text:
    Old American Life Ins. Co. v. McKenzie

      5-3919
    403 S. W. 2d 94
    Opinion delivered May 30, 1966

      Jack Young, for appellant.

      Martin, Dodds & Kidd, for appellee.
   Osro Cobb, Justice.

On March 9, 1964, appellee applied to appellant for two policies of insurance. J. E. Bryant, sales manager for appellant, personally secured said applications and filled in appellee’s answers to questions appearing upon same. Appellee signed the applications. As completed the applications for insurance set forth that appellee then had no physical defect. However, they also set forth and disclosed the following medical history: “Name—Gordon, McKenzie; Sickness or Defect—Disc operation; Date—’62; Duration—46; Oper’r—Yes; Doctor’s Name and Address:—Dr. Logue, States Complete Recovery.” Appellant issued two policies upon said applications: No. AD 2456, an accident policy with hospital and disability benefits, and No. 624-2294, a hospital policy with added medical benefits.

On April 17, 1964, appellee was involved in an automobile accident requiring hospitalization in the Arkansas Baptist Hospital in Little Rock for thirty-two days. There is no factual dispute between the parties as to appellee having been involved in an automobile accident, having been hospitalized for thirty-two days at the Arkansas Baptist Hospital in Little Rock, and having incurred all of the hospital and medical expenses of which detailed statements were offered in evidence.

Seasonable demand was made by appellee upon appellant for payment of his claims under the provisions of said policies and payment of same was refused. Thereafter appellee instituted his action in the circuit court. Appellant answering asserted that the condition for which appellee was required to be hospitalized was a recurrence of a physical condition which pre-existed the date of its policies, and that the policies were procured from it by wilful, fraudulent and material concealment of appellee’s true physical condition at the time of his applications for said policies. After the issues were joined, the case was tried to the court sitting as a jury. The court found adversely to all contentions of appellant and judgments were entered for the amounts claimed by appellee, together with statutory penalty and attorney’s fee fixed by the court.

Point 1—Appellant contends that the evidence shows that appellee procured the subject policies of insurance by wilful, fraudulent and material omission in disclosing full medical history.

This contention is based on the fact that, after the 1962 disc surgery, appellee required two subsequent operations on his back (spinal fusions). The record reflects that appellee had made maximum recovery from said fusion operations prior to the purchase of said insurance policies from the appellant.

All statements in any application for disability insurance policy are deemed to be representations and not warranties. Ark. Stat. Ann. § 66-3208 (Repl. 1966). An omission in the application will not prevent recovery under the policy unless it was fraudulent, material to the acceptance of the risk, or the insurer would not have issued the policy as such had he known the true facts. § 66-3208, supra. Thus, the question is raised whether under the circumstances of the instant case there was an omission by McKenzie which precluded him from recovering under the terms of the policies. We have concluded under the facts of this case that appellee should not be denied recovery against appellant and we discuss our reasons for this conclusion.

It is true that appellee did not give a full and complete medical history to appellant in his applications. It is also true, however, that appellee did provide appellant with information concerning a disc operation upon his back in 1962, involving extended disability. Furthermore, appellee set forth the true name of the surgeon who had attended him at the time of said operation upon his back (Dr. Richard M. Logue). Moreover, Dr. Logue is a Little Rock surgeon with offices in close proximity to the offices of appellant and could have been reached by telephone or by call of a personal representative of the appellant at little or no inconvenience. Obviously the attending surgeon and not the patient (appellee) would be the best qualified to provide to appellant the accurate medical history of the case. Few operations on the spine are more severe in character than the removal of an intervertebral disc. When appellee reported this operation he put appellant upon notice as to a serious back operation; and when appellee provided appellant with the name of his surgeon to whom appellant could turn for exact and precise information if so desired, he substantially met all burdens imposed upon him in his relations with appellant under his contracts of insurance and should not be denied the benefits as provided in appellant’s policies.

In Missouri State Life Ins. Co. v. Witt, 161 Ark. 148, 256 S. W. 46 (1923), the insurance carrier refused to pay the proceeds from the policy for several reasons. One such reason was that the insured, the company maintained, failed to give full, correct and true answers since he concealed the fact that he was confronted with complications following an operation of which he had informed the carrier in the application. The application, as filled out, read as follows: ‘1 Operation: Appendicitis. Date—Year: 1917. Month: July. Duration: 2 weeks. Re-suits: Good. Name of medical attendant: Dr. J. P. Runyan, Little Rock, Ark.” The court rejected the company’s contention and said:

‘ ‘ Concerning the illness in 1918, it appears from the testimony that it was the result of a malarial condition followed by an operation for appendicitis and adhesions. This operation was divulged to the company in the answer made, and the name of the attending physician was given, so the company had an opportunity to investigate and satisfy itself whether the operation and the illness incident thereto had materially affected his health and longevity.”

A headnote to the Missouri State case reads:

“Where an application for insurance advised the insurer that the applicant had submitted to an operation, and named the surgeon who attended him, the policy was not avoided by failure to mention that applicant was sick after the operation, as the insurer had an opportunity to satisfy itself as to whether the operation and illness incident thereto materially affected his health and longevity.”

This is supported by 1 Appleman, Insurance Laiv & Practice, § 220 (1965):

“ ... an insurer cannot complacently rely upon statements made by the insured where the type of information is of a character suggesting a cautionary investigation as to the accuracy of the state"ments given. And where the insured discloses that he has undergone an operation and furnished the company with the name of the attending physician, it has ample information from which to investigate further, and cannot complain that the insured failed to relate an illness ensuing upon such operation.”

We therefore find no merit in appellant’s Point I.

Point II—Appellant next contends that appellee’s stay in the hospital was not for treatment from injuries received in the automobile accident but for sensitivities of appellee resulting from the prior back complication.

Any anxiety which appellee suffered after the accident would not have occurred had it not been for the accident. Appellee had been engaged in full time work and had been free of anxiety until he was injured by the very event insured against. Also, Dr. Logue, appellee’s physician, testified that the injury suffered as a result of the April 17 accident was a strained muscle and not an aggravation of the prior condition and that the two were in unrelated areas of the back. The trial court determined this factual issue against appellant. There is substantial evidence in the record to support said determination by the court as the trier of the facts and we are bound thereby. Anderson v. West Bend Co., 240 Ark. 519, 400 S. W. 2d 495 (1966); Milner v. Marshall, 238 Ark. 914, 385 S. W. 2d 800 (1965).

We therefore find no merit in appellant’s contentions as to its Point II.

Point III—Appellant here contends that the statutory penalty and attorney’s fees should not have been awarded in favor of the appellee.

Ark. Stat. Ann. § 66-3238 (Repl. 1966) provides that in cases such as the one at bar where a loss occurs and the insurance company fails to pay the proceeds of the policy within the specified time after demand, the company shall be liable to pay the holder of the policy, in addition to the amount of such loss, twelve per cent (12%) of the loss together with all reasonable attorney’s fees for the prosecution and collection of said loss.

We note that as to the hospital policy issued by appellant, No. 624-2294, the judgment rendered by the trial court was for the exact sum ($397.50) as prayed in the original complaint. Recovery of the exact amount prayed precludes any contentions of appellant as to the propriety of statutory penalty and attorney’s fee as to appellee’s suit on said policy. As to the accident policy, No. AD 2456, the original complaint prayed for judgment for $320, representing coverage of $10 per day for thirty-two days of hospitalization, and judgment for $100 per month for a total disability of appellee beginning on April 17, 1964. The judgment entered by the trial court gave appellee the $320 exactly as prayed in the complaint for hospital allowance, and gave appellee $300 representing three .months of total disability following the accident of April 17, 1964. During the course of the evidence offered on behalf of appellee, it was shown that appellee had been disabled for a period of three months beginning on April 17, 1964, and at the conclusion of appellee’s case counsel moved the court for permission to amend the complaint to conform to this proof. The court granted the motion. Thereafter appellant moved for a directed verdict in its favor, which was denied. Significantly, appellant did not confess judgment in conformity with the proof or in any sum, but proceeded to put on its own case seeking to establish its contention that it was not liable in any sum to appellee under its policies of insurance.

Had appellant confessed judgment for the three months disability of appellee at $100 per month when the complaint was amended to conform to the proof, it could have avoided its liability for the statutory penalty and attorney’s fee as to this item. However, appellant did not take this course but proceeded to trial. Under the circumstances of the case, which are similar to others which have reached this court, we have concluded that the trial court committed no error in its allowance of statutory penalty and attorney’s fees in the judgments entered against appellant under both of its policies. We briefly discuss the applicable law.

In Progressive Life Ins. Co. v. Hulbert, 196 Ark. 352, 118 S. W. 2d 268 (1938), we dealt with this same question and we quote therefrom:

"Appellee sued for $400, and asked an instruction telling the jury that the verdict should be for that sum if the jury found for the plaintiff. The court was of opinion that under the policy a recovery could not be for more than $266.67, whereupon the plaintiff amended her complaint by reducing the amount sued for to $266.67, and requested an instruction, numbered 2, telling the jury the verdict should be for that sum if the defendant was found liable on the policy.
“There was a verdict for the plaintiff in the sum of $266.67, upon which the court awarded judgment for an attorney’s fee of $50 and for a penalty of 12 per cent. It is insisted that it ivas error to award judgment for the penalty and the attorney’s fee for the reason that the plaintiff did not recover the sum sued for. Section 7670, Pope’s Digest.
“But the sum finally sued for ivas $266.67, and it ivas within the discretion of the court to permit this amendment. Had the insurance company offered to confess judgment for this amount when the complaint was amended it Avould have been proper to enter a judgment for that amount Avithout penalty or attorney’s fee. But this was not done. The defendant then insisted, and now insists that the plaintiff Avas not entitled to recover anything.
“It was not error, therefore, to a\vard judgment for the penalty provided by statute, and for the attorney’s fee, which does not appear to be excessive.”

Appellant attempts to distinguish the Hulbert case from the one at bar on the grounds that the amendment Avas made at a different place in the trial proceedings. The-above quote reveals this is not a valid distinction. It is discretionary with the trial judge to amend the pleadings to conform to the proof after the trial has begun (Ark. Stat. Ann. § 27-1160 [Repl. 1962]).

Having concluded that all of appellant’s contentions are without merit, the trial court’s judgments are affirmed.

Amsler, J., not participating.


source: Caselaw Access Project

author: Guy Amslbr, Justice.

license: Public Domain

text:
    LeFevers v. LeFevers
    5-3849
    403 S. W. 2d 65
    Opinion delivered May 30, 1966

      Shaver, Tackett & Jones, Larey & Larey, for appellant.

      Featherston & Featherston} for appellee.
   Guy Amslbr, Justice.

This is an appeal by Deva T. LeFevers and a cross appeal by Ollie M. LeFevers from a decree fixing their property rights under an ante-nuptial agreement.

Appellant and appellee were married on June 11, 1964, after a brief courtship. They had previously entered into an ante-nuptial agreement. She was a -widow, 48 years of age, and he a rather well to do widower, 67 years old. Both had children by previous marriages. They lived together, apparently nnharmonionsly, until January 17, 1965. He filed suit for divorce on January 19, 1965, alleging indignities.

Appellant counter-claimed, also seeking a divorce, and either a settlement under the ante-nuptial agreement or, in lieu thereof, her ‘ statutory entitlements ’ ’ in appellee’s propertju On May 21, 1965, the Chancellor granted appellee a divorce and retained jurisdiction for further orders relative to property rights. A supplemental decree was later entered, fixing the rights of the parties under the pre-marital contract.

For reversal, appellant urges that the Chancellor erred in his interpretation of the ante-nuptial agreement. The two provisions in the agreement, which provoke the principal contentions, read:

"Now as to assets, property, notes, moneys, accumulated after the marriage in the future, by either or both of these parties, they shall be the owners each of an undivided one-half interest therein; and same shall not be owned as a joint estate or estate by the entirety, except as is herein otherwise set forth and agreed upon.”
“In the event of a separation or a divorce of these parties then and in such event it is agreed that the second party, the wife, shall be restored to all her own separate property she had prior to the marriage; also half of any net gain that is made by the joint effort of these parties during coverture; that is to say during their married life. ’ ’

The Chancellor, in a lengthy and helpful memorandum, found, inter alia, that: appellant had $5,000.00 at time of marriage; she received a car as a gift from appellee which is not involved; she invested $2,505.00 on appellee’s recommendation and “he has paid this to her,” hence, “the return to her of the $2,505.00 is all of her original $5,000.00 she is entitled to get back as that is all of it he did not let her manage herself ’ ’; defendant (appellant) is entitled to one-half of net gains for 1964, on property other than the farm, of $143.29; that farm income after taxes and depreciation was $13,-152.25 for 1964; parties were married five-ninths of 1964; five-ninths of farm income is $7,308.81, from which all costs (including accountant’s fee for $575.00) will be deducted; Mrs. LeFevers is entitled to one-half of five-ninths of the net farm income, tax refund from amended returns to be included; that the Kirby property, consisting of about 12 acres, which was deeded to appellant and appellee, as husband and wife, will be owned by the parties as tenants in common; and a $500.00 fee was allowed appellant’s attorney. The trial judge pointed out that no attorney’s fee pendente lite was sought or awarded.

In the part of her brief devoted to argument appellant says “the essential points in this case are not based upon a conflict in the substantive rules of law, but upon determination of questions of fact.”

Appellant contends that under the terms of the ante-nuptial agreement she was entitled to have the $5,-000.00, which she owned at the time of marriage, “restored” in full by appellee. Restored is a word of varicus connotations. No authority was cited supporting appellant’s theory of construction and independent research has revealed none. The Chancellor found that Mr. LeFevers had exercised control over only $2,505.00 of the $5,000.00—this he returned—and that he was not responsible for the balance which she either had or had spent as she saw fit. Part of the balance was given to her son, who is a student at the United States Military Academy. The Chancellor gave the parties wide latitude in the presentation of proof on all phases of the case and we are unwilling to say that his finding on this point is not supported by a preponderance of the evidence.

In connection with the 12 acre “Kirby property,” which had been purchased with appellee’s funds during the marriage, the trial judge properly impressed a lien of $150.00 against the one-half interest therein which he awarded appellant because she refused to sign a deed (as she had agreed to do) when appellee could have sold the tract for a profit of $300.00. Had it not been for the fact that her name was included as a grantee in the deed the trial court probably would have decreed that she had no interest at all in the land.

During the marriage appellee acquired what is referred to as the “New Hope” property. Appellant was not a grantee but she says that she was entitled to a one-half interest in the property. However, the trial court determined, and we think properly, that the ‘ ‘ separation or divorce” clause in the prenuptial contract covered only ‘ ‘ net gain ’ ’ on value of property acquired during the marriage.

Appellant alleges error by the trial court in considering depreciation when determining 1964 farm income. The prenuptial agreement provides that in case of divorce appellant is to have ‘ ‘ one-half of any net gain that is made—.” The only proof offered in the trial court was by an expert who said that depreciation is an essential element in determining net income. The Chancellor was justified in accepting this evidence since none to the contrary was offered.

On cross-appeal Mr. LeFevers claims error because the trial court allowed Mrs. LeFevers to share in the 1964 farm income. His theory is that the “joint effort” provision of the divorce clause of the prenuptial agree-ment would not encompass income from the Monroe County farm. There are no citations of authorities in the briefs and our independent research has not been especially fruitful.

A somewhat analogous situation is found in an Oklahoma case (followed in other jurisdictions) construing a descent and distribution statute dealing with property “acquired by the joint industry of husband and wife during coverture. ’ ’

In disposing of the contention that the widow should not be accorded full benefit of the statute because the property did not result from the “joint industry” of the husband and wife, the Oklahoma Court said:

“Counsel followed these statements with quite a lengthy argument upon the meaning of the term “joint industry,” setting out numerous definitions of the word “joint” and the word “industry,” insisting that the word “industry” means something more than housekeeping, etc., but as to the phrase, “joint industry” of husband and wife as found in the proviso of the statute supra they submit no authority supporting their contention, and they furnish no argument that convinces us that that phrase does not mean what it says, and we think it has but one interpretation, that is, the industry of a husband and wife, each in his or her recognized sphere of marital activity, and that an attempt to force the interpretation asked by counsel for plaintiff in error “that the industry or labor must be identical and in the same course of employment and endeav- or” would be to circumvent and abort the natural and socially contemplated marriage relation.” Stone v. Stone, Okla., 206 P. 246.

In later cases the Oklahoma Court and others that have followed the Stone case use the terms “joint industry” and “joint effort” interchangeably. So we think the Chancellor in this case was justified in awarding appellant a portion of the farm income.

That leaves the matter of attorney’s fee and costs, questioned by both parties, to be disposed of. ¥e approve of the trial court’s action in awarding appellant’s counsel a fee of $500.00 and in dividing the costs equally between the litigants. Considering the economic status of the parties, we feel that appellant’s attorneys should be awarded an additional fee of $500.00 and that appeal costs should be assessed against appellee. Marques v. Marques, 232 Ark. 9, 334 S. W. 2d 674; Myers v. Myers, 226 Ark. 632, 294 S. W. 2d 67.

Affirmed.


author: Guy Amsler,, Justice.

text:
    Shannon Supply Co. v. Avey
    5-3922
    403 S. W. 2d 87
    Opinion delivered May 30, 1966

      Carl Whillock, for appellant.

      N. J. Henley, for appellee.
   Guy Amsler,, Justice.

Appellant Shannon Supply Company, Inc. is engaged in the building materials business in Clinton, Arkansas. Appellees Melvin R. Avey and his wife own and operate a furniture store in Clinton. Appellee Paul E. Shonebarger is a building contractor.

In 1963, Shonebarger built a home for the Aveys. During the construction period, Shonebarger purchased materials from Shannon that were used in the Avey residence. The last such purchase was made on July 11, 1963.

Shonebarger did not meet his obligation to pay for the material. Prior to the statutory deadline for filing a lien Shannon discussed Shonebarger’s delinquency with Avey and informed him that if arrangements for payment were not made he would in due time file a lien against Avey’s property.

The obligation was not satisfied, hence Shannon proceeded with plans to perfect his lien. Upon under-1 taking to give the ten days notice required by Ark. Stat. Ann. § 51-608 (1947), Shannon learned that the Aveys were visiting a son in Arizona and would be away about two weeks. Jim Hayes had been left in charge of the store. The parties stipulated “that Jim Hayes, a brother-in-law of Melvin Avey, was employed to attend to the affairs of the Avey’s furniture store in the absence of the Aveys but without power to contract in their names or bind them to an agreement, and his sole duties were to sell merchandise to the public and to receive money voluntarily paid on accounts at the store. That the said Jim Hayes was never a steady employee of the Aveys, and only worked for the Aveys at such times as he was needed, which was at irregular times.”

On the 23rd day of October, 1963, the Aveys still being in Arizona, Shannon served formal notice of “intention to file material lien” on Hayes and Shonebarger, and the lien was filed on November 6, 1963. The account was not paid, so on February 4, 1965, appellant filed suit against the Aveys and Shonebarger seeking judgment against all of them and asking that a lien be impressed on the Avey property.

A separate demurrer was interposed by the Aveys based on the grounds that the complaint did not state facts sufficient to warrant a judgment against them or impressing a lien on their property. The Chancellor sustained this demurrer and found that Hayes “was not expressly vested with the authority by the defendants (Aveys) to receive any such notice” and that he was not an agent of general authority for the defendants. This appeal ensued.

Appellant’s sole contention is that “there was substantial compliance by the appellant in giving notice of its intention to file a lien. ”

Actually the pivotal question is was Hayes ’ agency of such a nature as to bind the Aveys when he (Hayes) was served with the statutory notice. We think that the language used in Ellis v. Fayetteville Lumber and Cement Company, 195 Ark. 385, 112 S. W. 2d 613 clearly suggests that the question must be answered in the negative. The following is quoted from that opinion:

“The agent to whom notice may be given, under the statute, must be such agent as the owner has expressly vested with authority to receive such notice, or referred to as the one to whom such notice might be given, or be an agent of general authority, in such managerial or directing situation with reference to the construction of the building as would constitute him the alter ego of the owner.”

The oral statements made to Mr. Avey by Mr. Shannon could in no wise be considered “substantial compliance” with the statute as they were nothing more than expressions of an intention to give the required notice and perfect a lien.

The General Assembly displayed considerable foresight in the enactment of Ark. Stat. Ann. § 51-609 (1947), which provides an alternative procedure in just such a situation as this case presents. Under § 51-609 appellant could have filed its notice with the Circuit Clerk and Recorder in apt time and gotten the same results as if it had served the Aveys.

The Chancellor acted properly in dismissing the action as to the Aveys and the case must therefore be upheld.

Affirmed.


author: Hugh M. Bland, Justice. Carleton Harris, Chief Justice,

text:
    Hardin v. Pennington
    5-3810
    403 S. W. 2d 71
    Opinion delivered May 30, 1966

      GocJcrill, Laser, McGehee & Sharp, for appellant.
    No brief filed for Appellee.
   Hugh M. Bland, Justice.

This is an appeal from an order of the trial court granting a new trial. The case was an action for personal injuries brought by appellee against appellant and resulted in a verdict for appellant. Appellee, in due time, filed her motion for a new trial. On June 22, 1965 the motion for a new trial came on for hearing and after argument of counsel, the court granted the motion. Hence, this appeal.

Ark. Stat. Ann. § 27-1901 (Repl. 1962) states as the first ground for granting a new trial:

“Irregularity in the proceedings of the court, jury or prevailing party, or any order of court or abuse of discretion, by which the party was prevented from having a fair trial.”

In Texas & Pacific Ry Co. v. Stephens, 192 Ark. 115, 90 S. W. 2d 978, at page 120, this court said:

“This matter of approving or rejecting a verdict of the jury by the trial court is one that must appeal to judicial discretion. Discretion, of course, is opposed to arbitrary action, and is not controlled or interfered with by this court upon appeal.
Ordinarily, this power of the court to review or consider judgments rendered by juries is called into action by a motion for new trial. The court, however, may in the exercise of discretion, act upon a verdict at any time during the session of the court at which it was rendered.”

In 66 C.J.S., New Trial, $ 115, p. 328, it is said:

“With respect to a civil action tried before it, a court of general jurisdiction has inherent power, in the absence of statute to order a new trial on its own motion, even though an. application therefor on other grounds has been made by a party and is pending. Thus the inherent power to set aside a verdict or judgment and grant a new trial rests in a trial court or a trial judge, to be exercised in the interests of justice,”.

In Parmentier v. Ransom, 169 P. 2d 883 (Ore. 1946) it was held:

“In the furtherance of justice the trial court is given a wide latitude in granting new trial on its own motion to correct errors of law, even when no exception has been taken upon the trial.”

In Anderson v. State, 43 P. 2d 474, (Okla. 1935) the Oklahoma Supreme Court held:

“In granting new trial on own volition, judge does not usurp province of jury where verdict discloses that jury misunderstood plain instructions of court. ’ ’

The trial judge, in granting a new trial, explained in detail that he had refused to give the appellee’s requested Instruction No. 5 and he did not think .that the giving of any other instruction properly presented the issues. It is sufficient to say that the court in its sound discretion'exercised its inherent power to grant a new trial; and that it is not shown that he acted arbitrarily in this case.

Affirmed.

Harris, C. J., dissents.

Amslbr, J., concurs.

Carleton Harris, Chief Justice,

dissenting. I do not agree that the trial court was justified in setting aside the judgment. The majority opinion does not set out any of the facts, and it is accordingly necessary that I do so in order to explain my dissent. The case was an action for personal injuries, brought by Mrs. Irene Pennington, who was riding as a passenger in an automobile, driven by Mrs. Sarah Elizabeth Hughes. The Hughes automobile had á collision with another car driven by Renella Hardin, appellant herein. Mrs. Pennington brought suit against Mrs. Hardin, alleging that her injuries resulted from the negligence of appellant. Mrs. Hardin denied negligence, and alleged that the collision was caused by the negligence of Mrs. Hughes. On trial, the jury returned a verdict for appellant.

Subsequently, on. motion of Mrs. Pennington, the court set aside this jury verdict, and granted a new trial! This was done because the court felt that it had made a mistake in not giving to the jury plaintiff’s requested instruction No.. 5. The majority have not set out this instruction, but it reads as follows:

“Negligence in.order to be actionable, that is sufficient to establish liability, must have been a proximate cause of the injury before the plaintiff can recover. Proximate cause is a cause which, in its natural and continued sequence, unbroken by an efficient intervening cause, produces an event, and without which the damage, if any, would not have occurred. In order to warrant a finding that negligence is a proximate cause of any injury, or damage, it must appear from the evidence that the injury, or damage, was a natural and probable consequence of the negligence, and ought to have been forseen by a person of ordinary prudence in the -light of attending circumstances, as likely to occur. The particular injury, or damage, need not have been foreseeable, but it is necessary that some injury, or damage, should be reasonably expected. There may be more than one proximate Cause to any"injury, or damage.” ■

The court was concerned because it had given instruction No. 10, which, it felt, might have left the impression with the jury that there could be only one proximate cause of an accident. The instruction is as follows:

“The proximate cause of the accident or resulting damages, as that term is used by the court, means that, cause which, in the natural and continuous sequence, unbroken by any efficient intervening cause, produces the injury, and without -which the result would not have occurred. It is the efficient cause, the one that necessarily sets in operation the factors that produce the injury, and which in the exercise of due care ought to have been forseen in the light of attending circumstances.”

This instruction, to me, only defines “proximate cause,” and I cannot possibly see how the jury could have been confused, or misled, since the court had just given instruction No. 9, which reads as follows:

“You are instructed if you find from a preponderance of the evidence in this case that the plaintiff suffered injuries and damages which were caused by joint and concurrent negligence of the defendant and the operator of plaintiff’s automobile, then you are instructed that it would be your duty to return a verdict for the plaintiff. ’ ’

This instruction clearly told the jury that Mrs. Pennington could recover against Mrs. Hardin (if negligent), even though Mrs. Hughes (the driver of the automobile occupied by Mrs. Pennington) was also negligent.

I do not think the failure to give plaintiff’s requested instruction No. 5 justified the court in setting aside the jury verdict.

I would reverse the court’s order which set aside the jury verdict.

      Defendant (appellant) made no objection to plaintiff’s instruction No. 5 at the time it was offered.


author: J. L. (Bex) Shaver, Special Justice.

text:
    Gookin v. Locke
    5-3854
    405 S. W. 2d 256.
    Opinion delivered May 30, 1966

      Guy Brinkley and Wrigbt, Lindsey & Jennings, for appellant.

      Gordon & Gordon, for appellee.
   J. L. (Bex) Shaver, Special Justice.

This is an action for the recovery of damages resulting from a traffic mishap that occurred between a car being driven by appellee, Locke, and one driven by appellant, Gookin.

The appellee alleged in his complaint that the damages were caused by the negligence of the appellant m that (a) he was traveling at a high rate of speed, (b) he failed to keep a proper lookout, (c) he failed to yield right of way to an emergency vehicle, (d) he failed to turn off of the highway onto the shoulder of the road when he saw emergency car approaching and giving signals, and (e) he failed to use care and caution of an ordinary prudent person under the same or similar circumstances.

The appellant denied the allegations of the complaint and filed a counter-claim, alleging that the collision was caused by the negligence of appellee in that (a) he failed to maintain a proper lookout, (b) he failed to have his vehicle under proper control, (c) he was traveling at an excessive rate of speed under the circumstances, (d) he failed to yield right of way, (e) he was driving on wrong side of road, and (f) he attempted to pass traffic on a curve when his view of approaching traffic was obstructed.

. .The appellant made timely motions for a directed verdict which were overruled by the Court. The cause was submitted to the jury upon instructions that set forth the issues of negligence as contended for by both parties, including an instruction on comparative negligence.

The jury returned a verdict in favor of appellee, Locke, in the sum of $14,000.00. From judgment on the verdict the appellant brings this appeal.

The appellant states the lower Court erred in not directing a verdict in his favor because there is no substantial evidence in the record showing that he was negligent. This is the only question to be decided on this appeal.

The rule is well settled in this state that if there is any substantial evidence of negligence on the part of the defendant when viewed in the light most favorable to the plaintiff and given its highest probative value, the question must be submitted to the jury. Glidewell v. Arkhola Sand & Gravel Co., 212 Ark. 838, 208 S. W. 2d 4; Superior Forwarding Co. v. Garner, 236 Ark. 340, 366 S. W. 2d 290. With this rule in-mind we will, examine thé évidence in this case. " '

On the morning of January 25, 1965, State Trooper Harry Locke, appellee, who was stationed at Morrilton, Arkansas, was notified by the Russellville Police Department that two boys had burglarized a business in Morrilton, and the Russellville Police had engaged in a gun fight with them and requrested appellee to come to Russellville to help them. Appellee proceeded west toward Russellville on U. S. Highway 64, driving a 1963 Special Blue Ford State Police car, marked with two stars on the door, and equipped with a siren and a red light on top of the car. As appellee was leaving Atkins, traveling west on U. S. Highway 64, a small car identified as a Ford Falcon, with a Texas license, turned into U. S. Highway 64 at an unreasonable rate of speed, and headed west. Appellee, believing the said car needed checking, went in pursuit of it.

Highway 64 west of Atkins is a two lane pavement running east and west through slightly rolling, open country-side. From the western city limits of Atkins for a distance of a mile to the west, the highway is straight and, for all practical purposes, level. "When one reaches the Nottenkamper home, which is located about one (1) mile west of Atkins, the highway for westbound traffic curves slightly to the right and then takes a slight curve to the left.

Conversely, an eastbound ear approaching this location would encounter a slight curve to the right and then a slight curve back to the left before entering on the straight portion of the highway leading directly to Atkins. There is a slight depression between the two curves. The record contains photographs of the highway and engineer’s drawing which reflect the terrain, highway, etc. Sight distances looking both east and west from a reasonable distance from collision were testified to by several witnesses to show that each party could have seen the approaching car of the other if a proper lookout had been kept.

The said Falcon car traveling west at a high rate of speed passed a trailer truck that was going west on said highway. Appellee, continuing his pursuit of the Falcon car, undertook to pass said trailer truck, and before passing same turned on his red light and blew his siren to warn the truck driver of his approach. There is a dispute as to whether the siren continued to sound up to the time of the collision so as to give the Locke vehicle the status of an emergency vehicle under Ark. Stat. Ann. § 75-725 (B-epl. 1957); and we assume the negative for the purpose of this Opinion. The truck slowed down and pulled over to the right of the road. As appellee overtook the trailer truck and was in the act of passing same, he met the ear proceeding in the opposite direction being driven by the appellant, Gookin. Appellee pulled his car over close to the truck and applied his brakes. Appellant also applied his brakes, and both cars collided. Both appellant and appellee were seriously injured.

The point of impact of the cars was 41 feet east of the Nottenkamper home, and was approximately two feet south of the center line of the highway in the east-hound traffic lane. The skid marks from appellant’s car extended west from the point of impact for a distance of 109 feet parallel to the center line in the easthound lane. A few feet west of the point of impact, the sldd marks from appellant’s car began to veer slightly to the north toward the center line of the highway hut did not cross the centerline. The skid marks from the appellee’s, car measured 194 feet from point of impact; 133 feet of these skid marks were entirely in easthound traffic lane and 61 feet were angling across the center line. The pavement at point of impact was 24 feet wide. The shoulders on the south side of the road were nine feet, and seven feet wide on the north side, and both shoulders were graveled and in good condition. The road had good shoulders all the way. Appellee’s car was about two feet over the center line, or in the easthound traffic lane at time of collision, and the left front of each car collided.

Appellee testified: that when he pulled into the eastbound traffic lane be could see the highway in front of him; that he did not know exactly how fast he was going when he pulled out to pass the trailer truck; that he was not driving 70 or 75 because he did not believe the car would accelerate that fast; and that he probably was going 70 miles an hour. He further testified that when he first saw appellant he had his red light on and the other car was 250 or 300 yards away. Appellant testified that he had been traveling between 50 and 55 miles an hour, and that anywhere from 50 to 60 miles an hour was his speed.

Ernest Peters, the driver of the trailer truck which appellee was passing, testified that a speeding red car with Texas license passed him outside the west city limits of Atkins. He testified: that he glanced in his mirror and saw a highway patrolman coming with his lights flashing; that there were two cars approaching, going east; that the first cár pulled over on the shoulder but the second car did not pull over any, and they hit; and that the trooper’s ear was real close to his side of the road, “as I was off the road as far as I could get.” Peters testified that the siren on the patrol car was on after the collision and he turned off the switch; and that it was making a “low whistle.”

Hollis T. Biffle, who was riding with Ernest Peters in the trailer truck, heard Peters say, “here come a Patrolman after someone.” Biffle testified: that he looked up and saw the Gookin car approaching; that he (Gook-in) did not look like he had seen anything and was “thinking about nothing at all”; that about that time he (Gookin) applied his brakes and when he got even with the trailer truck the car made a swerve to the left and “yon could hear tires crying.”

Appellant contends that appellee was not operating an authorized emergency vehicle at the time of the collision and therefore appellee was not entitled to the benefits of Ark. Stat. Ann. §§ 75-625 and 75-725 (Repl. 1957), which imposed the obligation upon appellant to yield the right of way and stop his car and remain in snch position until the authorized emergency vehicle had passed. Regardless of this, the case was submitted to the jury on the issue of comparative negligence. The instruction, not here complained of, reads as follows:

“If you should find that the occurrence was proximately caused by negligence of both Harry Locke and John Gookin, then you must compare the percentages of their negligence. “If the negligence of Harry Locke was of less degree than the negligence of John Gookin, then you should find for Harry Locke on his complaint and also for him on the counterclaim of John Gookin. However, you must reduce the damages of Harry Locke in proportion to the degree of his own negligence.
“If the negligence of John Gookin was of less degree than the negligence of Harry Locke, then you should find for John Gookin on his counterclaim and also for him on the complaint of Harry Locke. However, you must reduce the damages of John Gookin in proportion to the degree of his own negligence.
“If you should find that Harry Locke and John Gookin were equally negligent or that neither was negligent, then neither can recover from the other, and you should find against Harry Locke on his complaint and against John Gookin on his counterclaim. ’ ’

There is an annotation in 47 A.L.R. 2d, page 61, entitled “Collision—Approaching Car—Wrong Lane.”' On page 10 of said annotation we find the statement that where a driver is put on notice that the other driver cannot or will not turn back, the driver who was initially complying with the law may be held liable for his failure to avoid the collision, notwithstanding the improper position of the other car. The annotator further states:

“The statement of these principles is easier than their application, however, since most of the- cases are characterized by directly conflicting evidence as to the actual circumstances of the accident, and even where the story of one party or the other is accepted, the courts in most of the cases have concluded that the question of liability involves an is- • sue of fact for the jury.”

See also Priestly v. Furst, 192 Ark. 374, 91 S. W. 2d 599.

We are required to view this record in the light most favorable to appellee and to give it every reasonable inference in support of the verdict. As aforesaid, the case was submitted to the jury with an instruction on comparative negligence; and there was evidence to sustain the verdict on that issue.

Affirmed.

Amsler, J., not participating.


author: Per Curiam.

text:
    Jackson v. Bishop, Superintendent
    5166
    403 S. W. 2d 94
    Opinion delivered May 30, 1966

      E. Harley Cox, Jr., for' appellant.'

      Bruce Bennett, Attorney General, for appellee.
   Per Curiam.

Petitioner William Jackson was convicted of burglary in the Jefferson Circuit Court and on March 9, 1964 was sentenced to five years in the State Penitentiary. He was a pauper and represented by court appointed counsel. Petitioner prayed an appeal from said conviction, which appeal was denied by the trial court and petitioner now proceeds under Criminal Rule No. 1 of this court.

We now grant said appeal from the burglary conviction and direct that a complete record of all the proceedings and evidence in the burglary trial be filed in this court within a reasonable time and without cost to the petitioner; and we appoint Honorable E. Harley Cox, Jr. to represent petitioner on this appeal. The petitioner’s bond for release pending disposition of said, appeal is hereby fixed at $2,500.00 with sureties to be approved by the clerk of this court.

Harris, C. J., dissents.


author: Carleton Harris, Chief Justice.

text:
    Little Rock Road Machinery v. Light
    5-3856
    403 S. W. 2nd 726
    Opinion delivered June 6, 1966

      Chowning, Mitchell, Hamilton & Burroio, for appellant.

      Wright, Lindsey & Jennings, Kenneth Goffelt, Joe Melton, G. A. Walls, for appellee.
   Carleton Harris, Chief Justice.

In April, 1959, appellant, Little Rock Road Machinery Company, sold and delivered a tractor to Earnie Light and Jack Knox, partners, d/b/a K & L Construction Company, pursuant to the terms of a promissory note, and a conditional sales contract, which provided that the title to the tractor was retained in appellant, and that the purchaser would keep the property insured for its full value against loss by fire or other hazards, for the benefit of the seller. The Little Rock Road Machinery Company ivas the named insured on a blanket policy, issued by appellee, Insurance Company of North America, which covered appellant’s insurable interest against certain perils, including loss by fire. Under this policy, the purchaser of a tractor could become a co-insured to the extent of his interest, and appellee, Earnie Light, elected to, and did become, a co-insured under the policy on April 13, 1959. In June, 1960, the tractor was considerably damaged by fire, at which time a balance of $3,831.62 was owed to appellant company on the conditional sales contract and note. Light instituted two suits against the insurance company in connection with the fire loss, which were dismissed without prejudice, appellant not being a party to the actions. The present suit was instituted on July 17, 1962, appellant not being a party, though aware that the suit had been brought; The insurance company, in its answer, alleged that appellant company claimed a lien in the amount of $3,831.62. However, the appellant did not file any pleadings, and the case proceeded to trial between Light and the Insurance Company of North America. On September 3, 1963, the jury returned a verdict in favor of Light, in the amount of $5,375.30, this sum representing the difference in the value of the tractor before and after the fire loss. Subsequent to this trial, but before judgment was entered on the jury verdict, appellant intervened, asserting that $3,831.62 was owed to it by Light; that it was a named insured on the policy of insurance involved in the litigation, and that it was entitled to judgment for the amount due it against Light and the insurance company. L. J. Carroll, a judgment creditor of Light in. another action, totally unre-. Iated to the one at Bar, likewise intervened, and appellee insurance company deposited. $5,375.30 into the registry of the court, to be disbursed under the order of the .court. Light denied that he owed any amount to appellant company, pleading that appellant had repossessed the tractor, following the fire loss, and that this action constituted an election of remedies,- and the company was not entitled to any of the insurance money; Light also sought judgment against appellant for $7,500.00 damages on account of wrongful repossession of the tractor. Appellant filed its motion for a summary judgment, supported by affidavits, as to the cross complaint, asserting that the affidavits reflected that there was no repossession of the tractor, and that no genuine issue as to any material fact existed between the parties. The insurance company pleaded that it had discharged its obligation by paying the amount reached by the jury verdict into the registry of the court. Kenneth Coffelt, attorney, who represented Light, asserted his right to one-half of the $5,375.30 under his contract of employment with Light, and Coffelt later assigned his rights to E. L. Bailey. On hearing, the court found against appellant’s contention that it had a prior right to the insurance proceeds, and dismissed the motion for summary judgment; it denied appellant’s prayer for judgment against the insurance company, and also denied Light’s request for a jury trial on his cross-complaint against.appellant, the court dismissing the cross-complaint. As to the insurance proceeds, which had been paid-into the registry of the court, the court-entered judgment, ordering the following priorities. First, judgment was rendered on behalf of E. L. Bailey, assignee of the attorney’s lien in favor of Kenneth Coffelt (attorney for Light), in the amount of $2,-687.65; second, judgment was rendered in favor of L. J. Carroll in the amount of $1,019.17; finally judgment was rendered in favor of appellant to the remaining monies in the sum of $1,668.48. From the judgment so entered, Little Rock Road Machinery Company brings this appeal; Light appeals from that part of the judgment awarding the $1,668.48 to appellant, and also that portion denying his request for a jury trial, and dismissing his cross-complaint against appellant.

It is first asserted by appellant that the rights of the parties under the insurance policy were fixed on the date of the fire loss, and that appellant held a prior and paramount interest to $3,831.62 of the money recovered, and the court should have given judgment for that amount. In the alternative, appellant contends that it is entitled to a separate judgment against the Insurance Company of North America for the amount mentioned, plus 12% penalty and attorney’s fee. We will first dispose of the question of liability on the part of the insurance company.

The record discloses a stipulation between the Little Rock Road Machinery Company and the Insurance Company of North America, which expressly states that neither knew that Light was not recognizing any interest of appellant in the policy until after the jury verdict. Admittedly, the insurance company informed Little Rock Road Machinery Company of the filing of the suit, and for that matter, appellant 'does not contend that it did not know of the pending litigation between Light and the insurance company. There was nothing to prevent appellant from intervening. Light refused to accept a check payable jointly to him and appellant, and it appears that the insurance company did the only thing it could do, under the circumstances, i.e., pay the money into the registry of the court. In doing so, it fulfilled its obligation, viz, to pay the damage to the tractor occasioned by the fire. Appellant is not entitled to any relief from this appellee.

We agree with appellant’s contention that the rights of the parties were fixed on the date of the fire loss. It is not disputed that, at that time, $3,831.62 was due on the contract. Accordingly, whatever subsequent events took place, appellant, on June 14, 1960 (the date of the fire), was due to receive from the proceeds of the insurance, the amount of money that it is asking in this litigation. The question of whether repossession of the damaged property by the seller precludes the seller’s rights to proceeds from the insurance policy is discussed in Fageol Truck and Coach Company v. Pacific Indemnity Company, 117 P. 2d 661, and Kolehouse v. Connecticut Fire Insurance Company, 65 N. W. 2d 28. In both cases, the respective courts (of California and Wisconsin) held that the sellers’ rights were fixed at the time of the loss, although it is pointed out in Kolehouse that a seller would not be permitted to become “unjustly enriched if the amount collected by it from the defendant insurance company, together with the reasonable value of the damaged tractor, which it repossessed, exceeded its actual insurable interest in the tractor as of the elate of the * * * loss.” We hold that appellant has the prior right to $3,831.62 of the insurance money, subject however, to certain restrictions or limitations, as will be subsequently set out.

It is not clear why the court gave preference to Carroll over appellant. Carroll obtained a judgment for $1,-019.17 on September 3, 1963 (the same date that the jury returned its verdict for Light) and Carroll intervened in this litigation before the court actually rendered a judgment. Certainly Carroll had no right that'was paramount to the right of appellant, an insured under the policy, and the court erred in so holding.

Though we have stated that appellant was entitled to receive the amount owed to it at the time the tractor was damaged, this right is subject to the expense inc-urred in enforcing payment. The insurance company and Light were unable to agree on the amount of damage to the tractor, and Light instituted suit. In doing so, he employed counsel to handle the suit for Mm, and entered into a contract to pay counsel 50% of the amount recovered in payment of legal services. Light, under the policy, had the right to institute suit, but appellant had just as much interest, if not more, in the successful outcome of the law suit. Appellant, as previously stated, was entirely aware of the fact that this suit (as well as two previous ones) had been commenced by appellee. Still, it did not intervene, and the record does not reflect that Little Rock Road Machinery Company assisted in the litigation in any manner. As appellee points out in his brief, appellant “set back and let Light and his attorneys carry the ball and assume the burden of collection for the damage done the tractor by the fire.” As it develops, the services rendered by Light’s attorney have also benefited appellant. Simple justice demands that this company also be charged with responsibility for a fee, commensurate with the services rendered. See Winfrey and Carlile v. Nickles, Admr., 223 Ark. 894, 270 S. W. 2d 923. In other words, appellant cannot obtain its full recovery, leaving the attorneys who obtained that recovery in the position of working gratuitously.

However, appellant is not bound by the contract entered into between the attorney and Light, but counsel •is entitled to a fee on a quantum meruit basis. As stated in Winfrey and Carlile v. Nickles, Admr., supra, “The Circuit Court was right in assessing the attorney’s fee upon the basis of what would have been fair had St. Paul been a wholehearted and enthusiastic cross-complainant in the litigation, and it is not contended that in that situation the sum allowed would be excessive.” Accordingly, we think this question should be determined by the trial court, on remand, at which time it will allow a fee which it deems reasonable to compensate an attorney who has recovered for his client $3,831.62.

The court was correct in refusing to render a summary judgment for appellant on appellee’s cross-complaint, for, under testimony taken before the court (and also before the jury in the original trial), the question of whether Little Bock Boad Machinery Company had repossessed the tractor, was a controverted question of fact. Since the issue of whether there was repossession was disputed, it follows that the court erred in dismissing Light’s cross-complaint for damages caused by the alleged repossession by appellant, and in denying him a trial by jury on this issue. It may be that the court dismissed Light’s cross-complaint on the assumption that the jury had determined that the tractor belonged to Light. Before the jury brought in its verdict, the foreman asked the court who would receive the tractor that was damaged in the fire. The court responded, “The tractor will belong to Mr. Light.” This statement was correct, as between the only two parties to that litigation, Light and Insurance Company of North America, but it certainly did not determine the matter of repossession, an issue solely between Light and appellant.

In accordance with what has been said, that portion of the trial court’s judgment denying appellant full recovery for the amount of $3,831.62 is hereby reversed, and the court is directed to enter judgment for appellant in that amount less a sum which it deems tote a reasonable attorney’s fee, based on the amount of recovery, and which shall be paid over to E. L. Bailey, assignee of Kenneth Coffelt. Of course, counsel is still entitled, under his contract, to 50% of the remainder of the monies (over the $3,831.62), which has also been assigned to E. L. Bailey.

That portion of the judgment dismissing Light’s cross-complaint for damages caused by the alleged repossession of the tractor by appellant, is reversed, and the cross-complaint reinstated, Light being entitled to á jury trial on this question, if he still so desires.

That portion of the judgment giving Carroll priority over appellant is reversed.

After deducting that portion of the $3,831.62 allowed counsel as attorney’s fee, the remainder of the monies due appellant shall remain within the registry of the court as security for any possible judgment that Light might obtain against Little Rock Road and Machinery Company, unless that company executes a proper bond to insure payment of any such judgment.

It is so ordered.

      Later the partnership was dissolved, and Knox had no further interest in the tractor, and is not a party to this litigation.

      Several witnesses testified relative to this question before the jury, and later before the court, including Light, Henry Wilkerson, at whose place of business the tractor was stored, Ernest Pils of Little Rock Road Machinery Company, who handles all matters pertaining to credit and repossession of property, and William P. Witsell Jr., an adjuster, who handled the claim for Insurance Company of North America. Actually, the only issue in the jury trial between Light and Insurance Company of North America was the amount of damage done to the tractor, and testimony relating to repossession was irrelevant in that particular proceeding. Appellant, as mentioned, was not even a party at that time.


text:
    Walden v. Mendleson
    5-3891
    403 S. W. 2nd 745
    Opinion delivered June 6, 1966

      George J. Gambiano and Parker Parker, for appelant.

      White & Young, William H. Schulze, Smith, Williams, Friday & Bowen, for appellee.
   Carleton Harris, Chief Justice.

Bennie Walden, appellant herein, was involved in an automobile accident in the city of Danville, Arkansas, on October 10, 1961. Thereafter, he employed the appellee physicians to examine, and treat him, for injuries allegedly sustained in the accident. Subsequently, Walden instituted suit against these physicians, alleging that they had advised him that they could find no evidence of physical injuries, and that he did not have any residual or permanent disability; that in reliance upon these representations, he settled his claim against the driver of the other automobile for the sum of $1,500.00. Walden then asserted that he later learned that he had received severe and permanent injuries to his spinal cord and nervous system in the wreck, and he sought to recover $260,000.00 from appellees. Appellees filed a motion for summary judgment, supported by two affidavits, and the court granted the motion, dismissing Walden’s complaint (as amended) with prejudice. From this judgment, appellant brings this appeal.

We are unable to consider this appeal on its merits, for the reason that Rule 9(d) has not been complied with. As we said in Pyramid Life Insurance Company v. Hamilton, 237 Ark. 797, 376 S. W. 2d 555:

“ * * # On nirmerous occasions, this court has stated that we are not required to explore the transcript, but rather, that the duty rests upon an appellant to furnish this court such an abridgment of the record as will enable us to understand the matters presented. See Vire v. Vire, 236 Ark. 740, 368 S. W. 2d 265, and cases cited therein.”

Here, there is no abstract whatsoever, appellant’s brief containing only a statement of the case, points for reversal, and argument. In situations of this kind, we have consistently affirmed the trial court’s decree or judgment.

It might be added, however, that the same result would be reached if the case were considered on its merits.

Affirmed.


author: Ep. F. MoFaddin, Justice. Paul Ward, Justice,

text:
    Miller v. Crutchfield
    5-3895
    405 S. W. 2d 269
    Opinion delivered June 6, 1966
    [Rehearing denied July 25, 1966.]

      Highsmith & Harkey, for appellant.

      Murphy, Arnold & Purtle and Gioy Wiley, for appellee.
   Ep. F. MoFaddin, Justice.

This is a suit brought by an upper riparian owner against a lower riparian owner for removal of a dam which obstructed the ordinary flow of a natural watercourse. The appellants, Mr. and Mrs. Miller, filed this suit against the appellee, Mr. Crutch-field, to require him: (a) to remove or lower the level of a dam he had constructed which caused water to cover a portion of the Miller lands; and (b) to pay for damages caused by such flooding.

Long Creek, in Izard County, is a natural watercourse which, flows northeasterly through the lands of the Millers to and through the lands of Crutchfield and then through lands of other owners. In 1961 Crutchfield decided to construct a dam on his land so as to impound the waters of Long Creek in order to create a lake of 25 to 30 acres. Crutchfield selected a place where it would require a dam to be oidy 500 feet long, whereas, if he had gone further down stream on his own land, a much longer dam would have been required. Before commencing the dam, Crutchfield obtained a release from the lower riparian owner, Mr. Melton; and undertook to obtain a release from the Millers as the upper riparian owners. The Millers refused to execute any written release; and the testimony is in hopeless confusion as to whether the Millers orally agreed to any release.

Crutchfield testified: “I was determined to build a dam”; so, regardless of the attitude of the Millers, Mr. Crutchfield began the construction of his dam in late 1961 and completed it in December 1962. As a result of the dam, the lake that Crutchfield caused to be formed extended up Long Creek on to the Miller land, covering from a half acre to three and one-half acres, according to the season of the year and according to the testimony of the different witnesses. At all events, part of the lake flooded the Miller land and the water, three to six feet deep, caused: (a) loss of timber; and (b) loss of use of a portion of the Miller land by the soil becoming soggy.

On May 26, 1964, the Millers filed this suit, seeking: (a) a mandatory injunction to require Crutchfield to remove the dam, or enough of it to prevent damage to the Miller land; and (b) a judgment for damages already sustained. As to the mandatory injunction, the plaintiffs prayed:

“Wlierefore, the plaintiffs ask that a mandatory injunction be issued by this court against the defendant requiring the defendant to take such acts as will place the stream bed of Long Creek in such position that its normal flow prior to the damming is resumed ; that the defendant, his agents, servants and employees, be permanently enjoined after the defendant is mandatorily required to rectify this damage from further damming said Long Creek to the plaintiffs’ detriment; ...”

Crutchfield’s defenses were: (a) that the Millers were benefitted rather than damaged by the lake; (b) that the Millers had orally agreed that Crutchfield could construct the dam; and (c) that the Millers, after notice that Crutchfield was constructing the dam, sat by for over two years and allowed him to expend money for such construction, so they were guilty of laches and are estopped from maintaining this suit. A lengthy trial was conducted in the Chancery Court and resulted in a decree in which the learned Chancellor found:

“That the defendant has impounded the flow of Long Creek, which is found by this court to be a natural watercourse, so as to cause the waters of Long Creek to back up past the fence dividing the plaintiffs’ land from defendant’s land and to overflow over and onto lands of the plaintiffs, and that this overflow has caused damages to the plaintiffs in the amount of $208.65, as of June 3,1965.
“That the defendant has no license or easement, express or implied, to so encroach on the lands of the plaintiffs, that the plaintiffs are not barred by laches or estoppel from a removal of the encroaching waters, and that a mandatory injunction should be issued and the defendant directed to lower the obstruction placed by him on Long Creek so that the encroaching waters will not overflow onto the lands of the plaintiffs for a longer period than twenty-four (24) hours at any one time.”

Even though, the Millers had won a victory, nevertheless they have appealed to this Court on this one point:

“That the Court erred in allowing the defendant to continue to interfere with and impede the normal flow of a natural watercourse so that the water can fill up the bed of the watercourse on the land of the plaintiffs and also cover the land of the plaintiffs for periods up to 24 hours at any one time.”

Because of the appeal by the Millers, Crutchfield has cross appealed, urging:

“The Trial Court should not have issued any injunction against appellee.
“A. The appellee was granted an oral license or easement, either expressly or by implication to flow the lands of appellants which was executed and which is enforceable.
“B. The appellants were and are estopped by their acts and failures to act and, therefore, the injunction shoud not have been issued.”

I. The Direct Appeal. We clearly recognize and declare the right of an upper riparian owner of a natural watercourse to have equity order a lower riparian owner to remove obstructions he has placed in a watercourse which have the effect of causing waters so impounded to encroach on the lands of the upper riparian owner, or to cause the natural watercourse to overflow in times of high water more than it did before the erection of such obstruction. Some of our cases on this point are: Turner v. Smith, 217 Ark. 441, 231 S. W. 2d 110; Walt v. Phillips, 166 Ark. 163, 266 S. W. 71; Monteith v. Honey, 135 Ark. 407, 205 S. W. 812; and Taylor v. Rudy, 99 Ark. 128, 137 S. W. 574.

In practical effect, the Chancery decree is in accordance with these cases. The appellant objects to the 24-hour clause in the decree; but the evidence shows that in times of heavy rains and high water Long Creek did overflow its banks even before the Crutchfield dam was built.

One witness, Mr. H. C. Johns, had owned the Miller farm from 1941 to 1946. He testified:

“Q. ... During those years, after a spring rain, you have seen the creek out of its banks, haven’t you?
“A. Yes, sir.
“Q. And you have seen it cover that bottom, haven’t you?
“A. Yes, sir, I have.”

Another witness, Fred Beach, a former owner of the-Miller lands, testified:

“Q. ... Will you tell the court whether or not, during the time you owned the farm and prior to the time Crutchfield Lake was built, the lowland ever flooded?
“A. During extremely rainy seasons, why some of the bottom land did flood.”

Another witness, John Tomlinson, who grew np on the Miller lands, testified:

“A. Well, like it’s been said already, in big rains it would at times get out over the meadows.”

The 24-hour provision was a practical solution of a difficulty. The entire destruction of the Crutchfield dam would not have prevented the Miller land from overflowing in times of heavy rains and high water. The Chancellor, using his practical experience, placed the 24-hour provision in the decree. In view of what will hereafter be said about the attempted settlement, we believe full equity can be obtained by appellants if they are troubled in the future by the waters from the dam, and we believe that our orders regarding remand will give the appellants the full relief to which they are entitled by law.

II. The Cross Appeal. As to the appellee’s cross appeal, little need be said. As previously remarked, the evidence is in hopeless dispute as to whether the Millers orally agreed to the construction of the dam. The burden was on Mr. Crutchfield to prove such agreement; and the Trial Court, after seeing the witnesses and hearing them testify, held against Mr. Crutchfield; and we cannot say that the finding of the Chancellor on this point is against the preponderance of the evidence. Likewise, as to laches and estoppel, the Millers did not know until the waters of the lake were up to the level of the dam just where the waters would be on their land. They did not cause Crutchfield to spend his money building the dam: he did that at his peril. Within a reasonable time after the waters flooded the Miller land, this litigation was filed. So we find no merit to the cross appeal.

III. The Attempt At Settlement Which Occurred After The Entry Of The Decree. The appellee filed a motion in this Court to dismiss the appeal. At our invitation, the attorneys for both sides appeared before us in regard to such motion, and we passed the consideration of the motion until this appeal was reached on its merits. We now take occasion to state that all the attorneys have acted in the finest traditions of the profession, in their dealings with the Court, with each other, and in representing their clients; and we commend the attorneys. The situation regarding the settlement arose in this manner:

After the Chancery decree was rendered, the attorneys for all parties understood that there would he no appeal. Consequently, appellee Crutchfield lowered his dam in an effort to comply with the decree, and was ready to pay the damage judgment and costs. But within the time allowed by law, the Millers elected to appeal. Mr. Crutchfield contends that he was led to believe that the Millers would not appeal and therefore he complied with the decree of the Court in lowering his dam, and that since he had lowered his dam in the honest belief that the Millers would not appeal, their appeal should be dismissed.

We cannot say that both of the Millers knowingly waived their right of appeal; but we think the effort toward settlement has proved valuable in this case. If the appellee Crutchfield has, in fact, lowered the water level of his lake so that ho more water will encroach on the Miller land and so that Long Creek will not overflow from heavy rainfalls any worse in the future than it did before the dam was constructed, then the Millers have received the injunctive relief for which they prayed. Of course, Crutchfield must pay the damage judgment and all costs of the Chancery Court. On the other hand, if Crutchfield’s post-chancery-decree-effort has not brought about such a result, then the Millers are entitied to further relief in the Chancery Court.

We therefore affirm the decree as rendered by the Chancery Court, with the cost of this appeal to be paid equally; and we remand the cause to the Chancery Court to reinvest it with continuing jurisdiction to see that the Millers receive the relief to which they are entitled. If the dam has not been sufficiently lowered to accord them the relief herein mentioned, then, on proper showing, the Chancery Court will grant them such relief and will award them damages occurring since the rendition of the former decree.

Affirmed and remanded.

Ward, J., dissents.

Paul Ward, Justice,

dissenting. The pertinent part of the trial court’s order from which appellants’ appeal reads:

“. . . the defendant (is) directed to lower the obstruction placed by him on Long Creek so that the encroaching waters will not overflow onto the lands of the plaintiffs for a longer period than twenty-four (24) hours at any one time.” (Emphasis supplied.)

Appellants object to the part which is emphasized, and I think they are justified in doing so.

To my mind, to state the objection is to answer it. If the stream (in its natural state) overflowed for twenty-four hours “X” number of times, it seems axiomatic that it Avould overfloAv more times as a result of the dam.

      The decree of the Chancellor impliedly found that the Millers never agreed to any such release, and that point will he discussed when we consider the appellee’s cross appeal.

      The Trial Court awarded the Millers damages in the amount of $208.65; and on this appeal neither party complains of the award of damages or the amount thereof.

      The decree contained this further language:
      “. . . that a mandatory injunction be and is hereby issued and the defendant is enjoined and directed to lower the obstruction placed on Long Creek by him so that the impounded waters will not back up past the division fence between the lands of the plaintiffs and the lands of the defendant and overflow onto the lands of the plaintiffs for a longer period than twenty-four (24) . hours at any one time; that the defendant will pay all of the costs of this action; and the Court shall maintain continuing jurisdiction of this cause for such further orders as may be necessary and proper in the premises. That the defendant is not restrained from interfering with the natural flow of Long Creek and/or causing the impounded waters to back up in the bed of Long Creek past the fence dividing the parties’ lands so long as he does not cause Long Creek to overflow its banks and the water to remain on plaintiffs’ land longer than a period of twenty-four (24) hours at any one time.”

      The results which the decree awarded the Millers must necessarily be that the water level of the lake has to be lowered so that no water from the lake will encroach on the Miller land and so that Long Creek will not overflow from large rainfalls any worse than it did before the dam was constructed.


author: George Kose Smith, Justice.

text:
    Crone v. Johnson
    5-3911
    403 S. W. 2d 738
    Opinion delivered June 6, 1966

      David 0. Partain, for appellant.

      Warner, Warner, Rag on & Smith, for appellee.
   George Kose Smith, Justice.

This is a suit brought by the appellee, Florence Y. Johnson, to foreclose a purchase-money mortgage on the Cardinal Motel in Fort Smith. The principal question is whether the chancellor was right in holding that the circumstances attending the debtor’s default in the payment of two monthly installments were such as to entitle the mortgagee to declare the entire debt immediately due and payable. We have concluded that the attempted acceleration of the indebtedness should not have been permitted.

On January 9, 1964, Mrs. Johnson sold the motel to the appellant’s predecessor in title, who executed a $37,283.27 note and mortgage, payable in equal monthly installments of $314.30, for the unpaid purchase price. Later on the appellant Crone bought the purchaser’s equity and assumed the mortgage. Monthly payments were made with regularity until a dispute arose, which led to Crone’s refusal to pay the installments due on June 1 and July 1,1965. Mrs. Johnson attempted to accelerate the maturity of the debt and filed this suit on July 20, 1965. The court appointed a receiver to operate the motel during the pendency of the case.

The parties’ dispute concerned the proper application of checks totaling $1,764.74 that were issued by an insurance company to pay for windstorm damage suffered by the motel on May 8. Under the mortgage the debtor was required to carry insurance payable to the mortgagee as her interest might appear. The insurance company, to protect itself in paying the claim, made the checks payable jointly to Crone and Mrs. Johnson. The two eventually reached an impasse, as neither would endorse the checks so that the other could cash them. Mrs. Johnson finally brought the matter to a head by declaring the entire debt due and filing the present suit. In the course of the proceedings the chancellor directed that the insurance money be applied upon the debt, as accelerated, and that the rest of the obligation be enforced by a decree of foreclosure.

We think both parties were at fault in the dispute. The storm had damaged the roof and some of the windows of the motel. Crone was anxious to repair the damage quickly; he needed the income from the motel to make his monthly payments. He did part of the work himself and incurred obligations for the rest of the repairs. Crone took the position that he would endorse the cheeks only if Mrs. Johnson agreed for the money to be paid over to him.

Mrs. Johnson, whose husband acted for her, refused to accept Crone’s suggested solution of the difficulty. Johnson apparently expressed his willingness to use some of the money to pay bona fide repair bills, but we are not convinced that he was as co-operative as he should, in fairness, have been. Johnson, who had possession of the checks, finally decided to take no action until after the first of July. By then two monthly payments, as well as some taxes and insurance premiums, were delinquent. As we have said, Mrs. Johnson ended the deadlock by accelerating the debt and filing suit.

Even though insurance is payable to the mortgagee as his interest may appear, it does not follow that the mortgagee is entitled to apply the money in any way he chooses. Bonham v. Johnson, 98 Ark. 459, 136 S. W. 191 (1911). In a proper case—and we regard this as such a case—the funds may be used to pay current installments as they fall due. Appleman, Insurance Law & Practice (1941), § 3386; Zeigler v. Federal Land Bank, 86 S. W. 2d 864 (Tex. Civ. App. 1935); Thorp v. Croto, 79 Vt. 390, 65 Atl. 562, 10 L.R.A. (n.s.) 1166, 9 Ann. Cas. 58, 118 Am. St. Rep. 961 (1907). Here that course achieves an altogether equitable result. Mrs. Johnson has the benefit of the insurance proceeds in the reduction of the mortgage debt, while Crone receives an interruption in the monthly payments at a time when he needs to use his income for repairs.

Similar principles of justice permit a court of equity to protect the debtor against an inequitable acceleration of the maturity of the debt. Johnson v. Guaranty Bank & Tr. Co., 177 Ark. 770, 9 S. W. 2d 3 (1928). Here the misfortune of the windstorm ought not to cause Crone to lose his equity in the property. The insurance money should have been applied to prevent the default that Mrs. Johnson relied upon in declaring the entire indebtedness payable at once.

Upon remand the attempted acceleration of the debt will be set aside and an account struck between the parties, by the application of the insurance money and the net proceeds of the receivership to the items that are delinquent. If such available funds are not sufficient to pay all the indebtedness that has accrued Crone should be given a reasonable time within which to pay whatever amount is needed to make the account current. Some of the blame being chargeable to each side, the costs will be divided equally.

Reversed.

Bland, J., disqualified.


author: George Rose Smith, Justice.

text:
    Dalton v. Eyestone
    5-3949
    403 S. W. 2nd 730
    Opinion delivered June 6, 1966

      U. A. Gentry, Audrey Strait, for appellant.

      Edgar Woolsey, Williams & Gardner, for appellee.
   George Rose Smith, Justice.

This is another in a series of recent cases involving rights of survivorship in joint bank accounts. Here the circuit court, sitting without a jury, awarded the funds in the account to the appellee as the surviving depositor. The only question is whether the court reached the right conclusion upon facts that are undisputed.

In 1959 Annie Dalton, the appellee’s mother, deposited $o,500 in the Farmers National Bank of Clarksville. The bank issued an interest-bearing certificate of deposit payable to “Mrs. Annie Dalton or Mrs. Jack Ingram Sr. or order.” It is indicated that Mrs. Ingram, another of Mrs. Dalton’s children, later died. Mrs. Dalton decided to have the certificate reissued in the names of herself and her daughter Mary Eyestone, the appellee.

On January 31,1961, Mrs. Dalton, then confined to a hospital, directed Mrs. Eyestone to take the Dalton-Ingram certificate to the bank and have it reissued to Mrs. Dalton and Mrs. Eyestone. Mrs. Eyestone testified that “she wanted my name put on there so I would have it if I survived.her.” A new certificate was accordingly issued, payable to “Mrs. Annie Dalton or Mary Eye-stone.” Mrs.1 Eyestone showed the new certificate to her mother and then-left it at the bank for safekeeping. Mrs. Dalton received the interest payments until her death in 1963. The administrator of her estate then brought the present suit to recover the money, which the bank paid into the registry of the court.

Upon the main issue the case is governed by Robertson v. Phillips, 240 Ark. 221, 398 S. W. 2nd 889 (1966), where we held that no right of survivorship was created by a certificate of deposit payable to Richard Isaac Phillips or Mamie Robertson or order. The reason is that the statute expressly requires that the deposit be made “in form to be paid to either, or the survivor of them. ’ ’ Ark. Stat. Ann. § 67-621 (Repl. 1957). In the Robertson case we adhered to our earlier holdings that a substantial compliance with the statute is essential to the right of survivorship (The case at bar, like the Robertson case, arose before the passage of the 1965 acts there cited.)

The appellee also argues that there was a completed gift of the money when Mrs. Dalton handed the Dalton-Ingram certificate to Mrs. Eyestone with instructions to have it reissued. Not so. A valid gift must be evidenced by an actual delivery of the subject-matter “with a clear intent to make an immediate present and final gift beyond recall.” Bennett v. Miles, 212 Ark. 273, 205 S. W. 2d 451 (1947). Mrs. Dalton’s intention to retain an interest in the account is uncontrovertibly shown not only by Mrs. Eyestone’s own testimony but also by Mrs. Dalton’s decision to have her own name appear upon the certificate.

Reversed.

Bland, J., not participating.


author: George Rose Smith, Justice. Ed. F. McFaddin, Justice,

text:
    Walsh v. Campbell, County Judge
    5-3996
    405 S. W. 2d 264
    Opinion delivered June 6, 1966
    [Rehearing denied July 25, 1966.]

      Neill BoMinger, for appellant.

      Glenn F. Walther, John T. Jernigan, Gayle K. Ford, for appellee.
   George Rose Smith, Justice.

This taxpayer’s suit, brought by the appellant, questions the validity of á lease-purchase contract by which the Pulaski County Board of Election Commissioners has undertaken to acquire 300 voting machines for use at elections within the county. The chancellor rejected all the complaining taxpayer’s arguments against the validity of the contract. The chancellor nevertheless refused to issue a writ of mandamus to compel the county to appropriate-money to pay the first installment due under the contract, for the reason—and' only for the reason—that the proponents of the contract (the Board of Election Commissioners and the seller of the machines) have not shown that the proposed expenditure will not result in the-county’s exceeding its current revenues, in violation of Amendment 10 to the Arkansas Constitution.

For many years the advocates of voting machines have persevered in their efforts to obtain them for use in Pulaski county. The machines were first approved by the county at an election held in 1958, under Act 484 of 1949. Ark. Stat. Ann., Title 3, Ch. 17 (Repl. 1956). The county’s ensuing attempt to purchase voting machines failed, because the machines were not capable of making a record of individual votes, as the constitution required. City of Little Rock v. Henry, 233 Ark. 432, 345 S. W. 2d 12 (1961).

Apparently it was more practical to change the constitution than to change the machines. Amendment 50, eliminating the constitutional difficulty, was initiated and adopted in 1962. The statues were revised to implement the amendment. Act 53 of 1963; Ark. Stat. Ann., Title 3, Ch. 17 (Supp. 1965). A new election in Pulaski county was held to he necessary. City of Little Rock v. Cavin, 238 Ark. 333, 381 S. W. 2d 741 (1964). After the electorate again approved the machines the present contract was negotiated.

We need not recite the detailed provisions of this long agreement. Its length is largely due to the incorporation of the minute safeguards required by § 2 of Act 53. Ark. Stat. Ann. § 3-1702. In broad outline, the contract is a lease-purchase agreement extending over a period of ten years. The county may, but is not required to, renew the lease from year to year. At the end of the term the machines become the property of the county. The county has the option of buying the machines at any time during the term, with previously paid rentals to be credited upon the purchase price.

Section 3-1703 authorizes the county board of election commissioners to “purchase” voting machines. This authorization contemplates the negotiation of a binding contract, for otherwise the explicit authority to purchase would be meaningless.

There is no express requirement in the statute that the county court approve the purchase or that it be preceded by a quorum court appropriation. The appellant’s primary contention, argued in four points for reversal, is that the legislative attempt to empower the county board of election commissioners to bind the county invades the exclusive jurisdiction of the county court under Article 7, § 28, of the constitution: “The county court shall have exclusive original jurisdiction in all matters relating to county taxes, roads, bridges, ferries, paupers, bastardy, vagrants, the apprenticeship of minors, the disbursement of money for county purposes, and in every other case that may be necessary to the internal improvement and local concerns of the respective counties.”

This particular argument has been rejected so often that the meaning of the constitutional provision is not open to doubt. The county court’s authority to disburse funds for local purposes does not prevent the legislature from requiring the county to pay expenses imposed by state law. We reviewed several cases in Jeffery v. Trevathan, 215 Ark. 311, 220 S. W. 2d 412 (1949), where, in upholding a statute against this same attack, we pointed out that “the net effect of this contention Avould be that a State law, requiring counties to publish claims at the expense of the counties, could he of no validity in any county which did not wish to comply with the State law.” The publication of claims against the county touches local county concerns more closely than does the purchase of voting machines for use in State, county, and municipal elections.

Our cases were again reviewed in Campbell v. Ark. State Hospital, 228 Ark. 205, 306 S. W. 2d 313 (1957), where we sustained a statute requiring counties to pay for the maintenance of accused persons committed to the state hospital for mental examination. Among many other cases Adams v. Whittaker, 210 Ark. 298, 195 S. W. 2d 634 (1946), is almost directly in point. There it was held that the General Assembly may compel counties to bear the expense of elections. There is nothing .unreasonable, especially in the light of Amendment 50, in the legislature’s conclusion that the purchase of voting machines is a permissible election expense.

The appellant also insists that the Pulaski county contract is improvident, because the machines’ capacity of -360 voting spaces might conceivably he insufficient for the listing of all candidates in a particular election. The same argument could he made if the machines were designed to handle 1,000 names instead of only 360. In a matter of this kind some leeway must he allowed for the exercise of sound judgment on the part of the county board of election commissioners. Furthermore, the statute permits the use of ballots when the vote is expected to be too heavy for the capacity of the machines. Section 3-1732. That section of the law provides an adequate solution for the difficulty now suggested.

The decree is affirmed, without prejudice to any future proceeding in which there may arise a question about the sufficiency of the county’s available revenues to meet the first payment under the contract.

McFaddin, J., dissents.

Ed. F. McFaddin, Justice,

dissenting. After the decision of this Court in Little Rock v. Cavin, 238 Ark. 333, 381 S. W. 2d 741, the matter of voting machines was again submitted to the electors of Pulaski County and received a favorable vote; and the machine of the Automatic Voting Machine Corporation was approved by the State Election Board, as provided by Act No. 53 of 1963. Thén the Pulaski County Board of Election Commissioners signed the lease-purchase contract here involved, with the AVM Corporation; but the County Judge of Pulaski County, for himself and for the County Court, refused to sign or approve the contract. Thereupon, the appellant brought this action to enjoin the Pulaski County Board of Election Commissioners from proceeding under the contract. The Chancery Court held the contract to be legal and valid; and this appeal challenges that holding.

Assuming, without deciding, that under our cases the Legislature has the power to require a county to install and use voting machines, nevertheless I insist:

(a) that the Act in question does not so provide; and
(b) that the Act still leaves it to the County Court to pass on and approve any and all payments.

For either of the foregoing reasons, the Chancery decree should be reversed.

I. The Legislative Enactment Here Involved. The Act No. 53 of 1963 is the Act 3 which the Majority holds to be sufficient to authorize and empower the Pulaski County Board of Election Commissioners to make the contract here involved, without the consent or approval of the County Judge or the County Court of Pulaski County. The only provision I can find in the Act No. 53 regarding the lease-purchase contract for the voting machines is in Section 3 of said Act (Ark. Stat. Ann. § 3-1704 [Supp. 1965]). The germane language is:

“If the majority of the votes cast favor the proposal, the County Board of Election Commissioners shall install any voting machines approved by the State Board of Election Commissioners in all voting precincts in the County, . . . The State Board of Election Commissioners or the County Board of Election Commissioners shall have the authority to purchase or lease-purchase voting machines and payment may be provided for in such manner as is deemed best for the interests of the State, County, or City in which an affirmative vote is cast under the provisions of this section.” (Emphasis my own.)

It will be observed that the Act says that “ . . . payment may be provided for in such manner as is deemed best for the interests of the State, County, or City ...” Who is to make the payment? The Act is silent on that point. If the Legislature had intended for the County to make such payment, then the Legislature should have so stated, and should also have stated the source of the money for such payment. There is nothing in the Act which says who will make the payment. It might just as well be urged that the payment should come out of the State Treasury as out of the County Treasury. If the County Court is to be required to pay for the lease-purchase of the voting machines, where do such payments come in the list of priority of payments, as provided by Ark. Stat. Ann. § 17-409 (Repl. 1956.) ? The evidence shows that the Quorum Court of Pulaski County refused to make an appropriation for this voting machine contract.

I submit that the Act is a mere authorisation Act, and not an appropriation Act, and that the Legislature did not empower the County Board of Election Commissioners to make contracts requiring a County to use County money to pay on a contract that the County Judge and the County Court have refused to approve,

The payments to be made under this contract certainly involve substantial sums. Merely for the lease of the machines the County will have to make these payments :

300 Machines Lease Payments
12/1/66 $ 14,600.00
2/1/67 '58,400.00
2/1/68 58.400.00
2/1/69 58.400.00
2/1/70 58.400.00
2/1/71 58.400.00
2/1/72 58.400.00
2/1/73 58.400.00
2/1/74 58.400.00
2/1/75 58.400.00
2/1/76 58.400.00
$598,600.00

If the County should elect, on any date before February 1, 1976 to purchase the machines, the payment price would be:

Option Price
2/1/67 $ 492,450.00
2/1/68 443.250.00
2/1/69 394.050.00
2/1/70 344.700.00
2/1/71 295.650.00
2/1/72 246.150.00
2/1/73 196.950.00
2/1/74 147.750.00
2/1/75 98.550.00
2/1/76 58.410.00

In addition to the schedule of payments, the contract requires the County to pay the insurance premium on the voting machines, and also to provide storage facilities for the voting machines when not in use. Judge Arch Campbell, the County Judge of Pulaski County, testified that the County had no place to store the machines and would either have to build a building or rent a building to have space to store the machines. Are all of these expenses to be paid before or after other County expenses? I cannot believe that by Act No. 53 the Legislature intended to empower the Pulaski County Board of Election Commissioners to enter into contracts involving any such sums and provisions, in the face of the refusal of the County Judge and the County Court to approve such contract.

So my first point is that the legislative enactment relied on by the voting machine advocates does not support the decree of the Chancery Court in this instance.

II. The Act Leaves It To The County Court To Act On The Contract. As previously stated, Section 3 of the Act No. 53 contains the only language I can find concerning payments for the voting machines; and this language, as previously quoted, says: “ . . . and payment may be provided for in such manner as is deemed best for the interests of the State, County, or City ...” How is payment “provided for” as regards County matters? Art. 7, Sec. 28 of the Arkansas Constitution says: ‘ ‘ The County Courts shall have exclusive original jurisdiction in all matters relating to . . . the disbursement of money for County purposes, and in every other case that may be necessary to the . . . local concerns of the respective counties.”

I maintain that the Act No. 53 intended that the contract signed by the County Board of Election Commissioners should be submitted to the County Court for approval. If the County Court approved the contract, then the County Court would be required to provide funds for payment. If the County Court refused to approve the contract, then the voting machine advocates could appeal to the Circuit Court from the County Court, as in all other such cases. I cannot believe that by Act No. 53 the Legislature intended to deliberately circumvent the County Court’s jurisdiction in regard to payment. Art. 7, Sec. 28 of the Constitution is still governing.

I insist that the decree of the Chancery Court should be reversed and this suit dismissed without prejudice to the rights of the advocates of voting machines to submit the contract to the County Court of Pulaski County for approval or rejection, and then proceed as in other cases at law.

For the reasons herein stated, I respectfully dissent.

      As stated in the Majority Opinion, the Chancellor refused to issue a mandamus to compel the County to pay the first installment under the contract for the reason that the voting machine advocates had not shown that the proposed expenditure would not result in the County exceeding its current revenues, in violation of Amendment No. 10 to the Constitution. That issue is'not here discussed.

      This Act was amended by Act No. 140 of 1965 in particulars not here germane.