionable relevance. * * #
“* * * To put it succinctly, once a man * * * has been shown to be fundamentally immoral, a jury will hardly be influenced by the fact that there were days when he did not do anything dishonest. ’ ’

-Here, too, the testimony of the two young women that Henson had raped them, was bound to have its effect upon the minds of the jurors, and, if believed, certainly established appellant as being fundamentally immoral. We feel, unquestionably, that this evidence was prejudicial, and requires a reversal o'f the judgment.

Several alleged errors need not be discussed, since the questioned instances will not arise on a retrial. For example, appellant strongly urges that the court erred in refusing to grant a continuance to enable him to obtain the deposition of Clyde Bias, who, according to appellant, would have testified that he had talked to the prosecuting witness on the date of the alleged rape, less than one hour after it purportedly occurred; that this witness would have stated that the young woman had not complained of any rape or mistreatment by Henson; further, that her clothing and personal appearance did not indicate a struggle. Appellant’s counsel had attempted to subpoena this witness, but the sheriff was unable to locate Bias. As stated, since the case is being reversed, a detailed discussion of this point is not necessary, but it does appear that, in the interest of justice, appellant should have been granted a reasonable continuance for the purpose of trying to locate the witness, particularly since the case was tried only three weeks after the alleged offense was committed.

It is also asserted that the court should have granted a continuance for the purpose of permitting appellant’s counsel time for a proper investigation, but this, of course, is no longer important. Likewise, appellant complains of the manner in which the jury was selected, but this alleged error will likely not arise in another trial.

Appellant asserts that, the court erred in failing to give seven instructions that he offered, and also alleges that the court erred in giving one of its instructions. We have examined the proffered instructions, and find that thej7' either do not correctly state the law, or were covered by other instructions given by the court. It was not error to tell the jury that the female’s subsequent silence and conduct could be considered as bearing on the question of whether she consented to the act, unless the jury found that the prosecuting witness was in fear of her own safety when she failed to report the incident to strangers.

Other assignments of error have been examined, and found to be without merit.

Because of error committed by the trial court, as herein set out, the judgment is reversed, and the cause remanded.

       Our statute, Ark. Stat. Ann. § 28-607 (Repl. 1962) also provides that a doctor or nurse shall not he compelled to disclose any informa.tion “which he may have acquired from his patient while attending in a professional character, and which information was necessary to enable him to precribe as a physician or do any act for him as a surgeon ox-trained nurse.”

         Emphasis supplied.


author: Ed. F. McFaddin, Associate Justice.

text:
    Lindsey v. City of Camden
    5-3612
    393 S. W. 2d 864
    Opinion delivered September 27, 1965.

      Rose, Nash, House, Rarron, Nash & Williamson, for appellant.

      Qaughan & Laney, for appellee.
   Ed. F. McFaddin, Associate Justice.

This is a zoning case. Appellants sought the rezoning of four pieces of property in the City of Camden from Residential (R-2) property to Business (B-2) property. After the Camden Planning Commission unanimously refused the request, and after the City Board of Directors likewise unanimously refused the request, the appellants filed suit in the Chancery Court. They alleged, inter alia-.

“The action of the city in refusing to rezone the property from residential to business or commercial zone was arbitrary, without legal foundation, and is depriving plaintiffs of their property without due process of law in violation of their constitutional rights under both the state and federal constitutions. Plaintiffs allege that the said property is in fact commercial property and that it should have been rezoned as such. ’ ’

There was an extended and patient hearing in the Chancery Court. More than a score of witnesses testified. The record before us contains 560 pages with several scores of exhibits, consisting of maps, diagrams, and photographs. The Chancery Court found that the petition was without equity and dismissed it. From that decree appellants bring this appeal, urging only one point:

“The action of the Chancellor in restricting "the growth of an established business district is arbitrary, and his findings are contrary to the preponderance of the evidence.”

To abstract the testimony, even briefly, would serve no useful purpose. Witnesses for the appellants supported their claim; and witnesses for the City testified equally strong in opposing the claim for rezoning. If we would believe the appellants the Planning Commission and the City Board of Directors of Camden are opposed to all development of the business district of Camden. If we would believe the appellee then the appellants are real estate speculators who purchased their holdings for the purpose of reaping an enormous profit from rezoning, and this seems to be the third attempt to get' such rezoning.

Which side is right? The Chancellor — and he was a splendid and discerning Judge — heard the witnesses and knew the property. He found that the petition for rezoning “was without equity.” In City of Little Rock v. Garner, 235 362, 360 S.W. 2d 116, we pointed out: (a) that in the chancery court the' burden was on the petitioners to prove by the preponderance of the evidence that the action of the City — in refusing rezoning — had been arbitrary; and (b) that when the case reaches this Court on appeal the question before us is whether the finding of the Chancery Court is contrary to the preponderance of the evidence. Testing the present case by our previous holdings, as reflected by the Garner case, we are unable to say that the Chancery decree is against the preponderance of the evidence; so the decree is affirmed.

Robinson, J., dissents.


text:
    Lyles v. Union Planters National Bank
    5-3630
    393 S. W. 2d 867
    Opinion delivered September 27, 1965.

      Ralph E. Wilson, for appellant.

      Swift S Alexander, for appellee.
   Ed. F. McFaddin, Associate Justice.

This is a usury case. The appellee, Union Planters National Bank, filed action in replevin against appellant Lyles to repossess a motor vehicle purchased by Lyles on time payments. Lyles pleaded usury. The Trial Court held there was no usury because the law of Tennessee governed the trasaction; and from that holding Lyles brings this appeal.

The cause was submitted to the Trial Court on the original contract and a stipulation, from which we copy the germane portions:

“1. That on the 25th of May, 1964 Robert C. Lyles, who at that time resided at 933 Jackson Avenue, Memphis, Tennessee, purchased a motor vehicle . . . from McCaa Chevrolet Company at its place of business at West Memphis, Arkansas.
“2. That a conditional sales contract was executed on said date at West Memphis, Arkansas in favor of Union Planters National Bank of Memphis, Tennessee ...
“3. That at the time said contract Robert C. Lyles was a resident citizen of Memphis, Tennessee, where he was employed .... and where he had been extended credit on several occasions by the plaintiff [appellee]; and that on or about October 16, 1964, the defendant Lyles moved to and resided in Osceola, Arkansas ...”

It is agreed by all parties that the amount of the “finance charge” (i.e., interest) exceeds 10%. It is also agreed that if the law of Tennessee governs the transaction there is no usury, but if the law of Arkansas governs the transaction there is usury under our cases, some of which are: Hare v. General Contract, 220 Ark. 601, 249 S. W. 2d 973; Winston v. Personal Finance, 220 Ark. 580, 249 S. W. 2d 315; Strickler v. State Auto, 220 Ark. 565, 249 S. W. 2d 307; and Commercial Credit v. Kitchens, 231 Ark. 104, 328 S. W. 2d 335. Futhermore, if there was usury in the original contract then the transfer of the contract to the appellee bank did not eliminate the purchaser’s right to plead usury. German Bank v. Deshon, 41 Ark. 331; and Hare v. General Contract, 220 Ark. 601, 249 S. W. 2d 973.

Ordinarily in a case like this one, the lex loci contractus (i.e., the law of the place of the making of the contract) governs unless: (1) there is an agreement between the parties that the law of another State shall govern; and (2) there is a reasonable and bona fide basis for the parties so agreeing. Cooper v. Cherokee Village, 236 Ark. 37, 364 S. W. 2d 158; and Hutchingson v. Republic Finance Co., 236 Ark. 832, 370 S. W. 2d 185. These cited cases are our most .recent holdings on the issue of the law applicable to such transactions. In the Cooper case we held that the law of New York applied to the transaction because: (a) the contract was made in New York; (b) it was to be performed in New York; and (c) the parties expressly stated that the law of New York was to govern. In the Hutchingson case we held that the law of Iowa did not govern because: (a) the contract was made in Arkansas; (b) the work was done in Arkansas ; and (c) the law of Iowa bore no reasonable relationship to the transaction, even though the payments were to be made- in Iowa. In the Hutchingson case we said:

“To hold that the mere fact that the note was payable in Iowa made the agreement subject to Towa law, when all other essential elements of the contract were entered into, and were to be performed in Arkansas, would be to henceforth furnish a loophole whereby an unscrupulous individual, or company, from a state which permitted liberal interest rates, could enter into contracts in this state, and simply by making the note payable in his, or its, own state, safely evade the usury laws of this jurisdiction. Arkansas has a strong public policy on this subject, as indicated by the fact that the penalty against a seller or lender exacting1 usury is indeed heavy, and this court, particularly for the last 10 years, has been zealous in guarding against any attempt to evade our constitutional provisions relative to usury.”

After a careful study we conclude that the law of Arkansas governs the transaction involved in this case. The contract.was made in Arkansas and provided: “The time balance is payable at the seller’s office designated below or at such office of any assignee as may be hereafter designated.” The “seller’s office” was designated in the contract as West Memphis, Arkansas; and no other place of payment was ever designated. By endorsement the contract was assigned to the appellee bank; but the fact remains that the contract was made in Arkansas, and there is no language in the contract that even suggests that the law of Tennessee was intended to govern the transaction. Therefore, the case at bar falls within the rule of the Hutchingson case.

Appellee claims that the provisions of the Uniform Commercial Code require that the law of Tennessee govern the transaction here involved; hut we do not agree with such claim. Ark. Stat. Ann. § 85-1-105 (Addendum 1961) is a part of the Uniform Commercial Code; and the germane portion reads:

“Territorial application of Act-Parties’ power to choose applicable law. — (1) Except as provided hereafter in this section, when a transaction bears a reasonable relation to this state and also to another state or nation the parties may agree that the law either of this state or of such other state or nation shall govern their rights and duties. Failing such agreement this Act applies to transactions bearing an appropriate relation to this state.

In the ease at bar, even if it could be said that the transaction “bears a reasonable relation” to Tennessee, nevertheless the parties did not agree that the law. of Tennessee would govern. Futhermore, Ark. Stat. Ann. § 85-9-201 (Addendum 1961) is also a part of the Uniform Commercial Code; and the germane portion reads:

“. . . Nothing in this Article [chapter] validates any charge or practice illegal under any statute or regulation thereunder governing usury, small loans, retail instalment sales, or the like, or extends the application of any such statute or regulation to any transaction not otherwise subject thereto.”

The judgment is reversed and the cause is remanded for further proceedings not inconsistent with this Opinion.


author: George Eose Smith, J.

text:
    Canady v. Allen
    5-3554
    393 S. W. 2d 865
    Opinion delivered September 27, 1965.

      Gordon & Gordon, for appellant.

      Smith, Williams, Friday & Bowen and William H. Sutton, for appellee.
   George Eose Smith, J.

This is a three-cornered lawsuit involving personal injuries suffered by Woodrow Wilson Canady, a minor, in a three-car collision. Only two issues now remain in the case. On direct appeal young Canady, by his father as his next friend, contends that the trial court erred in directing a verdict in favor of Alphus Mitchum, one of the other two drivers involved. On cross appeal Mitchum in turn contends that the trial court, after having directed a verdict in his favor, erred in requiring him to contribute as a joint tortfeasor to the $22,000 judgment that Canady and his father obtained against Linda Allen, the third driver. (Linda and her husband also took an appeal, but in this court they elected to dismiss it.)

There is no essential dispute in the controlling facts. After dark on the evening of December 27, 1963, young Canady was driving a borrowed car on a highway in Conway county. Minor engine trouble developed, and Canady stopped on the right-hand shoulder of the road with the intention of fixing the car himself. It was too dark for Mm to see the engine without a flasMight. A few minutes later a young friend of Canady’s, Alphus Mitchum, stopped and offered to help. Under Canady’s supervision Mitchum parked his own car on the shoulder in front of the disabled vehicle. Mitchum’s car was facing the wrong way with respect to traffic, so that his headlights would provide illumination while Canady worked on his own engine. While the two cars were thus face to face Linda Allen, driving her husband’s car, ran into the rear end of the Canady car and caused the personal injuries for which young Canady and his father recovered judgment.

We think the court was right in directing a verdict in favor of Alphus Mitchum. Counsel for Mitchum cite authorities such as Haralson, Admx., v. Jones Truck, Lines, 223 Ark. 813, 270 S. W. 2d 892, 48 A.L.R. 2d 248 (1954), holding that even a good Samaritan may expose himself to liability if he acts carelessly. (Canady contends that Mitchum was negligent in parMng his car on the wrong side of the road with its lights on.)

The rule in question does not quite reach this case. Here Canady consented to Mitchum’s conduct and even participated in it by pointing out exactly where Mitchum should park. Thus the case falls within the rule stated in § 892 of the Restatement of Torts (1st Ed., 1939): “A person of full capacity who freely and without fraud or mistake manifests to another assent to the conduct of the other is not entitled to maintain an action of tort for harm resulting from such conduct.” See also Yelvington v. Mitchell, 191 Ark. 909, 88 S. W. 2d 817 (1935). This principle is undeniably just. It goes against the grain even to suggest that a person in distress may solicit another’s assistance, dictate the exact form of that assistance, and then turn upon his benefactor when it is. really his own judgment that proves to have been wrong. He alone is to blame.

Secondly, the court submitted interrogatories on the issue of comparative negligence. The jury divided the fault in the ratio of 90% to Linda Allen, 10% to Alphus Mitchum, and none to Woodrow Canady. In entering the judgment the court required Mitchum to contribute his proportionate share to any amount that the Allens may be compelled to pay.

This part of the judgment is wrong. As we have seen, any negligence on the part of Mitchum must be imputed to Canady. In an analogous situation we have held that a passenger who is found to have assumed the risk of his own driver’s negligence must submit to a proportionate reduction in his judgment for damages against the other driver. J. Paul Smith Co. v. Tipton, 237 Ark. 486, 374 S. W. 2d 176 (1964). Thus the trial court was right in having the jury fix the degree of Mitchum’s fault, but the judgment should have exonerated both Mitchum and the Allens from liability for the corresponding proportionate part of Canady’s damages. Canady has no standing to recover from either of them for that part of his own damages attributable to conduct to which he consented.

Affirmed on direct appeal, reversed on cross appeal.


text:
    Ark. State Highway Comm. v. Ponder, Judge
    5-3656
    393 S. W. 2d 870
    Opinion delivered September 27, 1965.

      Murphy db Arnold, for Respondent.

      Phil Stratton, Virginia Tackett and Mark Woolsey, for Petitioner.
   George Eose Smith, J.

The State Highway Commission has brought an eminent domain proceeding to condemn certain land in Independence county. Several of the defendant landowners filed discovery interrogatories, Ark. Stat. Ann. §§ 28-355 and -356 (Eepl. 1962), seeking to obtain the names of the persons who had appraised the land for the Commission, a copy of the instructions given to these appraisers, a copy of the appraisals, information about the appraisers’ study of comparable sales, and similar data. The trial judge held that the opinions and appraisals of the prospective expert witnesses were privileged, but he directed that the other requested information be supplied.

The Commission then filed the present petition for a writ of certiorari to quash the trial court’s order. The petitioner contends that the discovery statutes do not apply to agencies of the State and, alternatively, that all the information sought by the landowners is privileged.

We think the writ must be denied on the authority of Arkansas Motor Coaches v. Taylor, Judge, 234 Ark. 803, 354 S. W. 2d 731, 95 A. L. R. 2d 1227 (1962). There the defendant sought a writ of prohibition to prevent the. trial court from compelling it to answer certain discovery interrogatories, on the ground that the information sought was privileged. We denied the writ, holding that the discovery order was interlocutory and not appealable. Since the court had jurisdiction to make the order, prohibition could not be used as a substitute for an appeal from the final judgment in the case. Similarly, certiorari cannot serve as a substitute for an appeal. Morgan v. Hess, 210 Ark. 207, 194 S. W. 2d 871 (1946).

This petitioner insists that if it complies with the trial court’s order, under protest, its remedy by eventually taking an appeal from the final judgment will be inadequate, for, even if we should hold that the discovery order was an error, the harm will already have been done. In effect it is argued that if the cat is ever let out of the bag it can never be gotten back into the bag. An identical argument can be made whenever a discovery order is objected to. To sustain the argument in this case would mean that we should have to make a similar piecemeal decision whenever an application for discovery is unsuccessfully resisted at the trial level. We have repeatedly held that we cannot review interlocutory orders in this fashion.

Writ denied.


text:
    Trinity Universal Ins. Co. v. Stobaugh
    5-3602
    395 S. W. 2d 24
    Opinion delivered September 27, 1965.
    [Rehearing denied November 15,1965.]

      Smith, Williams, Friday & Bowen and William H. Sutton, for appellant.

      Charles H. Eddy and Gordon S Gordon, for appellee.
   Paul Ward, Associate Justice.

This action involves a question of coverage under an automobile liability insurance policy. There is very little, if any, dispute as to the facts involved.

A Mrs. Estes and her daughter who are residents of Pecos, Texas came to Conway County (this state) in July, 1963 on a visit. They came in a car insured by appellant— Trinity Universal Insurance Company — a Texas corporation. On July 8, 1963 there was a collision in Conway County between Mrs. Estes’ car and a car owned (and being driven at the time) by appellee — Syble Stobaugh. The Estes car was being dirven at the time of the accident by one Bob Millsaps with the consent of Mrs. Estes. At the time of the collision it was evident that appellee’s car was slightly damaged, but there was no indication or claim that appellee was injured. Mrs. Estes promptly agreed to pay for the damage to appellee’s car, and in a few days she and her daughter returned to their home in Texas. Mrs. Estes did not notify appellant of the accident for several days as is later pointed out.

On September 10, 1963 appellee’s attorneys wrote Mrs. Estes a letter stating that appellee had been injured in the accident; that they presumed she had notified her insurer and that a suit would likely be filed. A copy of this letter was sent to the Producer’s Insurance Agency at Pecos, Texas — an affiliate of appellant. At any rate appellant’s agent contacted Mrs. Estes promptly and had her sign a Reservation Agreement which gave appellant the light to investigate the case and even defend the proposed suit without waiving any of the policy provisions designed to protect its rights.

Later appellee sued Mrs. Estes and Millsaps and secured a judgment against Millsaps (on March 17,1964) in the amount of $10,000 for alleged personal injuries, but no judgment was entered against Mrs. Estes. Attorneys employed by appellant defended that suit for Mrs. Estes and Millsaps.

Pleadings. On May 29, 1964 appellee filed a complaint against appellant in the Circuit Court of Conway County alleging in substance: she secured judgment against Millsaps in the amount of $10,000 on March 23, 1964; that appellant defended Millsaps in that action; that said judgment had not been paid by appellant; and, that she understands $5,000 is the limit of appellant’s liability -under its policy. The prayer was for judgment in the sum of $5,000. In appellant’s answer the only defense to the above complaint was (in effect) that

‘ ‘. . . the insured must immediately notify the defendant company upon the happening of an accident for which coverage was to be claimed. No person claiming insurance under the defendant’s policy gave notice to the defendant of the accident of July 8, 1963 within the time specified by the policy. ”

In reply appellee stated that Millsaps was operating the automobile owned by Mrs. Estes with her permission; that under the provisions of the insurance policy Millsaps was an “insured,” and that no Reservation Agreement was ever obtained from Millsaps; and, that the acts of the insurance company (appellant) constituted a waiver of the provisions of the policy concerning notice.

In appellant’s brief it is stated: “Appellant defended on the ground that notice was not given ‘ as soon as practical’ as required by the policy.”

Upon a trial the jury returned a verdict in favor of appellee in the sum of $5,000 for which amount judgment was entered. The trial court also gave appellee judgment in the amount of $600, being a 12% penalty, and allowed a $2,000 attorneys ’ fee.

1. It is first contended by appellant that the trial court should have directed a verdict in its favor at the close of all the testimony because it is undisputed that appellee did not give notice of the accident until some forty days after it occurred, and that, as a matter of law, this was not a proper notice. It would serve no useful purpose to answer all the arguments presented on this point because, as hereafter set out, we have concluded the matter of adequate notice was a question for the jury under the facts of this particular case.

2. After a careful review of the record and the pertinent decision we hold that the jury had a right to decide whether proper notice (under the provisions of the policy) was given to appellant in this case, and we also hold there is in the record sufficient evidence to support a finding by the jury that proper notice was given. The pertinent portion of the policy relating to notice reads as follows:

“In the event of an accident, occurrence or loss, written notice containing particulars sufficient to identify the insured and also reasonably obtainable information with respect to the time, place and circumstances thereof . . . shall be given by or for the insured to the company or any of its authorized agents as soon as practicable.”

It would serve no useful purpose to detail all the testimony because beyond doubt there is sufficient evidence from which the jury could have made the following findings: when the accident occurred on July 8, 1963 there was nothing to indicate to Mrs. Estes that appellee had suffered any physical injury for which a claim would be made against her or Millsaps; appellee did make known (through her attorney) to Mrs. Estes some time in September, 1963 that a claim for personal injuries would be made against her and Millsaps; and, Mrs. Estes notified appellant (through its agent) of the claim almost immediately after she was advised of it.

Appellant appears to take the view that since appellee (or Millsaps in this instance) did not give notice of the accident until some 40 days had elapsed, the trial court should, as a matter of law, have found no proper notice was given. We do not agree with this view. The rule which we think reasonable, and which has been uniformly adopted by this and other courts, is that the insured need not give noticé to the insurer if the accident appears trivial unless a claim is anticipated. Home Indemnity Co. v. Banfield Brothers Packing Company, Inc., 188 Ark. 683, 67 S. W. 2d 203; American Fidelity & Casualty Company, Inc. v. Northeast Ark. Bus Lines, Inc., 201 Ark. 622, 146 S. W. 2d 165; Maryland Casualty Company v. Waggoner, 193 Ark. 550 101 S. W. 2nd 451. Appleman, Insurance Law & Practice, Yol. 8, Sect. 4743 States: “It has been held that the insured need not report every trivial accident, but if an ordinary prudent individual acting reasonably would consider, under all the circumstances, that the accident was inconsequental and that no claim for damages would be made, notice need not be given the insurer. ’ ’

Therefore we hold that the trial court was correct in submitting to the jury the question of proper notice. Appellant objects to two instructions given to the jury on this point, but we have carefully examined the same and find that they are in accord with the rule just stated.

3. Since there is no way of knowing on what ground the jury based its finding in favor of appellee (the case not being presented to the jury on interrogatories) it becomes necessary to consider whether the question of waiver of notice was properly presented to the jury. The only objection under this point is to Instruction No. 3 given by the court. It reads:

“You are instructed that the Plaintiff contends that the insurance company waived the provision of said policy requiring the giving of notice as soon as practicable of the accident. You are instructed that waiver is a voluntary and intentional relinquishment of a known and existing right, or such conduct as warrants an inference of the relinquishment of such right.
“If you find from the evidence that the insurance company did not obtain a ‘non-waiver’ or ‘reservation agreement’ from Bob Millsaps, and if you further find that the conduct of the insurance company, its agents and servants, in investigating the accident, employing attorneys to defend the action, and filing pleadings amounted to a waiver of the policy provision concerning notice of the accident, then you are told that the insurance company cannot now defeat said policy by pleading a breach of the policy on account of the failure to give notice as soon as practicable. ’ ’

The objection made by appellant to the giving of said instruction was that there was no proof in the record to sustain a finding of waiver on behalf of appellant. We do not find that the basis of this objection is sustained by the record. It is true that on January 30,1964 appellant wrote a letter to Mrs. Estes and sent a copy to Millsaps at his home address. In this letter appellant stated that it would defend the lawsuit brought by appellee against them, but without waiving any of its rights under the provisions of the insurance policy — such as proper notice. The record discloses, however, that previously appellant had undertaken an investigation of the matter and had (through its attorneys) filed an answer for Millsaps in the suit wherein he was being sued by appellee. These facts, we think, justified the trial court in submitting to the jury the question of waiver.

4. We find no merit in the contention that the trial court erred in allowing appellee to file a reply more than 20 days after appellant’s answer was filed. Ark. Stat. Ann. § 27-1137 (Repl. 1947) relied on by appellant has no application. That section applies where the answer contains a counterclaim or set-off, which is not the situation here.

5. In view of the conclusions we above set out it follows, without question, that the court was correct in assessing the 12% statutory penalty against appellant, and in allowing a reasonable attorneys’ fee. The reasonableness of the amount of the fee herein fixed is not questioned.

Affirmed.

Supplemental opinion on denial of rehearing P. 982.