author: Conley Byrd, Justice.

text:
    W. J. Styers, et al v. Dalton Northern, et al
    5-4082
    411 S. W. 2d 296
    Opinion delivered February 13, 1967

      J. B. Milham,, for appellant.

      Fred E. Brmer, for appellee.
   Conley Byrd, Justice.

Appellants, W. J. Styers, et al., brought this suit to quiet title to a strip of land lying between his house and a service station owned by appellee Eddie Davis in the city of Benton, Arkansas. Appellants have no record title and proceed upon the theory that they have acquired title by adverse possession. Mr. Davis denied Mr. Styers’ title, set up title in himself by adverse possession and prayed that the title to the lands be quieted in him.

The trial court found that neither appellants nor appellee is entitled to have the title quieted in him by-reason of adverse possession, that neither of them has the right to deny the other the use of the driveway, and refused to quiet appellants’ title. The driveway covers only a portion of the north end of the strip of land in question.

On this appeal appellants raise four alleged issues, all of which we group together for discussion purposes.

The facts show that Mr. Styers acquired title to his home which lies immediately west of the disputed strip in 1929, and that his son acquired title to the 111-foot tract on Edison Avenue where appellee’s service station is now located. The latter tract lies immediately east of the disputed strip. For the first six or eight years of his ownership, Mr. Styers had a garden on the strip and had it under fence, but later on he and his son went into the wine business and the strip was used in connection with .their wine business. The service station now owned by appellee is built on the foundation of the winery, which was on the 111-foot tract acquired by the son.

The son conveyed title in 1946 to Robert Thomas and wife, who conveyed to Dalton Northern, et al. In 1951, Dalton Northern conveyed to Dr. Buffington.

It is admitted that in 1952 Dr. Buffington built the filling station on the 111-foot tract, and that at that time Dr. Buffington made an agreement with Mr. Styers concerning the concreted portion of the strip. Appellant Styers admits that, with respect to the concreted portion, he gave permission to Dr. Buffington or anyone else to use it, so long as it was kept open for his use — apparently the concreting of the strip benefited appellant Styers.

At the time the service station was constructed by Buffington, Dalton Northern was an agent for American Oil Company and the station was leased by Dr. Buffing-ton to American Oil Company for a period of years which has expired. Dalton Northern, subsequent to the construction of the station, re-acquired ownership from Dr. Buffington, and in September, 1963, the station was sold to appellee Davis.

The parties are in agreement that during the American Oil lease, which expired some time in the early sixties, all of the operators made an effort to comply with the agreement between Dr. Buffington and Mr. Styers by keeping ears out of the easement.

Appellee Davis testified that the concreted portion of the strip of land was shown to him as being part of the service station; that he bought the service station thinking it was part of the premises; and that one could not operate the station without the concreted portion of the strip involved. Appellant offered no testimony to show that the service station could be operated without the concreted portion of the strip, and the overwhelming evidence points this up to have been a known fact when the agreement was made with Dr. Buffington.

Appellant Styers’ fencing of the tract in question and his use of it for a garden was substantiated by Jody ^Gentry, who had known the place ever since Mr. Styers went into possession in 1929.

’ Under the circumstances, it is seen that appellant Styers was aware that Dr. Buffington constructed the service station on the old winery foundation in reliance lupon the agreement with respect to the use of the concreted portion of the strip of land involved in this litigation. Furthermore, appellant Styers ’ testimony indicates that the concreting of that portion of the strip* for •driveway purposes was a benefit to him at the time.

The record shows -without contradiction that, from 1952 until appellee Davis acquired the premises in 1963, appellees’ predecessors in title accepted the benefit of Dr. Buffington’s agreement which recognized appellants’ right to the land.

Appellants, having permitted Dr. Buffington to make substantial improvements upon his own property in reliance upon their oral agreement with reference to the driveway, together with Dr. Buffington’s performance of the condition of the oral agreement by improving his driveway so that it cauld be used for the benefit of both appellant Styers and himself, are estopped to contest appellee Davis’ right to use the driveway in accordance with the agreement between appellant Styers and Dr. Buffington. Wynn v. Garland, 19 Ark. 23 (1857). It 'also follows that, since appellee Davis’ predecessors in title accepted the benefits of the oral agreement between appellant Styers and Dr. Buffington by which they were permitted to enter on the lands, appellee is also estopped to question appellant Styers’ title to the property. See Illinois Standard Mortgage Corp. v. Collins, 187 Ark. 902, 63 S. W. 2d 342 (1933) and Mantooth v. Burke 35 Ark. 541 (1880).

Therefore, we hold that upon the record in this case the trial court should have quieted appellants’ title to the property involved as against appellee Davis, subject, however, to the agreement made between appellant Styers and Dr. Buffington with respect to the concreted portion of the strip. Since this is in effect the result reached by the trial court when it said that neither of the parties has the right to deny the other the use of the driveway, we are modifying this on appeal to the extent indicated but directing that each party bear his own cost.

Affirmed as modified, and remanded for entry of a decree in conformance with this opinion.


source: Caselaw Access Project

license: Public Domain

text:
    Dan Portis v. Stuckey Brothers, Inc.
    5-4092
    411 S. W. 2d 301
    Opinion delivered February 13, 1967

      Hale & Fogleman, for appellant.

      Gardner & SteinsieJc, for appellee.
   Conley Byrd, Justice.

Involved in this dispute is the title to 13.33 acres of land which C. J. Stewart had acquired without color of title, by adverse pedal possession. Appellant, D. F. Portis, and appellee, Stuckey Brothers, Inc., both claim title to the1 disputed tract through the heirs at law of C. J. Stewart. The trial court found that Stuckey Brothers owned an undivided one-half interest in the disputed tract. Portis brings this appeal alleging that Stuckey Brothers holds whatever title it has subject to the rights and equities of Portis and that Stuckey Brothers’ predecessors in title had previously mortgaged their undivided interest to Portis.

Appellant Portis raised two other points in his brief which have passed out of the picture by virtue of appellee’s failure to cross-appeal and its concession on the points alleged.

The facts show that when the first U. S. Grovernment Survey was made in 1845, there was meandered out of Sec. 25, T-12-N, R-7-E in Poinsett County, Arkansas, an area known as Dismal Lake. In 1923 the Dismal Lake area was surveyed into lots and C. J. Stewart, who had earlier gone into possession for homestading purposes, received a patent in 1925 to Lots 5, 6, 7 and 8 of Sec. 25 and Lot 3 of Sec. 36, T-12-N, R-7-E, containing 141.62 acres. The testimony indicates that C. J. Stewart was in possession of the foregoing lands, together with the 13.33-acre tract, when the 1923 survey was made, under the theory that they all constituted a part of the homestead, and that after he was informed differently by the survey he continued to claim the 13.33 acres as part of his homestead. The witnesses refer to the 13.33-acre tract as “lost lands,” sometimes as “strip lands,” and sometimes as “meander lands.” The northern boundary of the 13.33-acre disputed tract is 1,083 feet, the western boundary is 1,335 feet, and the triangle formed by the northern and western boundaries is closed on the south and east by the meander line of Dismal Lake. A portion of the 1923 survey which shows the original meander line of Dismal Lake in Sec. 25 and the lots laid out in Dismal Lake is copied below. The 13.33-acre disputed tract is indicated by dotted lines.

Prior to 1959, Florence Stewart Rosamond and Ora Marie Rosamond, two of C. J. Stewart’s four surviving heirs, with their husbands executed mortgages to Portis on the lands described in the patent to Stewart. After Portis started foreclosure proceedings on the Rosamond mortgages according to the property description in the mortgages, the Rosamonds quitclaimed the 13.33-acre tract to Stuckey Brothers in return for extinguishment of $2,136.22 in obligations and $938.43 in cash. Shortly after the quitclaim deed to Stuckey Brothers, Portis, without making the Stuckeys a party to the foreclosure proceedings, amended his complaints to describe Lot 6 as follows:

“...Lot Six (6), with accretions, more particularly described as: Beginning at the intersection of the meander line and the half-section line and running West 990feet to a dirt road; thence South along said dirt road to the quarter-quarter section line; thence East along the quarter-quarter section line to the half-section line; thence North along the half-section line to the point of beginning proper, and containing 27.94 acres, more or less;... ”

Portis purchased the undivided interest of the Rosamonds at the subsequent foreclosure sales. He also acquired from the other two heirs of C. J. Stewart deeds to their undivided interests which included a metes and bounds description of the disputed lands.

Stuckey Brothers initiated the present litigation, claiming that it was the owner of the disputed tract. It asked for an injunction to prevent Portis and his lessee from trespassing upon the lands and for an accounting of rents for the years 1959-1962. Portis denied Stuckey Brothers’ title and counter-claimed to have the title quieted in him.

Appellant Portis argues that Stuckey Brothers not only recognized and acquiesced in the boundary between it and the C. J. Stewart lands, but that they knew or should have known of Portis’s claim at the time the quitclaim deed was executed. Portis argues that even the quitclaim “protesteth too much” because the description closes with the statement, “said land not being any part of Lot No. 6, which lies South and East of said meander line.” In this connection Portis cites Miller v. Fraley and Greenwood & Co., 23 Ark. 735 (1861), where we said:

“We have been able to find no case in which it has been adjudged, nor is it asserted in the text books that the purchaser must hold under a general warranty deed to entitle him to protection; but it is no doubt the law that where a person bargains for and takes a mere quit claim deed, or deed without warranty, it is a circumstance, if unexplained, to show that he had notice of imperfections in the vendor’s title, and only purchased such interest as the vendor might have in the property, and that he is not entitled to protection in equity as an innocent purchaser without notice, etc. Oliver et al v. Piatt, 3 How. U. S. R. 410; 2 Hare & Wed. Notes Lead. Ga. Eq. 69.”

Prom the foregoing authority, it would follow that df Stuckey’s vendors had good title to the disputed tract as against the mortgages executed to Portis, then it will be unnecessary for us to determine whether Stuckey Brothers is entitled to protection as an innocent purchaser without notice.

Appellant characterizes this litigation as a boundary dispute and asserts that by the actions of C. J. Stewart and his -widow and children, and the acquiescence of the adjoining owners — Stuckeys among them — the disputed area must be considered as being within the boundaries of Lots 5, 6, 7 and 8 of Sec. 25 regardless of whether an actual survey would place it within the boundaries of these tracts as they are delineated by the government surveys.

In Rindeikis v. Coffman, 231 Ark. 422, 329 S. W. 2d 550 (1959), we bad before us a deed from a grantor which conveyed by tbe government land calls, and a subsequent deed to a different party conveying 0.68 acres wbicb tbe same grantor bad acquired by adverse possession. We there held that whether tbe portion acquired by adverse possession passed to tbe grantee. of tbe government land calls depended upon tbe intent of tbe grantor.

Upon tbe issue of whether tbe disputed tract was intended to be included in tbe description of Lot 6, tbe tetsimony of William T. Rosamond, Mrs. Florence Stewart Rosamond, Mrs. Ora Marie Rosamond, and Arthur Rosamond is that they never intended to mortgage any- ■ thing but tbe “deeded lands” and that they definitely did not intend to mortgage the disputed tract which they refer to as “strip lands.” Opposed to tbe testimony of the Rosamonds is that of Mr. Portis that tbe Rosamonds intended to mortgage all of tbe lands owned by them; that be bad a conversation with Arthur Rosamond about tbe deed after it was executed; and that Arthur stated that be thought be bad mortgaged it all to Portis until be was advised differently by Mr. Stuckey. Mr. Rosamond denied any conversation with Mr. Portis concerning tbe quitclaim deed to Stuckey.

The supervisor for tbe Farmers Home Administration, wbicb bad received a mortgage from the Rosamonds containing tbe identical description used in tbe Portis mortgages, testified that Arthur Rosamond told him the whole 160 acres would be mortgaged. This mortgage, however, was prepared by the Farmers Home Administration from a land description obtained in the court bouse.

While it is true that Mr. Portis bad to get a Writ of Assistance to obtain possession from the Rosamonds after the foreclosure of his mortgages, we can not say that the chancellor’s finding in favor of Stuckey Brothers is contrary to a preponderance of tbe evidence. The chancellor was entitled to take into consideration the size of the tract, which is considerably larger than the inconsequential addition usual in boundary disputes.

We agree with appellant that the portion of the decree quieting title to that part of the NE14 SW14 Sec. 25 that lies immediately north of the disputed tract was not an issue in the litigation and that it was erroneously included in the decree.

Therefore, the decree is affirmed in so far as it quiets title to the 13.33-acre disputed tract, and is reversed and remanded with respect to the strip of land immediately north thereof in the NE!4> SW14? Sec. 25. Each party shall bear his own costs.

Fogleman, J., disqualified and not participating.

Jones, J., not participating.

Harris, C. J., dissents to the affirmance.


author: Carretón Harris, Chief Justice.

text:
    Arkansas State Highway Commission v. Harry Griffin, et ux
    5-4066
    411 S. W. 2d 495
    Opinion delivered February 20,1967

      George 0. Green and Don Langston, for appellant.

      Harold C. Rains, Jr., for appellees.
   Carretón Harris, Chief Justice.

The principal question in this case is whether a condemnor should be required to pay an enhanced price for the land condemned, which its demand alone has created. On May 27, 1965, the Arkansas State Highway Commission filed a condemnation complaint in the Circuit Court of Crawford County, condemning a part of four lots out of a tract of land described as Tract 345, owned by appellees, Harry Griffin and Louise Griffin. The sum of $7,150.00 was deposited in the registry of the court as estimated just compensation for the taking and damaging of appellees’ property. The Griffins contended that this amount was insufficient, and they asked for a jury trial to determine the amount of just compensation. On trial, the jury returned a verdict in favor of appellees in the amount of $18,500.00, and from the judgment so entered, appellant brings this appeal. For reversal, it is first asserted that the trial court erred in permitting testimony concerning land sales to oil companies, the value of such land having- been greatly increased because of the proposed construction of Interstate Highway No. 40.

The evidence reflects that the Griffins had owned the tract involved since approximately 1926, and their home was located thereon. This tract was a part of property platted in 1955 into twenty-two lots fronting on U. S. Highway No. 71, and most of the lots had been sold prior to the date of taking. In 1960, appellees sold two lots to an individual named Mettler for $500.00 each, and in 1963 Mettler purchased another lot from the Griffins for $500.00. Sometime prior to August, 1964, the Highway Department determined that the proposed Interstate 40 Highway would overpass Highway 71, and there would be a major interchange in the vicinity for purposes of traffic getting on and off the new highway. In August of that year, the department sent its appraisers into the area for a market study; stakes were placed in the area, and construction plans and sketch maps became a matter of public record. Various oil companies began to go into the area and take options on particular lots for the purpose of locating service stations. Tony Zeni, business representative of the Humble Oil and Refining Company, testified that his company took an option on four lots owned by one Blaylock, and on March 2, 1965, purchased these lots. This particular property is located right on the interchange, and is considered a “primary location” for a service station. Zeni testified that, in his opinion, the Humble Company would not have bought the property if an interchange had not been located there. He testified that the price paid ($59,000.00 for two acres) was greatly enhanced because of the location, and competition for the property. Evidence reflected that Sun Bay DX Oil Company bought the Mettler property (which was immediately north of the Blaylock property, and had been sold by Griffin to Mettler) for $20,000.00 on April 19, 1965, and the testimony reflects that, south of the interchange, the Texaco Company bought the property on the southeast corner, and Skelly Oil Company purchased that immediately south of Texaco. We think the evidence during the trial clearly establishes that the price of property in this area “sky-rocketed” when the proposed location of Interstate 40 became known, the variance in the price of the several lots, of course, depending upon the exact location of the property desired. In valuing the Griffin property, witnesses for appellees took into consideration these sales to the oil companies (which were based solely on the location of the interchange), and it is this evidence about which appellant complains in the particular point under discussion. The question before us, therefore, is: Should the Arkansas. State Highway Department be required to pay an enhanced price (for property) whitih, was brought about solely by its own proposed improvementa This issue is discussed in Nichols on Eminent Domain, Third Edition, 1962, Volume 4, Section 12.3151, Pages 201-204, as. follows:

“It rarely happens that proceedings for the condemnation of land for the public use are instituted without months, years, and, in some instances, decades of time spent in preliminary discussion and in the making of tentative plans. These discussions and plans are usually known to the owners and other persons interested in land in the vicinity of the proposed improvement, and are matters of common talk in the neighborhood. If the projected public work will be injurious to the neighborhood through which it will pass., the fact that it is hanging like the sword of Damocles over the heads of the land owners in the vicinity cannot but fail to have a depressing effect upon values, and on the other hand, if it is expected that the improvement will be of such a character as to benefit the surrounding land, values usually rise in anticipation of the construction of the improvement. When the taking is finally made, the question arises whether this anticipatory modification of values should be considered in awarding damages.

“The general rule is that any enhancement im, value which is brought about in anticipation of and by reason of a proposed improvement is to be excluded in determining the market value of such land, (emphasis supplied) although there is some authority wdiich, contrariwise, unqualifiedly allows recovery for such enhanced value. ’y

While, as pointed out, there is some authority to the contrary, we like the logic of the general rule, and align ourselves with those who have adopted that view. In Bonaparte v. Mayor, etc., of Baltimore, 101 Atlantic 594, the Maryland Court of Appeals (corresponding to our Supreme Court) said:

‘ ‘ The measure of the compensation to which the appellant is entitled in this proceeding is the actual market value of the property condemned. Its market value depends upon the uses for which it is available, and any special utility which may tend to enhance its value in the market is a proper element to be considered. The availability of the property for a particular use, contributing to its market value, is not to be ignored merely because it has not in fact been applied to that use. The valuation for condemnation purposes must disregard the effect of the public project, for which the property is acquired (our emphasis), but must take into consideration all the uses to which it is capable of being applied at the time of the appropriation and which affect its marketability. ’ ’

Actually, as far back as 1891, we recognized this same principle. In Newgass v. Railway Company, 54 Ark. 140, 15 S. W, 188, which involved a condemnation proceeding instituted by the St. Louis, Arkansas and Texas Railway Company for a right-of-way, we said:

“All that the constitution guarantees or the law demands is that just compensation shall be made to the owner in return for property appropriated by the public. A rule that would exact of a corporation the payment of a sum to cover the value of a railroad as such, constructed at its own expense, would go beyond the demands of justice, and could find no sort of countenance in conscience or in law outside of the strict letter and fanciful presumptions of the rule stated.

“The same question has been often adjudicated by the courts of the highest dignity and learning in sister States, and the decided weight of adjudged cases is against the appellant. Aside from adjudication, reason and justice condemn the contention.* * *

“The measure of compensation is the value which the land taken would have had at the time of filing the petition, if the road had not been constructed on it, together with the difference between the present value of the owner’s contiguous land, with the road constructed where it is and what would have been its present value if the road had not been built. (Citing case) And in determining as to the value of the land taken, any appreciation or deterioration that may have resulted to it specially by reason of the building of the road on it will be disregarded* *

Also, though, not passing on the question, we recognized the general rule in Arkansas State Highway Commission v. Cochran, 230 Ark. 881, 327 S. W. 2d 733. In accordance with the authorities cited, we hold that the testimony as to the enhanced value of the Griffin property, occasioned hy the contemplated construction of Interstate 40, was inadmissible. The proper valuation date for appellants ’ property is the date of taking, May 27, 1965; although the oil company purchases of nearby properties were made shortly before this date, these inflated sales cannot be used in arriving at the before value of the property. Only normal inflation, i. e., that inflation which is engendered by the general economy, can be taken into consideration. As pointed out in Newgass, it is our view that reason and justice demand this conclusion.

For its second point, appellant complains that the court permitted incompetent evidence, in that appellees introduced testimony of damage to their lands, based on commercial values, and also introduced evidence relating to damage (loss of the dwélling located on the lands) which was based on residential values. Appellant says that these are inconsistent uses, that the landowner is entitled only to damages for the highest and best use of his property, but that the court’s action in admitting the evidence had the effect of allowing recovery of double damages, i‘ e., both for commercial and residential purposes. It is also contended that the evidence given concerning the value of the home was inadmissible.

It is entirely proper to allow evidence of all potential uses of a landowner’s property. In Arkansas State Highway Commission v. Brewer, 240 Ark. 390, 400 S. W. 2d 276, we said:

“The trial court properly admitted the landowners’ proof as to both the agricultural use and the industrial potential of their land. The proof should not be limited to either. Our rule is succinctly stated in the case of Ft. Smith & Van Buren Bridge Dist. v. Scott, 103 Ark. 405, 147 S. W. 440:

“ ‘The measure of the owner’s compensation for the land condemned is the market value thereof at the time of the taking for all purposes, comprehending its availability for any use to which it is plainly adapted, as well as the most valuable purpose for which it can be used and will bring most in the market.’

See, also, Arkansas State Highway Comm. v. O and B, Inc., 227 Ark. 739, 301 S. W. 2d 5. In the case at bar the appellees had the right to' show all the purposes to which their land is adapted in order for the jury -to determine just compensation.”

Of course, a verdict rendered by a jury which was partially based on testimony relating to the commercial value of the land, and partially based on testimony, relating to the land’s value for residential purposes, would not be proper, but it is for the jury to determine the best and highest use of a landowner’s property.

It is also asserted that the valuation placed on the Griffin home was improper, appellant stating that these •witnesses considered only the cost of the house (at the time it was built), rather than depreciating it on the basis of its age. In Arkansas State Highway Commission v. Richards, 229 Ark. 783, 318 S. W. 2d 605, we commented on the question of “cost as criterion,” stating:

“ * * * As has been stated previously where the character of the property is such as not to lie susceptible to the application of the market value doctrine, resort has been had, among other things, to the original cost of the property, or to the current cost of reproduction less depreciation. Market value, it has been held, is not equivalent to the amount expended for the property by the owner.

“The proper measure is the market value of the land with the buildings upon it (emphasis supplied), and the owner therefore receives nothing for the buildings unless they increase the market value of the land. Accordingly, evidence of the structural value of the buildings is not admissible as an independent test of value. When, however, it is shown that the character of the buildings is well adapted to the location the structural cost of the buildings, after making proper deductions for depreciation by wear and tear, is a reasonable test of the amount by which the buildings enhance the market value of the property. As in other cases of determining market value, not only the character and condition of the building, but also- the uses to which it might be put, are m'atters for consideration.”

Because of the errors herein pointed out, the judgment is reversed, and the cause is remanded to the Crawford County Circuit Court with instructions to proceed in a manner not inconsistent with this opinion.

       Accordng to Mr. Zeni, the difference in a primary location and a secondary location depends on two factors, one being visibility, and the other access to the property. “The closer you can get to the control of access the better location you have.” The witness also testified that a secondary location would be immediately adjacent to the primary location.

       Recording to the evidence, the Griffin property, here involved, would not be nearly so valuable for service station or other commercial purposes, since it is located some 600 feet from the interchange, north of the property purchased by D.X Mr. and Mrs. Griffin had previously (April, 1965) sold Sun Bay DX Oil Company two and one-half lots for $10,000.00, which are located just south of the property in this litigation.


author: Carleton Harris, Chief Justice.

text:
    Velda Rose Motel, Inc. v. Mrs. Everett Eason
    5-4105
    411 S. W. 2d 502
    Opinion delivered February 20, 1967

      Fullc, Wood, Lovett, Parham & Mayes, for appellant.

      Howell, Price & Worsham, for appellee.
   Carleton Harris, Chief Justice.

On July 30, 1965, Mrs. Everett Eason, appellee herein, instituted suit against Velda Rose Motel, Incorporated, appellant herein, for the sum of $75,000.00 damages, alleging that, as a result of appellant’s negligence and carelessness, she had received a severe sprain of the cervical spine, sprain of the lumbar spine, and bruises and contusions over and about her entire body. A general denial was filed and the case proceeded to trial. At the conclusion of the testimony, the jury retired, and returned a verdict, signed by nine members of the jury, in the amount of $50,000.00. From the judgment so entered, appellant brings this appeal. Pertinent background facts developed by the testimony are as follows:

On the evening of June 10, 1965, appellee, wife of a State Policeman, was attending the annual banquet of the Arkansas Peace Officers’ Association, which was being held at the Yelda Rose Motel in Hot Springs. During dinner, a large panel, seven feet tall and three feet wide, fell and struck Mrs. Eason on the head. According to Mrs. Eason’s testimony, the panel, after striking her on the head, “bounced off” and came back down, striking .her shoulders. After the meal, she, together with her husband, left' the meeting, and went to their home. After a sleepless night, Mrs. Eason consulted Dr. John Hundley, a Little Rock orthopedic physician, and X-rays were taken. A neck brace was prepared for appellee to wear, and she was sent to the hospital, where she was placed in traction, and received medication. After eleven days in the hospital, she returned home, still with her neck in traction. The brace, at time of trial, was being' used at night, for one or two hours in the afternoon, and anytime that she rode in an automobile traveling over fifty miles per hour. On July 23, 1965, Norflex, a muscle relaxant, was prescribed, and appellee used this for approximately two weeks (the drug was also administered intravenously). On August 5 (this date being six days after her suit was filed), she noticed a breaking-out on the lower part of her stomach, and upper part of the legs, “welts, big red welts and streaks, some six, seven inches long, and approximately one-quarter of an inch wide.* * *” She testified that the itching was very bad, and within an hour her entire body, from her knees to her neck, was covered in welts. The family physician was called, and he diagnosed it as a drug reaction, and “gave me a shot to knock me out, because I was almost to the point of hysteria. I was in such an itching, burning condition, and he gave me. three different medicines, pills to take that he said would help the condition. That was on Saturday night. Sunday I continued and he told me to quit taking these Norflex tablets because he felt sure that was what was causing it. * * * On Monday I broke out some more in other spots and by Monday the places that I had broken out Saturday night had turned blood red and looked like blood would start coming from the pores of the skin.” She then testified that the red places were hemorrhaging. Mrs. Eason described the home treatment that was then taken, bnt it became necessary to again send her to the hospital. There, she was treated by an allergist, the “breaking out” having increased until it was on her face, ears, eyes, and mouth. After five days and nights in the hospital, she was dismissed by this specialist, and within a few more days, the skin eruptions ceased. After the drug reaction and hospitalization, Mrs. Eason developed a tremor, and loss of sensation, in her right hand, which grew progressively worse. This tremor was evident during her testimony at the trial, and she testified that she was no longer able to perform prior activities.

During the medical testimony, appellee’s doctor expressed the opinion that Mrs. Eason was suffering from Parkinson’s disease, and this bore a causal relation to the trauma. It is this evidence that gives rise to appellant’s complaints., and its points for reversal are predicated upon the court’s actions pursuant to this testimony. Appellant contends that the verdict is in an amount far in excess of the proven damage, and that this verdict occurred because of two rulings by the court that were highly prejudicial to appellant. We will discuss these contentions in the order listed.

It is first asserted that the court committed error by “peremptorily permitting appellee to amend her complaint in the midst of trial to inject a new element of damage — Parkinsonism, supposedly caused by the drug in the face of appellant’s claim of surprise.” Let it be stated that we will not detail the medical evidence offered by appellee relative to the cervical spine sprain, nor the other conditions testified to by Dr. Hnndley, relative to his findings as an orthopedic physician and surgeon, nor do we deem it necessary to describe the suffering detailed by appellee. The contention that the judgment is excessive is based on the allegation that the testimony relative to Parkinson’s disease was the cause of the large amount awarded; accordingly,-if this evidence was proper, and there was no abuse of discretion in allowing the complaint to be amended, the point is without merit.

Dr. Hundley, after testifying in detail as to the spine sprain and neck injury, stated that appellee was afflicted with Parkinson’s disease, and that, in his opinion, there was a causal relationship between her trauma and this disease; that she was considerably disabled, would continue to need treatment, and that such a condition continually grows worse, “Well, all Parkinson’s goes on and on.” On cross-examination, the doctor stated that the rash was caused from the Norflex drug. He said that it first occurred to him that she might have Parkinson’s disease when he observed the tremor, and likewise on cross-examination he stated that he sent her to Dr. William King Jordan, a neurologist. It was the opinion of Dr. Hundley that the Parkinson’s disease was probably occasioned by the taking of the Norflex drug. At the conclusion of the doctor’s testimony, counsel for appellee moved that the complaint be amended to conform to the proof. Counsel for appellant objected to the motion, stating, “it came as a complete and absolute surprise to the defendant.” This brings us to appellant’s first argument, the contention being that the court abused its discretion in permitting the complaint to be amended.

It is admitted that normally a court has the right to permit pleadings to be amended, even while the trial is in progress, but appellant asserts that the court should have recognized that the defending party, in this instance, could not protect itself immediately, and the granting of the motion was therefore an abuse of discretion, and constituted error. We do not agree. If counsel for appellant was surprised, he should have moved for a continuance. This was not done. Not only that, but it would seem that, if totally unaware of any possible Parkinson’s. disease, appellant would have objected when evidence, relative to this ailment, was first introduced. However, though Mrs. Eason, her husband, and Dr. Hundley, directed quite a bit of testimony to this condition, no objection was ever raised. Instead, appellant’s, counsel proceeded to cross, examine these witnesses on this point, and subsequently, interrogated his own witness, Dr. Horace Murphy, about this disease. It is difficult to understand why appellant was surprised, for Dr. Murphy, an orthopedic surgeon, while testifying on behalf of appellant, stated that he had previously suggested in a report submitted to appellants counsel, that “a neurological examination should be carried out to see if this is an anxiety reaction or could be some neurological disease. This is in my report (emphasis supplied) and I simply did not really know what the reason for the trembling of the arm was. * * * Well, P'arkinson isn’t basically from my meager knowledge of the condition. That is, it is. a condition which takes place as a result of an area in the brain of a basal ganglion, special area which has to do with controlling certain motions in the arm. Now, if, for example, arteriosclerosis or changes, of this type take place here then the controlled mechanism isn’t present and the motions that the patient develop, fine tremors, and this is basically Avhat Parkinson does, a lot of work on Laser Beam and actually treating these things certain types of beams into the brain but again it is a highly specialized area and many things resemble Parkinson that aren’t Parkinson; brain tumors, other things can give you various types of symptoms. That’s why I wanted, from my standpoint, a neurological consultation (emphasis supplied).” At any rate, we have frequently held that pleadings can be amended, in the sound discretion of the court, and, under the facts and circumstances herein, we find no abuse of that discretion, particularly when there was no motion for a continuance, and no objection to the testimony relating to Parkinsonism was ever made.

Appellant next asserts:

“It was prejudicial error to permit only a portion of Dr. Hundley’s testimony relating to Parkinson’s disease to be read to jury during closing argument. Counsel and court had agreed that all of such testimony would be read but the court terminated the reading of this part of the testimony after reporter read such as developed on direct examination.”

We cannot agree that error has been demonstrated. The official court reporter stated that she did not follow the practice of taking closing arguments of counsel, unless previously requested to do so, and that she had left the courtroom. The bailiff sought her out and asked her to bring her stenographic notes. She was then requested to find Dr. Hundley’s testimony on direct-examination concerning Parkinson’s disease. Both counsel then agreed that the testimony of Hundley as to whether there was a causal relationship between the trauma and Parkinson’s disease could be read, and accordingly read a portion of the evidence. Counsel for appellant asked that she find his cross-examination on this point. The reporter stated that she read a portion; that counsel said, “Gro on, go on further,” and she was searching-through the testimony when:

“#*#Mr. Wood [again] stated: ‘May I state I asked specifically, for the record, that the Court request the Court reporter to read from the record, wherein I was cross-examining Dr. Hundley with reference to Parkinson’s disease, and the Court says no.’ Mr. Howell stated: ‘With all respect, may I request the Court to agree with the request.’ Mr. Wood stated: ‘No, don’t do it.’ The Court stated: ‘Read the whole testimony of Dr. Hundley.’ Mr. Howell stated: ‘I want to read the part Mr. Wood wants read.’ Whereupon the Court stated: ‘Continue, Mr. Howell.’ Thereupon, according to my notes Mr. Howell made his closing argument.”

At once, it is evident that this record is confusing; hut it appears that when counsel for appellee asked the Court to agree with the request counsel for appellant said: “No, don’t do it (emphasis supplied),” i. e., he was withdrawing the request that the testimony he read.

Counsel for appellant then made the following statement for the record:

“I want to dictate. Defendant renews its objection to the court permitting a portion of Dr. Hundley’s testimony to he read to the jury and not having sufficient patience to permit the reporter to read, locate and read all of Dr. Hundley’s testimony, including that on cross-examination. ’ ’

The court thereupon stated:

“Put this in the record. Let the record show while the reporter was out of the room, the Court instructed the jury that they were the sole judges of the testimony and that statements of attorneys were not evidence and they heard the witness’ testimony and that they would make the decision as to what the witnesses testified; that thereafter both Mr. — counsel for plaintiff and counsel for defendant agreed to reading the testimony which was read.”

' We try cases on the record, and certainly, under this record, we cannot say that error was committed.

Affirmed.

      Appellee testified that she had made most of her own clothing, did her own cooking, and “canned and preserved.” She had also won the state championship (for women) in pistol shooting several times, but the tremor in her right hand prevented participation in these activities.

      The queston of whether there was negligence on the part of appellant, which was a proximate cause of the injuries sustained, is not argued.

      Dr. Hundley distinguished between strain and sprain as follows: “Strain is simply stretching of the muscles, ligamentous structures. A sprain is associated with tearing of muscles, tissues, or fascia, tissues or joints or ligaments of the joints and capsules, ligaments about the joints.”

      It was during cross-examination that Dr. Hundley testified that the Parkinson’s disease was likely a result of Norflex intoxication.

      Dr. Murphy’s report was dated January 5, 1966, which was approximately twenty-five days before the trial commenced.


author: George Rose Smith, Justice.

text:
    T.I.M.E. Freight, Inc. v. Rual Wayne McNew et al
    5-4079
    411 S. W. 2d 500
    Opinion delivered February 20, 1967

      Wright, Lindsey & Jennings, for appellant.

      Guy II. Jones and Francis T. Donovan and A. B. “Rob” Dawson, for appellee.
   George Rose Smith, Justice.

This appeal challenges a verdict and judgment holding the appellant responsible for a head-on collision that occurred on the night of March 11, 1965, on Highway 65 in the city of Conway. T.I.M.E. contends that it was entitled to a directed verdict, for the reason that the appellees’ evidence failed to prove that a T.I.M.E. tractor-trailer unit was involved in the collision.

The collision took place on a four-lane highway having two lanes of traffic in each direction. Two cars, one being driven by the appellee McNew and the other by the appellee Bunting, were approaching each other in the inner lanes of traffic. According* to the appellees ’ proof a tractor-trailer rig bearing the letters. T.I.M.E. on the back of the trailer was traveling next to Bunting, in the outer lane of traffic to his right. The collision was caused by the negligence of the truckdriver, who attempted to pass a truck ahead of him and in doing so side-swiped the Bunting vehicle and knocked it into the path of the oncoming McNew car. Mrs. McNew was killed and the other occupants of the two cars were injured. The jury verdicts for the appellees totaled $33,200.00.

The truckdriver in question was never identified, for he did not stop after the accident. Nevertheless, the plaintiffs (with whom we align the cross-complainants) offered proof ordinarily sufficient to support a verdict against the defendant. Both occupants of the Bunting car testified that the name T.I.M.E. was painted on the hack of the trailer. Another witness, apparently disinterested, testified that a few minutes before the collision three tractor-trailers bearing the letters T.I.M.E. on both tractor and trailer were parked at a nearby truck stop. According to that witness, who arrived at the scene of the collision soon after the tragedy occurred, the three T.I.M.E. drivers left the truck stop and drove off in the direction of the accident at about the right time for one of them to have been involved. Under our earlier decisions the testimony just summarized, standing alone, would support a finding that a T.I.M.E. tractor-trailer caused the accident and that it was being driven by a T.I.M.E. driver in the course of his employment. Lion Oil Ref. Co. v. Smith, 199 Ark. 397, 133 S. W. 2d 895 (1939); Plunkett-Jarrell Gro. Co. v. Freeman, 192 Ark. 380, 92 S. W. 2d 849 (1936); Arkansas Baking Co. v. Wyman, 185 Ark. 310, 47 S. W. 2d 45 (1932).

The appellant argues that its proof overcame the appellees.’ prima facie case. T.I.M.E. is a comparatively large concern operating its vehicles, from 29 different terminals scattered over the United States. On the date of the collision it owned about 1,100 trailers and about 500 tractors. At least nine of its units (and perhaps as many as 36) might have been in the vicinity of Conway at the time of the accident. Seven of those nine drivers testified at the trial, each one denying that he was implicated in the collision. By an oversight on T.I.M.E.’s part the other two drivers were not mentioned in its. answers to the plaintiffs’ interrogatories and were not called as witnesses.

In insisting that it was entitled to a directed verdict T.I.M.E. relies upon proof that about ten per cent of its trailers were in the possession of other trucking companies on the date of the accident. Such transfers, of possession are referred to as interchanges. An interchange occurs when a shipment originating with T.I.M.E. is turned over to a carrier authorized to serve the point of destination. In such a situation the necessity for unloading and reloading the shipment is avoided by releasing the loaded T.I.M.E. trailer to the connecting carrier. In a transaction of that kind T.I.M.E. takes a receipt for its trailer and makes, a daily chárge of $10.00 for the use of the vehicle. At the trial neither side made any attempt to prove the whereabouts of the 100-odd trailers that were on interchange on the day of the accident.

Laying aside T.I.M.E. ’s much better opportunity to trace the missing trailers, we are unwilling to say that the plaintiffs.’ failure to develop that line of inquiry was fatal to their prima facie case. Their testimony placed at least three T.I.M.E. tractor-trailer units at a point close enough to the site of the collision to support a finding that one of them was involved. Moreover, only about ten per cent of the T.I.M.E. trailers were on interchange ; so the probabilities were about nine to one that if a T.I.M.E. trailer was actually involved it was being hauled by a T.I.M.E. tractor.

The ultimately decisive question is whether some explanation of the whereabouts, of the interchanged trailers was so essential to the plaintiffs’ case that the jury could not fairly and reasonably reach a conclusion without that explanation. We have no hesitancy in holding that the asserted gap in the plaintiffs’ proof was not fatal to their causes of action. In no event could the plaintiffs have done more than track down the drivers of the unaccounted-for trailers, produce all of them as witnesses, and submit to the jury a hundred or more monotonously similar denials of their participation in the accident. Yet that mass of testimony, even though it proved to be as favorable as possible to the plaintiffs, would not carry the jury far in its deliberations. The guilty truckdriver failed to stop after the collision. It is altogether unlikely that one of the missing drivers, when discovered weeks or months later, would voluntarily admit that he was the culprit who fled from the scene. Thus the question for the jury would have been essentially the same as it was at the actual trial — a matter of weighing probabilities and credibility. Mathematical certainty could not be achieved. In the circumstances the court properly submitted the case to the jury, whose verdict settles the controversy.

Affirmed.

Brown, J., dissents.


author: George Eose Smith, Justice.

text:
    New Empire Life Insurance Company v. Fred Bowling
    5-4129
    411 S. W. 2d 863
    Opinion delivered February 20, 1967
    [Rehearing denied March 27, 1967.]

      Gordon & Gordon, for appellant.

      George J. Cambiano,, for appellee.
   George Eose Smith, Justice.

This is an action brought by the appellee to recover the $5,000 death benefit payable under a policy insuring his son, Jerry Bowling, against injury or death “resulting directly and independently of all other causes from bodily injury . . . effected solely through accidental means.” At the trial the jury’s verdict was for the plaintiff in the full amount of the policy. The insurer contends, that it was entitled to a directed verdict for the reason that under Missouri law, which the trial court found to be controlling, the insured’s death was not effected by accidental means.

In January, 1964, the elder Bowling, a resident of Arkansas, received by mail an advertisement of an accident policy issued by the appellant, a Missouri corporation. Bowling applied for a policy upon his. nineteen-year-old son Jerry, sending the application and premium to the insurer’s principal office in Missouri. The company issued the policy and delivered it by depositing it in the mails in Missouri. In the past we have held that in such circumstances the policy is to be governed by the law of Missouri. State Mutual Fire Ins. Assn. v. Brinkley Stave & Heading Co., 61 Ark. 1, 31 S. W. 157, 29 L. R. A. 712, 54 Am. St. Rep. 191 (1895).

In November, 1964, Jerry was living in Arkansas but was working in Oklahoma. On November 23 he and a companion, Donnie Nixon, spent most of the day riding around in or near Keota, Oklahoma. They stopped several times, to drink beer at taverns. The evidence indicates that at about ten o’clock that night Jerry was driving their car at great speed on a highway near Keota. Donnie was asleep. Jerry lost control of the car, which skidded on and off the highway for about 450 feet before plunging into a gravel pit filled with water. Donnie managed to escape, but Jerry was drowned.

Was Jerry’s death effected through accidental means ? In Missouri the leading case upon this issue was originally that of Caldwell v. Travelers’ Ins. Co., 305 Mo. 619, 267 S. W. 907, 39 A. L. R. 56 (1924). There the court made a choice between two lines of authority, which it summarized in these words:

‘ ‘ There are two clearly defined lines of cases on this question. One holds that, where an unusual or unexpected result occurs, by reason of the doing by insured of an intentional act, where no mischance, slip, or mishap occurs in doing the act itself, the ensuing injury or death is not caused through accidental means; that it must appear that the means used was accidental, and it is not enough that the result may be unusual, unexpected, or unforeseen.
“The other line of cases holds that, where injury or death is the unusual, unexpected, or unforeseen result of an intentional act, such injury or death is by accidental means, even though there is no proof of mishap, slip, or anything out of the ordinary in the act or event which caused such injury or death.”

After reviewing the authorities at great length the court elected in the Caldwell case to adopt the first of the two rules, by which there must be some accidental element in the doing of the intentional act that causes the injury or death. It is accordingly argued in the case at bar that the insurance company is not liable, because Jerry Bowling intentionally drank beer to the point of intoxication and in that condition intentionally drove at a speed estimated by a highway patrolman to have been between 90 and 100 miles an hour. Under those circumstances, counsel say, Bowling’s death cannot be regarded as unforeseeable or unexpectable.

We must reject this argument, for either of two reasons. First, Donnie Nixon testified that Jerry was not drunk that night. If the jury accepted that testimony it would follow that Jerry’s death was the result of his losing control of the car while driving at an excessive speed. Unquestionably the jury could have concluded that the loss of control was itself attributable to accident rather than to intention. Secondly, the more recent Missouri cases hold that when the plaintiff’s proof shows that the insured’s death was violent, as it was in the case at bar, there is a prima facie case for submission to the jury. King v. New Empire Ins. Co., Mo. App., 364 S. W. 2d 40 (1962); Ward v. Penn Mutual Life Ins. Co., Mo. App., 352 S. W. 2d 413 (1961).

Since the judgment must be affirmed even under the law of Missouri, we do not reach the question whether the more liberal rule of substantive law that prevails in Arkansas ought to govern in a case such as this one. In recent years many principles in the field of conflict of laws have undergone re-examination — a process that is still in progress. Courts are taking a second look at the older inflexible approach by which in certain fact situations the law of a particular jurisdiction is to be woodenly applied, even though there may be a sound basis in public policy or simply in common sense for preferring the law of some other jurisdiction. We touched upon this point in McGinty v. Ballentine Produce, 241 Ark. 533, 408 S. W. 2d 891 (1966), but there, as here, we did not find it necessary to take a stand in the matter.

With respect to the narrow issue involved in the case at hand we may appropriately say that there are good reasons for construing a contract of life insurance by the law of the state where the insured was living when the policy was issued. See Restatement of Conflict of Laws (2d), 6th Tentative Draft, § 346h; Zogg v. Penn Mutual Life Ins. Co., 2d Cir., 276 P. 2d 861 (1960); Peterson v. Warren., 31 Wis. 2d 547, 143 N. W. 2d 560 (1966). Should the issue be squarely presented we shall feel free to review the wisdom of our earlier decisions.

There is a second question to be decided. The plaintiff asked in the court below that he be allowed the penalty and attorney’s fee authorized by our statute. Ark. Stat. Ann. § 66-3238 (Repl. 1966). The trial court rejected the request, holding that the Missouri statute upon that aspect of the case was controlling and that the plaintiff had not shown that the insurer’s delay was “vexatious,” as the law of Missouri requires it to be. This was error. The question is essentially a procedural one, to be governed by the law of the forum. Aetna Cas. & Surety Co. v. Simpson, 228 Ark. 157, 306 S. W. 2d 117 (1957). It is true that we said in that case that “the policy matured in Arkansas and the action is brought in Arkansas.” Even though the policy now before us might be said to have matured in Oklahoma, where Jerry Bowling met his death, the action is properly maintainable in Arkansas, where the plaintiff resides. We consider this to be an adequate basis for the application of our statute. The judgment will be modified on the cross-appeal to include a 12% penalty and an attorney’s fee of $1,500.

Modified and affirmed.


author: Paul Ward, Justice.

text:
    International Minerals & Chemical Corporation v. Don S. Caplinger
    5-4124
    411 S. W. 2d 526
    Opinion delivered February 20, 1967

      Barrett, Wheatley, Smith & Beacon; By: Joe C. Boone, for appellant.

      Greer & Collier and Ward & Mooney, for appellee.
   Paul Ward, Justice.

This is a suit to collect for goods sold — but under unusual circumstances which will be explained. The facts presently set out are not controverted.

(a) International Minerals and Chemical Corporation (appellant)- — a foreign corporation authorized to do business in Arkansas. — -is engaged in selling fertilizer to its agents who are retailers, (b) In this case Walden-burg Gin and Supply Company was its agent to retail fertilizer in Poinsett County, (c) Don S. Caplinger (appellee) was. the sole owner of said company, (d) On February 17, 1960 appellant and appellee executed an “Agent’s Contract” which is quite lengthy and deals with many items not pertinent here. In material part it provides that appellee guaranteed to pay for all fertilizer purchased for resale, (e) On June 25,1964 when appellee sold his business (including all assets) to Clinton E. Bowling, he owed appellant a balance of $18,810.65. (f) On the date last mentioned and when appellee refused to pay said balance Bowling executed three notes to appellant totaling the amount due — the notes were due December 1, 1964. (g) Bowling paid off two notes, but appellant was unable (after many efforts.) to collect the third note in the amount of $6,810.65.

On July 23, 1965 appellant filed this suit against appellee to collect “said account”. The essence of appellee’s answer which is. pertinent here was: (a) A few hours before Bowling executed the notes appellee notified appellant that he had sold out to Bowling “including its accounts both payable and receivable”, (b) With that knowledge appellant ‘ ‘ accepted the note ... and in doing so extended the due date without notice .... ” (c) This indulgence ivithout notice operated to release him from further liability.

The matter proceeded to trial before a jury, and, after both sides, rested, the trial judge instructed a verdict in favor of appellee on the ground that, as a matter of law, appellee “was not responsible to plaintiff upon the account sued on because of indulgence granted by plaintiff to one Clinton BoAvling subsequent to December 1, 1964”.

It is not disputed that: (a) Appellee purchased fertilizer from appellant; (b) He owed appellant a balance of $18,810.65 on or about June 25, 1964; (c) $12,000 has been paid; (d) A balance of $6,810.65 is unpaid, and; (e) Appellee guaranteed the payment of said amount.

To avoid liability for the above amount, appellee contends: One. The time of payment was extended without his knowledge. Two. There was a “novation” of the written “Agency Contract”.

One. It is here contended by appellee that he was relieved of all obligation to pay appellant because he (appellant) gave Bowling extra time in which to pay. We are unable to agree with this contention.

In the first place appellant sued on the overdue “account” which appellee acknowledged but refused to pay, and did not sue on the note. Not only so, but we find nothing in the record to show appellant ever extended the time for Bowling to pay the note or the account. What appellant did do was to make repeated efforts to have Bowling pay, and when this failed it filed this suit against appellee.

This action by appellant merely tended to protect appellee from having to pay the balance due on the account.

Two. Appellee’s further contention is that when Bowling executed his note to appellant that constituted a “novation” and, thereby, released him from all obligation to pay the past due account. This contention is not in accord with our decisions under the facts in this case.

This issue was considered in the case of Simmons National Bank v. Dalton, 232 Ark. 359, 337 S. W. 2d 667. In that case, in holding Dalton was not released from liability on the ground of a novation, we used language applicable to this case. There the Bank made efforts to collect from Thompson who was secondarily liable, and we said: “. . . what the Bank did amounted to nothing more than an effort to accommodate Dalton in its efforts to have Thompson pay Dalton’s debt.” We said:

“Our decisions and the text-writers appear to he uniform in holding that it is necessary to show an intent on the part of the creditor to release an old debtor and substitute therefor a new debtor. In Home Life Insurance Company v. Arnold, 196 Ark. 1046, 120 S.W. 2d 1012, this Court, in dealing with this same question, said: ‘. . . the effect of the novation is the intention of the parties.’ (Emphasis supplied.) Likewise, at Pages 266 and 267 of Volume 39 Am. Jur., it is stated, among other things, that: ‘ In order to effect a novation there must be a clear and definite intention on the part of all concerned that such is the purpose of the agreement.’ (Emphasis supplied.) ”

We also said: “In a case of this kind the burden was on Dalton to show that he has been released by appellant Bank,” citing Brewer & Son v. Winston., 46 Ark. 163.

.In our opinion there is no testimony in the record that shows “a clear and definite intention” of the parties to this action to release appellee from liability. To the contrary, William Little, an agent of appellant, stated that on June 26, 1964 he called on appellee to settle the account he owed appellant; that he learned appellee had sold to Bowling; that appellee told him “it would be all right to have Mr. Bowling sign the notes”; he then told appellee that “if anything happened and the notes, were not paid, we would look to him for payment on his personal guarantee.”

Appellee testified, on cross-examination, that when Mr. Little called him to settle the account he refused to execute any notes or be responsible any further, and that Bowling had no authority to bind him.

Clearly a fact question was made for the jury on this, point, and the court erred in directing a verdict for appellee.

Reversed.


author: Paul Ward, Justice. Lyle Brown, Justice,

text:
    George Lee Tatum v. K. W. Rester
    5-4106
    412 S. W. 2d 293
    Opinion delivered February 20, 1967
    [Rehearing denied March 27, 1967.]
    [Supplemental opinion on rehearing delivered March 27, 1967, 242 Ark. 271, 412 S. W. 2d 293.]

      Bernard Whetstone, for appellant.

      Shackleford & Shacklefor, for appellee.
   Paul Ward, Justice.

This is a personal injury suit. While George Lee Tatum, a five year old boy (hereafter referred to as appellant), was playing with the children of K. W. Roster (appellee) at Rester’s home he was injured when appellee was attempting to back his car out of the carport.

Suit was filed by George’s father (who, having died later, was replaced by a guardian — -Robert E. Rorex) against appellee to recover damages for the injury allegedly caused by the negligence of appellee. A jury trial resulted in a verdict for appellee.

For a reversal appellant relies on two points which we will discuss in reverse order from that presented in his brief.

One. This point relates to certain instructions given and refused by the trial court, but first it is necessary to set out a summary of the pertinent facts which are not in dispute.

Appellant lives with, his family who are close neighbors of appellee who has a wife and small children. The children of the two families frequently play together in their yards.. On the day of the accident appellant was playing with appellee’s children in his yard. It is not contended that he was invited over on this particular occasion nor is it contended he was a trespasser. Apparently it is. agreed that appellant was a licensee or an invitee.

On that occasion appellee was washing his car in the carport, aware of the presence of the children in his yard and that they were nearby. "When appellee decided he would back his car clear of the carport to finish the job he told the children of his intention and also told them to keep out of the way. Appellee then proceeded to back the car, holding the left front door open with his hand. In doing so the edge of the open door struck appellant’s hand while it was resting on the post which supported the rear comer of the carport.

At the close of the testimony appellant requested the court to give the following instruction:

“You are instructed that under the circumstances that existed in the present case that K. W. Hester owed the duty to George Lee Tatum to use ordinary care not to cause injury to George Lee Tatum.”

The trial court refused the above instruction over the objection of appellant, and then gave to the jury the following instruction over appellant’s objection.

“You are also instructed that at the time of the occurence here involved the Defendant, K. W. Hester, did not have a duty to use ordinary care for the safety of the Plaintiff, George Lee Tatum, unless he knew or reasonably should have known that George Lee Tatum was in a position of danger.”
“And, of course, if the Defendant did know or reasonably should have known that George Lee Tatum was in a position of danger at the time of the occurence, then the Defendant had a duty to use ordinary care to avoid injury to him.”

It is our conclusion the court erred both in refusing and giving the above instructions. This conclusion is supported by the case of Linxwiler v. El Dorado Sports Center, Inc., 233 Ark. 191, 343 S. W. 2d 411.

In the above cited case this same issue was raised under similar circumstances. Appellant (a boy eighteen years old) stopped in a bowling alley and chatted with a nineteen year old employee of the alley. They employee picked up a pistol which a policeman had cheeked at the counter and accidentally shot and injured the appellant. The trial court, in that case, instructed the jury as follows:

“ ‘The owner of a premises or place of business is under no duty to protect one who goes upon the premises or in the place of business as a volunteer for his own pleasure, privacy, or curiosity.’ ”

On appeal to this Court we reversed the judgment in favor of appellee, stating, among other things:

“This instruction should not have been given, for it embodies a rule of limited liability that is properly applicable to a landowner’s responsibility for the condition of his premises rather than to his liability fon the conduct of his employees.”

Following the above statement we said:

“The condition of the appellee’s bowling center had nothing to do with Billy Linxwiler’s injury. Lavelle Parker was well aware of Billy’s presence. In this situation Parker and his employer owed Billy the standard duty of ordinary care, regardless of his indecision about whether to bowl or not.”

We can see no distinction, in principle, between the cited case and the case under consideration here. It is possible that the trial court could have been misled by the similarity between AMI instruction 1106 and the one which it gave in this case. However it is apparent that AMI 1106 refers to the duty of a person to keep his premises in a safe condition, which is not the situation in this case.

Two. It is also urged by appellant that the trial court “erred in his handling of the voir dire of the jury panel”. However, since the case must be reversed on the first point and since we find no reversible error here, we deem it unnecessary to discuss this point in derail.

It appears that appellant attempted to ask each of the jurors two questions. One, in effect, was whether he would disregard the apparent ability or inability of the defendant to pay any judgment rendered against him. The other was, in effect, if he owned any stock in or worked for any casualty or liability insurance company. The trial court, upon objection, refused to allow appellant to ask these questions at that time and in the exact way they were presented.

For reasons set out below we find that the trial court committed no reversible error.

In the case of Hogg v. Darden, 237 Ark. 478, 374 S. W. 2d 184, we said:

“It has long been recognized in this State that ‘litigants in civil cases, as well as in criminal cases, have the right to examine the jurors separately in order to determine whether such jurors are subject to challenge for cause, or to elicit information on which to base the right of peremptory challenge, subject of course to the right of the Court to control the extent of such examination, acting in its sound discretion.’ ” (Emphasis ours.)

The court did not, we think, abuse its discretion under the circumstances disclosed by the record.

The court, on two occasions, told appellant he could inquire of the jury as to the content of the questions mentioned above. The court also explained that it would take up too much time to ask the questions, of each juror separately — as requested by appellant. Moreover, the court asked each juror as to his or her occupation, and excused two because of their connection, in', some way, with insurance companies. The court also questioned the panel at length regarding their duty to render a fair and impartial verdict under the law and the evidence. Thereafter appellant declined to ask any more questions. This, we said in the Hogg case, supra, “constitutes a waiver”.

By this opinion we do not mean to hold that the questions appellant desired to ask the jury are, per se, inadmissible if asked in good faith subject to reasonable control by the trial court. ...

Reversed.

George Rose Smith and Brown, JJ., concur.

Lyle Brown, Justice,

concurring. I agree this case should be reversed because of error in instructions. However, I believe the opinion fails to give proper consid-' eration to some important points which were raised and which are most likely to occur in the event of another trial.

This cause first was called for trial on February 14, 1966. On behalf of Tatum (plaintiff), his attorney asked this question on voir dire examination:

“Bernard Whetstone — My question is, gentlemen of the jury, do you or any member of your family now, or have you in the past, worked for or own any stock in or have any interest in any casualty or liability insurance company!”

Counsel for Hester (defendant) immediately asked for a mistrial and the court promptly granted the motion.

Although a prior question asked is not in the record, it is apparent from the statements made by the presiding judge that the question regarding insurance was immediately preceded by another question. In substance, the first question inquired of the panel whether the apparent ability or inability of the defendant to pay a judgment would affect the findings of the jury.

After granting the mistrial, the court expressed the view that the propounding of these two questions “back to back” were meant to impress upon the jury the fact that the defendant probably had insurance. This reasoning seemed to impel the trial court to grant the mistrial.

The second trial began May 25, 1966. On voir dire examination Mr. Whetstone inquired of juror Smitherman, in substance, if he could disregard the apparent ability or inability of a defendant to pay a judgment. Mr. Shackleford objected and the question was unanswered. The court overruled the objection and proceeded to take over the questioning- of the panel. After numerous questions were asked by the court, Mr. Whetstone requested a conference at the Bench. After some discussion, the judge and attorneys retired to Chambers. The judge addressed this question to Mr. Whetstone:

“As I understood your motion, you wanted to ask each one of the jurors individually the question whether or not they would try this case and render a judgment for the plaintiff if they feel the law and evidence justified it, without considering his. apparent ability or inability to pay the judgment. Now is that the question you wanted to ask? ” (To which Mr. Whetstone replied in the affirmative.)

The court denied the motion and gave three reasons therefor; the reasons are summarized in italics, and the balance constitutes my comments:

1. To propound the same question individually to 23 jurors would be too much of a burden on the jury and the court and is unnecessary. The court was certainly acting within the bounds of discretion in so ruling.

2. The question is improper because the ability or inability to pay a judgment cannot be involved in a case. It is not a proper thing for the jury to take into consideration. Ability or inability to pay cannot be introduced into evidence. On this point I believe the court is in error, assuming it to have been ruled that the question is never proper under any circumstances. It is human nature for most people to sympathize with the poor, the unfortunate, or the underprivileged. Direct testimony is not necessary for jurors to reach a conclusion or impression that a party to a case has ability or inability to pay. A question of the same content is in fact not infrequently propounded by counsel for a large corporation when it is being sued by a widow or on behalf of minor children whose parent has suffered death in an accident.

To admit the propriety of this question, when asked in good faith, knowing it is a cause wherein the jury will undoubtedly reach definite impressions about the ability or inability to pay, still does not remove from the trial court all its discretion. Acting in sound discretion, the court is privileged to conclude that the question is not proper in a particular case.

3. The purpose of this question is to indicate to the jury that liability insurance is involved, “that this •man (defendant) does not have the ability to pay but he has plenty of insuranceHerein lies the danger of coupling the two questions. And in this situation the court’s discretion comes into play. The court passes on the question of good faith, knows the attorneys, their mannerisms in asking the questions, the word emphases they may use — all of which are important in discerning good faith. The appellate court does not have this advantage. So, unless from the record itself we can glean an abuse of discretion, we should not say the trial court erred in this respect.

Lawyers have the right to question jurors, separately and individually, to determine whether they are subject to challenge for cause, or to elicit information on which to base the right of peremptory challenge. But all this is subject to the right of the court, acting in sound discretion, to control the extent of the examination. Then, too, the court would seem to have the responsibility of moving forward on questions concerning statutory qualifications. See Ark. Stat. Ann. § 39-226 (Repl. 1962).

The case and statutory law relative to voir dire examination are not complicated when compared to other fields of trial procedure. When a problem in fact is anticipated it can undoubtedly be settled by raising it in pre-trial conference. In those rare instances where it might not be settled in pre-trial, the record can there be made and the time and patience- of jurors are not jeopardized.

GIeorge Rose Smith, J., joins in this concurrence.


author: Lyle Brown, Justice.

text:
    Murray Wells v. State of Arkansas
    5206
    411 S. W. 2d 529
    Opinion delivered February 20, 1967

      Odell G. Garter,, for appellant.

      Joe Purcell, Attorney General; Hon Langston, Asst. Atty. General, for appellee.
   Lyle Brown, Justice.

Appellant is an inmate of the Arkansas penitentiary and by tbis proceeding questions the ruling of the Lincoln County Circuit Court wherein appellant’s prayer under a habeas, corpus proceeding was denied.

Wells received a five year sentence in the Cross County Circuit Court in 1956. A fellow inmate at the penitentiary was killed in 1957 and appellant was' charged in the Lincoln County Circuit Court with murder. He entered a plea of guilty to second degree murder on August 3, 1957, and received a sentence of 21 years to run consecutively with the previous sentence.

In October 1965, Wells filed a handwritten petition in the Lincoln Circuit Court, which was appropriately-treated by the trial court as a petition for a writ of habeas corpus. He alleged he was being detained in violation of his constitutional rights, in that he was a minor at the time, that he was not afforded counsel, and that-he was coerced by the late Capt. Lee Henslee into making a confession. Wells was brought before Hon. Henry W- Smith, presiding judge of the Lincoln Circuit Court, and the same judge who was presiding in 1957 and sentenced Wells. Hearing was set for March 9, 1966, and Attorney Odell Carter was appointed to represent the petitioner. The trial court entered these findings on his docket:

"3-9-66. Odell Carter appointed to represent the defendant. The Court finds no merit in the petitioner’s petition. On 8-3-57 the petitioner was brought into court on a first degree murder charge and all his constitutional rights were explained to him and he was offered an attorney and a jury trial. The petition is denied and he is remanded to Supt. of State Penitentiary.”

The proceedings of March 9 were not transcribed; however, counsel for appellant states in his brief that appellant testified to the matters contained in his petition for writ of habeas corpus; that the State responded by denying the allegations and presenting* a penitentiary commitment valid on its face.

Two points are relied upon for reversal, and they will be set forth as. they are discussed.

First: The appellant’s constitutional rights were violated in that he was not properly represented by counsel at all stages of the legal proceedings. Appellant asserts that the right to counsel began upon the filing of the information on June 21, 1957.

Appellant cites United States v. Richmond, 295 F. 2d 83 (1961). This decision does not sustain appellant’s first contention. It holds that whether the appointment of counsel is timely depends on whether the trial is fundamentally unfair because of delay in assigning counsel. Further, it is there held that the precise point at which the duty to assign counsel arises “is not set by any inflexible rule.” In our case, appellant would have us set an inflexible rule of requiring appointment of counsel immediately upon the filing of the information. We have also examined the other authority upon which appellant relies. Hawk v. Olson, 326 U. S. 271 (1945). It simply holds, that the appointment of counsel must be timely made, substantially as is held in Richmond.

Under the first point, appellant further contends that he made a confession under threat of death, that the influence of this confession continued down to and included the confession of guilt in open court and made the latter admission illegal. Appellant overlooks the fact that the trial court listened to his testimony about the alleged confession made at the penitentiary and found no merit in it. As was pointed out in the Hawk v. Olson case, the giving of such testimony, although uncontradicted, does not mean it must be accepted as. true by the trial court. As has been pointed out by this court in previous, eases, Capt. Henslee is deceased; further, the same judge presided at both hearings.

This brings us to a consideration of the final contention advanced by appellant under his first point, namely, that the plea of guilty made in open court in the absence of counsel, is void. He cites Massiah v. United States, 377 U. S. 201, 84 S. Ct. 1199 (1964). We fail to see the analogy. Massiah was free on bail and had obtained a lawyer; a government agent obtained a statement from Massiah in the absence of his attorney; the court, of course, held it to be inadmissible. It is. a rule of law firmly established that a defendant may intelligently waive right to counsel. In this instance the trial court advised defendant of his constitutional rights including right to counsel, and he waived it and entered his plea of guilty to second degree murder. We presume that Judge Smith explained the degrees of murder, and, as defendants oftimes do, Wells countered that he was not guilty of murder in the first degree. The next logical step is to take up the lesser degree, explain the elements of the charge and the punishment. At this stage of the proceeding, Wells apparently indicated Us desire to enter a plea of guilty. Appellant certainly does not claim the trial judge did not follow the statutory procedure.

The second heading of appellant’s points — “Point II” — is to the effect that the confession made at the penitentiary was involuntary. As previously pointed out in this opinion, the trial court found this contention to be without merit. We are sure the trial court was impressed, as we are, with the fact that these contentions are becoming stereotyped. For example, the pleadings in this respect by Wells are almost identical with the contentions made by the petitioner in Burks v. State, 241 Ark. 1, 405 S. W. 2d 935 (1966). Furthermore, when Wells was brought before the court in 1957, he apparently did not choose to reveal to the trial court the alleged acts of coercion which he now raises for the first time and some eight years later.

Affirmed.