author: Frank Holt, Associate Justice. Carleton Harris, Chief Justice

text:
    State Farm Mutual Auto Ins. Co. v. Baker.
    5-3541
    388 S. W. 2d 920
    Opinion Delivered April 12, 1965.
    [Rehearing denied May 17,1965.]

      Crouch, Blair & Cypert, for appellant.

      John W. Cloer, for appellee.
   Frank Holt, Associate Justice.

Appellant’s policyholder, James A. Everett, drove his automobile in such a manner as to strike the ladder upon which Jeff Baker, appellee, was working causing him to fall and he injured. Appellee, an employee of Everett’s, was working with two other employees on a house which was under construction by Everett as the general contractor. Appellee filed suit against his employer, Everett, and the trial court, sitting as a jury, awarded appellee judgment in the amount of $9,650.00.

Appellant had issued its automobile insurance policy to Everett and his wife. Appellant had notice of the pendeucy of the action by appellee against .Everett and declined to defend disclaiming any responsibility to its insured under tbe terms of its policy. Upon being unable to collect bis judgment against Everett, tbe appellee filed tbe case at bar against appellant alleging it was obligated by the terms of its policy to pay tbe judgment rendered against Everett. Appellant denied any obligation under the terms of its policy to defend the' action or pay tbe judgment against Everett.

Tbe appellant filed a motion for summary judgment contending tbat the pleadings, insurance policy, interrogatories answered by appellant and tbe deposition of appellee and tbe deposition and affidavit of bis son showed there was no genuine issue as to any material fact and as a matter of law appellant was entitled to a judgment. Tbe trial court denied appellant’s motion for summary judgment and,’ although appellee had not filed a motion for summary judgment, tbe court rendered judgment in favor of appellee in tbe amount of $9,800.00 and costs.

For reversal of this judgment appellant’s sole point is tbat tbe ‘ ‘ trial court erred in failing to grant summary judgment for tbe appellant.” Appellant does not assign as error tbe action of the court in giving summary judgment to the appellee.

It is appellant’s contention tbat there was no liability under tbe terms of the policy in question because of this exclusionary provision:

“ This insurance does not apply under . . . (f) Coverage A, to bodily injury of any employee of tbe insured arising out of and in tbe course of the insured’s employment, ’ ’

It is undisputed tbat appellee was an employee of appellant’s insured at tbe time of tbe accident. Consequently tbe only question before tbe trial court and before us is whether appellee’s injury was one “arising out of and in tbe course of tbe insured’s employment.”

This automobile insurance policy was issued to Everett and bis wife. The appellee and other employees regularly provided for their own transportation to the job site. It appears that Everett, the general contractor, drove his car to and from work and did not use it for business purposes. Further, on occasions he borrowed or used a truck to transport his tools. Everett backed into the ladder as he was leaving the construction site.

The language used in the exclusionary clause applies to an employee’s injuries arising out of and in the course of “insured’s [Everett’s] employment”. The ambiguity of this curious language is obvious from the thrust of appellant’s argument. It is directed toward the contention that the injury of Baker, the appellee, arose, ‘ ‘ out of his employment”. To say the least, it is ambiguous.

It is a familiar rule that where terms are ambiguous and fairly susceptible of different meanings, all doubts must be resolved against the insurer and in favor of the insured. Central Manufacturers Mut. Ins. Co. of Van Wert, Ohio v. Friedman, 213 Ark. 9, 209 S.W. 2d 102; State Farm Mutual Auto. Ins. Co. v. Pennington, 215 F. Supp. 784 (Ark. 1963); St. Paul Fire & Marine Ins. Co. v. Coleman, 204 F Supp. 713 and affirmed in 316 F. 2d 77 (Ark. 1963). Any ambiguity in an exclusionary clause likewise must be construed strictly against the insurer and liberally in favor of the insured. Phoenix Assur. Co. v. Loetscher, 215 Ark. 23, 219 S.W. 2d 629; American Standard Life Ins. Co. v. Meier, 220 Ark. 109, 246 S.W. 2d 128. Any intent to exclude coverage should be expressed in clear and unambibuous language and the burden is upon the insurance company to present facts that come within the exception. Milwaukee Ins. Co. v. Wade, 238 Ark. 565, 383 S.W. 2d 105. The rationale for the rule is well expressed in Travelers’ Protective Assn. of America v. Stephens, 185 Ark. 660, 49 S.W. 2d 364. There we said:

“* * * It has been the settled policy of this court since the beginning of its construction of contracts of insurance to hold that the policy should be liberally construed so as not to defeat, without necessity, the claim for indemnity. The reason is that such policies are written on printed forms prepared by experts employed by the insuranee companies for that purpose, and the insured has no voice in the matter. Hence, it is fair and reasonable that, where there is ambiguity, or where the policy contains language susceptible of two constructions, that which will sustain the claim and cover the loss should be adopted. ’ ’

It follows, therefore, that the judgment of the trial court refusing to grant appellant’s motion for a summary judgment as a matter of law must be and is affirmed.

Harris, C. J., dissents.

Carleton Harris, Chief Justice

(dissenting). I feel that the majority are being entirely too technical in affirming this judgment. The pertinent section in the insurance policy is quoted in the court’s opinion as follows:

“This insurance does not apply under ... (f) Coverage A, to bodily injury of any employee of the insured arising out of and in the course of the insured’s employment,”

The majority have reached the conclusion that the language is ambiguous in that it is not clear whether the exclusionary clause applies to Baker’s employment or Everett’s employment. I agree that Sub-section (f) could be written with a greater degree of clarity, but I think it obvious that the meaning actually is, ‘ ‘ This insurance does not apply * * * to bodily injury of any employee of' the insured arising out of and in the course of employment by the insuredIt is my view that in interpreting a contract, we should endeavor to ascertain the intent and purpose of the language, rather than base our findings upon poor sentence structure.

It is noticeable that appellee, in arguing for an affirmance in his brief, never once mentions the point upon which this case is being decided. "He simply argues that there is no casual connection between the operation of the automobile and the work he was doing. From his brief:

“The injury did not arise out of the work appellee was hired to do. If appellee had fell from the ladder by reason of the ladder breaking, or his foot slipping, then it would arise out of his work. The conditions under which he was required to work as a carpenter did not cause the injury.”

Likewise, the trial court’s decision was based entirely on the finding that Baker’s injury did not. “arise out of” his employment, and the court devoted quite some time to discussing the legal difference between the term, ‘ ‘ out of, ’ ’ and the term, “in the course of.” Quoting from the judgment, embracing the findings of the trial court:

“It would appear that in all authorities cited that if there is a casual connection between the employment and the injury of the plaintiff, or the accident results from the risk reasonably incident to the employment, that said injury is excluded under the terms of this policy. 'Since ‘ ‘ out of” and “in the course of” are used conjunctively rather than disjunctively and are not considered by the authorities as being synonymous, the conditions required by each phrase must, exist in order to come within the exclusion clause of the policy. Since “in the course of” refers to the time, place and circumstances under which the accident took place, it is obvious in this case that such conditions existed sufficiently in order to bring it under the exclusion terms of the policy, however, as far as the words “out of,” whether it is construed as a strict causal connection between the employment and the injury, or whether there is only a reasonable connection between the employment and the injury, the requirements have not been met to bring the facts in this case under the exclusion provision of the policy. In no sense can it be said there is any causal connection or risk reasonably incident to the employment between a man standing on a ladder gabling the end of a house and being knocked therefrom by a moving-automobile. ' Automobiles may be used to haul workmen to and from work or to deliver supplies and materials, but the driving of an automobile into a ladder placed closely against the side of a house in no way can be said to be a risk reasonably incident to the employment of the plaintiff.”

Of course, I do not agree with, the’ reasoning of the trial court, for I am of the opinion that the injury arose “out of” the employment, as well as “in the course of” the employment, but I quote the aforementioned findings of the Circuit Court to emphasize that the theory upon which this case is being affirmed is entirely alien to the view taken by appellee and the trial court.

I think I can safely say that if Everett had carried "Workmen’s Compensation Insurance, this court, including this writer, would very quickly say that this accident arose out of Baker’s employment.

However, if we must be technical, I am still of the view that the judgment should be reversed, i.e., if Baker was injured in the course of Everett’s employment (which the majority say is the literal meaning of the actual language used), the exclusion clause is still effective. Baker did suffer bodily injury while an employee of Everett, arising out of and in the course of Everett’s employment,, for Everett had been employed by a woman named Virginia Potts to build a dwelling house, and it was while working on construction of the house that Baker was injured. Both Baker and his son testified that Everett actually performed labor himself in constructing the dwelling.

I fhinTc the judgment should be reversed under the exclusionary provision of the policy, and I, therefore, respectfully dissent.

      The appellee, Jeff Baker, died during the pendency of this appeal. A motion was made and is hereby granted to revive this cause in the name of the administrator of the estate of Jeff Baker. For clarity in this opinion we continue to refer to Jeff Baker as the appellee.

      Actually, Baker was injured by falling from the ladder, which was knocked down by the automobile, rather than being hit directly by the vehicle. To me, standing on a ladder, while working on a house under construction, and particularly where the employer frequently drove in and out, is much more incident to employment than some other cases that have been decided by this court. For instance, in Parrish Esso Service Center v. Adams, 237 Ark. 560, 374 S.W. 2d 468, a service station attendant, on duty at the station, was lifted into the air by a gust of wind, and carried approximately seventy-five feet before falling. We rejected appellant’s contention .that the injury did not arise out of, and in the course of, the employment. In Williams v. Gifford-Hill & Co., Inc., 227 Ark. 340, 298 S.W. 2d 323, we held that a workman who had gone to retrieve his cap, which he had left in some bushes, and who apparently was seized by illness and fell on the railroad tracks (where he was struck by a train), was injured in the course of his employment, and that the injury arose out of the employment. In that case, the late Justice Minor W. Millwee stated: “Our compensation statute covers every injury to an employee arising out of and in the course of his employment except those injuries caused by his intoxication or by his willful intention to bring about the injury or death of himself or another:”


source: Caselaw Access Project

author: Carleton Harris, Chief Justice.

license: Public Domain

text:
    Wilson v. Davis
    5-3552
    389 S. W. 2d 442
    Opinion Delivered April 19, 1965.
    [Rehearing denied May 17,1965.]

      Arnold & Hamilton, By: Thomas 8. Streetman, for appellant.

      George Howard, Jr., for appellee.
   Carleton Harris, Chief Justice.

This appeal involves an interpretation of certain provisions of the Probate Code. John T. Wilson died on March 5,1963, leaving surviving him a widow, Odelle M. Wilson, appellant herein, and several brothers and sisters, and also children of deceased brothers and sisters, as collateral heirs, some of whom are appellees herein. The widow petitioned for appointment as administratrix of the estate, and the court directed that notice of such appointment be given to the collateral heirs; this notice was given to all including appellees. Thereafter, certain claims were presented to the administratrix, approved by her, and filed with the court. None of the appellees filed a request for special notice as provided in Ark. Stat. Ann. § 62-2108 (Supp. 1963). Among the claims allowed was that of the Federal Land Bank Association, such claim being approved in. the amount of $2,645.06, and being allowed on June 3, 1963. The court, in approving this claim (along with some others), found that Lucinda Poe, who had made request for special notice, had been notified, and that “no further notice need be given to any other person * * *. ’ ’ The order allowing this claim was not appealed, nor has any motion to vacate the order ever been filed. On that same date, the administratrix, appellant herein, filed her inventory of the estate, listing personal property valued at $4,415.37, and real property valued at $1,495.00. No objections or exceptions were filed to the inventory until after the estate had been closed and distribution made and approved. On October 22,1963, appellant filed a petition with the court, setting out that the estate did not contain sufficient assets to satisfy the dower and statuory rights of the widow or to pay expenses of administration and claims in full; that she (appellant) would individually pay all claims and expenses of administration in exchange for a distribution to her absolutely of all remaining assets, including the real estate. On October 29, 1963, the court found, “that the claims previously allowed by the court against the estate, the interest of the surviving widow free of claims of creditors, and the expenses of administration are in excess of the assets in hands of the Administratrix; that the Administratrix is entitled to and ought to be allowed a fee in the amount of $300.00 for services as Administratrix ; that the Administratrix ought to be allowed and ordered to pay a fee in the amount of $350.00 to William S. Arnold for services rendered to the estate; that-the widow, Odelle M. Wilson has offered to accept a distribution to her of the assets remaining in the hands of the Administratrix in full satisfaction of the remaining dower and statutory claims of the widow and in addition to indemnify the estate against further liability on account of the approved but unpaid claim of Federal Land Bank of St. Louis in the amount of $2645.06, and the expenses of administration and attorney and administrator’s fees; that it would be in the best interests of the decendent’s estate and all persons interested therein that such settlement and distribution be made”.

Appellant was thereupon authorized to distribute and deliver to herself individually all assets remaining in her hands as administratrix, ‘ ‘ including but not limited to the following real and personal property”. The order then describes the real estate heretofore referred to, and numerous items of personal property. The court found that such distribution ‘ ‘ shall further be deemed settlement in full of all dower and statutory claims of the widow on account of the estate of the decedent as reflected by the inventory previously filed herein”.

In November, 1963, the administratrix filed her final accounting. A date for hearing was fixed by the court (January 20,1964), and notice of such hearing was given to all collateral heirs, including each of the appellees. Notice that the accounting had been filed was duly published. On January 20, no objections having been filed, the court (acting through a special judge) approved the account, including the prior order of distribution heretofore referred to, and discharged the administratrix and her bondsman. On the same day, a petition was filed, seeking authority to sell an interest in some stock, which had belonged to John T. Wilson, and the court authorized that Wilson’s interest be sold for $4.45, and directed that this amount should be paid to appellant individually.

On April 22, 1964, appellees filed a petition, to set aside the order approving the accounting and distribution, alleging that the distribution of assets to the widow was not in accordance with statutory provisions, and that the administratrix omitted from her settlement certain properties which belonged to the estate, vis,£ £ approximately 40 head of cattle, certain United States Savings Bonds and other personal property”. It was further alleged that, because of unavoidable casualty, appellees were prevented from appearing and entering their protests. After the filing of two amendments to the petition by appellees, and the filing of a motion to dismiss by appellant, proof was taken from some of the appellees, and the court held that a prima facie case had been made to the effect that the deceased was the owner of some 30 head of cattle of the value of approximately $4,000.00 at the time of his death, and the record reflects that these cattle were not scheduled in the inventory or final account. The court set aside its approval of the final accounting, set aside the order authorizing the widow to take all assets in exchange for her assumption of the debts of the estate, specifically disallowed credits which had previously been approved under Schedules £ £ C ” and£ £ E ”, and likewise set aside approval of the claim of the Federal Land Bank. The estate was reopened, and the court directed that appellant, Odelle M. Wilson, continue as personal representative. Petitioners were granted twenty days from the date of the order to file written objections to the final account of the administratrix. From this order, appellant bring this appeal.

At the outset, let it be stated that, if the trial court had found that fraud had been committed by the appellant, the order entered herein by the Probate Court could have been upheld in its entirety (provided that the order was not against the preponderance of the testimony). Ark Stat. Ann. § 62-2912 (Supp. 1963) provides:

“Upon the filing of receipts or other evidence satisfactory to the court that distribution has been made as directed in the order of final distribution the court shall enter an order discharging the personal representative and his surety from further liability or accountability with respect to the administration. 'Such order or an order of discharge entered under Section 161 [62-2902] b shall be final, except, upon a petition being filed within three years of the entry thereof, it may be set aside for fraud in the settlement of the account of the personal representative,

The court, in its order, made no finding that fraud had been committed, and it would not appear that there was any thought of fraud, since, upon ordering the estate reopened, the court directed that appellant continue to serve as administratrix. We point out that the jurisdictional notices (appointment of personal representatives, and hearing on final accounting) were given appellees, and the court specifically found, in approving various other orders, that notice was not necessary, since no demand for notice had been filed. We agree that the court was within its authority in approving these orders and claims without notice, except in one instance, which will be discussed later.

We think the court erred in disallowing some of the credits under Schedule “C”. As pointed out, there was no finding of fraud, and appellees took no appeal, nor filed any timely exceptions to any item allowed.

Ark. Stat. Ann. § 62-2016 (Supp. 1963) deals with appeals from orders of the Probate Court, and it is obvious, from the language of that section, that appellees did not act in a timely manner. For that matter, Schedule “ C ”, in part, claims credit for funds expended for the widow’s support ($500.00), and statutory allowance ($1,000.00), and the schedule also reports that she received the household goods. Under Ark. Stat. Ann. § 62-2501 (Supp. 1963), the widow was entitled to these allowances, except that she was only entitled to $500.00 as her statutory allowance against creditors. However, no creditor has complained of the allowance, and appellant was entitled to the $1,000.00 as against appellees. The other credits under Schedule “C” are not proper since they were awarded appellant under the order entered by the court on October 29,1963, and which order will be subsequently discussed.

We think it was also error for the court to set aside approval of the claim of the Federal Land Bank. The claim was allowed, and no exceptions -were filed to its allowance, nor was any appeal taken. There does not appear to be any dispute that the Land Bank held a proper claim against the estate, and was due to be paid. While not shown by the record, it is entirely possible that this claim has already been paid, in which event the Land Bank probably has already surrendered the note and mortgage upon which the claim was based. Of course, if, after further testimony it should develop that this was a spurious claim, the Probate Court still has the authority to set it aside for fraud.

We affirm the court’s action in setting aside the order of October, 1963, in which all property was vested in the administratrix individually upon her agreement to assume and pay all claims and expenses of administration. Appellant contends that her application was not a petition for allotment of dower, but rather was based on Ark. Stat. Ann. § 62-2403 (Supp. 1963), which reads as follows:

"When it appears to be for the best interest of the estate or in the case of aii action for wrongful death, for the best interest of the estate or widow and next of kin, the personal representative, upon the authorization of or approval by the court, may effect a compromise settlement of any debt or obligation due or owing to the estate, whether arising in contract or tort, or extend, renew or in any manner modify the terms of any obligation owing to the estate. If the personal representative holds a mortgage, pledge or other lien upon property of another person, he may, in lieu of foreclosure, accept a conveyance or transfer of such encumbered assets from the owner thereof in satisfaction of the indebtedness secured by such lien, if it appears for the best interest of the estate and if the court shall so order. ’ ’

We do not agree that this section is applicable. Perhaps, technically speaking, the petition filed by the widow (wherein she set out that there was not sufficient money to pay debts of the estate, and offered to assume all debts if she were vested with all property) is not, strictly speaking, a petition for allotment of dower; however, in the petition appellant does, inter alia, aver, that, as the surviving widow, she is entitled absolutely to one-half of all real and personal property as her dower interest, and the order, signed by the court, approving the petition, likewise provides that the compromise “shall further be deemed settlement in full of all dower and statutory claims of the widow on account of the estate of the decedent as reflected by the inventory previously filed herein. ’ ’ Ark. >Stat. Ann. § 62-704 (1947) provides the manner of petitioning for dower, and requires that “all persons interested in the property shall be summoned to appear and answer the petition * * Admittedly, appellees were not summoned, or otherwise notified of the petition. It would hardly be logical to hold that a petition to vest all of the estate in appellant required no notice, but that a petition to vest only half of the estate in her required the service of a summons. We hold the court’s action, in setting aside this order, to be proper.

While we have stated that, with the exception of the order just discussed, the trial court had no authority to set aside the approval of the settlement, including claims allowed and statutory allowances granted, the court does have authority to reopen the administration for the purpose of determining the proper distribution of the personal property alleged to have been omitted from the settlement. This authority is contained in Ark. Stat. Ann. § 62-2913 (Supp. 1963).

Summarizing, the final settlement and distribution had been approved, and collateral heirs had been notified that the final accounting was set for'hearing on January 20, 1964. Despite this fact, they took no action, either as to an appeal, or by filing exceptions, and it was not until four months later that a petition was filed, seeking to set aside the settlement. Under the Probate Code, their time to follow either course had expired. The order of the court, however, to reopen the case for the purpose of determining disposition of the $4,000.00 not reported is affirmed, and we likewise affirm the court’s finding that the order of October 29,1963, should he set aside for the reason that appellees were not summoned as required by Ark. Stat. Ann. § 62-704 (Supp. 1963), heretofore referred to.

Nothing herein shall he construed as upholding the validity of any order, or the approval of any claim, if it develops during subsequent hearings that the approval of any order or claim was obtained through fraud practiced on the court.

It is so ordered.

      Appellees are Robert Wilson and Zemri Wilson, brothers of the deceased, Mayme Davis and Effie Smith, sisters of the deceased, Lealle (Luella) Thompson and Eliza Brewer, nieces, and Lawrence Wilson, a nephew.

      Lucinda Poe, a sister, was the only heir who asked for special notice, and she was notified of all proceedings. This sister is not a party to the litigation.

      The petition recites that the real estate has been appraised at $1,500.00, and that a copy of the appraisal is attached to and made a part of the petition. However, the record does not contain a copy of the appraisal.

      Emphasis supplied.

      In affirming the court", relative to this order, we likewise affirm as to the court’s disallowance of credits claimed under Schedule “E”, since Schedule “E” seeks credit for the real estate distributed to appellant as per the court order of October 29, 1963. Actually, the setting aside of this order could work to the benefit of appellant, for, under the present order, she certainly could not take more property than is shown under the inventory filed; on- the other hand, if there are other assets of the value of $4,000.00 in the estate, appellant likely will be entitled to some additional amount (since proper claims which she had assumed would be chargeable to the estate). But, if there is no additional amount, the court would likely reinstate the order of October 29, 1963.

      The committee (which prepared the Probate Code) commented that the order of final distribution should completely bar all persons who may have a right to object to any of the proceedings as to any matter which might be the basis of their objections. It does not bar third persons who would have no right to intervene in the proceedings or to object to the order.


author: Ed. F. McFaddin, Associate Justice.

text:
    Randall v. State
    5125
    389 S. W. 2d 229
    Opinion Delivered April 19, 1965.

      W. B. Howard and Jack Segar s, for appellant.

      Bruce Bennett, Atty. Gen., By: John P. Gill, Asst. Atty. Gen., for appellee.
   Ed. F. McFaddin, Associate Justice.

On information duly filed, the appellants, Randall and Carmack, were jointly tried and convicted of the offense of possession of burglary tools (Ark. Stat. Ann. § 41-1006 [Repl. 1964] ), and they bring this appeal. The motion for new trial contains nine assignments, but the appellants insist here on only the two points which we now list and discuss.

I.

The appellants state their first point: “The Court erred in admitting in evidence certain tools discovered by the Sheriff, after appellants ’ arrests, and after the time of the alleged commission of the offense with which they are charged, and at a place far removed from the scene of appellants’ arrests, and further erred in admitting testimony relative to such tools. ’ ’

The appellants were arrested in Paragould on the night of April 18th; and in their car were certain articles, being two “walkie-talkie” radios, gloves, a box of Smith & Wesson cartridges, a hand axe, a ball-peen hammer, a long screwdriver, a small screwdriver, a broad blade cold chisel, a short cold chisel, a light broad bladed cold chisel, a punch, two cellophane bound packages of rope, and a loose section of grass rope marked with green stain. The appellants were placed in jail in Paragould; and two days later (April 20th) Sheriff Woodrow Davidson, having received information that the appellants had been heard to talk about a bridge, went about two miles from Paragould and there in high grass near a bridge, the Sheriff found other items, being 'two crowbars, chisel, flashlight, dynamite caps, and some wire to discharge the dynamite caps, a lock, and also a leather briefcase. Over the objection of appellants these additional items found at the bridge were introduced in evidence by the testimony of Sheriff Davidson. Other witnesses, likewise over appellants’ objections, testified that the items found at the bridge were similar in brand, design, dirt thereon, etc., to those first found in the appellants’ possession.

' The ruling of the Court, in allowing the introduction of the items found at the bridge, is the point that the appellants' now argue. But in the motion for new trial there is no assignment relating to the testimony of Sheriff Davidson, who introduced into evidence the tools found at the bridge. To duly preserve a point for presentation to this Court in a felony case, like the one here, there must be: (1) an objection; (2) an exception; and (3) the point must be carried forward in the motion for new trial. Clardy v. State, 96 Ark. 52, 131 S.W. 46; Long v. State, 217 Ark. 712, 233 S.W. 2d 237. This third essential is lacking in the case at bar, so we cannot consider the point now argued. State v. Keese, 223 Ark. 261, 265 S.W. 2d 542.

However, in view of the reversal because of the second point, it is only proper to say that if the case is retried it must be shown by testimony legally obtained that it was the statement of the appellants that caused the officer to know where to find the property at the bridge. We also think it proper to mention that while it is not necessary in a prosecution under this statute to show that the accused had the tools with the intent to commit a particular burglary, it is nevertheless proper in all cases to show felonious intent; and any evidence legally obtained bearing on felonious intent is admissible. A person legally engaged in the business of opening safes might have possession of all the tools necessary for burglars, yet such mere possession, without felonious intent, would certainly not make a felon of a lawful business man. In Satterfield v. State, 173 Ark. 733, 296 S.W. 2d 63, the appellants were charged with possession of burglary tools. It was shown that a store had been entered in Spiro, Oklahoma, and part of the property stolen from that store was in the possession of the accused. There is this statement in the Opinion: “. . . nor was the possession of the stolen flour properly admitted over appellant’s objection, for the only purpose for which it could have been competent was to show the intent for which these tools were possessed, ...” We think that sentence and the holding regarding the exclusion of the stolen flour should be modified to the extent herein stated.

II.

The appellants state their second point: ‘ ‘ The Court erred in receiving the testimony of witnesses to impeach the appellant Carmack with reference to the whereabouts of appellants Carmack and Randall some 12 days prior to the commission of the offense in question, their whereabouts at such time not having any relevancy to the case at bar and same being an improper attempt to impeach appellant on a collateral matter.”

The appellant Randall did not testify, but the appellant Carmack did. On cross examination Carmack was asked if he and the appellant Randall were in Carruthersville, Missouri, and Haiti, Missouri, on April 5th and 6th, and whether one or both of appellants had gone into the office of the Arkansas Missouri Power Company in either or both of these towns during office hours. Carmack stated positively and unequivocally that he and Randall had not been in Haiti or Carruthersville, Missouri, on either April 5th or 6th, and that he had never been in the office of the Arkansas Missouri Power Company on either of said days. Then on rebuttal the State called Mrs. Annie Franklin, who was the cashier of the Arkansas Missouri Power Company at Haiti, Missouri, and Mrs. Marjorie Taylor, who was the cashier of the Arkansas Missouri Power Company at Carruthersville, Missouri; and each of these ladies positively stated that both Randall and Carmack had been in the office in which she worked during business hours of April 5th and 6th.

The testimony of each of the witnesses, Mrs. Annie Franklin and Mrs. Marjorie Taylor, was allowed over the objections of the appellants and duly preserved of record; and that ruling is the point on this appeal. The appellants argue that the testimony of the ladies was designed to impeach Carmack on a collateral matter, citing, inter alia, Spence v. State, 184 Ark. 139, 40 S.W. 986. The rule as to witnesses applies to a defendant: Shinn v. State, 150 Ark. 215, 234 S.W. 636. The correct rule on this matter was stated in McAlister v. State, 99 Ark. 604, 139 S.W. 684; “In order to avoid an interminable multiplicity of issues, it is a settled rule of practice that when a witness is cross examined on a matter collateral to the issues he cannot, as to his answer, be subsequently contradicted by the party putting the question. The test of whether a fact inquired of in cross examination is collateral is this: would the cross examining party be entitled to prove it as part of his case, tending to establish his plea? ” ■

So the decisive question is whether .the State could have offered the testimony of Mrs. Annie Franklin and Mrs. Marjorie Taylor in its case in chief; that is, could the State have shown that on April 5th and 6th these two men were in Haiti or Carruthersville, Missouri, and at each place visited the office of the Arkansas Missouri Power Company during business hours. We think such evidence is entirely too remote, and if the State had offered it in its case in chief it should have been rejected.

For the error in admitting the testimony of the witnesses, Mrs. Franldin and Mrs. Taylor, the judgment is reversed and the cause remanded.

       Some of our cases involving this statute are: Satterfield v. State, 174 Ark. 733, 296 S.W. 63; Jones v. State, 181 Ark. 336, 25 S.W. 2d 752; Prather v. State, 191 Ark. 903, 88 S.W. 2d 851; and Cascio v. State, 213 Ark. 418, 210 S.W. 2d 897.

      We have held that Act. No. 555 of 1963 relates only to civil cases and that the motion for new trial is still required in criminal cases. McConnell v. State, 227 Ark. 988, 302 S.W. 2d 805.

      In this connection it is only fair to the present counsel to note that neither of them represented the appellants in the Trial Court or in the preparation of the motion for new trial.

      In this connection, see annotation in 103 A.L.E. 1313 entitled: “Construction and application of statute relating to burglar tools.”

      There is no need for us to discuss at length the rule as to the exclusion of other crimes. See Alford v. State, 223 Ark. 330, 266 S.W. 2d 804; Moore v. State, 227 Ark. 544, 299 S.W. 2d 838; and Rhea v. State, 226 Ark. 664, 291 S.W. 2d 521.


author: George Bose Smith, J.

text:
    Wirges v. Brewer
    5-3369
    389 S. W. 2d 226
    Opinion Delivered April 19, 1965.

      G. Thomas Eisele, for appellant.

      Felver A. Rowell, Jr., Gordon é Gordon, for appellee.
   George Bose Smith, J.

This is an action for libel brought by C. C. Brewer, the county clerk of Conway county, against Gene Wirges, the editor and publisher of the Morrilton Democrat, a weekly newspaper. Wirges appeals from a verdict and judgment awarding Brewer compensatory damages of $50,000 and punitive damages of $25,000. (Brewer died while the appeal was pending; the cause has been revived in the name of his personal representative.)

Wirges urges a number of points for reversal, but we find it necessary to consider only his contention that he was entitled to a directed verdict on the ground that the two articles complained of were not libelous. We sustain this contention.

Brewer’s complaint was based upon the publication of a news article and an editorial in the December 27,1962, edition of the paper. That part of the news article complained of read as follows:

“2 LAWSUITS ATTACK BALLOTS IN DEC. 4 SCHOOL ELECTION
“Two separate lawsuits have been filed in Circuit Court challenging the results in two districts of the Conway County School Election (December 4).
“Both suits were filed with Circuit Clerk Millard Richardson on Christmas Eve — the deadline for filing such legal actions.
“The first suit filed was that of Harding A. Byrd, candidate for East Side District No. 5 School Director, who charged that all absentee ballots cast in the district were illegal. Byrd’s suit asks that he be certified as the winner of the election.
“Byrd, who faced Sammie Criswell for the School Board post, polled 200 votes to Criswell’s 132 in the regular boxes, but lost the election when Criswell received a 143-9 majority of the 152 absentee votes.
‘ ‘ Byrd took his case to the Conway County Election Commission last week, but the commission voted 2-1 to certify Criswell the winner. Republican Chairman Stuart McLeod cast the dissenting vote.
‘‘ In Ms case taken to Circuit Court "Wednesday, Byrd charged that all the absentee votes cast are illegal and invalid because they were not handled in the manner required by law.
“Byrd alleged that the absentee ballots were ‘ . . . . possessed, retained, distributed, received and delivered by persons unauthorized by law.’ He also stated in his suit that the ballots were distributed without regard to the statutory procedure and were received without regard to whether the votes were valid.
“The second suit filed was that of AVayne Dunlap of Malletown, who was a candidate for Position No. 2 in Morrilton School District No. 32.
‘ ‘ Dunlap’s suit contends that his petition for election was the only legal petition filed since it was the only petition which specified a position as the law provides. Dunlap’s suit asks that he be certified as the winner of the election .-. . .”

The editorial, which appeared under the caption, “Around the Hub, ’’ read as follows:

“Christmas and its traditional spirit notwithstanding, there seemed to be almost no charity in the hearts of folks responsible for handling of certain recent elections and, therefore, lawsuits were filed on Christmas Eve challenging some of the votes and voting procedures.
“ Suits were filed in two districts — No. 5 and No. 32— and the reasons vary considerably.
“In District 32, for example, suit was brought against City Attorney Felver Eowell charging that a petition he filed was invalid because it was improperly drawn. If a ruling goes against Eowell, he would be booted off the Morrilton School Board.
‘ ‘ Strangely, the apparent improper filing was pointed out to the County Election Commission BEFOEE the election. The State Board of Education said flatly the petitions were invalid.
“BUT the local Election Commission called in the petitioners with such petitions and drew lots for the positions to be sought.
“Asked if it was legal, Chairman Ed Cordon said he ‘didn’t know.’ But the names went on the ballot anyway. Now the suit seeks to correct an unfortunate situation.
“Suit No. 2 charges that many, many illegal absentee votes were cast and asks that they be thrown out as such.
“Suit No. 2’s language is mild, indeed. The DEMOCBAT pointed out a couple of weeks ago about the tremendous absentee vote in that district. One precinct had so many they almost doubled the number of ‘local’ votes.
“As a matter of fact, absentee votes changed the entire election in District 5. One candidate was leading by almost 70 votes on the basis of ‘local’ votes. Then the big lopsided Absentee Box came in with the other candidate (guess whose support he had?) getting over 90 per cent of the ballots and thereby winning the election.
“Best we could tell, local officials didn’t even crack a smile when that tabulation was read, matter-of-fact like.
“Nobody, but nobody, holds elections like they do in ■Conway County. For the life of me, it doesn’t appear to be anything to be proud of.
“AND a Happy New Year to you!
—Grene Wirges ’ ’

In Studdard v. Trucks, 31 Ark. 726, we drew this distinction between words that are actionable in themselves and words that are not: “Where the natural consequence of.the words is a damage, as if they import a charge of having been guilty of a crime, or of having a contagious distemper, or if they are prejudicial to a person in office, or to a person of a profession or trade, they are in themselves actionable; in other cases,' the party who brings an action for words, must show the damage which was received from them.” When the words in question do not on their face appear to be libelous, or when they do not on their face appear to be applicable to the plaintiff, extrinsic evidence may be admissible to show' that tbe plaintiff was in fact defamed by the communication. Tbe function of that proof, however, is explanation; it cannot change tbe meaning of tbe words. Restatement, Torts, § 563.

It will be observed that neither of tbe publications complained of even mentioned Brewer or tbe office of county clerk. At tbe trial tbe plaintiff was permitted to introduce a number of other articles that bad appeared in tbe Morrilton Democrat, for the purpose of showing that for some time Wirges bad been critical of tbe Conway county public officers as a group. It is argued that since tbe county clerk’s office is responsible for tbe distribution, receipt, and preservation of absentee ballots, tbe effect of tbe publications in question was to charge Brewer with having participated in an election fraud.

This extrinsic evidence, as we have said, cannot serve to enlarge or change tbe plain meaning of tbe language that was used. Nowhere in either tbe news article or the editorial is there a charge of corruption or wrongdoing on tbe part of anyone, much less of Brewer in particular. It is conceded that tbe news article was a fair and accurate summary of tbe complaints in tbe two election contests. Those pleadings unquestionably alleged irregularities in tbe conduct of tbe election, but to say that they charged dishonesty or fraud is to read a meaning into tbe words which simply is not there. If a newspaper cannot impartially report a matter of public interest such as these election contests, we hardly see bow it can be said that freedom of tbe press really exists.

In overruling a demurrer to tbe complaint tbe trial judge stated that be considered this language in tbe editorial to be libelous: ‘ ‘ Then tbe big lopsided Absentee Box came in with tbe other candidate (guess whose support be had?) getting over 90 per cent of tbe ballots and thereby winning tbe election. ’ ’ According to tbe undisputed proof every statement of fact in this sentence was true. Tbe absentee vote was big, it was lopsided, and it did win tbe election for tbe successful candidate. Truth, of course, is a complete defense to a charge of defamation such as this one. Waters-Pierce Oil Co. v. Birdwell, 107 Ark. 310, 155 S.W. 126.

Counsel for the appellee insist that the parenthetical question — -“guess whose support he had?” — was defamatory. In the first place, merely to charge a public officer with having supported some other candidate does not, in itself, involve any assertion of wrongdoing. Secondly, there is no indication in the proof that the parenthetical inquiry was understood by anyone as a reference to Brewer alone. It may have been intended as a reference to the entire group that Wirges considered to have controlling political power in the county, but an individual cannot complain of a statement about an indefinite class, especially when, as here, the statement is not actually libelous. Comes v. Cruce, 85 Ark. 79, 107 S.W. 185, 14 Ann. Cas. 327.

Reversed and dismissed.


author: Sam Robinson, Associate Justice.

text:
    Sheridan v. State
    5132
    389 S. W. 2d 232
    Opinion Delivered April 19, 1965.

      J. B. Millvam, for appellant.

      Bruce Bennett, Atty. Gen., By: Jack L. Lessenberry, Asst. Atty. Gen. for appellee.
   Sam Robinson, Associate Justice.

On February 28, 1964, appellant was convicted in the Benton Municipal Court of the charge of driving while intoxicated, in violation of Ark. Stat. Ann. § § 75-1027 — -29 (Repl. 1957). October 6,1964, the transcript of the trial held in the Municipal Court was filed in the Saline Circuit Court. On the 18th day of November, 1964, the case came on for trial. After some evidence had been introduced, the prosecuting attornéy discovered that the appeal from the Benton Municipal Court had not been lodged in the Circuit Court within 30 days after the date of the judgment in accordance with Ark. Stat. Ann. § 26-1307 (Repl. 1962). The prosecuting attorney, therefore, moved to dismiss the appeal because it had not been filed in the Circuit Court within the time allowed by law. The Circuit Court granted the motion to dismiss; the defendant, Sheridan, has appealed to this court.

Ark. Stat. Ann. § 26-1307 (Repl. 1962) provides: “If a party appeals from a justice of the peace judgment or a common pleas judgment or a municipal court judgment the clerk of the court or the justice of the peace of the court from which the appeal is taken must file the transcript of the judgment in the office of the circuit court clerk within thirty (30) days after the rendition of the judgment.”

When a party appeals it is the duty of the clerk of the municipal court to file the transcript in the office of the circuit clerk, but it is the duty of the party appealing to see- that the transcript is so filed, and to give the circuit court jurisdiction the transcript must be filed with the circuit clerk within thirty days after the date of the municipal court judgment. Whiteley v. Pickens, 225 Ark. 845, 286 S.W. 2d 4; Ex parte Hornsby, 228 Ark. 975, 311 S.W. 2d 529.

Appellant also contends that he cannot now be compelled to serve the sentence pronounced by the Benton Municipal Court because he was sentenced to serve one year and a year has expired since the rendition of the judgment. As authority he cites Canard v. State, 225, Ark. 559, 283 S.W. 2d 685, but the cited case is not in point. There, the defendant had been sentenced to a year and the sentence suspended. After the expiration of the year the court attempted to revoke the suspension. We held that the trial court did not have authority to revoke the suspended sentence after the year had expired. In the case at bar, the defendant was not given a suspended sentence and he does not contend that he has served any part of the sentence pronounced by the Benton Municipal Court. Of course, a defendant who has been sentenced to serve time is not entitled to be credited with the time he is free pending appeal. Mitchell v. Sanford, 161 P. 2d 374; Weber v. Mosley, 242 S.W. 2d 273. In the last cited case the court said: ‘ ‘ Likewise, where a convicted person takes the necessary steps to appeal, the execution of sentence is suspended and the passage of time is no bar to the later enforcement of the judgment after affirmance of the conviction by the appellate court. ’ ’

Affirmed.


author: Jim Johnson, Associate Justice.

text:
    Ex Parte, Coffelt
    5-3449
    389 S. W. 2d 234
    Opinion Delivered April 19, 1965.
    [Rehearing denied June 7,1965.]

      Kenneth Coffelt, for appellant.

      Gordon & Gordon, Felver A. Rowell, Jr., for appellee.
   Jim Johnson, Associate Justice.

This is an original petition for writ of certiorari in the Supreme Court for review of a contempt of court judgment.

The history of this litigation is briefly as follows: early in 1962 -Sam Bell gave the bulk of his property to his favorite niece, Leila Bereuisseaux. Bell died, and after paying funeral and other expenses, Leila in turn gave the rest of the property (real property, a mortgage and cash) to her daughter, Billie Jean. Billie Jean delivered $12,000 in cash to their attorney, Kenneth Coffelt ($2,000 of which was for attorney’s fees), and entered into a contract in which they agreed to build and operate a motel. On suit by the administrator of Bell’s estate and a creditor, the Faulkner Chancery Court on September 4, 1963, set aside the conveyances from Sam to Leila to Billie Jean as being fraudulent, which was affirmed by this court in Dereuisseaux v. Bell, 238 Ark. 60, 378 S.W. 2d 208. In the'chancery court order Coffelt, a party defendant, was ordered to turn over to the clerk of the court as receiver the money he received from Billie Jean. Coffelt failed to comply. On December 17,1963, the court issued an execution which was returned unsatisfied by the sheriff. In May, 1964, this court affirmed the chancery court judgment (Dereuisseaux v. Bell, supra), and on June 2,1964, the administrator and the then judgment creditor (the creditor having in the interim reduced his claim to a judgment) petitioned the court to require Coffelt to appear and show cause why he should not be cited for contempt of court for failure to comply with the court order. A show cause order was issued June 16,1964. At the conclusion of the evidence and argument the cause was taken under consideration. On August 4,1964, the court entered an order finding Coffelt in contempt of court for willful failure to comply with the September 4, 1963 (Dereuisseaux v. Bell) order to turn over to the clerk the money he received from Billie Jean. His punishment was fixed at six months in the county jail commencing'September 1,1964, provided, however, if Coffelt delivered $10,000 to the clerk of court the jail sentence would be abated.

There being no appeal from a contempt judgment, Coffelt on August 20, 1964, filed a petition in this court for writ of certiorari, (1) to have the record brought up, (2) for review of the record by this court, and (3) to quash the contempt judgment.

Petitioner contends that (1) there is enough property in the estate to pay the judgment creditor without using the $10,000; (2) that petitioners below (respondents here) are in error in contending that after the judgment is satisfied the remaining assets, if any, would not go back to Leila; and (3) that the real property and mortgage should have been sold and converted into cash before requiring him to deliver the $10,000 into the registry of the court. These contentions of course go to the merits of the Dereuisseaux versus Bell litigation and are not within the purview of the order petitioner seeks to have quashed. [See Dereuisseaux v. Bell, supra, last paragraph, leaving these matters open. See also Ark. Stat. Ann. § 62-2402 (Supp. 1963)]. Petitioner cannot refuse to obey an order and then question the correctness of the order by certiorari in lieu of appeal. Two contempt cases are in point: (1) Carnes v. Butt, 215 Ark. 549, 221 S.W. 2d 416, in which was said:

“But during the interim allowed for the benefit of each side, the defendants arbitrarily concluded that the court was wrong in issuing the injunction, hence it could be disobeyed without penalty. The law is otherwise. The proper procedure would have been to obey the order until a higher court passed upon its validity. ’ ’

and (2) Stewart v. State, 221 Ark. 496, 254 S.W. 2d 55:

“That the petitioners thought the order too comprehensive is of course immaterial, since it was their duty to obey even an erroneous decree as long as it continued in force. Carnes v. Butt,” [supra].

Petitioner’s primary contention is that the contempt judgment was issued in error because petitioner is unable to comply with the order because (1) he is insolvent, (2) the $10,000 never belonged to him, but to his wife, (3) he gave the $10,000 to his wife on August 1, 1963, one month before the decree of September 4,1963, and (4) to put petitioner in jail would in effect imprison him for a debt.

The facts are undisputed that (1) during trial on July 30 and 31, 1963, petitioner had testified that he had $10,000 (of the $12,000) received from Billie Jean in his lockbox, (2) on August 1,1963, petitioner gave the $10,000 to his wife (who thereafter gave it to petitioner’s brother in Missouri), and (3) that the court order against petitioner was issued September 4,1963.

Under questioning by the court during the contempt hearing on July 27, 1964, the petitioner, after testifying that his land had been conveyed to his wife but that the deeds had not been recorded, testified as follows (as abstracted by petitioner) :

‘ ‘ The Court: What did you do with the $10,000.00 that you stated that you had in the lock box?
Mr. Coffelt: I gave it to my wife, just like I set out in the Response.
The Court: When did you give it to her?
Mr. Coffelt: I gave it to her the day after we finished taking the testimony here in this trial [Dereuisseaux v. Bell].
The Court: You knew at that time that the ownership of the $10,000.00 was in issue in this proceeding.
Mr. Coffelt: Well, yes, the ownership of the property was involved, but the ownership of all of Sam Bell’s property was involved.
The Court: Knowing that to be true, why did you dispose of that property after telling the Court there that you had it in a lock box?
Mr. Coffelt: I did have it.
The Court: And that you were going to keep it there.
Mr. Coffelt: I did have it in the lock box. There’s two reasons for it, Judge. I’m going to be absolutely truthful to you about it, there’s two reasons. In the first place, the property belonged to my wife. There’s no question about that. There’s three reasons. The second is that I think she’s liable under this contract with Billie Dereuisseaux on the grounds of specific pérformance. If the Court had — she wasn’t made a party to this lawsuit and if — I told her, I said, “I don’t know what the Court is going to do, but you’re not made a party to this lawsuit. I want you to take the money. It belongs to you anyway and I want you to have it where, if and when there is ever any Order directed against me, I don’t want them to be able to enforce it.”

And further:

‘ ‘ The Court: What has happened to the money since you turned it over to your wife ?
Mr. Coffelt: Judge, she has not got that money and I think possibly that as of this moment, I’d have to find out.
The Court: She still has it?
Mr. Coffelt: I don’t think so, as of this moment.
The Court: It’s available to her?
Mr. Coffelt: I don’t know of this moment.
The Court: Well, of course, you’re splitting hairs, aren’t you, Mr. Coffélt? You’re up here and you’re in effect saying that — “Well, something could have happened to the money since I left Little Bock.” When you left home you knew where the money was, didn’t you?
Mr. Coffelt: No, sir.
The Court: When did you last know where the money was?
Mr. Coffelt: For sure — . I tell you what I think about it. In fact, I think I know. I think that that money is in the possession of my brother in St. Louis as security for a loan.”

And further:

“The Court: You owe him some money and you put this money with him as security for that?
Mr. Coffelt: No, I didn’t do that.
The Court: Who owes him the money?
Mr. Coffelt: Both of us.
The Court: You and your wife?
Mr. Coffelt: That’s right.
The Court: Who made arrangements with him to borrow the money?
Mr. Coffelt: Both of us.
The Court: Who did the negotiating?
Mr. Coffelt: Both of us.
The Court: And when did you borrow the money from him?
Mr. Coffelt: It’s been something like three years ago.
The Court: How much did you borrow?
Mr. Coffelt: $15,000.00.
The Court: What other security did you give?
Mr. Coffelt: Didn’t give him any. He’s got a blanket note.
The Court: Well, has this $10,000.00 been paid to him on it, that note ?
Mr. Coffelt: I don’t know whether he considers it as being paid to him or not. ’ ’
Having elicited the above and other testimony, the judge on exchange in his meticulous opinion examined the proceedings and testimony with great care and reached the conclusion, first, that petitioner is in effective control of the $10,000, even though it is not in his immediate possession, and has the ability to see that the funds are paid to the clerk as originally decreed, if he so desired, and second, that by delivering the money to his wife, petitioner was evading compliance with the forthcoming decree, and that such action “was so contumacious in nature and unbecoming to an attorney and officer of the court that his present plea of inability to comply cannot be accepted as a bona fide defense to the contempt of court charge. ’ ’

The rule is well settled that:

“[W]here an alleged contemnor .... has voluntarily and contumaciously brought on himself disability to obey an order or decree, he cannot avail himself of a plea of inability to obey as a defense to a charge of contempt. ’ ’ 120 A.L.E. 704,12 Am. Jur. 2d, Contempt, § 51, p. 53.

Petition denied.

Robinson, J., not participating.


author: Frank Holt, Associate Justice.

text:
    Potlatch Forests v. Funk.
    5-3550
    389 S. W. 2d 237
    Opinion Delivered April 19, 1965.

      Williamson, Williamson & Ball, for appellant.

      Wendell O. Epperson, for appellee.
   Frank Holt, Associate Justice.

This is a workmen’s compensation case. Appellee’s claim for compensation was denied by the referee. Upon review the full commission allowed appellee’s claim. The circuit court affirmed the award by the commission.

For reversal the appellant first contends there was insuffient evidence to support the commission’s finding that the appellee sustained an accidental injury which arose out of and in the course of his employment. When the sufficiency of the evidence is questioned we review the findings of the commission and if there is any substantial evidence to support the findings it is the duty of the circuit court and this court to affirm. Rannals v. Smokeless Coal Co., 229 Ark. 919, 319 S.W. 2d 218.

Appellee testified that as an employee of appellant his duties required heavy lifting; that he first noticed his alleged injury on October 2, 1962; that when it got worse the next day he complained to the floor supervisor and the assistant foreman who advised him it might be due to kidney trouble or a “pulled muscle”. He was permitted to leave his job that afternoon and see a local physician who administered ultra sonic treatment and other medication. Appellee testified he returned to work the next day, although his hack was still hurting him, and inquired of his floor supervisor about workmen’s compensation. He was again referred to the assistant foreman at which time appellee told him, “I hurt my back while I was working on the tenon machine the other day and I wanted to know about workmen’s compensation.” The foreman advised appellee that he doubted his claim for workmen’s compensation would be successful because appellee failed to report the injury when he had first noticed it two days previous. Appellee continued working until the middle of November when “the pain in my leg existed pretty bad, so that I couldn’t hardly stand it. ’ ’ H¿ then consulted Dr. Marsh locally who diagnosed his condition as a ruptured disc and referred him to a Little Rock specialist. Instead appellee, nineteen years of age, preferred to go to his home in Malvern where his father took him to see Dr. Wise. He agreed with the findings of Dr. Marsh and referred appellee to Dr. Christian, an orthopedic specialist in Little Rock. Dr. Christian hospitalized him in traction for about ten days and when appellee did not respond satisfactorily a myelogram confirmed the diagnosis of a ruptured disc. In January 1963 Dr. Christian corrected the ruptured disc by surgery. Appellee was again hospitalized the latter part of March. As of the date of the hearing before the full commission in July 1963 he was still unable to work according to Dr. Wise. Dr. Christian testified that in his opinion claimant’s condition resulted from his employment with appellant.

According to appellee he had never suffered any previous discomfort with his back. When appellee started to work for appellant in August 1962 a required physical examination disclosed nothing wrong with appellee. 'Several of appellee’s co-workers testified they had known appellee many years and had never heard him complain about any pain in his back or leg until and following the date of his alleged injury. We think there is ample evidence to sustain the finding of the commission that appellee’s injury arose out of and in the course of his employment.

Appellant next contends that there was insufficient evidence to support the commission’s finding that the appellant had not been prejudiced by lack of notice of the alleged compensable injury. We do not agree. Ark. Stat. Ann. § 81-1317 (Repl. 1960) provides that written notice of an injury shall be given to the employer within sixty days after the date of the injury. Subsection (c)'reads in part:

‘ ‘ Failure to give such notice shall not bar any claim (1) if the employer had knowledge of the injury or death, (2) if the Commission determines that the employer has not been prejudiced by failure to give such notice, *

Our law is well settled that our Workmen’s Compensation Act is to be liberally construed and any doubt resolved in favor of the claimant. McGehee Hatchery v. Gunter, 237 Ark. 448, 373 S.W. 2d 401; Parrish Esso Service Center v. Adams, 237 Ark. 560, 374 S.W. 2d 468. Appellant’s floor supervisor and assistant foreman had knowledge of appellee’s complaint one day after appellee noticed the discomfort in his back. On that day he was permitted by the assistant foreman to seek medical attention. Further, the matter of group insurance coverage was discussed about one month later with appellant’s personnel manager, or well within the prescribed sixty days. Thus, the employer had timely knowledge of claimant’s alleged injury within the meaning of the statute since the claimant reported his injury as best he knew it. Harris Motor Co. v. Pitts, 212 Ark. 145, 205 S.W. 2d 21; Triebsch v. Athletic Mining & Smelting Co., 218 Ark. 379, 237 S.W. 2d 26.

The commission found that the lack of formal notice, if any, was not prejudicial to appellant and we think there is substantial evidence to support this finding since the employer had knowledge of the disability. Gunn Distributing Co. v. Talbert, 230 Ark. 442, 323 S.W. 2d 434. Another answer to appellant’s contention .relating to lack of' notice is that the appellant made no objection at or before the first hearing. Ark. Stat. Ann. % 81-1317.

The appellant next urges for reversal that there was insufficient evidence to support the commission’s finding that appellee was entitled to payment for his reasonable medical andhospital expenses incurred in the past or which may be incurred in the future as a result of the alleged compensable injury and that the commission acted in excess of its powers in making such finding. The main thrust of appellant’s argument is that appellee did not secure prior authorization for these medical expenses. Ark. Stat. Ann. § 81-1311 (Eepl. 1960) requires that the employer provide promptly for an injured employee’s necessary medical services. The appellee received a compensable back injury for which hospital and medical treatment became necessary. The employer had ample opportunity to investigate appellee’s complaint and offer the needed medical services. According to the assistant foreman, he did not issue a medical slip, customarily issued to employees, since appellee was unwilling to say absolutely his ‘ ‘ back soreness ’ ’ was the result of his employment. By refusal of this medical slip appellant was in effect failing to provide the medical attention required by our statute. In the case at bar the appellee was justified in seeking on his own initiative medical assistance for which he is entitled to reimbursement. Caldwell v. Vestal, 237 Ark. 142, 371 S.W. 2d 836. It cannot be said that the commission acted in excess of it power in finding that appellant is required to furnish appellee past and future reasonable medical expenses.

Appellant’s final contention is that the commission committed prejudicial error by requesting and admitting into evidence an opinion of Dr. Christian in the form of a letter. We find no merit in this contention. Dr. Christian subsequently appeared as a witness. Appellant availed itself of the opportunity by cross-examination to develop all phases of its theory of the case. Furthermore, the commission has broad discretion with reference to the admission of evidence under our Workmen’s Compensation Act. Ark. Stat. Ann. § 81-1327. Dr. Christian’s opinion that the nature and type of appellee’s injury was causally connected with his work was similar to appellant’s own expert witness, Dr. Marsh, who had examined the appellee. Dr. March testified that appellee’s alleged injury was compatible with the type of work performed by the appellee. The admission of Dr. Christian’s opinion as requested by the commission was not prejudicial to appellant.'

We are of the view that there is substantial competent evidence to support the findings of the full commission in all particulars.

Affirmed.

Harris, C. J., not participating.


text:
    Palmer v. Carden, Chancellor.
    5-3575
    389 S. W. 2d 428
    Opinion Delivered April 26, 1965.

      J. B. Milham, for Petitioner.

      Kenneth Coffelt and John L. Hughes for Respondent.
   Carleton Harris, Chief Justice.

This is a petition for a writ of prohibition. Celestia S. Palmer, petitioner herein, and Annie S. Sanders are sisters, and are two of the heirs of A. B. Smith, Sr., deceased. Smith, at the time of his death, was the owner of certain land in Saline County. In 1960, Annie S. Sanders instituted suit against petitioner and Huel Hester for $375.00, Mrs. Sanders contending that she was the owner of an undivided one-eighth interest in the land, and asserting that Celestia S. Palmer had sold timber on the land to Hester for $3,000.00, and had not accounted to her (Mrs. Sanders) for her share. The Circuit Court of Saline County, sitting as a jury, rendered judgment for $375.00 against both petitioner and Hester. Mrs.,Palmer appealed to the Supreme Court, but Hester did not. On appeal, this court reversed the Circuit Court, and remanded the cause. See Palmer v. Sanders, 233 Ark. 1, 342 S. W. 2d 300. The mandate was left in this court, where it still remains, and no further action was ever taken in that case. In October, 1962,- Annie S. 'Sanders, and other heirs of A. B. Smith, instituted a new suit against Celestia S. Palmer and others, in the Chancery Court of Saline County, wherein the heirs seek to partition the lands, and also seek $500.00 damages for the wrongful cutting of timber. Celestia S. Palmer filed a motion to dismiss this complaint, insofar as any rights allegedly held by Annie S. Sanders were concerned, upon the grounds that the Chancery Court did not have jurisdiction of the cause of action. Appellant says, “The question for this court to decide is, can Annie S. Sanders legally file a new suit in the Chancery Court for the same damages she sued for in the Circuit Court?” It is also asserted that the Circuit Court suit is res judicata as to the present suit in the Chancery Court. The Chancellor overruled the motion to dismiss as to Annie S. Sanders, and petitioner now here seeks a writ of prohibition to prevent the Chancellor ‘ ‘ from proceeding further in said cause, so far as it affects the plaintiff, Annie S. Sanders, and for all other proper relief. ’ ’

We do not agree that the Chancery Court was without jurisdiction. For one thing, relief was sought in this case that was not sought in the Circuit Court suit, i.e., partition of the lands. It is true that the damages include the same damages that were sought in Palmer v. Sanders, supra, but there is no jurisdiction in the Circuit Court at the present time. Ark. Stat. Ann. § 27-2144 (Repl. 1962) provides:

‘ ‘ The Supreme Court may reverse, affirm or modify the judgment or order appealed from, in whole or in part and as to any or all parties, and when the judgment or order has been reversed, or affirmed, the Supreme Court may remand or dismiss the cause and enter such judgment ■upon the record as it may in its discretion deem just; provided, when a cause is affirmed, or reversed and remanded, the mandate must be taken out and filed in the court from which the appeal was taken by the plaintiff or defendant within one [1] year from the rendition of the judgment, affirming or reversing the cause, and not thereafter ; and immediately upon the expiration of the period of one [1] year after the judgment of reversal is entered, when the mandate is not taken out, the clerk of the Supreme Court shall upon application of the party entitled thereto issue an execution for all costs accrued up to the date of reversal in the Supreme Court and in the Court from which said cause has been appealed. ’ ’

In Robeson v. Kempner, 189 Ark. 27, 70 S.W. 2d 37, we said, in discussing this statute,

“If the prevailing litigant desires to invoke the aid of the court from which the appeal came to enforce the judgment, he must file the mandate in the court within twelvemonths * * V’

We then went on to discuss the next section, and held that this court still had power to enforce its judgment, whether the mandate issued or not, though the decision makes clear that the trial court, after twelve months, could acquire no further jurisdiction in the case. Of course, since we reversed (Palmer v. Sanders), rather than affirmed, there was nothing for this court to enforce. The result is simply that Mrs. Sanders was therefore free to institute her suit in any court of competent jurisdiction. No one would dispute that the Chancery Court has jurisdiction of the subject matter of the complaint.

Likewise, we do not agree that the first suit, and disposition of same, is res judicata as to the issue raised in the Chancery law suit, for it is obvious that no rights were determined in Palmer v. Sanders, supra. This court reversed the trial court judgment in that case, and remanded the cause, and we have said, on numerous occasions, that, when a judgment is reversed and remanded for new trial, the case stands as if no action at all had been taken by the trial court. This was first stated as far back as 1874 in the case of Harrison v. Trader and Wife, 29 Ark. 85. In that case, we quoted language from the case of Simmons v. Price, 18 Alabama 405, as follows:

“When a judgment is reversed, the rights of the parties are immediately restored to the same condition in which they were before its rendition; and the judgment is said to be mere waste paper. ’ ’

Since that time, we have had occasion to reiterate this statement many times. See Hartford Fire Ins. Co. v. Enoch, 79 Ark. 475, 96 S.W. 393; Holt v. Gregory, et al, 222 Ark. 610, 260 S.W. 2d 459. See also 50 C.J;S. Judgments, Paragraph 625, where it is stated:

“When a judgment has been reversed on appeal, or vacated or set aside by the court which rendered it, it is deprived of its conclusive character, and thereafter it no longer stands as a bar to a further suit on the same cause of action # * V’

There are other reasons why prohibition does not lie, but the aforementioned citations are sufficient to demonstrate that such an order would be inappropriate.

Writ denied.

       Emphasis supplied.

       Presently Ark. Stat. Ann. § 27-2145 (Repl. 1962).


author: Ed. F. MoFaddin, Associate Justice.

text:
    Lamb, Adm’r v. Ford, Ex’r.
    5-3539
    389 S. W. 2d 419
    Opinion Delivered April 26, 1965.

      Howard Mayes, Robert Branch, for appellant.

      Frank Sloan, Kirsch, Cathey & Brown, for appellee.
   Ed. F. MoFaddin, Associate Justice.

This appeal challenges two rulings of the Probate Court made in the administration of the estate of A. R. Ford, who died testate on February 2, 1963. He was survived by his wife, Viva Lamb Ford, and by four children of a former marriage. We will separately discuss the two questions presented.

I.

Dower. The first question relates to the dower claim. Mr. Ford had executed a will on May 25, 1962, when he was a widower. Viva Lamb Ford was not mentioned in the will. He left his entire estate to his four children. Mr. Ford and Viva Lamb Ford were married on December 22, 1962, but he never changed his will. After Mr. Ford’s death (which occurred on February 2, 1963) his children met with their stepmother, Viva Lamb Ford, on one or two occasions in an effort to induce her to take one-fifth of the estate in fee rather than her dower interest in the estate. Mrs. Viva Lamb Ford had the matter under consideration, but had given no definite answer, when she was killed in an automobile collision on February 6, 1963. Jones Lamb (appellant) was appointed administrator of her estate, and as such administrator he sought to claim the dower interest of Viva Lamb Ford in the estate of A. R. Ford, deceased. Appellee J. R. Ford, executor of the estate of A. R. Ford, resisted the claim of dower. Trial in the Probate Court resulted in a judgment against the estate of Viva Lamb Ford and this appeal resulted.

We thus have a factual situation wherein: (a) a man made a will which did not mention the lady that he subsequently married; (b) be married; (c) he died; and (d) then she died without having elected to claim her dower. It is conceded that we do not have a case with a factual situation on all fours with the one at bar. Regardless of how our statutory law and case law may have indicated views prior to the adoption of the Probate Code (being Act No. 140 of 1949), we nevertheless reach the conclusion that, under the provisions of the said Probate Code, the judgment of the Probate Court on this dower matter must be affirmed.

When Mr. Ford executed his will on May 25,1962, he was a widower and Viva Lamb Ford was not mentioned in his will. His subsequent marriage to Viva Lamb Ford did not operate as a revocation of his will because § 23 of Act No. 140 of 1949 (now found in Ark. Stat. Ann. § 60-407 ['Supp. 1963] reads:

“Change in circumstances; marriage or divorce. If after making a will the testator is divorced, all provisions in the will in favor of the testator’s spouse so divorced are thereby revoked. With this exception, no will or any part thereof shall be revoked by any change in the circumstances, condition or marital status of the testator; subject however, to the provisions of Section 33. ’ ’

In the above section reference is made to Section 33 of the Act No. 140 of 1949, which may- be found in Ark. Stat. Ann. § 60-501 (Supp. 1963); and that section reads:

“When surviving spouse may elect to take against the will. — When a married man dies testate as to any part of his estate, or when a married woman dies leaving as her last will one executed prior to her marriage, the surviving spouse shall have the right to elect to take against the will and to take such part of the property as he or she would have taken had the deceased spouse died intestate. ’ ’

Furthermore, Section 37 of Act No. 140 of 1949 (as now found in Ark. Stat. Ann. § 60-505 [Supp. 1963] ) reads:

“Right of election personal to surviving spouse. — The right of election of the surviving spouse is personal. It is not transferable and does not survive the surviving spouse. The guardian of the estate of an incompetent surviving spouse may, when authorized by the court having-jurisdiction over the estate of the ward, elect to take against the will in the ward’s behalf.”

Thus, it is clear that the will of A. R. Ford was not revoked by his subsequent marriage and that Viva.Lamb Ford had the right to take against that will, if she so elected; but the right was personal to her and did not survive her. The fact that she died before making- any election does not give her estate the right to subsequently make an election: the right of election ended when she died. Her stepchildren met with her on one or two occasions after the death of A. R. Ford to see if she would take a child’s part of the estate (that is, one-fifth in fee), rather than her dower part. They evidently assumed — as was perfectly natural to do — that she would elect to take against the will, since she received nothing under the will; and the children were, in effect, offering- to trade her a one-fifth fee interest for her dower interest when and if she elected to take dower. But all this intended trade was dependent on her election to take against the will; and she died without ever having made any such election.

Even before the Probate Code (Act No. 140 of 1949), this Court held in Barnes v. Cooper, 204 Ark. 118, 161 S.W. 2d 8, that when the wife outlived her husband only thirty minutes, nevertheless her estate could not claim her statutory allowances because she had failed to claim the same in her lifetime. After the adoption of the Code, we held in Jeffcoat v. Harper, 224 Ark. 778, 276 S.W. 2d 429, that the right to take against the will was personal. It is argued in the briefs that it was unnecessary for Viva Lamb Ford to make her election because she would take nothing under the will. Even so, she would have been required, under our statutes as previously quoted, to take steps in the Probate Court to claim her dower. She never did this, and the right, being personal as fixed by statute, died with her and her estate cannot claim dower in the estate of A. R. Ford. So we affirm the decree of the Prohate Court which denied Viva Lamb Ford’s estate any dower in the estate of A. R. Ford.

II.

Ownership Of The Automobile. Viva Lamb Ford was " killed in an automobile collision while in a car she had driven since her marriage. J. R. Ford, executor of the estate of A. R. Ford, took possession of the wrecked car and sold it for $839.00 and held the money as such executor. Jones Lamb, as administrator of the estate of Viva Lamb Ford, filed a claim in the Probate Court against the estate of A. R. Ford for the said $839.00; the Probate Court allowed the claim; and by cross appeal J. R. Ford, as executor, challenges the ruling of the Probate Court. We affirm the said ruling.

There was no necessity for a plenary action by Lamb, administrator, against Ford, executor. Under the peculiar situation here existing the Probate Court could properly determine whether the $839.00 was an asset of the estate of A. R. Ford or whether the proceeds of the wrecked car belonged to the estate of Viva Lamb Ford. Carlson v. Carlson, 224 Ark. 284, 273 S.W. 2d 542; and Ellsworth v. Comes, 214 Ark. 756, 165 S.W. 2d 57. The decisive question is who OAvned the car; and the preponderance of the evidence established that A. R. Ford gave the car to Viva Lamb Ford as an engagement present and wedding present ; and it was her car and she owned it.

The judgments of the Probate Court are affirmed on both direct appeal and cross appeal; and the costs of this appeal are to be paid equally.

       Section 235 of Act No. 140 of 1949 (the Probate Code Act) expressly repealed Ark. Stat. Ann. § 61-219 (1947) and also Ark. Stat. Ann. §§ 61-222 to 61-225 (1947), inclusive.


text:
    Pinkert v. Clark.
    5-3566
    389 S. W. 2d 427
    Opinion Delivered April 26, 1965.

      Frank II. Cox, for appellant.

      Wayne Foster, for appellee.
   Ed. F. MoFaddin, Associate Justice.

This is an effort by appellants to have a tax sale declared invalid. Prior to 1948 appellants, Pinkert and Schuman, were the owners of Lot 6, Block 8, Plateau Addition to Little Rock. The 1948 State and County taxes were not paid on the lot; it was certified to the State; the forfeiture, sale and certification were confirmed by a chancery suit under the provisions of Ark. Stat. Ann. § 84-1315 et seq. (Repl. 1960); and on January 2, 1952, the State Land Commissioner conveyed the lot to appellee, Willa Mae Clark.

On November 9,1956 the appellants filed this suit to have the deed'of the appellee cancelled and appellants’ title restored. They offered to pay the appellee all taxes, penalties, and costs incurred by her. The appellants claim that they had seasonably offered to pay the 1948 taxes and had been informed by the tax collecting authorities that no taxes were due. After hearing the evidence ore terns the Chancery Court denied the prayed relief and this appeal resulted.

We have a number of cases declaring the applicable law. One such case is Schuman v. Person, 216 Ark. 732, 227 S.W. 2d 160, wherein Mr. Justice Millwee, writing for a unanimous Court, reviewed a number of earlier cases and said:

‘£ Justice Hart, speaking for the court in Robertson v. Johnson, 124 Ark. 405,187 S.W. 439, said: £It is the settled rule in this State that an attempt to pay taxes made in good faith by the landowner or his agent, and frustrated by the mistake, negligence or other fault on the part of the collector, renders the subsequent sale of the land for the non-payment of taxes void. Hickman v. Kempner, 35 Ark. 505; Gunn v. Thompson, 70 Ark. 500, 69 S.W. 261; Scroggin v. Ridling, 92 Ark. 630, 121 S.W. 1053; Knauff v. National Cooperage & Woodenware Co., 99 Ark. 137, 137 S.W. 823. ’ The same principle has been applied in Kinsworthy v. Austin, 23 Ark. 375; Fleisher v. Wappanocca Outing Club, 118 Ark. 287, 176 S.W. 312; Forehand v. Higbee, 133 Ark. 191, 202 S.W. 29; and Mixon v. Bell, 190 Ark. 903, 82 S.W. 2d 33.”

Some of our later cases to the same effect-are Schuman v. Lunnie, 219 Ark. 645, 243 S.W. 2d 937; and Brown v. Bridges, 227 Ark. 1006, 304 S.W. 2d 939.

There is no uncertainty about the law. In the case at bar the difficulty arises because of the paucity and uncertainty of the testimony offered by the one witness who testified for appellants. He was one of the parties and the' testimony of a party is never considered as uncontradicted. Gingles v. Rogers, 206 Ark. 915, 175 S.W. 2d 192; Lynch v. East Ark. Co., 193 Ark. 1004, 104 S.W. 2d 205; Zorub v. Mo. Pac. Co., 182 Ark. 232, 31 S.W. 2d 421; and Ford v. Wilson, 172 Ark. 335, 288 S.W. 712.

The Chancellor saw the witness testify and observed his demeanor, and could thus evaluate whether in 1964 the witness could remember every detail of a transaction in 1949. The Chancellor evidently concluded that the testimony of a party as to events 15 years previous should be supported by more than mere memory. Prom an examination of the words on the typewritten page we do not feel free to substitute our views for those of the Chancellor.

Affirmed.


author: George Eose Smith, J.

text:
    Houston v. Adams
    5-3536
    389 S. W. 2d 872
    Opinion Delivered April 26, 1965.
    [As amended on denial of rehearing May 31,1965.]

      Cockrill, Laser, McGehee & Sharp, for appellant.

      McMath, Leatherman, Woods & Youngdahl, for appellee.
   George Eose Smith, J.

This is an action by the appellees, husband and wife, for personal injuries, loss of consortium, and property damage resulting from a traffic collision at a street intersection in North Little Eock. The defendants, the owner and the driver of the truck that struck the Adams car, filed an answer denying negligence on their part and pleading what was in substance a second denial of negligence; that is, that the collision was the result of an unavoidable accident. The jury verdict was for the defendants. On the plaintiffs’ motion the trial judge set the verdict aside and ordered a new trial. This appeal is from that order.

Both sides agree that it is the trial judge’s duty to set aside a verdict which he considers to be against the preponderance of the evidence, Stanley v. Calico Rock Ice & Elec. Co., 212 Ark. 385, 205 S.W. 2d 841, and that we reverse his ruling only if we find an abuse of discretion. Farmer v. Smith, 227 Ark. 638, 300 S.W. 2d 937. It was formerly necessary for the appellant, in appealing from a motion granting a new trial, to file a stipulation consenting to judgment absolute if the order should be affirmed. Ark. Stat. Ann. § § 27-2101 and -2150 (Eepl. 1962). This requirement was taken out of the statute by Act 247 of 1963, which permits the appeal without the stipulation. Ark. Stat. Ann. § 27-2101 (Supp. 1963).

The defendants admit that the cause of the collision was the failure of the truckdriver, Perry Spence, to obey a stop sign at the intersection. They insist, however, that Spence’s inability to stop was due to an unexpected and unavoidable failure of his brakes to function. Upon this theory they consider the verdict to have been supported by the weight of the evidence.

Spence testified that his service brake, operated by a pedal, had worked properly a few minutes earlier at a railroad crossing not far from the intersection where his truck ran into the Adams car. When Spence attempted to stop at the intersection his service brake proved to be completely useless because (as he later learned) a leak had suddenly occurred in the hydraulic system. Spence at once attempted to apply his hand brake, but even at a speed of less than 30 miles an hour he was traveling too fast for this brake to do more than slow the truck down before the collision took place in the intersection. There is no contention that Mrs. Adams, who was driving by herself, was negligent.

The defendants, in disclaiming negligence, contend (a) that 'Spence ivas not at fault in failing to anticipate an abrupt breakdown in the hydraulic system, and (b) that there is no statutory requirement that the hand brake be capable of stopping the vehicle.

Upon the first point there was an issue of fact. The statute requires that all vehicles be equipped with adequate brakes. Ark. Stat. Ann. § 75-724 (Supp. 1963). A violation of this statute is evidence of negligence. Hence we have held that the jury may find negligence on the part of a driver whose brakes suddenly fail. Pitts v. Green, 238 Ark. 438, 382 S.W. 2d 904.

Point (b) is inore difficult. Before the passage of Act 307 of 1959 the statute required that the service brake be adequate to stop a vehicle within 25 feet when traveling at 20 miles an hour and that the hand brake be adequate to stop it within 55 feet at that speed. Ark. Stat. Ann. § 75-724 (Repl. 1962). The appellants rely heavily upon the fact that Act 307 of 1959 eliminated the express requirement that the hand brake be adequate to stop the vehicle within any stated distance. § 75-724 (Supp. 1963).

■Subsection (A, 1) of ■§. 75-724, as re-enacted by the 1959 act, is pertinent:

“Every motor vehicle .... when operated upon a highway shall be equipped with brakes adequate to control the movement of and to stop and hold such vehicle, including two separate means of applying the brakes, each of which means shall be effective to apply the bralms to at least two wheels. If these two separate means of applying the brakes are connected in any way, they shall be so constructed that failure of any one part of the- operating mechanism shall not leave the motor vehicle without brakes on at least two wheels.” Subsection (A, 5) requires that the hand brake be capable of holding the vehicle stationary upon a grade. Subsection (B) requires that the service brake be capable of stopping the vehicle within a certain number of seconds at certain speeds.

The appellants insist that the basic requirement in Subsection (A, 1), that the brakes be adequate “to control the movement of and to stop and hold such vehicle,” means only that the service brake be capable of stopping the vehicle and that the hand brake be capable of holding it stationary when parked. In harmony with this theory they produced an expert witness who testified that the hand brake on Spence’s truck was designed only to hold the vehicle and that it “had no stopping power at all.” Spence himself testified that the hand brake merely slowed the truck down just before the collision.

This argument overlooks the blunt requirement in the second sentence of Subsection (A, 1) that the two braking-systems be so constructed that a failure of any one part of the operating mechanism shall not leave the vehicle without brakes on at least two wheels. Thus the appellants ’ insistence that the hand brake need have no stopping power is demonstrably fallacious, for under that theory every failure of the service brake would leave the driver of a moving- vehicle with no brakes at all, contrary to the plain intent of the act. Two other courts, in construing- statutes in all material respects identical with our 1959 act, have held that the hand brake must have stopping power. Paulson v. B. & L. Motor Freight, Ohio Mun. Ct., 145 N. E. 2d 364; Rutz v. Anderson, Wyo., 334 P. 2d 496.

We conclude that the proof, at least with respect to the hand brake, indicates negligence. Since there was no negligence on the part of Mrs. Adams the trial judge did not abuse his discretion in setting aside the verdict for the defendants. In view of the necessity for a new trial we must consider two additional points urged by the appellees.

First, it is insisted that upon the facts of this case the trial court should not give an instruction submitting the issue of unavoidable accident to the jury. It is pertinent to observe that we have held that a collision is the result of an unavoidable accident if it is not attributable to negligence on the part of either party. Elmore v. Dillard, 227 Art. 260, 298 S.W. 2d 338; Caldwell v. McLeod, 235 Ark. 799, 362 S.W. 2d 436. The defendants argue that since the jury might find that they were free from negligence the instruction is proper.

In the past decade several courts have re-examined the suitability of this instruction in negligence cases. In the leading case, Butigan v. Yellow Cab Co., 49 Cal. 2d 652, 320 P. 2d 500, 65 A.L.R. 2d 1, the Supreme Court of California overruled an earlier decision and held that the issue of unavoidable accident should not be submitted to the jury in any case (except when a definition of the term may be required by statute). From the opinion: “The so-called defense of inevitable accident is nothing more than a denial by the defendant of negligence, or a contention that his negligence, if any, was not the proximate cause of the injury . . . Since the ordinary instructions on negligence and proximate cause sufficiently show that the plaintiff must sustain his burden of proof on these issues in order to recover, the instruction on unavoidable accident serves no useful purpose.

‘ ‘ The instruction is not only unnecessary, but it is also confusing. When the jurors are told that ‘in law we recognize what is termed an unavoidable or inevitable accident’ they may get the impression that unavoidablity is an issue to be decided and that, if proved, it constitutes a separate ground of nonliability of the defendant. Thus they may be misled as to the proper manner of determining libility, that is, solely on the basis of negligence and proximate causation. ’ ’

The Butigan case was decided in 1958. Its rule has since been adopted in three other states. Lewis v. Buckskin Joe’s, Colo., 396 P. 2d 933; Vespe v. DiMarco, 43 N. J. 430, 204 A. 2d 874; Fenton v. Aleshire, Ore., 393 P. 2d 217. On the other hand, five states have refused to follow the Butigan case. Diets v. Mead, 2 Storey 481, 160 A. 2d 372; Lallatin v. Terry, 81 Ida. 238, 340 P. 2d 112; Rodoni v. Hoskin, 138 Mont. 164, 355 P. 2d 296; Lucero v. Torres, 67 N. M. 10, 350 P. 2d 1028; Porter v. Price, 11 Utah 2d 80, 355 P. 2d 66.

We are of the opinion that in a typical negligence case the position taken by the California court is right. In such a case the plea of unavoidable accident is in fact nothing more than an assertion that the defendant was not guilty of actionable negligence. That defense should be submitted to the jury in terms of negligence and proximate causation. For the court to submit also am issue of unavoidable accident is, as the Butigan opinion pointed out, to suggest that unavoidability is a separate defense, requiring separate consideration by the jury.

We do not foreclose the possibility that in exceptional situations an unavoidable accident instruction may be permissible. For example, in Industrial Farm Home Gas Co. v. McDonald, 234 Ark. 744, 355 S.W. 2d 174, both drivers testified in substance that the collision was unavoidable. That is the only case in which we have held that the court ’s refusal to give an unavoidable accident instruction was reversible error. Again, if a driver with no previous warning of coronary disease should lose control of his car as a result of a sudden heart attack, an ensuing collision might well be described as an unavoidable accident. But when, as here, the question is merely whether one or more of the parties were guilty of negligence we hold that the instruction in question should not be given.

Secondly, the appellees somewhat half-heartedly suggest that we should declare the appellants to be liable as a matter of law and remand the'case for trial on the issue of damages only. It is not our province to decide issues of fact in law cases. In Spink v. Mourton, 235 Ark. 919, 362 S.W. 2d 665, we discussed at some length the reasons underlying the fact that a negligence case almost never presents a situation in which a directed verdict for the plaintiff is proper. That discussion fully answers the appellees’ present contention and need not he repeated.

The judgment is affirmed and the cause remanded for a new trial.


author: George Rose Smith, J.

text:
    Pope v. Pope
    5-3557
    389 S. W. 2d 425
    Opinion Delivered April 26, 1965.

      Robert N. Hardin, Simon $ Simon, Ft. Worth, Texas, for appellant.

      Hall, Purcell <& Boswell, By: W. Lee Tucker, for appellee.
   George Rose Smith, J.

In 1961 the Saline chancery court entered a decree dissolving the marriage between the appellant, who was then living in Saline County, Arkansas, and his wife, the appellee, who was then living in Texas. The decree gave the custody of the couple’s two older children to their father, hut the decree did not mention the couple’s one-year-old daughter, who was then living in Texas with her mother. In 1963 the appellant moved to New Mexico with the two older children. Since then neither the parents nor the children have been domiciled in Arkansas.

In June of 1964 the appellant, acting through a lawyer not now in the case, filed a petition in the Saline chancery proceeding, asking that he be awarded custody of the third child. Mrs. Pope filed a response seeking custody of all three children. On August 20, 1964, the chancellor entered an order vesting temporary custody of the three children in their mother. Two days later the appellant moved that the entire proceeding be dismissed for want of jurisdiction, in view of the fact that all concerned were nonresidents. The court refused to dismiss the proceeding. This is an appeal from the order granting temporary custody to the mother and from the order denying the motion to dismiss.

We may review the temporary custody order, for such an order is appealable. Wood v. Wood, 226 Ark. 52, 287 S.W. 2d 902. We cannot review the court’s refusal to dismiss, however, for that is not an appealable order. Wicker v. Wicker, 223 Ark. 219, 265 S.W. 2d 6.

The temporary custody order was not void for want of jurisdiction. The appellant, having come into court voluntarily and sought affirmative relief, is not in a position to question the court’s jurisdiction over his person. Federal Land Bank of St. Louis v. Gladish, 176 Ark. 267, 2 S.W. 2d 696. As for jurisdiction of the subject matter, the fact that both parents submitted to the court’s jurisdiction was a sufficient basis for the temporary order, even though its validity in the states of the children’s. domicile might be open to question. Leflar, Conflict of Laws, §180.

The appellant makes the further point that the appellee ’s proof failed to establish a sufficient change of conditions to justify an award of the two older children to the mother. In this particular case we do not think it was necessary for the appellee to prove a change of conditions. The record indicates that in obtaining a divorce in 1961 the appellant failed to take the necessary steps to see that his nonresident wife was notified of the proceedin, even though he seems to have known her whereabouts in Texas. Thus the order, as a result of the appellant’s wrongful conduct, was actually ex parte. In the circumstances we are not willing to permit such a defective decree to become binding upon the appellee solely by the feat of lifting itself by its own bootstraps.

Affirmed.