author: CarletoN Harris, Chief Justice.

text:
    THE SINGER COMPANY, Wood Products Div., Employer v. Joe JOHNSTON, Employee
    5-4388
    421 S. W. 2d 341
    Opinion delivered December 11, 1967

      Barrett, Wheatley, Smith & Deacon, for appellant.

      Frank Lady, for appellee.
   CarletoN Harris, Chief Justice.

This is a Workmen’s Compensation case. Appellee, Joe Johnston, an employee of The Singer Company, Wood Products Division, engaged in common labor, received a compensa-ble injury to the lower back on September 20, 1963. He was paid weekly benefits for temporary total disability from September 21, 1963, through August 7, 1964, and thereafter, was paid an additional sixty-seven and one-half weeks compensation, representing 15% permanent partial disability to the body as a whole. The company took the position that the compensation for the healing period had been paid, and that the 15% permanent partial disability to the body as a whole was a correct rating. Johnston took the position that he was still totally disabled and unable to work, and a hearing was conducted by a referee in March, 1966. In August, 1966, the referee filed an opinion, finding that the healing period expired on August 7, 1964, with claimant’s having a residual disability of 25% to the body as a whole, and directing that Singer pay additional compensation in the total amount of $1,534.95. Claimant appealed to the full commission, and on December 5, 1966, that tribunal found that Johnston had been temporarily totally disabled since September 21, 1963, and that he should return to Dr. Matthew Wood, a Memphis neurosurgeon, for further treatment; that the matter of termination of the healing period and extent of permanent partial disability should be held in abeyance. The company appealed to the Circuit Court, which affirmed the commission, and from the judgment so entered, appellant brings this appeal.

Background of earlier events is accurately set out in the commission’s “statement of the case,” as follows:

“The record reflects that the claimant sustained a compensable back injury on September 20, 1963, at which time he reported to Dr. Smith’s Clinic in Tru-mann where he was kept in traction for approximately one week. Dr. Smith then referred the claimant to Dr. Matthew W. Wood, a Memphis Neurosurgeon, and Dr. Wood’s reports reflect that the claimant reported for evaluation on September 27, 1963, and was admitted to the Baptist Hospital. A pantopaque myelogram was performed which showed a large defect at the L4 level. On October 3, 1963, a large herniated L4 disc was removed on the right. The claimant was subsequently released to convalesce at home. He was seen by Dr. Wood for postoperative visit on November 21, 1963. Again on December 26, 1963, and on the December 26 visit he made complaints of continuing low back pain and was fitted with a lumbosacral support. On January 23, 1964, the claimant returned to Dr. Wood complaining of low back pain and left leg pain, the side opposite the old surgery. He was sent home to return in two months for evaluation. In a report dated April 1, 1964, Dr. Wood stated, ‘His present symptomatology on the left I feel is also related to Ms injury which caused the herniation on the right. I advised him to re-enter the hospital to have his left sided herniation surgically removed.’ Dr. Wood’s report of July 3, 1964, reflects that on June 25, 1964, from an objective standpoint the claimant was unchanged. The report of August 4, 1964, reflects that the claimant had complaints in regard to his low hack hut that he was advised to return to light work which does not involve excessive bending or heavy lifting. The report of September 21, 1964, reflects that the claimant had recovered and his permanent disability in relation to his herniated lumbar disc is 15 per cent.”

Of course, we are only concerned with whether there was substantial evidence to support the findings of the commission, and there is no necessity to review all of the testimony. It appears that prior to working for appellant, Johnston had engaged in hard, manual labor for a number of years, and had had no trouble or difficulty with.his back, legs, feet,- or neck. After Dr. Wood removed the large herniated L-4 disc, Johnston returned to his home. Thereafter, he continued to complain of low back pain in his legs, and he testified that these complaints were due to his injury because of the time lapse between the injury in September, 1963, and June, 1964, when his records first indicated the other complaints. He did find the swelling in the left ankle, but felt that this was due to an arthritic condition, rather than being connected with the injury, “although we didn’t prove it.” As previously set out (in the commission’s statement of the case), in March of 1964, Dr. Wood had advised Johnston to re-enter the hospital to have a herniated disc removed from the left; however, this operation was not performed, and the doctor did not recall the reason therefor. He said that when he last examined Johnston on August 4, 1964, he did not feel that surgery was advisable with relation to the .left-sided herniation. Dr. Wood stated however, that “these discs go in and out,” and there was a possibility that it would get worse. The evidence reflected that Wood had directed a letter to The Singer Company in April, 1964, as follows:

“Gentlemen: Mr. Joe W. Johnston returned to the office on March 30, 1964 and since being seen here last has had continued low back and left leg pain. He now has signs of a herniated disc on the left side at L-4. As you know, he had a herniated L-4 disc surgically removed from the right side in October of 1963 and has done quite well from a symptomatic standpoint on the right. His present symptomatology on the left I feel is also related to his injury which caused the herniation on the right. I advised him to re-enter the hospital to have the left sided herniation surgically removed.”

The doctor did not recall that the company authorized that Johnston be admitted to the hospital. He did say that, at the time of appellee’s last examination, he felt that Johnston could try “light work,” but that he should not work at anything that required bending, lifting, or stooping, and if he were required to stand on his feet all day, “that would work against his back.” Dr. Wood was of the opinion that appellee did actually experience the pain that he complained of, and he said that the continued low back pain, going down the left leg into the left foot, was in keeping with his earlier findings of a herniated disc condition on the left side. It was his opinion that, if Johnston were still suffering-back and leg pains, claimant should be further evaluated by a neurosurgeon.

Following his last visit to Dr. Wood in August, 1964, Johnston subsequently went to Dr. John T. Gray, an orthopedist at Jonesboro for examination. In a report dated March 5, 1966, Dr. Gray stated:

“Examination reveals this patient is ambulatory with slow, guarded gait and uses a cane to protect his weight from the left lower extremity. He moves about, undressing and dressing with some difficulty — particularly in unlacing his shoes due to limited motion of the lumbar spine. * * *
“Motions of the lumbar spine are limited approximately 50c/< in all directions. * * *
“He is unable to do heel and toe gait. He is unable to squat and regain the erect posture. He gets on and off the examination table with considerable difficulty and has obvious pain when he rotates to the side or abdomen.
“There is limitation of motion in both hips, particularly in flexion. He can only flex to 90 degrees and complains bitterly of pain upon any attempt to flex beyond this range.* * #
“Multiple x-ray films were made. ÁP and lateral views of the lumbar spine reveal some calcification of the intervertebral spaces between D9 and 10 and between DIO and 11 with some definite wedging of the 7th dorsal vertebra. There is also flattening of the normal lordotic curve. There is some minimal osteoarthritic lipping of the lower lumbar vertebrae.
“Oblique views of the cervical spine show some encroachment on the spaces between 03 and 4 and 04 and 5 on the right and to a lesser extent, the 2nd and 3rd on the left. The lateral view of the cervical spine shows normal contour of the vertebrae and fairly normal in-tervertebral spacing. There is some osteoarthritic lip-ping of the inferior border and the superior border at the 4th interspace.”

Dr. Gray concluded that the patient appeared disabled, and he suggested further tests before making a definite recommendation for surgery.

At the request of the referee, Johnston was referred to Dr. Robert Watson, neurosurgeon of Little Rock. Dr. Watson filed a report and also testified by deposition. Though the doctor did not advise re-exploration of Johnston’s back after viewing the myelographic studies made by Dr. Gray, he did indicate that Gray was possibly in a better position to evaluate than one who only reviews the film of the study:

“Now in answer to your question, what Doctor Gray described was something that he saw, a -moving action as he did the myelogram, and of course I did not see what he saw when he did the myelogram. At repeated intervals permanent films are made of the dye in the different positions in the back and these are the films that I saw, the permanent record, not what he visualized as the dye moved, but I saw the photographs that he took, and in the photographs that were furnished me I did not see on the left side what you have just read that he saw in the moving picture.”

Dr. Watson felt that claimant had a 25% permanent partial disability to the body as a whole, and that any disability beyond that point was without neurological confirmation; however, he said that, in his opinion, on June 6, 1966 (when an examination was conducted), Johnston was not able to perform what is ordinarily referred to as common ordinary labor. The rating given by Dr. Watson was based on physical disability alone, and did not include any emotional factor, nor did the rating' relate in any way to age, education, training or experience of the employee. He found no evidence of disability to the neck or upper extremities. Irrespective of his views relative to permanent disability and his opinion that in time Johnston could improve to the point where he could make a living at some type of common labor, Dr. Watson, when asked, “If you were examining for- a company, a firm, or a person, would you recommend that this claimant be hired to do common, ordinary physical labor in the condition that you found him to be in on June 6, 1966?” answered, “Ño.”

We think there was ample testimony to justify the commission in holding that there should be a reevaluation, and in directing further medical treatment, including surgery, if deemed advisable.

Affirmed.

      From Dr. Watson’s report:
      “On-examination, this man moves about as one with very definite low back disability. He carries a cane at all times, and seemingly puts it to 'good use. All of his movements are made with-caution and deliberation and in the examining room, with the cane laid to one side, he still, repeatedly reaches toward a table or chair for some supplemental support. This man professes to be totally unable to walk at all on either his heels or his toes, but he does not have the supportive findings to cause one to feel that he is genuinely unable to do so, and instead, I believe, this so-called inability is a reluctance or fear or limitation of his own thinking rather than to be due to bona fide inability. * * *
      “Apparently this man did have an initial injury sometime in 1963, and shortly after that, he did undergo surgery for a lumbar disc lesion, and from the appearance of his x-rays, two spaces were explored. However, despite all of this, his present bona fide neurological findings do not substantiate the extreme degree of disability that he professes to have. If such a marked degree of bona fide residual disability were actually present, then there be some reflex changes, some sensory changes, and there should be some evidences of muscle atrophy, but none of these are present'. Therefore, I believe that a part of this man’s present residual disability is of a bona fide character, and that an additional portion of his supposed disability is actually superimposed emotional overlay on the part of the patient. Already this man has applied for and is now receiving 100 per cent permanent residual disability benefits from the Veteran’s Administration. Even if this man did have bona fide need for further surgery and if. further surgery were carried out, with what the surgeon and others might think were very gratifying results, even so, I doubt that the patient would ever admit to any gratifying degree of improvement. Instead, I believe the man would always profess to still being ‘totally and permanently disabled.’”
      The doctor felt that Johnston’s feelings were genuine: “I believe it is real to him. We might not want to accept it in our own thinking as being real, but I believe that to the man it is.”


source: Caselaw Access Project

license: Public Domain

text:
    HOWE LUMBER CO. et al v. Leon PARNELL
    5-4404
    421 S. W. 2d 621
    Opinion delivered December 11, 1967

      Barton, Henry, Thurman, McCaskill & Amsler, for appellants.

      Leon Parnell, for appellee.
   CarletoN Harris, Chief Justice.

This is a Workmen’s Compensation case. Leon Parnell, appellee herein, was injured on October 4, 1963, while driving a tractor on that date. He was a regular employee of Carey Brothers, this concern being engaged in farming operations. Howe Lumber Company, appellant herein, and hereinafter at times referred to as Howe, operated, inter alia, rice farms, and this company had entered into a contract with Carey Brothers whereby the latter was to combine the rice and haul it to the granary, using Carey Brothers’ combines and trucks. Carey was to be paid at the rate of $.18 per bushel of rice delivered to the granary. Under the agreement, Howe furnished a tractor, a rice buggy and a driver to haul the rice from the combine to the truck in order to expedite the unloading of the combine. Earl ‘Hampton, an employee of Howe, who had regularly driven the tractor and rice buggy, did not report for work on the above date, and Mr. Walter Carey directed Parnell to drive the tractor and buggy. B. S. Sullivan, farm manager for Howe, offered to give Carey some rice thrashed by an experimental combine that day. Parnell, after being injured, contended that, although regularly employed by Carey Brothers, he was, on October 4, 1963, an employee of Howe, and entitled to Workmen’s Compensation Benefits as a result of the accidental injuries arising oxit of and in the course of the employment. The claim was heard before a referee, who found that Howe did not employ Parnell,- that it exercised no control over him nor his activities in any respect, did not pay him, and did not even know that this particular employee was working. The claim was accordingly denied, and the full commission affirmed this finding on appeal, holding that Parnell was acting within the scope of his employment as an employee of Carey Brothers, but not as an employee of Howe Lumber Company. The Circuit Court of Phillips County reversed,' finding that Howe agreed that Parnell could drive the tractor, and, though not paying appellee, had planned to give some additional compensation to Carey Brothers, consisting of the rice which was thrashed by the experimental combine. The court held that Parnell was a “special employee,” and entered its judgment to that effect. From such judgment, appellant brings this appeal.

Appellee testified' that, on the day of the accident, he went to work that morning for Mr. Walt Carey; that he had been driving a bob truck for Carey for about two weeks, hauling rice to the granary. On the day in question, the Howe employee who normally drove the grain buggy did not show up, and Mr. Carey asked ap-pellee to drive the buggy. Parnell complied, and was injured while so engaged:

“I was coming from unloading coming back and on the way I was coming across the rice field there and a levee had been cut level where I couldn’t see it — when I was coming along there I got right at it I looked and I didn’t see it — I hit it — I went up and come back down and hit me behind the seat went off the grain buggy.”

Parnell received a ureteral stricture, a permanent injury, which will require a dilatation at least once a month.

Parnell testified that he did not have any conversation with anyone connected with Howe Brothers, and did not overhear any conversation between Carey and any Howe employee. He never did receive any pay from Howe, and was still an employee of Carey. He received the same rate of pay (from Carey) that he had been receiving from this employer prior to October 4. He said that Carey’s insurance company paid his doctor and hospital bills, and that Mr. Charles Carey continued to pay him $33.00 a week while he was incapacitated, and before he returned to work.

Mr. Walt Carey testified that the Howe driver for the buggy did not show up on October 4, and he (Carey) told Sullivan that he had a boy who could drive the buggy, and he asked Sullivan if that would be all right. Sullivan answered in the affirmative, and said “that he would put some rice from the experimental combines— he said he would put a little rice from them in our trucks for us * * * to kindly compensate for us furnishing the driver .of that tractor.” Mr. Carey stated that he was the one who told appellee to drive the tractor, and that Parnell, after being dismissed from the hospital, had been employed by either the witness or his brother (Charles Carey).

.B. S. Sullivan,' farm manager and employee of Howe for 31 years, testified that Mr. Walt Carey directed Parnell to do t]re driving in question, and that he (Sullivan) had no conversation with Parnell at all, and, in fact, he would not know appellee if he saw him. He paid nothing to Parnell.- According to the witness:

“ * * * We didn’t have a clriver and Walt said I have got a boy I could put on it and when he did I told him that was all right with me because it was to their advantage the more rice they got on that truck and got ' it to Wabash the more money they made and they put this boy — I never did ask him his name or anything and I said well I have got an experimental combine over there cutting there will be a little bit on the hopper there might be 50 bushel and, there might be 80 bushel I said when the day is over when they get through — • they were running tests when they get through they will dump it on your truck because you are paying that boy to do something for me* *

The general principles relative to the question before us are set forth in Larson’s Workmen’s Compensation Law (1966), Section 48, Page 710:

“When a general employer lends an employee to a special employer, the special employer becomes liable for workmen’s compensation only if
(a) The employee has made a contract of hire, express or implied, with the special employer;
(b) The work being done is essentially that of the special employer; and
(c) The special employer has the right to control the details of the work.’’
Further, in Section 48..1Ó:
“Although the lent-servant doctrine is a familiar one at common law, and has produced some of the most one at common law, and has produced some of the most venerated and most intricate cases in the law of master and servant, it is necessary to stress once more that the workmen’s compensation lent-employee problem is different in one significant respect: there can he no compensation liability in the absence of a contract of hire between the employee and the borrowing employer. For vicarious liability purposes, the spotlight was entirely on the two employers — what they agreed, how they ■ divided control, how they shared payment, and whose work, as between themselves, was being done. No one paid much attention to the employee or cared whether he had consented to the transfer of his allegiance, since, after all, his rights were not usually as a practical matter involved in the suit. In compensation law, the spotlight must now be turned upon the employee, for the first question of all is: did he make a contract of hire with the special employer? If this question cannot be answered ‘yes,’ the investigation is closed, and there is no need to go on into tests of relative control and the like.”

We are here only concerned with whether there was substantial evidence to support the ruling of the commission. It is apparent that ample proof was offered to support the ruling. In the first place, it is undisputed that no contract of hire was entered into between Howe and Parnell. In fact, Parnell himself testified that he never talked with anybody connected with appellant on the day of the accident, and he drove the Howe tractor because of directions from Mr. Walt Carey. There is also evidence that the work done was essentially for the benefit of Carey Brothers since the combines did not have to be moved to a place where the rice could be loaded on the trucks for delivery to the driver; in other words, the combines could be used continuously in the field, which would enable more rice to be combined, and thus would enable Carey Brothers to receive more money. The matter of a benefit or service to the regular employer was commented upon in our case of Transport Company of Texas v. Arkansas Fuel Oil Company, 210 Ark. 862, 198 S. W. 2d 175, There, the question was whether one Powell was an “‘emergency employee” of the appellant. In reversing the decision of the trial court, which had held that Powell was an emergency employee, this court pointed out that PowJ.1 evidently was endeavoring to render a service to his own regular employer when the accident occurred. We said:

“In such cases the general rule seems to be that, where the person rendering assistance to another in an emergency has an interest for his employer in relieving the emergency condition, he does not become an emergency employee of the person to whom he renders such assistance.”

It would also appear, from the testimony of the parties, highly doubtful that Howe would have had the right to control the details of the work (which appellant never attempted to do).

Appellee relies principally upon the fact that the extra grain was given to Carey as a matter of; according to appellant, compensating Carey for furnishing the driver for the Howe tractor and buggy; also, the additional fact -that Sullivan knew that Parnell was driving the Howe tractor, and gave his consent for that to be done. There is no point in further discussing these particular facts, since we are not holding that as a matter of law, appellee was precluded from recovery. As stated previously, we are only concerned with whether there was substantial evidence to support the findings of the commission. We think it is evident, from what has been said, that such proof was presented.

Accordingly, the judgment of the Phillips County Circuit Court is reversed, and the cause is remanded, with directions to that court to reinstate the order entered by the commission.


author: George Rose Smith, Justice.

text:
    Odean VARVIL, Administrator v. M.F.A. MUTUAL Insurance Companies
    5-4419
    421 S. W. 2d 346
    Opinion delivered December 11, 1967

      Branch & Adair, for appellant.

      Kirsch, Cathey & Brown, for appellee.
   George Rose Smith, Justice.

At tbe time of Ms death last year Howard W. Varvil owned two automobiles. The appellee had issued separate but identical insurance policies upon the two cars, each policy providing a maximum funeral benefit of $1,000. Varvil was killed wMle riding in what the policies refer to as a non-owned automobile. His funeral expenses amounted to $1,557.43. The appellant, as the administrator of Var-vil’s estate, brought this action to recover the full amount of the funeral expenses. The trial court, upon stipulated facts, sustained the defendant’s contention that its liability was limited to $1,000.

The court was right. The policies contained tMs provision governing the situation in which the company might otherwise have been doubly liable under policies issued by it to the same person: “5. Other Automobile Insurance In The Company — With respect to any occurrence, accident, death or loss to which this and any other automobile insurance policy issued to the named insured or spouse by the company also applies, the total limit of the company’s liability under all such policies shall not exceed the highest applicable limit of liability or benefit amount under any one such policy.”

There is no ambiguity in the paragraph just quoted. To the contrary, its meaning is too clearly stated to be susceptible of'any misunderstanding. The appellant cites our decision in Kansas City Fire & Marine Ins. Co. v. Epperson, 234 Ark. 1100, 356 S. W. 2d 613 (1962), but that case differs significantly from this one in that there the extra premium paid for the insurance upon the second car would, under the insurer’s contention, have provided no additional insurance coverage. That is not true here, for these policies explicitly declare that the coverage provided by the policy upon a particular ear does not extend to bodily injury sustained by the insured or a relative while occupying, another car owned by the insured. Thus the premium paid for the second policy does purchase additional protection.

Counsel cite a number of cases from other jurisdictions, but the only case that we think to be really in point is Pcsti v. Nationwide Mut. Ins. Co., 415 Pa. 318, 203 A. 2d 660 (1964). There the policy provided, much as the ones in this case do, that the payment of benefits to any one person shall discharge all liability of the Company for Family Compensation Insurance to that person under this or any other policy.” The court rejected substantially the same argument that is now being made to us, saying:

Eeally, Administrator’s argument is that because Nationwide agreed to provide a certain amount of benefits for a five dóllar premium it cannot assert a clear provision of an agreement the effect of which would be to provide something less than four times the amount of such benefits for twenty dollars. Such an argument does not raise an estoppel. Rather, it embodies a request that this Court recast the parties’ bargain. Each additional rider and premium brought substantial additional benefits, and it is neither possible under the evidence nor our function under the law to calculate their worth. Hence, Administrator must be held to the bargain struck by the insured when he purchased the additional policies.

We agree with the Pennsylvania court’s interpretation of the contract.

Affirmed.


author: Paul Ward, Justice.

text:
    Oscar MILLER v. Mrs. Joe TEST, Adm’x
    5-4391
    421 S. W. 2d 345
    Opinion delivered December 11, 1967

      Davis & Mills and G. Leroy Blankenship, for appellant.

      John W. Murphy, for appellee.
   Paul Ward, Justice.

This opinion pertains to Pawn Shop loans. Oscar Miller (appellant), on three separate occasions, procured a small loan from Ed Test, d/b/a Ed’s Pawn Loans, and each time turned over to Test personal property as security. Appellant brought this action in circuit court to have the loans declared null and void because of usury. Test died after the trial and the action has been revived against his wife as admin-istratrix (appellee here). There is no dispute as to the material facts.

On January 4, 1965 appellant borrowed $10 and left with Test a pair of binoculars as security. The loan was due February 4, 1965 when appellant was to pay $11 and redeem the binoculars: At the time the loan was made Test gave appellant a Ticket No. 169 describing the security, setting out the dates, and stating that he would not be responsible for “LOSS of any article left in pawn”. The Ticket also stated: “Merchandise held for 30 days”. It was signed: “Ed’s Pawn Loans”. The other two transactions here involved were handled in exactly the same way. One was for $8, secured by a set of tools, redeemable in one month for $8.80, and the other one was for $10, secured by a transister radio, redeemable in one month for $11.

In defense of the usury charge Test stated: My usual procedure is to hold all merchandise which is given to me as security for a period of at least 3 days after the 30 days has elapsed, and then sell the property if the loan is not paid. My profit is obtained from selling-merchandise left with me by borrowers. On a ten dollar loan, I have a handling and storage charge of one dollar. I do not buy insurance as it is too high but am self insured. The charge of 10% per month on loans does not result in a profit to me because those amounts are used to pay the expenses of storing the merchandise, making bookkeeping entries, and insurance on the property. In order to recover his property, a customer must repay the amount of the loan plus 10% for each month or part of a month which has elapsed since the loan was made, otherwise, the property is sold. This 10% is not a charge for loaning the money, but is a charge for storage, paper work, and insurance.

The case was tried before the Judge, sitting as a jury, who held the loans were not usurious and dismissed appellant’s complaint. The reason given for the holding was that the “charges” were made for storage, insurance, and bookkeeping.

Although the amounts here charged are small and appear to be justifiable, we are unable to say they do not constitute usury when considered in the light of numerous decisions of this Court.

In Strickler v. State Auto Finance Co., 220 Ark. 565 (p. 574), 249 S. W. 2d 307, we cited Joy v. Provident Loan Society (Tex. Civ. App.) 37 S. W. 2d 254, and stated:

“. . . a pawnbroker’s charge represented the lender’s pro rata cost of doing business, but was labeled ‘storage charge’. In holding the charge to be usurious, the court said: ‘We are unable to construe the evidence as intending the charges so made to be charges solely and only for special services in the storing of the property pledged’ ”

In the recent case of Sosebee v. Boswell, 242 Ark. 396 (p. 400), 414 S. W. 2d 380, it was stated:

“Secondly, the moneylender cannot impose upon the borrower charges that in fact constitute the lender’s overhead expenses or costs of doing business. Such outlays are fundamentally for the lender’s benefit and cannot, by whatever device, be shouldered off upon the borrower. On this point our recent decisions are unequivocal. Strickler v. State Auto Finance Co., 220 Ark. 565, 249 S. W. 2d 307 (1952); Winston v. Personal Finance Co., 220 Ark. 580, 249 S. W. 2d 315 (1952).”

In 70 C.J.S. Pawnbrokers, § 5, page 191, there appears this statement:

“The maximum statutory rate cannot he enlarged by adding, as a subterfuge, store charges for the keeping of the property pawned.”

In the case here under consideration it is undisputed that Test charged in excess of 10% interest and that the excess was used to defray overhead expenses of doing-business. 'Consequently the loans were usurious and void. That being true appellant is entitled to recover the items delivered to Test or, if disposed of, the market value thereof.

It follows, therefore,, that the case is reversed as to the question of usury and remanded for further proceedings consistent with this opinion.


text:
    L. L. JONES v. Fayburn FERGUSON and Pat Sherland
    5-4394
    421 S. W. 2d 607
    Opinion delivered December 11, 1967

      L. A. Hardin, for appellant.

      Robert M. Smith, for appellees.
   Paul Ward, Justice.

Appellant (L. L. Jones) filed a complaint in circuit court against appellees (Fayburn Ferguson and Pat Sherland) to recover damages to his truck, allegedly caused by a fire negligently started by appellees. Appellees answered denying negligence and, by cross-complaint, asked for damages to wheat loaded in the truck.

A jury having been waived, the case was tried by the Judge who refused to find negligence on the part of appellees’ negligence in starting the fire. We do not prosecute bis appeal. Appellees did not perfect an appeal.

Summary of Facts. Ferguson was engaged in raising and harvesting wheat, and was assisted by Shetland. He had an agreement with appellant whereby appellant was to furnish him a truck and tractor to haul the harvested wheat from his farm to the Pioneer Grain Corporation. Pursuant to this agreement appellant was to place the truck on the wheat field to be loaded with wheat and then driven (by his employee) to its destination.

On June 11, 1966, the'truck was placed on the. wheat field about ten a.m. and later filled with wheat. Early that afternoon appellees started a fire to burn off the wheat field, preparatory to planting soybeans. As a result the truck was damaged by the fire.

On appeal it is urged that the trial court erred in failing to find the damage to the truck was caused by appellees’ negligence in starting the fire. We do not agree.

The question of negligence is one of fact to be decided by a jury. In this case the Judge sat as a jury and his findings have the same force and effect of a jury verdict on appeal. Newbern v. Morris, 233 Ark. 938, 349 S. W. 2d 662.

In the case of Valley Lumber Company v. Westmoreland Brothers, 159 Ark. 484, 252 S. W. 609, this Court said:

‘ ‘ The general rule in this country, as well as in England, ■ now is that, in the absence of a statute, a private owner of property on whose premises a fire is accidentally started, or who sets out fire on his premises for a lawful purpose, is not liable for the damages caused thereby to the property of another, unless the fire was started, or allowed to spread, through negligence.”

It is not contended here that any statute is involved or Ferguson did not have a right to start the fire for the purpose stated. The decisive issue here, therefore, is whether Ferguson (or his agent) was negligent in allowing the fire to spread to and damage appellant’s truck. The undisputed evidence in this case, as revealed by the record, is presently summarized.

The truck was parked on the north side of the wheat field on fresh plowed ground and there was a breeze from north to south. Appellees disked the ground around the truck for a width of something like forty feet. Ferguson stated: “There wasn’t much wind blowing at the time but it was out of the north and at times a little gusty. I do not know how it caught fire unless it was a spark from the burning wheat field.” The field was burned off after the wheat was completely combined for the purpose of planting soy beans and, according to the testimony, the time was getting short for this purpose. When smoke was seen coming from the truck Ferguson, who was in the field, “ran to a ditch and got a bucket of water and was pouring water on tires and wheels on the right side. The fire spread to the other wheels and bed. We could not put out the fire”.

AMI 303 defines “ordinary care” as the “care a reasonably careful person would use under circumstances similar to those shown by the evidence in this case”.

Thus, the question presented to the trial Judge (sitting as a jury) was: Did appellees use ordinary care under the circumstances in this case? The Judge found in the affirmative, and we are unable to say, as a matter of law, that he erred in so finding.

Affirmed.

Haréis, C. J. and JoNes, J., dissent.


author: Lyle Brown, Justice. JohN A. FoglemaN, Justice,

text:
    J. L. McENTIRE et al v. Curtis ROBINSON
    5-4332
    421 S. W. 2d 877
    Opinion delivered December 11, 1967
    [Rehearing denied January 15, 1968.]

      Brockman & Brockman, for appellants.

      George Howard Jr., for appellee.
   Lyle Brown, Justice.

Appellants, J. L., J. C., and W. A. McEntire brought this suit against their adjoining neighbor, appellee Curtis Robinson, to establish the boundary line between the parties. The McEntires claimed title up to a line fixed by the county surveyor; Robinson claimed title by adverse possession up to a fence line. "When all the litigants completed their testimony the chancellor ruled that the McEntires’ complaint should bo dismissed for their failure to meet the burden of proof. 'That ruling left the location of the boundary line undetermined. The McEntires assert on appeal that the boundary line issue was squarely raised by the pleadings and proof on the issues was submitted; therefore, say the McEntires, it became the duty of the chancellor to establish the boundary.

The Pleadings. The McEntires alleged record title to the west half of the involved forty-acre tract. Robinson, their neighbor on the east, was charged with encroaching on the McEntires’ land by running a north- and-soúth fence some twenty feet west of the true line. They alleged the fence to have been built within the last few years. They asked the court to fix the boundary as determined by the county surveyor and to order Robinson’s fence removed.

Curtis Robinson answered by claiming title to the disputed strip by adverse possession. He asserted that the fence line had been established with the consent and approval of the McEntires and pleaded estoppel. Robinson asked that plaintiffs’ complaint “be dismissed for ■want of equity and for any and all other proper relief. ’ ’

The Evidence. The McEntires produced two surveyors and six other persons as witnesses. Their testimony was directed to the survey line and their allegation that the fence was not erected by Robinson until 1962. The McEntires testified that the fence was erected without their knowledge or permission.

Curtis Robinson produced seven witnesses. Their testimony centered around these contentions: Robinson lived in a house' on his property since 1944; the house was there as far back as 1909 and had since been enlarged north and south; the McEntire survey line ran through the center of the house; a survey was made in 1957 and that line ran some eight steps west of Robinson’s house; Robinson built the fence in 1957; the shrubs on Robinson’s side of the fence were first'planted in 1944; in 1956 J. L. McEntire and Robinson worked out a line after a survey and the following year the fence was placed on that line; for many years before the fence was erected the parties cultivated up to that line.

The Chancellor’s Findings. The formal recorded order contained this single finding: “1. That the plaintiffs’ Complaint should'be dismissed with prejudice.” That statement was followed by formal words of dismissal with prejudice. However, at the conclusion of the trial the chancellor pronounced orally his findings. They were recorded and styled “Court’s Ruling.” The evidence on both sides was reviewed and the conclusion reached that the testimony was “as opposite as the poles.” The chancellor concluded with this statement: “In view of the fact that the present survey divides the house in which the defendant has been living since 1944 and in view of the fact that all of his improvements have been made since he acquired this property and sét out trees and one thing and another,_I can’t see anything other than that the plaintiff has failed to meet the burden of proof and therefore the complaint will be dismissed. ’ ’

The pleadings clearly placed before the court the respective theories of the adjoining owners with regard to a boundary line. Plaintiffs and defendant certainly understood the respective contentions. There were no objections to the pleadings. Proof was pointedly directed toward each allegation. In that situation it was incumbent on the trial court to fully adjudicate those issues pleaded and litigated.

In Mandel v. Peet, Simms & Co., 18 Ark. 236 (1856), the trial court sustained a demurrer to nine pleas in abatement and entered a final judgment. This court held the entry of the judgment to be in error because there remained an issue in the case not affected by the ruling on the demurrer. Hollis v. Moore, 25 Ark. 105 (1867), was a suit in trespass. The defendant made three separate pleas of defense. Judgment was entered for the plaintiff without defendant’s pleas being resolved. For that error the case was reversed and remanded.

In the last century our own trial courts have evidently been careful to avoid the pitfalls reflected in Mcmdel and Hollis; otherwise we assume later citations would have been called to our attention. The rule in those cases is sound because it discourages piecemeal litigation. Particularly when a controversy as to possession of real property is in issue and can be concluded in one action, that should be done. Bobinson was required by statute to plead his defenses. Ark. Stat. Ann. § 27-1121 (Bepl. 1962). Logically, those defenses should be resolved.

We agree with appellants’ first point, namely, that “the issue of the boundary line location was squarely raised by the complaint and answer,” and should have been resolved. By their second point, the McEntires ask us to hold that the evidence preponderates in their favor. This we cannot do, for the simple reason that the trial court did not resolve the issues of adverse possession and estoppel.

The cause is reversed and remanded with directions to the trial court to fix the boundary line with such certainty that it can be identified by reference to the decree.

JohN A. FoglemaN, Justice,

dissenting. I respectfully dissent. In the first place, the majority is requiring the court to grant appellants relief not sought by them in the trial court. In the second place, this court is saying that a court of equity must decide questions raised by a defendant regardless of whether he asks for affirmative relief in the lower court or on appeal. In these respects, the majority’s action is novel and, I submit, improper.

Appellants filed a complaint claiming that appellee was guilty of repeated trespasses upon the lands of the former. They alleged that appellee had erected a fence enclosing a portion of their, land. They sought to have appellee enjoined from removing stakes, boundary markers and monuments, and from trespassing on the lands in question. Their prayer as to the boundary was as follows:

“* * * [T]hat defendant be restrained and enjoined from trespassing or coming upon plaintiffs’ property and that the boundary line should be established and fixed between the lands of plaintiffs and defendant at the point fixed by Mr. J. H. Shepard, the present County Surveyor of Jefferson County, Arkansas, and also at the marker previously established by using the beginning point on marker established by Mr. Clayton Gould, former County Surveyor of Jefferson County, Arkansas.”

There was no prayer for general relief.

Appellee filed an answer questioning the jurisdiction of the court, contending that the action was one in ejectment. The answer also contained a general denial and pleaded adverse possession, laches and estoppel. His prayer was:

“* * * [T]hat plaintiffs’ Complaint be dismissed for want of equity and for any and all other proper relief, including the dissolution of the Restraining Order issued herein.”

Thus, the court granted the exact relief sought by appellee. In doing so, I submit that it was supported by a preponderance of the evidence. Appellee did not cross appeal.

Appellants filed a motion for new trial and an amendment to a motion for new trial. In neither did they ask the court to fix the true boundary. As a matter of fact, no party has at any time asked the court to determine the true boundary.

Just two months ago we denied an appellant relief from the trial court’s dismissal of his action to quiet title. That court’s dismissal was for want of equity because appellant there failed to meet the burden of proof. See Corn v. Arkansas Warehouse Corporation, 243 Ark. 130, 419 S. W. 2d 316. The identical argument was there advanced; i. e., that the decree did not decide the issues between the parties. A further point of similarity is appellant’s contention that it was incumbent upon the appellee-defendant to plead and prove whatever grounds for relief he might have. We said that the failure of the defendant to do this did not entitle plaintiff to relief in spite of his failure to meet his burden of proof. There, as here, the appellee only defended against the appellant’s complaint but did not assert a counterclaim, did not seek any relief against the appellant, and did not appeal. If appellee here is satisfied with the disposition of the case below, I cannot see why we should not be.

In a case where there was a title dispute as between the heirs of a wife and the husband, the trial court accepted the view of the husband that he and his wife owned certain property as tenants in common and awarded one-half to each side. On appeal by the heirs, this court noted that the property was held in a tenancy by the entirety and that appellants had no claim of title. However, the decree was affirmed “as appellee does not appeal, the presumption is that he does not wish to modify or set aside the decree.” Johnson v. Austin, 86 Ark. 446, 111 S. W. 455.

I agree that where there is no prayer for relief, a court should grant relief to a plaintiff where the only relief to which he can be entitled is at once apparent from the allegations of the complaint. Sannoner v. Jacobson & Co., 47 Ark. 31, 14 S. W. 458. But where there is a specific prayer for relief and a general prayer for relief, and the evidence does not sustain the complaint or the court should refuse relief on principles of equity, the trial court may give to the complainant any relief warranted by the facts under his general prayer for relief. Cook v. Bronaugh, 13 Ark. 183; Kelly’s Heirs v. McGuire, 15 Ark. 555; Ross v. Davis, 17 Ark. 113; Shields v. Trammell, 19 Ark. 51; Rogers v. Brooks, 30 Ark. 612; Morgan v. Scott-Mayer Comm. Co., 185 Ark. 637, 48 S. W. 2d 838; Grytbak v. Grytbak (on rehearing) 216 Ark. 674, 227 S. W. 2d 633.

The granting of such relief is permissive, not mandatory, unless the relief should follow as a natural consequence of the specific relief sought and granted or it is such as to constitute the only relief which could be granted on the facts stated. But appellants are not entitled to any relief other than the specific relief because they made no prayer for general relief. Even if they were, I do not believe that this court should remand a case to the trial court for the granting of relief when the appellants have never, in any way whatsoever, made their desire for that relief known to the trial court.

The primary object of requiring parties to present all questions and issues to the trial court is to have the lower court pass thereon so that the appellate court may determine whether the action is erroneous. Jones v. Seymour, 95 Ark. 593, 130 S. W. 560; Schumam, v. Mosley, 220 Ark. 426, 248 S. W. 2d 103. In these cases it was held that a question not presented to the lower court could not be raised as an issue on appeal.

In Western Union Telegraph Co. v. Freeman, 121 Ark. 124, 180 S. W. 743, this court said that it was its uniform holding that the trial court should not be reversed for errors to which its attention was not called. It was further said that it would be manifestly unfair to reverse a trial court for error in a ruling it did not make or have an opportunity to make.

In an action to recover land, a plaintiff did not ask for an accounting of rents in his complaint and did not appear to have insisted on it in the trial court. This court, on appeal, affirmed the decree which had ignored the accounting because it was too late to ask that relief here. Green v. Clyde, 80 Ark. 391, 97 S. W. 437.

In Bank of Weiner v. Jonesboro Trust Co., 168 Ark. 859, 271 S. W. 952, the trust company foreclosed a real estate mortgage executed by one Ruegger. The Bank of Weiner was mortgagee in a crop mortgage which was found not to create a lien as to third parties. The hank, a defendant, contended that the foreclosure decree in favor of the trust company was erroneous in ordering a sale of the ungathered crops with the land since the crop mortgage was valid as between the parties to it. They contended that the trust company was only entitled to a judgment against Ruegger for the rents and profits. This court said:

“It is finally insisted that the court below erred in decreeing a sale of the crop and should have given appellee a decree for the rental value of the land only. In reply to this contention, it may be said that no such issue was raised by the pleadings in the court below; and it may be further said that Rueg-ger has not appealed, and, as the bank has no. lien on the crop, it is in no position to raise the question.”

In Angelletti v. Angelletti, 209 Ark. 991, 193 S. W. 2d 330, this court denied to an appellant just such relief as is asked here. The defendant wife filed an answer and cross complaint with a prayer that the husband’s complaint be dismissed, that she be granted a divorce, awarded alimony/25 feet of a certain lot in G-reenwood, court costs and attorney fees and ‘ ‘ all other proper relief.” She contended on appeal that she was also entitled to an interest in a certain lot in Port Smith, which the evidence disclosed that the husband owned. This court said:

“The answer to the appellant’s contention is found in the facts: (a) That she did not in her pleadings ask for any such interest to be ascertained and allowed; and (b) at the conclusion of the evidence, when the decree was rendered, she did not make any such claim to the trial court on which to predicate an assignment of error in this court. In short, she is raising this issue in this court, for the first time.
# # #
It is thus clear that the appellant never asked the chancery court to award her any interest in the Fort Smith property of the appellee. The appellant did not even mention to the chancery court that she was expecting an interest in the property, and this claimed interest is asserted in this court for the first time. Issues not presented in the trial court cannot be raised for the first time on appeal.
# # *
In Gulley v. Budd, Ark., 189 S. W. 2d 385, 390, decided July 9, 1945, we quoted from Missouri Pac. R. Co. v. J. W. Myers Comm. Co., 196 Ark. 976, 120 S. W. 2d 693, as follows: ‘This court has frequently held that no issue can be raised in this court which was not raised in the trial court; and since appellant’s present contention was not raised in the trial court, as we have herein pointed out, we believe the relief it is now asking on appeal should be denied. Bolen v. Farmers’ Bonded Warehouse, 172 Ark. 975, 291 S. W. 62; Leonard v. Luther, 185 Ark. 572, 48 S. W. 2d 242; Banks v. Corning Bank & Trust Co., 188 Ark. 841, 68 S. W. 2d 452; Id., 292 U. S. 653, 54 S. Ct. 863, 78 L. Ed. 1502; Illinois Bankers’ Life Assurance Co. v. Lane, 189 Ark. 261, 71 S. W. 2d 189.'”

The opinion in Mason v. Gates, 90 Ark. 241, 119 S. W. 70, is also compelling authority. There, the ap-pellees brought suit to quiet title to certain lots. Appellants, who were defendants, filed an answer and cross complaint asking that certain descriptions be corrected and “that plaintiffs’ suit be dismissed for want of equity and for such other and further relief as may be necessary. ” Appellants, who were intervenors, asked that they be permitted to intervene in the suit, set up their rights and claim to some of the lots, and “make answer to the claim of the plaintiffs in this cause to the end that their rights may be protected and adjudicated.” Appellants contended that title to one lot should have been vested and quieted in one of defendants and title to two of the lots quieted in intervenors, all title and claims divested out of appellees, and appellees enjoined from interfering with appellants in the use and occupancy of this property. The trial court had entered a decree dismissing the complaint of appellees. This court said there was no prayer in the pleadings by appellants for the specific relief set out in their contention on appeal. Recognizing that the statements of facts and not the prayer for relief constituted the cause of action and that a court may grant any relief that the facts thus pleaded and proved would warrant, this court affirmed the lower court. The opinion quoted from Rogers v. Brooks, 30 Ark. 612, 618, as follows:

“* * * ‘But, although it may from the proofs be apparent that the complainant is entitled to other relief, yet, unless the bill is so framed as to put such facts at issue, the court will not decree such further relief, for it would be decreeing upon an issue not before the court, and to which the proofs could not piuperly apply, and would tend to surprise the defendant.’ ”

Mandel v. Peet, Simms & Company, 18 Ark. 236, cited by the majority, is no precedent here. It is a law case. The appellant was the defendant below and he had clearly raised the issue of which the trial court did not dispose before rendering a judgment for the appellee-plaintiff. This error seems obvious. The lack of similarity to this case seems just as obvious to me. The identical distinctions are applicable to Hollis v. Moore, 25 Ark. 105. I submit that there is no precedent for the action taken by the majority in this case. I further submit that there is no logic in a court’s determining whether the statute of limitations has run, or whether a plaintiff is guilty of laches, or whether he is barred from relief by estoppel, when his failure to meet his burden of proof makes the determination unnecessary.

I maintain that we should remain truly an appellate court. As such, we should only be concerned with errors of the trial court and should consistently require that questions be properly raised in a trial court and that that court be given a proper opportunity to act before we give any consideration to them.

1 would affirm the decree of the chancery court.


author: John A. Fogleman, Justice.

text:
    Estel STARNES v. Naomi S. ANDRE et al
    5-4364
    421 S. W. 2d 616
    Opinion delivered December 11, 1967

      Shelby R. Blackmon and Billy B. Bowe, for appellant.

      Wright, Lindsey & Jennings and Robert D. Cabe, for appellees.
   John A. Fogleman, Justice.

This appeal comes from a probate court judgment setting aside its previous order admitting a certain paper writing to probate as the last will of Lillian Frances Starnes, deceased. Appellant is the surviving spouse and appellees are the surviving heirs at law. The judgment appealed from was rendered upon appellees’ petition to contest the probate of the will based on allegations that the will had been revoked by the testatrix. After hearing the evidence, the court made a specific finding that the will was intentionally and effectively revoked by the decedent through her cancellation of it by writing the word “void” at the top of each page of the instrument and by placing cross marks through the provisions of each page.

Appellant urges two points for reversal. They are:

I. The court erred in finding that the will of decedent was intentionally and effectively revoked.
II. The court erred in failing to apply, in the alternative, the doctrine of dependent relative revocation.

To sustain his first point, appellant argues that: (1) the action taken does not constitute an intentional revocation even if done by the testatrix and (2) the preponderance of the evidence does not support the court’s finding that it was done by the testatrix with that intention.

Certain facts are undisputed. After the burial of Mrs. Starnes on the afternoon of August 12, 1966, the day after her death, Mr. Starnes, her husband, and Jay C. Calloway, a certified public accountant who had been serving her professionally since 1942 or 1943, went through, her personal papers at the Starnes home. These papers were in a metal box which Mr. Starnes had at his home and brought to the dining room table. The box appeared to have been unlocked. Certain personal papers and letters were put in one pile and the “pertinent” papers in another. Mr. Starnes put those in the latter pile in a letter container similar to a brief case and Calloway advised him that he should take them to his attorney, Mr. Blackmon, whom they had called. No will was found at that time. On Monday, August 15th, Starnes took the papers he had put in the letter carrier to Calloway’s office. The four sheets of paper alleged to constitute Mrs. Starnes’ holographic will were then found folded inside a small envelope. The writing on these pages was the handwriting of the decedent. On the upper part of each of the first three pages the word “void” was written so that no part of the word touched any of the writing constituting the will. Over the face of each of the four sheets were cross marks commonly called X-marks and sometimes referred to at the hearing as “hatch” marks. On the first three pages there were two or more of these marks and on the fourth page there was a single elongated X-mark virtually as long as the written matter on the page. On the first three pages a few diagonal lines appeared, in addition to those necessary to form the X’s. The first three pages were testamentary in nature and signed by Mrs. Starnes. The fourth page seems to have been a memorandum of property belonging to her. Mrs. Starnes had a custom or practice of marking an “X” through the writing on personal records and papers when she was through with them.

The statutory requirements for revocation of a will are set out in Ark. Stat. Ann. § 60-406 (Supp. 1967) which is a section of our probate code. Insofar as pertinent under these circumstances, a will can be revoked only:

“ b. By being burnt, torn; cancelled, obliterated or destroyed, with the intent and for the purpose of revoking the same, by the testator himself or by another person in his presence : and by his direction. If such act is done by any person other than the testator, the direction of the testator and the facts of such injury or destruction must be proved by two witnesses who are not benefited by the revocation of the will.”

This provision has been virtually the same since the approval of the Revised Statutes on March 3, 1838. While the parties have cited cases from many jurisdictions as to the requisites for cancellation of a will, we need not go beyond our own statutes and decisions on two appeals involving the same will. Cook v. Jeffett, 169 Ark. 62, 272 S. W. 873; Jeffett v. Cook, 175 Ark. 369, 299 S. W. 389. While two wills were involved in those appeals, we are concerned with only the earlier one made by the testatrix in 1917, as that is the one as to which there was an issue as to revocation by cancellation. Certain words in two clauses of that typewritten will were interlined by running a pen, or pencil through certain of the words in these clauses in such a way that the typewritten words were not illegible. The court said:

a* * * [T]hat if the proof warrants the finding that these erasures were made by the testator or by her direction they operate only as a revocation of the parts of the will thus obliterated, * *

Since there was no direct evidence as to the custody of the will during the lifetime ■ of testatrix and no direct proof as to who made the erasures or the circumstances under which the same were made, the court remanded the case for a fuller development of the facts without expressing any opinion as to inferences that might he drawn from the circumstances proved. On the second appeal, it was said that the will had been found with the personal effects of the testatrix after her death. The judgment of the lower court finding the whole will to have been revoked was reversed and the case remanded with instruction's to the trial court to enter a judgment to admit the will to probate. This court stated, however, that the testatrix had marked these words out and that the manner of marking or crossing them out plainly-showed the intention of the testatrix to revoke her will insofar as these two clauses were concerned. In applying the opinion on the first appeal, this court said that its effect was to hold that if that which is essential to the validity of the whole will is cancelled or obliterated with the intention of revoking it, the whole will is revoked.

The writing of the word “void” on the pages of the will, together with the marks across the pages ther©-of in the manner and form used by Mrs. Starnes to cancel papers which had served their purpose, would justify the inference that it was done with the intention to revoke the will, if it was done by her.

Testimony was offered by appellant that the word “void” was in the handwriting of the testatrix. Callo-way stated that he was familiar with her handwriting and thought that the word “void” was in her handwriting. Appellee Naomi S. Andre, a sister of Mrs. Starnes, stated that the word was definitely in her handwriting. Appellee Mavis Redmond, another sister, said that the word looked like her sister’s handwriting. Camilla F. Watson, who had been employed by Mrs. Starnes as a waitress in 1942, had lived in the home of Mrs. Starnes and her first husband and had worked in Mrs. Starnes’ liquor store, said that she was familiar with Mrs. Starnes’ handwriting and that the word was written by her.

On the other hand, Juanita Henderson, an employee in Mrs. Starnes’ liquor store since 1965, said that the word did not look like the handwriting of the latter, but she would not say positively that it was not. Lela Mae Crow said that she had worked in the liquor store for ten years. She said the word was similar to that appearing on papers Mrs. Starnes had voided but that the “V” did not resemble Mrs. Starnes’ work. Appellant’s daughter testified that the word did not look like her stepmother’s handwriting.

Certain exhibits were offered and identified by various witnesses to illustrate the manner of marking out written matter employed by Mrs. Starnes. Although the authenticity of some of these is questioned by appellees, we feel that the evidence that these exhibits, or at least most of them, are the handiwork of Mrs. Starnes is convincing. There is a striking similarity in the “cancel-ling” marks on these papers and those on the will pages.

We cannot say that the court’s finding that the writing of the word “void” and the making of the marks across her holographic will were done by Mrs. Starnes with the intent to revoke it is clearly against the preponderance of the evidence.

Appellant, seeks to discredit support of the court’s finding by various attacks on the credibility of the witnesses on behalf of appellees. If there is any merit in any of these contentions, it is not sufficient for reversal of the trial judge who saw and heard-the witnesses. Appellant also attacks the basis for' the probate judge’s finding by offering evidence tending to show that ap-pellees or some of their witnesses might have had access to the will and made the marks found on it. He suggests, without introducing any evidence, that Callo-way wanted to be administrator of.the estate. Even if this were so, appellees are not helping him to realize that ambition, because they ask that Worthen Bank and Trust Company, the executor named when the will was admitted to probate, be named administrator. Their assault upon the testimony of Camilla Watson is based upon her admissions on cross-examination (I) that, thinking the deceased was making a mistake in planning to marry appellant in 1960, she asked Mrs. Starnes to think it over thoroughly and (2) that, in a pretrial in-tcrview by appellant’s attorney, she could have said that she would have voided the will if she had had the chance. Although the testimony might justify an inference that this witness was, in effect, a foster daughter of the decedent, she will take nothing if the will has been revoked. Under its terms, she and her husband and children would each receive bequests. Appellant suspects that this witness is engaged in some sort of collusion with appellees from which she would profit, but there is no evidence from which the drawing of such an inference can be justified. The attack on the credibility of the sisters of Mrs. Starnes is based on the apparent benefits to accrue to them by establishing the validity of the will. All these matters must certainly have been considered by the trial court and rejected.

The implications in support of the trial court’s judgment, arising from the fact that the document in question was found among Mrs. Starnes’ personal effects, are questioned by appellant who seeks to show that appellees might have had access to the will and attempted to cancel it. There can be little doubt that this document came from the metal box containing her personal papers which she kept in a closet in her bedroom. Mrs. Andre stayed in the Starnes home two nights and one day after her sister’s death. She said that she only went through the Starnes bedroom to go to the bathroom. She denied knowing where her sister kept valuable papers or that there was any will. Mrs. Redmond also spent two nights there but denied being in the Starnes bedroom, although she admitted that she was not excluded from any part of the house. Mrs. Watson knew where Mrs. Starnes kept valuable papers and was at the house after the funeral. She asked appellant if he wanted her to get a policy out of the box, but he did not, even though he later brought the policies to her. She also denied knowledge of the existence of a will. One of appellant’s witnesses testified that she could not tell the difference in the handwriting of Mrs. Starnes, of Mrs. Andre, and of Mrs. Watson. One of appellant’s daughters also testified • that the handwriting of the throe was similar. Appellant’s daughters testified that the sisters had the run of the house, that Mrs. Watson Avas around the house both before and after the funeral and came to the house to help look for a will on the day after Starnes and Calloway liad gone through the contents of the box, at which time she removed some of her daughter’s clothing from the Starnes bedroom. Mrs. Andre admitted that appellant’s mother saw her in the Starnes bedroom writing on a piece of paper. She claimed that she was writing down the name of a lawyer given her by Mrs. Watson as one that Mrs. Starnes had consulted. Mrs. Andre testified that Mr. Starnes told her he knew nothing about a will but knew that his wife wanted him to have the house and store and that the Watson daughter was to have $500.00.

The questions raised by this testimony have also been resolved against appellant by the trial court. We cannot say that this evidence preponderates. The mere fact that the will appeared, even in its obliterated condition, gives strong support to the court’s finding. If Starnes denied knowledge of a will and did not produce one in the first search of papers with Calloway, it is much more likely that one bent on preventing the will .taking effect would have destroyed it. On all of these questions of fact, Ave cannot overlook the failure of appellant to testify. The trial court must also have taken this into consideration in weighing the evidence. Failure of a party to an action to testify as to facts peculiarly within his knowledge is a circumstance which may be looked upon Avith suspicion by the trier of the facts. Fordyce v. McCants, 55 Ark. 384, 18 S. W. 371; Broomfield v. Broomfield, 242 Ark. 355, 413 S. W. 2d 657. His failure to testify gives rise to the presumption that his statements would have been against his interest. Cady v. Guess, 197 Ark. 611, 124 S. W. 2d 213.

Appellant also argues that we should reverse the judgment because of failure of the trial court to apply the doctrine of dependent relative revocation. This doctrine is applied to render ineffective a will revocation made with a present and clear intention of the testator to make a new disposition as a substitute when the new disposition is not made or is ineffective. It seems to be based upon a presumption that a testator, under- the circumstances, would prefer the revoked will to intestacy. This contention appears to be based upon the rather nebulous testimony of one witness that in 1965 Mrs. Starnes said she had not had time to go by and sign her will. Another witness stated that in April 1966, Mrs. Starnes said she had her will made out some time ago. Appellant has not indicated any application of this doctrine in Arkansas, nor do we know of any. We cannot find any facts which would justify its application here.

The judgment is affirmed.

Jones and Byrd, JJ., disqualified and not participating.


author: J. Fred Jokes, Justice.

text:
    Robert W. SHELTON et ux v. Luster C. SMITH et al
    5-4361
    421 S. W. 2d 348
    Opinion delivered December 11, 1967

      Jones & Stratton, for appellants.

      Clark, Clark & Clark, for appellees.
   J. Fred Jokes, Justice.

Appellants purchased a plot of ground on Lake Conway in Faulkner County and placed a house trailer on it. Appellees, as property owners in the same area, filed a complaint in the Faulkner County Chancery Court alleging that appellants are in violation of restrictive covenants pertaining to the use of the land, and they seek the removal of the trailer and an injunction against its continued use.

The chancellor ordered the removal of the trailer and granted the injunction. On appeal to this court, appellants rely on the following points for reversal:

“1. The trial court erred in admitting testimony over appellants’ objection relating to conversation had between appellees and B. H. George, deceased.
“2. The trial court erred in impressing an implied negative covenant upon lands belonging to appellants.”

In their original complaint, the appellees alleged violation of a restrictive covenant in a bill of assurance, and by amendment to the complaint pleaded “reciprocal negative easement” in support of the alleged application of the covenant to the appellants and their land. The findings of the chancellor, as set forth in his letter to the attorneys in announcing his decision and directing the preparation of precedent for decree, indicate tha.t the removal was ordered and injunction granted on proof of the allegations in the original complaint, as well as the amendment to the complaint. We conclude that the findings of the chancellor are not against the preponderance of the evidence, and that the evidence submitted in support of the original complaint is sufficient to sustain the decree.

The facts of this case are as follows: B. H. George and wife owned án 80-acre tract of land consisting, of two adjoining forties described as SE% of the NE% of Section 20, and the SW34 of the NWVi, section 21 in Township 4 North, Bange 13 West in Faulkner County. A considerable portion of this 80-acre tract was taken by the state and inundated by Lake Conway. In 1951, Mr. and Mrs. George filed in the recorder’s office a plat and bill of assurance. The pertinent provisions of the- bill of assurance are as follows:

“KNOW ALL MEN BY THESE PRESENTS: That the undersigned, being the owners of lands located within Faulkner County, Arkansas, as follows :
“SE1/4 NE1/4 Section 20, and SW% NW% Section 21, all in T4N, R13W, which they have subdivided into lots and parcels under the name of B. H. George Subdivision, creating Lots 1 through 13, in 'Lake View Circle’ and Lots 1 through 24 in 'Shore Line Drive’ all as shown upon a plan thereof heretofore filed for record in the office of the Circuit Clerk and Recorder for Faulkner County, Arkansas, the same being of record in Plat Book 'A’, at page 152, do hereby make and file this Bill of Assurance in respect to said Subdivision, and henceforth it shall be a good and sufficient description of any lot or parcel therein to describe the same by reference to the Plat thereof in any deed,' mortgage or other instrument conveying or affecting title to said land.
“The following restrictions affecting building upon and usage of the property which is the subject of this Bill of Assurance shall be in effect for a period of 25 years from and after.the date thereof;
“ (a) No Trailer, tent, shack, hut or similar shelter or structure shall be placed or erected upon any lot or parcel of land within said subdivision whether the same be intended for temporary use and occupancy or otherwise.” (Emphasis supplied).

Subparagraphs (b), (c) and (d) restrict the buildings as to property lines on the lots and parcels, restrict the use to residential purposes and set a minimum construction standard for houses to be erected. Subpara-graph (e) provides for sewage disposal and then provides as follows:

“There restrictions are for the benefit of the present and future owners of lots within said subdivision and are intended to establish and preserve uniform and desirable building and usage standards and maintain an appearance ■which will be in keeping with the purposes for ivhicJi the development of the subdivision is intended. These restrictions shall be in the nature of covenants and every conveyance of any lot or parcel shall be subject thereto. And if any person shall violate or attempt to violate, or shall fail to perform or observe any of the foregoing restrictions, requirements, or conditions, it shall be lawful for any other person or persons owning a lot in said subdivision which is subject to the same restrictions, condition, or requirement in respect to which the violation or attempted violation occurs, to institute appropriate proceedings, either at law or equity, for the violation so done or attempted.
“In Witness Whereof, we have set our hands this 10 day of February, 1951, and caused the execution of this Bill of Assurance to be duly acknowledged that it may be made of record.” (Emphasis supplied).

A. county road runs east and west through the 80 acre tract, and the main body of Lake Conway, insofar as it relates to the problem here, lies south of the county road. A direct fill was erected along the lake shore across the south end of a low area extending from the county road to Lake Conway, thus forming a small lake extending from the county road to the main body of Lake Conway and separated from the main body of Lake Conway by the dirt fill or dam.-This small lake ■was designated “Minnow Lake” and is included in the plat filed with the bill of assurance.

A street designated “Lake View Circle” was laid out from the county road near the center of the platted area and extends south along the west side of Minnow-Lake and then west along the north shore of Lake Conway, curving back north and intersecting the county road again near the northwest corner of the platted area. Thirteen lots were laid out and platted fronting on Lake View Circle. Another street designated “Shore Line Drive” was laid out from the county road 345 feet east of Lake View Circle. This street extends south, along the east side of Minnow Lake and then east along the north shore of Lake Conway, curving back north and intersecting the county road again near the northeast corner of the platted area. Twenty-four lots were laid out and platted fronting on Shore Line Drive. The area platted “Minnow Lake” is approximately 345 feet in width between Lake View Circle and Shore Line Drive and extends in length from the county road south to Lake Conway.

The plat is designated “B. H. George Subdivision,” and after filing the plat and bill of assurance, Mr. George sold the numbered lots in the plat to appellees and others. The deeds contain the phrases, “according to the plat,” and “subject to all restrictions affecting the property.” After appellees purchased their lots, Mr. and Mrs. George sold all of the, 80 acre tract, except the lots shown on plat of B. H. George Subdivision and other specifically excepted areas, to Ralph P. Royse and Bernice W. Royse, his wife. The land thus conveyed included the area designated “Minnow Lake,” which was included within the plat, but which was not designated as a lot on the plat.

The water level was lowered in Minnow Lake and in May 1967, Mr. and Mrs. Royse sold a part of the area designated on the plat as “Minnow Lake” to the appellants, Mr. and Mrs. Shelton. The deed to the appellants described the land conveyed by metes and bounds and consisted of an irregular area with the east 105 feet fronting on Shore Line Drive (referred to in the deed as a county road), the north 97 feet fronting on Minnow Lake and the south 125 feet fronting on Lake Conway. Appellants’ property is immediately across Shore Line Drive from appellee Smith’s lots and fronts the Smith lots on Shore Line Drive. Appellants’ property is between the Smith lots on Shore Line Drive and Minnow Lake and Lake Conway. It is also between ap-pellees’ lots on Shore Line Drive and appellees’ lots on Lake View Circle.

Appellants placed a house trailer on their land and the question presented here is whether appellants’ land comes within the restrictions of the covenant contained in the bill of assurance. We are of the opinion that the chancellor was correct in holding that it does.

There is no question at all that the restrictive covenants applied to all the numbered lots platted on each side of Minnow Lake. There is no question that Minnow Lake is inside and near the middle of the platted area filed for record as “B. H. George Subdivision.” There is no question that appellees purchased their lots subject to the restrictive covenants contained in the bill of assurance and recited in their deeds. We are of the opinion that there is no question that the parcel of land purchased by appellants comes within subparagraph (a) of the bill of assurance providing that

“No trailer . . . shall be placed or erected upon any lot or parcel of land within said subdivision whether the same be intended for temporary use and occupancy or otherwise.” (Emphasis supplied).

Wo conclude that Minnow Lake between the two areas platted into numbered lots within the B. H. George Subdivision was not released from the restrictions of the covenant by lowering the dam and releasing the water from Minnow Lake or by filling it in, and we are of the opinion that appellees were entitled to the enforcement of this covenant in the bill of assurance.

Appellants do not question the rights of B. H. George to place the restrictive covenants on the land in the B. H. George Subdivision, and they do not question that Mr. George followed the proper procedure in doing ho by plat and bill of assurance properly filed. Appellants simply contend that the restrictive covenant in the bill of assurance does not apply to appellants’ land.

In the deeds of conveyance of lots to the appellees on both sides of the plot subsequently purchased by appellants, B. H. George referred to the plat filed with the bill of assurance and the restrictions in the use of the property. We conclude that appellants’ land was included in the express terms of the covenant and was subject to the restrictions.

In 20 Am. Jur. 2d, Covenants, Conditions, Etc., § 307, p. 871, we find the following statement:

“The notice of restrictions sufficient to charge a purchaser may be actual notice or notice of facts sufficient to put him on inquiry. For instance, the notice sufficient to charge a purchaser of a lot in, a subdivision with knowledge of restrictions imposed in deeds to other lots as part of a general plan, but inadvertently or otherwise omitted from the deeds in his chain of title, may be actual or constructive, including notice of facts which ought to have put him on inquiry, such as the uniform appearance of the area in which the lot is located'. Thus, the uniform appearance of a particular tract, and the nature of the buildings thereon, have been considered sufficient to charge a purchaser of a lot in the tract with notice of a general plan of restrictions, or at least sufficient to put him on inquiry as to whether there was a general plan.”

The chancellor apparently viewed the land, as well as heard the evidence in this case, and even in the absence of the testimony relating to conversations with B. H. George, we are of the opinion that the chancellor’s findings that appellants’ land is subject to the restrictions contained in tlio covenant are not against the preponderance of the evidence in this case.

We conclude that appellants’ land is a “parcel” of land clearly included within the subdivision and the plat, and since we have decided that the appellants’ land is subject, to the express restrictions in the bill of assurance, it is unnecessary to consider either the admissibility of B. H. George’s testimony or the implied negative covenants — those matters being immaterial to the disposition of the case.

The decree of the chancellor is affirmed.


author: CakLetoN Harris, Chief Justice.

text:
    J. A. BOWMAN et al v. J. W. GABEL et al
    5-4373
    421 S. W. 2d 898
    Opinion delivered December 18, 1967

      Lewis D. Jones and John E. Butt, for appellants.

      David Burleson, for appellees.
   CakLetoN Harris, Chief Justice.

An automobile collision occurred in Fayetteville on September 9, 1965, about 6:30 P.M., in the intersection of Vandeventer Street, running north and south, and Adams Street, running east and west. There were no traffic controls or signs at the intersection. A 1962 Chevrolet sedan was being driven south on Vandeventer by James E. Gabel, and Diane Bowman was driving a 1965 Pontiac sedan east on Adams.. The Chevrolet was owned by J.,W. Gabel, father of. the driver, and the Pontiac was owned by the operator and her father, J. A. Bowman. The Bowmans, appellants herein, instituted suit for damages to the Pontiac, and,the Gabels, appellees herein, counterclaimed for damages to the Chevrolet, and for personál injuries. Each side contended that the other driver was guilty of negligence which was the proximate cause of the .collision. On trial, specific interrogatories were given to the^ jury, and it returned its verdict, finding that Diane Bowman Bassett was not guilty of any negligence, and that James Gabel was guilty of negligence which.projximately caused the collision; a verdict was rendered for the Bowmans in the sum of $1,250.00. Approximately a week later, appellees filed a motion for new trial, and thereafter, the court entered its order finding that the verdict of the jury “is not sustained by a preponderance of the evidence, that the answer, ‘Ño,’ of the jury to special interrogatory No. 1 [which referred to whether there was any negligence on the part of Diane Bowman] was against the preponderance of the evidence in this cause; and that by reason thereof the Motion for New Trial herein should be sustained.’’.The verdict of the jury, and the judgment of the court, in accordance therewith, were set aside, and a hew trial was granted. From this judgment, appellants bring this appeal. For reversal, it is urged that the court applied -the wrong rule of law in measuring the adequacy of the jury’s verdict, and that, at any rate, the court clearly abused its discretion in granting the new trial for the reason that the evidence clearly preponderated in favor of the appellants.

Appellants first argue that the trial judge invaded the province of the jury, which was charged with passing upon all fact questions, and that, there being substantial evidence to support the verdict, the court was in error in setting same aside. It is further contended that the preponderance of the evidence supports the finding by the jury. Of course, we will not disturb a judgment based upon a jury verdict if there is any substantial evidence to support it (unless the court erred in giving the law). But whether there was any substantial evidence, or even a preponderance of the evidence, is not the test where the court has already set aside a verdict, and that action is appealed to this court. The proper test is stated in the recent case of Worth James Construction Company v. Fulk, 241 Ark. 444, 409 S. W. 2d 320. There, we said:

“In seeking a reversal counsel for the appellant rely upon our familiar rule that a verdict supported by any substantial evidence will be upheld in this court. That rule does not apply to a case such as this one, where the trial court has set aside the verdict as being against the weight of the testimony. Here the issue, as we have said, is whether the trial judge abused his discretion. ’ ’

Appellants say:

“In examining the multitude of decisions handed down by the Supreme 'Court over the years, it is clear that the Court has analyzed the factual situation and that whatever the language used in the particular decision, it has determined whether or not there was any substantial evidence to support the jury verdict; and if there was any substantial evidence to support the jury verdict, it has left the verdict intact and reversed those trial judges who have tampered with those verdicts.”

Several cases are cited, but none relate to our reversing the trial court for setting aside a jury verdict. Our rule, enunciated in James, is more fully set out;, and explained in a case decided in 1916, Twist v. Mullinix, 126 Ark. 427, 190 S. W. 851. There, after stating that the court had properly instructed the jury, and that there had been evidence to sustain the verdict of the jury, this court, in an opinion by Mr. Justice Wood, proceeded to discuss the question which is at issue in the present litigation, as follows:

“The rule setting forth the respective functions of the jury and the trial court and this court is well expressed in Richardson v. State, 47 Ark. 562, 567, where we said: ‘But the weight of evidence and the credibility of witnesses are to be determined by the jury. It is the duty of the trial court to set aside a verdict which is clearly against the weight of the evidence. But when the case reaches us, the quesiton is no longer whether the evidence preponderates on one side or the other, or whether due credit has been given to the statements of a witness who has testified fully and fairly. But the question is, whether there is a failure of proof on a material point. To order a new trial because we differ in opinion from the circuit judge as to the weight of the testimony, or the truth or falsity of a witness, is to substitute our discretion for his discretion. And in this matter he is supposed to enjoy some advantages over us.’

“And again in Blackwood v. Eads, 98 Ark. 304-310, where we quoted from Taylor v. Grant Lumber Co., 94 Ark. 566, as follows: ‘The trial judge still has control of the verdict of the jury after and during the term it was rendered. Because of his training and experience in'the weighing of testimony, and of the application of legal rules to the same, and of his equal opportunities with the jury to weigh the evidence and judge of the credibility of witnesses, he is vested with the power to set aside their verdicts on account of errors committed by them, whereby they have failed in their verdict to do justice and enforce the right of the case under the testimony and instructions of the court. This is a necessary counterbalance to protect litigants against the failure of the administration of the law and justice on account of the inexperience of jurors.’
“In Blackwood v. Eads, supra, we said further: ‘Where there is a decided conflict in the evidence this court will leave the question of determining the preponderance with the trial court, and will not disturb his ruling in either sustaining a motion for a new trial or overruling same. * * #
“ ‘The witnesses give their testimony under the eye and within the hearing of the trial judge. His opportunities for passing upon the weig’ht of the evidence are far superior to those of this court. Therefore his judgment in ordering a new trial will not he interfered with unless his discretion has been manifestly abused.’ * * *
“* * * We cannot approve the doctrine that it is an invasion of province of the jury for the trial court to set aside a verdict which he finds to be against the preponderance of the evidence. On the contrary if he fails to do so, he surrenders his own province, ignores his duty, and by so doing destroys the integrity of the best system that thus far has been devised in this country for the administration of justice. * * *
“* * * Having presided at the trial, and having seen and heard the witnesses testify, they have had the same opportunities as the jury, and hence are vested with the authority to ascertain whether or not the jury’s verdict is in accordance with the preponderance of the evidence, and when they have found upon conflicting evidence that such verdict is, or is not, against the weight of the evidence, such finding will not be set aside unless it is manifest that the court abused its discretion, that is, acted improvidently, arbitrarily, or capriciously in making-such finding. ’ ’

The trial court, in setting aside the present judgment, apparently was greatly influenced by the fact that the jury found appellant, Diane Bowman (Bassett), not guilty of any negligence. This appellant testified that she stopped at the intersection before entering; that a hedge was located on her left, which somewhat obstructed the view, so she “eased out a little bit and I still couldn’t see, so I eased out a little bit more and I could see a car about half way down the block.” She stated that she was about a foot from the middle of the intersection when she saw the automobile approaching. She continued, “I was just creeping, so it would be just a mile or two an hour, something like that * * * I thought, do I have time enough to go across and I decided, no, so I put my hand on the gear shift to put it in reverse.” She said that before she was able to do that, the car, which was traveling 30 or 35 miles an hour, hit her automobile. A young lady in the car with her agreed that she was traveling about “one mile per hour,” and this witness testified that the Gabel car was traveling 25 or 30 miles per hour. Gabel testified that as he approached the intersection, he looked to the left and found it clear, looked to the right, but there were shrubs that obstructed the view; however, he did not see any automobile; he then looked back to his left when entering the intersection, and he was hit by the Bowman vehicle. His sister, riding in the car with him, testified that appellant was driving at a “pretty rapid” speed. Photographs taken of the two vehicles reflect that the front end of the Pontiac (Bowman car) was pretty well smashed, and the right hand side of the Chevrolet (Gabel car) was crushed from a point just behind the right head light, the damage extending almost through the back door. A photograph of the front of the Chevrolet reveals no.damage to that portion of appellee’s ear. This evidence indicates that Mrs. Bassett was mistaken when she said that the Gabel car struck her; rather, it would appear that her automobile did the striking. Of course, even though this' be true, the mere fact that one car struck another does not necessarily mean that the driver of the first vehicle was guilty of negligence which was the proximate cause of the collision. It is however a circumstance to be considered. Likewise, the court may have found it difficult to believe that the Gabel car traveled half a block at the speed mentioned by Mrs. Bassett and the witness on her behalf, while appellant’s car was traveling only a few feet. Also, he may have considered that she was negligent in attempting to back up, rather than to proceed across the street. Still again, he simply may not have believed appellant’s evidence about her speed, which was not uncontradicted. In fact, the Gabel girl testified that Mrs. Bassett was driving at a “pretty rapid speed.”

At any rate, as pointed out in Twist-.

“‘The witnesses give their testimony under the eye and within the;, hearing of the trial judge. His opportunities for passing upon the weight of the evidence are far superior to those of this court. Therefore his judgment in ordering a new trial will not be interfered with unless his discretion has been manifestly abused.’ ”

In fact, this abuse of discretion is likewise characterized in the same opinion (as heretofore quoted) as acting improvidently, arbitrarily or capriciously. Among other definitions, one’s actions are said to be arbitrary if they are unreasonable, determined by no principle, or based upon random or convenient selection or choice, rather than on reason. The word capricious, inter alia, means irresponsible and impulsive, or refers to acts committed according to whim or passing fancy. Certainly, we cannot find that the action of the trial court came within any of these definitions, and it is just as certain that it is not manifest that the court acted arbitrarily in setting aside the verdict.

Affirmed.

      Miss Bowman was married to Mr. Bassett sometime subsequent to the' automobile collision.


author: CakletoN Harris, Chief Justice.

text:
    Carl WIDMER v. GIBBLE OIL COMPANY
    5-4423
    421 S. W. 2d 886
    Opinion delivered December 18, 1967

      Carl Widmer, pro se.

      Warner, Warner, Ragon & Smith, for appellee.
   CakletoN Harris, Chief Justice.

Appellant, Carl Widmer, brings this appeal from the judgment entered by the Sebastian County Circuit Court on a credit card account, after an original trial in the Fort Smith Municipal Court from which an adverse judgment was appealed. The Circuit Court tried the case on stipulated facts. It is here contended, first, that service had upon appellant was void on its face, and second, that there was accord and satisfaction. The first point is controlled by our opinion in Widmer v. Price Oil Co. Inc., Case No. 4424, which is handed down this day.

Gibble Oil Company instituted a suit on November 23, 1966, asking judgment for $67.80, plus costs and interest, from the appellant. On November 30, 1966, Widmer sent his check to appellee in the amount of $9.01,- the cheek being marked, “Full payment of all accounts to date.” Gibble then cashed the check. This is the only factual difference between this case and Widmer v. Price Oil Company, for in that case, the check sent in a less amount [than that owed) was not cashed. This fact, however, is immaterial. As pointed out in Price, there must be a disputed amount involved, and a consent to accept less than that amount in settlement of the whole before there can be an accord and satisfaction. The authorities cited there are controlling here, and one cited case, Nordlinger v. Libow, 240 N. Y. S. 193, did involve the creditor’s cashing a check from the debtor for a lesser amount than was due, and marked, “Full settlement of any and all claims.” This holding is in accord with 6 Corbin on Contracts, Section 1277, Page 123, where it is said:

“It is not enough for the debtor merely to write on >a voucher or on his check such words as ‘in full payment’ or ‘to balance account,’ where there has been no such dispute or antecedent discussion as to give reasonable notice to the creditor that the check is being tendered as full satisfaction.”

In addition, we have held that a dispute or controversy about the amount of an account must be made in good faith, i. e., there mast be a bona fide dispute. In Massachusetts Mutual Life Insurance Company v. People’s Loan and Investment Company, 191 Ark. 982, this court, quoting 1 C. J. 554, said:

“ ‘While it is not necessary that the dispute or controversy should he well founded, it is necessary that it should be made in good faith.’ ”

As stated in Price, there is no evidence that Widmer denies that he actually owed the full amount demanded. In fact, it is stipulated that “as of November 23, 1966, the defendant Carl Widmer owed the amount of $67.80 to the Gibble Oil Company as result of credit card purchases made by said defendant from the plaintiff.” Further, that “prior to November 30, 1966 [the sending of the check], no communication was exchanged between plaintiff, G-ibble Oil Company, and defendant, Carl Widmer, in regard to the correctness or validity of said account.”

Affirmed.