text:
    Elton EUBANKS v. WHEELING PIPELINE, Inc.
    5-5327
    461 S. W. 2d 937
    Opinion delivered January 11, 1971

      Whetstone & Whetstone, for appellant.

      Shackleford & Shackleford, for appellee.
   John A. Fogleman, Justice.

The circuit court affirmed a unanimous holding of the Workman’s Compensation Commission (which had affirmed a referee’s finding) that appellant Elton Eubanks suffered no permanent disability as a result of a back injury arising out of and in the course of his employment as a truck driver by appellee Wheeling Pipeline, Inc. The commission found that appellant had degenerative disc disease from which he had suffered recurrent “flare ups,” but that he had recovered without any rating of physical impairment, and that claimant had failed to show disability as defined in the Workman’s Compensation Act and had made no effort to work. In its finding the commission noted that medical evidence showed that claimant did not have any physical impairment and that his disease was not caused or “accelerated” by his injury, since he recovered from each flare-up without any permanent effects.

Although appellant asserts that there is no substantial evidence to support the commission’s decision and that the commission acted without or in excess of its powers, his arguments are really based only upon the first contention. We agree with the circuit court that there was substantial evidence to support the commission’s holding. Appellant actually advances a theory that opinions of physicians that he had suffered no permanent disability should have been disregarded by the commission because they expressed the opinion that Eubanks had no permanent disability in spite of the fact that he had a greater susceptibility to recurring disability to his back after his compensable injury on March 30, 1967.

Appellant testified that, after his injury, he found that he was unable to do any kind of work without his back bothering him. He said he found that his condition was easily aggravated whenever he returned to his job. He worked last on December 27, 1967, except for one day in April 1968. Other than on this day, he had not worked after his release by Dr. Ernest R. Hart-mann, an orthopedic surgeon, on February 9, 1968. Eu-banks excused his failure to return to work because he would not cross a picket line incidental to a strike against Wheeling at the time of his release and a layoff of employees was agreed upon by Wheeling and the union after the strike was settled on April 7, 1968. He reported to the employment office on April 9, 1968, as available for any kind of employment and applied for unemployment compensation benefits,_

After the injury Eubanks returned to his job on April 26, 1967. He worked until July 21, 1967, but then suffered disabling pain and stiffness in his back. He was unable to work until August 14, 1967, after he had been supplied with a brace. He left work again on November 25, 1967, when he awakened and found himself unable to straighten his body to an erect position. He again returned to work on December 10, 1967, but quit about December 27, 1967, when his condition seemed to be worse than ever. He had been treated by Dr. Paul G. Henley and by Dr. Hartmann, to whom Dr. Henley had referred him. After treatment, which included traction for a week, the latter physician released him to return to work. Eubanks received compensation for temporary partial benefits for all periods he was unable to work prior to February 9, 1968.

Eubanks attributed his recurring disability to aggravation of his condition principally because of vibration of the truck and his use of his left leg for clutching. He testified before the referee on May 7, 1968, that he still had a sore place in his back which was aggravated by any kind of physical activity. He also stated that, even when he reclined on a hard mattress supported by plywood at night, he felt a throbbing in his back, and was unable to sleep satisfactorily unless he lay on a pallet on the floor. He said that he worked on April 10, 1968, for nine hours beginning at 6:00 p.m. but found that he was unable to continue because of soreness he felt as a result of the truck’s bouncing and shaking.

In an April 5, 1967, report, Dr. Henley, to whom Eubanks said he was referred by his safety supervisor, stated that the injury would not result in permanent defect and that x-ray diagnosis showed minimal degenerative changes. In his final report dated September 14, 1967, he expressed the opinion that Eubanks was capable of doing the same work he did before the injury and that he had no permanent disability.

Dr. Hartmann first saw appellant on July 25, 1967. He found a recurrent mild lumbosacral strain. He continued treatment and examinations until February 9, 1968, and said that there was then no symptomatology of the patient’s back. He expressed the opinion that Eubanks had no permanent disability as a result of his injury. He did not feel that there were any limitations or restrictions of appellant’s ability to perform his duties as a truck driver. On cross-examination, Dr. Hartmann admitted that he did not consider Eubanks as strong a candidate for truck driving when discharged by him as he was before the injury, that his back was not in as good condition as before and that he considered this condition permanent. Dr. Hartmann said that Eubanks was more likely to have a “flare up” after the injury. He attributed the “flare ups” suffered by Eu-banks to normal wear and tear, but admitted that they could be occupational or attributable to the board on which he was sleeping, additional injuries, normal aging factors, arthritis or degeneration of discs. This physician gave no ratable permanent disability because Eubanks had a normal examination and no symptoms. He found no evidence of narrowing of spinal disc inter-spaces or degenerative disc disease of lumbar spine with minimal osteo-arthritic changes, as did Dr. Larry Mahon, but admitted that an injury of the type suffered by Eubanks would aggravate such a condition. He later expressed the opinion that degenerative disc disease would cause recurring episodes of backache, which would more likely indicate disease rather than injury as a cause.

Dr. Charles N. McKenzie, an orthopedic surgeon, examined Eubanks on July 24, 1968, apparently on reference by the Workman’s Compensation Commission, and referred him to Dr. James Moore for an electromyo-graphic study because of mild orthopedic irregularities. Dr. McKenzie made reports of his findings on July 26, 1968, and November 13, 1968. His diagnosis on the earlier date was “physiological changes of the lumbar spine.” He then stated that if electromyographic findings were normal, it would be his opinion that Eubanks had not sustained a significant injury. After he received an interpretation of Dr. Moore’s examination, Dr. McKenzie confirmed his conditional statement of opinion. He testified that he found no ratable or traumatic disability resulting from the injury appellant described. He described the irregularities found as consistent with Eubanks’ age and attributable to physiological aging. He thought changes in Eubanks’ back antedated March 1967.

Dr. McKenzie felt that if a patient had pain sufficient to cause disability, he, as a physician, should be able to demonstrate its cause. He did not give any permanent disability rating unless he could demonstrate it objectively, and was of the opinion that there is no other rational way to rate disability. He further opined that a real disability that could not be medically demonstrated would be so insignificant that it would not prevent the patient from performing most anything he wanted to do. Before he would rate a stable person whose objective symptoms were restricted to motion or muscle spasm which has been relieved, as chronically disabled, he would first have to have seen four or more remissions or exacerbations. Then, he felt that medical standards would require a rating of only 5% permanent disability from recurrent lumbosacral strain. According to him, after these remissions and exacerbations, significant physiological changes could be demonstrated. He agreed that one with a chronic lumbar spine condition would be 100% disabled insofar as truck driving is concerned. Dr. McKenzie would not eliminate the possibility of a chronic disability of Eubanks based upon subsequent developments but found nothing upon which to base a finding of permanent disability at the time he testified. He, too, stated that the chances of a remission if Eubanks went back to driving a truck were greater than if he had not suffered the original trauma and that he would not recommend him to a prospective employer as a truck driver.

Dr. Moore found no objective symptoms when he examined Eubanks except for a muscular tenseness which he said could have been either voluntary or involuntary.

Dr. Larry E. Mahon, an orthopedic surgeon, examined Eubanks on April 18, 1968, pursuant to appointment made by appellant’s attorney. On August 1, 1968, he reported to appellant’s counsel that he had found minimal disc space narrowing which he felt could be substantiated clinically, regardless of x-ray findings. He expressed the opinion that Eubanks had reached his maximum healing point when seen for initial examination and that his inability to work would be of long duration and, most likely, permanent. On April 24, 1968, Dr. Mahon had reported a .diagnosis of degenerative disc disease of the lumbar spine with minimal osteo-arthritic changes, which he felt were aggravated, but probably not caused, by the March 1967 injury. He rated appellant’s permanent disability at 10%.

Appellant argues that, since it is the duty of the commission to give the claimant the benefit of every doubt, and to draw from the testimony inferences that will support an award rather than defeat it, we should hold that the medical testimony adverse to claimant is not substantial support for the commission’s finding. This argument is based upon Dr. Hartmann’s and Dr. McKenzie’s basing their opinions on lack of objective symptoms, while admitting that recurrence of “flare ups” was more probable than before Eubanks’ injury. Although appellant’s statement of the law governing commission action is correct, on appeal the court must view the evidence in the light most favorable to the commission’s findings, drawing all reasonable inferences in favor thereof, even though we might have reached a different result if we were the commission. Wilson v. United Auto Workers Intern. Union, 246 Ark. 1158, 441 S. W. 2d 475; Wilson Lumber Co. v. Hughes, 245 Ark. 168, 431 S. W. 2d 487. The only question is whether there is any substantial evidence to support the commission’s finding. Allied Telephone Co. v. Rhodes, 248 Ark. 677, 454 S. W. 2d 93; Voss v. Ward’s Pulpwood Yark, 248 Ark. 465, 452 S. W. 2d 629. In order for us to say that the judgment is without substantial evidentiary support, we would have to say that there was no reasonable basis for the opinions of Drs. Hartmann and McKenzie that a rating of permanent disability in a case such as this could be based only upon objective findings, that the more probable cause of recurrences of Eubanks’ condition was disease or physiological aging rather than injury, and that permanent disability could not be demonstrated. These are matters peculiarly within the realm of scientific knowledge. This being so, we cannot say as a matter of law that the testimony of the physicians was not substantial. In this connection, we note that Dr. Mahon only contradicted the findings of the other physicians on the basis of his finding evidence of narrowing of disc interspaces. His report does not indicate an opinion contrary to those of the other physicians as to the appropriate basis for determining permanent disability of one with appellant's history.

The burden was upon appellant to establish his claim for compensation before the commission. Voss v. Ward’s Pulpwood Yard, supra. He had the burden here of demonstrating that fair-minded men could not reach the conclusion arrived at by the commission. Wilson Lumber Co. v. Hughes, 245 Ark. 168, 431 S. W. 2d 487. We cannot say he has done so, even though the testimony might have supported a contrary result.

The judgment is affirmed.

       There is some inconsistency in the testimony as to whether this date or April 8 was correct.

       Eubanks’ discovery deposition was taken at El Dorado on this date.


source: Caselaw Access Project

author: John A. Fogleman, Justice.

license: Public Domain

text:
    Homer J. FULWIDER and Lillian N. Fulwider v. C. L. WOODS, Bank of Bentonville and Olin K. Knight and Helen K. Knight
    5-5346
    461 S. W. 2d 581
    Opinion delivered January 11, 1971

      Kelley & Luffman, for appellants.

      Eugene Coffelt and W. Gary Kennan, for appellees.
   John A. Fogleman, Justice.

This is an appeal from a decree denying rescission of a contract for the purchase of real estate near Vaughn. Appellants Homer J. and Lillian N. Fulwider purchased the lands in September 1967 from appellee C. L. Woods. The sale was made through appellee Olin K. Knight, a real estate agent. The contract required installment payments, which were made by appellants until October 1968, after which Knight and his wife, as assignees of appellee Woods, brought an action to foreclose. Appellants filed an action to rescind the contract on the ground that it had been secured through fraudulent misrepresentations of Knight. The two actions were consolidated for trial. The chancellor dismissed appellants’ complaint and granted foreclosure.

Appellants alleged that Knight fraudulently represented to them that Woods was the owner of the lands, that the tract consisted of 3)4 acres, and that there was a well which produced ample good water on the premises for domestic purposes and for any conceivable purpose. By an amendment to their complaint, appellants alleged a further ground for rescission — that Olin K. Knight forwarded to them an attorney’s title opinion which had indicated certain exceptions to Woods’ title, in order to induce them to purchase the lands, to their detriment. Appellants argue this ground only as it bore upon the preponderance of the evidence in relation to the other representations alleged.

The first ground for rescission is without merit. Woods was the assignee of an escrow contract for the purchase of the lands. The original contract was between one W. E. Walker and William E. and Beatrice G. Kohler. The Kohlers, as purchasers under that contract, assigned their rights to Woods, who then entered into the agreement to sell the land to appellants. The Bank of Bentonville was the escrow agent, and appellants made their payments to the bank after having received copies of the contract and certain “payment cards.” Fulwider was satisfied with an opinion by an attorney that Woods could give him title to the property. We are not convinced that appellants were not informed as to the nature of Woods’ title when they entered into the contract with him. There is no evidence to show a material shortage in the quantity of land.

Homer J. Fulwider came to Arkansas from Sacramento, California, to buy real estate. Olin Knight had previously sent him pamphlets, so he sought Knight out. Fulwider testified that he wanted a small place in a $7,000 to $8,000 price range, with plenty of water and a house, where he could raise calves. Fulwider said that he added that he might also like to raise rabbits. According to him, Knight implied that he had a place which might shelter rabbits, but Fulwider would have to pay more. Fulwider said Knight then showed him the place he later purchased. Fulwider’s testimony about rej esentations as to the water is abstracted as follows:

I inquired about the water and Mr. Knight said they had a fine pressure system. I asked him how much it would pump and he said it would pump all you would need. He then showed me the pump and said the well was there. He said you have a good deep well and you have 180 feet of water in it. I believe he told me what size it was and that it had been recently checked and was in good working order. I asked him for a taste of the water and he took me and my boy in the house and seemed rather reluctant and then he got a glass and gave me a glass of water and he gave my boy a glass of water. I told Mr. Knight that it tasted real flat and he said “mineral.” He also told me Mr. Woods had all the water he needed and even had a garden. He then told me Mr. Woods owned the property and the Bank of Bentonville had the first mortgage.

Knight testified that he had drunk the water from the well on several occasions while Woods lived on the tract and when he showed the place to prospective purchasers. He said he found the taste satisfactory, except for a little mineral taste, and did not taste any sulfur. He stated that Woods had told him that he had plenty of water. He had never heard of anyone being short of water until renters from the Fulwiders complained about it after the sale. He denied having told Fulwider that there was plenty of water, but said that he only advised Fulwider that Woods said he had ample water supply for his needs. He had seen Woods irrigate his garden with this water on several occasions. According to Knight, he made the sale to the Kohlers, who lived on the property for two years without making any complaint about the water.

Knight denied on cross-examination that he had stated to Mrs. Janice King on May 15, or May 19, 1969, that there was good water on the property. He also denied that he had stated to anyone on May 20 or 21 that he did not know whether the water was hard or soft or how good it was, because he had never tasted it. He did not remember a man named Nail and did not think he had shown him the property.

Appellants offered the testimony of Janice King and of William T. Nail in an effort to contradict Knight’s denials. The offers were made to go only to the credibility of Knight. Janice King was engaged to do investigative work on May 19, 1969. She testified that she called on Knight at the request of appellants’ attorney. When appellees’ objection was sustained, appellants stated that Mrs. King would testify: that on or about May 19 Knight took her to a place at Vaughn containing 3H acres, when she expressed interest in 3 or 4 acres on which to keep horses; and that he said that the place had a new well and pump and when questioned about the water said it was good. William T. Nail, an investigator, said that he had visited Knight at the latter’s office. Counsel’s statement proffering the witness’ testimony, after an objection was sustained, was substantially as follows:

As a result of a conversation in Knight’s office on May 20, 1969, Knight drove Nail to Vaughn, where he showed Nail a 3J4 acre tract upon which there was an unoccupied frame building, a commercial building and a barn. Knight said that the house was modern with its own pressure system. When questioned about the water, Knight said that the well was more than 400 feet deep, with a,new submersible pump and that it produced more than three gallons per minute which met the requirements of loan companies and was all that an average family needed. Knight professed not to know how good it was, because he had never tasted it. When asked about a depression in the ground between the house and the pump which had been covered with lumber, Knight advised Nail that he was not sure whether the occupants had dug it for a drain for a washing machine or whether it was a septic tank that had caved in.

A witness cross-examined as to matter collateral to the issues cannot be impeached by the cross-examining party by evidence contradicting his testimony. Taylor v. McClintock, 87 Ark. 243, 112 S. W. 405. The test of whether a fact is collateral is whether the cross-examining party would be entitled to prove it as a part of his evidence in chief. Randall v. State, 239 Ark. 312, 389 S. W. 2d 229. The question here is whether appellants might have been permitted to show by these witnesses Knight’s statements, purportedly made to them, as a part of their evidence in chief.

The general rule is that another act of fraud by a person is admissible to prove the fraud charged against him only when there is evidence showing that the two acts are so connected as to make it appear that the actor had a common purpose in both, i. e., that the same motive may be reasonably imputed to him by the evidence. White v. Beal and Fletcher, 65 Ark. 278, 45 S. W. 1060. In other words, according to the rule generally applied, if the purported representations to the witnesses King and Nail were not false, or were not made pursuant to a single plan or general scheme, or so clearly connected with the fraud charged in point of time, subject matter or otherwise, that it may be reasonably supposed that the motive or intention which prompted the two acts was the same, evidence thereof is not admissible. Jordan v. Osgood, 109 Mass. 457 (1872); Hall v. Naylor, 18 N. Y. 589 (1859); Bradley Fertilizer Co. v. Fuller, 58 Vt. 315, 2 A. 162 (1886) [these three cases were the authorities for our holding in White v. Beal and Fletcher, supra]. See also Becker v. McKinnie, 106 Kan. 426, 186 P. 496 (1920); McKay v. Russell, 3 Wash. 378, 28 P. 908 (1891); Fowle v. Child, 164 Mass. 210, 41 N. E. 291 (1895); Castle v. Bullard, 64 U. S. (23 How.) 172, 16 L. Ed. 424 (1860); Tooker v. Alston, 159 F. 599 (8th Cir.1907); Butler v. Watkins, 80 U. S. (13 Wall.) 456, 20 L. Ed. 629 (1871); Penn Mut. Life Ins. Co. v. Mechanics’ Savings Bank & Trust Company, 72 F. 413 (6th Cir. 1896); Lincoln v. Claflin, 74 U. S. (7 Wall.) 132, 19 L. Ed. 106 (1868). Consistent with this rule, we have held that evidence of other acts or transactions tending to show a general plan or motive is admissible if they are of the same nature and close in point of time to the one in issue. Black & White Cab Co. v. Doville, 221 Ark. 66, 251 S. W. 2d 1005. Such evidence is admissible only as evidence of fraudulent intent, and is not evidence that the one charged with fraud made the representation with which he is charged to the party charging him. Perkins v. Prout, 47 N. H. 387 (1867); Stowe v. Wooten, 37 S. W. 2d 1055 (Tex. Civ.) App. 1931), aff’d, 62 S. W. 2d 67 (Tex. Com. App. 1933); Wilson v. Carpenter’s Adm’r., 91 Va. 183, 21 S. E. 243 (1895). Our holdings in criminal cases have always been in accord with this rule. See Johnson v. State, 75 Ark. 427, 88 S. W. 905; Kerby v. State, 233 Ark. 8, 342 S. W. 2d 412; Swan v. State, 245 Ark. 154, 431 S. W. 2d 475. There is no reason why the same rule should not apply in both civil and criminal cases.

The question involved is basically one of relevance. Its resolution involves the same or similar factors involved in determining admissibility of proof of prior or subsequent conditions or conduct to prove an existence of a condition or conduct at the time in issue. This determination is usually held to be within the discretion of the trial court. See Giroux v. Gagne, 108 N. H. 394, 236 A. 2d 695 (1967); Cogswell v. C. C. Anderson Stores Co., 68 Idaho 205, 192 P. 2d 383 (1948); Jensen v. Southern Pacific Company, 129 Cal. App. 2d 67, 276 P. 2d 703 (1954); Manning v. New York Telephone Company, 388 F. 2d 910 (2nd Cir.1968); Little Rock Gas & Fuel Co. v. Coppedge, 116 Ark. 334, 172 S. W. 885. Of course, there is no reversible error in such cases in the absence of an abuse of discretion.

Since no precise scale can be provided for measuring the adequacy of proximity in time, or other connecting elements, determination of admissibility of the type of evidence offered here must rest upon the facts and circumstances of the particular case. State v. Murphy, 17 N. D. 48, 115 N. W. 84 (1908). It is for this reason and because of the desirability of minimizing collateral issues, that admission of such testimony must repose largely in the sound legal discretion of the trial court. People v. Denious, 118 Colo. 342, 196 P. 2d 257 (1948); Jones v. U. S., 258 U. S. 40, 42 S. Ct. 218, 66 L. Ed. 453 (1921); 29 Am. Jur. 2d 414, Evidence § 365.

If the property allegedly shown these witnesses was not the same as that involved here, it is clear that the evidence would not have been admissible. Not only would there be a difference in subject matter, but, since there is no showing at all as to the quantity or quality of the water supply on any other tract, it could not be said that representations in that regard were false. It is wholly irrelevant whether or not Knight did or did not, on other occasions make representations, not shown to be false, as to water supply on other lands he was offering for sale.

The proffer of the King testimony does not sufficiently identify the property as that involved here. We cannot say that there was any abuse of the court’s discretion in excluding this testimony. On the other hand, the description of the tract purportedly shown Nail delineates particulars strikingly similar to the tract Knight showed and sold to appellants, so that it appears likely that this tract was the same as that sold to the Fulwiders. The record discloses that in the interval between the Fulwider purchase and the alleged showing to Nail, a definite deficiency in the water supply on the land had been disclosed and Knight, then representing the purchasers in renting the property, had advised the Fulwiders of the condition and proposed the digging of a new well. There was evidence that even after this was done, the water was distasteful and unfit for human consumption for a considerable period thereafter and that this condition was known to Knight. The tenant’s wife was ill when she drank the water during residence on the property and an unusually large number of the tenant’s cattle died.

In view of this evidence, any representation made by Knight to Nail with reference to the lands sold to appellants should have been admitted, if offered as evidence in chief tending to show fraudulent intent. Myers v. Martin, 168 Ark. 1028, 272 S. W. 856. The developments intervening between the Fulwider purchase and the alleged representations to Nail prevent the otherwise considerable lapse of time from making the latter too remote to have had any bearing at all on Knight’s intent, if the testimony had been offered as evidence in chief. Consequently, exclusion of the Nail testimony when offered to impeach Knight constituted an abuse of the court’s discretion.

Appellant also argues that the chancellor erred in giving significance to an offer by appellees during the course of the trial to have the present well on the land tested. While we agree with appellants that the condition of the well at the time of the sale was the pertinent issue, we cannot say that its condition at the time of the trial was completely irrelevant to the overall question of credibility of witnesses upon which the decision in this case will ultimately depend.

The decision does rest almost entirely upon whether Knight made a representation to appellants about the water supply sufficient to constitute an actual or constructive fraud. See Croley v. Baker, 237 Ark. 136, 371 S. W. 2d 830. In determining where the preponderance of the evidence lies on this question, the credibility of the witnesses is the controlling factor. Since the proffer of proof was in the form of a statement for the record by appellants’ attorney, appellees had no opportunity to cross-examine Nail or to rebut his testimony.

Ordinarily, we decide appealed chancery cases here on trial de novo when the record is fully developed and we can plainly see what the rights and equities of the parties are. Narisi v. Narisi, 233 Ark. 525, 345 S. W. 2d 620. We do so even when questions of credibility are involved. See Gardner v. Willson, 219 Ark. 787, 244 S. W. 2d 945. We do remand such cases when action in the chancery court has prevented the case from being fully developed, as where there has not been a fair opportunity to produce evidence, or where our finding of error leaves undecided fact issues which the chancellor is better able to pass upon by reason of his greater familiarity with the surrounding facts and circumstances. Carmack v. Lovett, 44 Ark. 180; Fordyce v. Vickers, 99 Ark. 500, 138 S. W. 1010. See also Turman v. Bell, 54 Ark. 273, 15 S. W. 886; Carlile v. Corrigan, 83 Ark. 136, 103 S. W. 620. In Arkansas State Game and Fish Commission v. Kizer, 221 Ark. 347, 253 S. W. 2d 215, we remanded upon reversal for the chancellor’s refusal to allow cross-examination of engineers who made a report admitted into evidence. We there emphasized the importance of cross-examination to separate error from truth, opinion from fact and inference from recollection, to ascertain the time, place and attending circumstances of the events narrated by the witness and to test the intelligence, memory, impartiality, truthfulness and integrity of the witness.

We cannot say that this case is fully developed here or that the parties have had a full opportunity to develop this evidence bearing on Knight’s credibility. We are in no position to pass on the credibility of Nail. We have no idea what cross-examination of this witness might have revealed. We cannot surmise that his testimony would not have been effectively rebutted if not discredited. Consequently, we remand the case to the chancery court with directions to permit the examination and cross-examination of the witness Nail on the matter outlined in the proffer of his testimony, to give appellees an opportunity to offer evidence rebutting his testimony and then to determine where the preponderance of the evidence lies.

Reversed and remanded with directions.


author: J. Fred Jones, Justice.

text:
    WILLIAMS-BERRYMAN INS. CO., INC., A Corporation v. Carl MORPHIS et al
    5-5419
    461 S. W. 2d 577
    Opinion delivered January 11, 1971

      Williams ér Gardner, for appellant.

      Laws if Schulze, for appellees.
   J. Fred Jones, Justice.

Williams-Berryman Insurance Company, Inc., an insurance agency in Russellville, Arkansas, procured a fire insurance policy in the amount of $3,000 insuring real property in Russellville against loss by fire. Carl Morphis and First Federal Savings & Loan Association of Russellville were the insureds when a fire loss occurred and the insurer was unable to pay because of insolvency. Morphis and First Federal sued Williams-Berryman for $3,000 in the Pope County Circuit Court and a jury trial resulted in a judgment in favor of Morphis and First Federal. On appeal to this court Williams-Berryman rely on the following point for reversal:

“The lower court erred in refusing to direct the verdict for appellant.”

The appellant, Williams-Berryman Ins. Co. is an insurance agency, or insurance brokerage firm, in Rus-sellville and as such, procures various forms of insurance from various insurance companies for individual customers and purchasers of insurance in the Russell-ville area. Morphis purchased the insured property and assumed a real estate loan from First Federal. He also took over by assignment the fire insurance contract covering the mortgaged property. The insurance contract was for a five year period running from October 12, 1961, in the amount of $5,000, and the policy was issued by Peoples Indemnity Insurance Company. Peoples became insolvent on July 28, 1965, and its business was assumed by Homestead Fire & Casualty Insurance Company of Pine Bluff. On February 15, 1966, while the policy was in force, the insured premises were destroyed by fire. Claim was made for the loss under the insurance contract, but after the date of the loss and before the claim was paid, Homestead also went into receivership and the claim was never paid.

The complaint against the agency alleged that it was in the business of purchasing insurance for its customers and that it selected the insurance companies who issued the policy and assumed the risk in this case; that the agency owed a duty to its customers to secure insurance policies in solvent companies, and that the ap-pellees had been damaged in the amount of $5,000 by the appellant’s failure to carry out its duty of obtaining insurance in solvent companies.

The question before the trial court on motion for a directed verdict, and the question before this court on appeal, is whether there was sufficient evidence of negligence on the part of the appellant to present a question of fact for the determination of a jury. This question must be answered in the light of appellant’s knowledge at the time the policy was issued and reinsured, and not at the time of the loss and failure to pay the claim.

The appellee points out that Morphis actually obtained the policy by assignment when he purchased the property; that the appellant and First Federal occupy the same offices; that the secretary of First Federal owns a half interest in the appellant agency; that the secretary, Mr. Harmon, solicited Mr. Morphis’ insurance business and was authorized to purchase the insurance in the amount of $3,000 with loss payable clause to First Federal. It would appear that such connection and procedure would be as consistent with the appellant’s lack of knowledge of the impending insolvency of the companies insuring First Federal’s interest, as it would of negligence in procuring the insurance for the protection of Morphis; but, be that as it may, the question boils down to how far an insurance agent must go in ascertaining the solvency of an insurance company from whom he purchases insurance for customers or clients.

We deem it unnecessary to set out the evidence in detail. The record is clear that both insurance companies were duly authorized to do business in Arkansas and were solvent in so far as the insurance commissioner, or anyone else knew, when the policy was issued by Peoples Indemnity and reinsured by Homestead.

The appellees argue that the appellant could have consulted Best Insurance Guide for a determination of the financial stability of the insurance companies, but the evidence is clear that Peoples Indemnity was favorably listed in Best when the policy was issued, and that Homestead had not been in operation for sufficient time to obtain a listing in Best at the time of its reinsurance. Furthermore, as we view it, the appellant’s failure to consult Best before placing the insurance in the amount of $3,000 in this case, would be like failing to consult Martindale before employing a licensed attorney to handle a case in municipal or small claims court. The evidence is uncontroverted that very few, if any, of the larger insurance companies will write fire insurance policies in such small amounts of $3,000.

The appellees rely on Derby v. Blankenship, 217 Ark. 272, 230 S W. 2d 481, but the facts in that case were quite different from those in ‘the case at bar. In Derby, the agent agreed with the owner of a sawmill to obtain assigned risk workman’s compensation insurance coverage for the sawmill operation and the owner paid an amount on the premium and began operations. An employee was killed in the course of his employment and the owner found that the agent had not obtained the insurance coverage. Neither had he advised the owner of his inability to do so. The owner sued the agent for damages in breach of contract. Had the agent in Derby procured the coverage as agreed and the compensation carrier had subsequently become insolvent, and the agent had been sued for tortious negligence in selecting a potentially insolvent compensation carrier, the Derby case would be more in point with the case at bar.

The appellees argue that “the law was well settled by the trial court in plaintiffs’ instruction number three,” in which the trial court, after instructing the jury on ordinary care in the selection of companies with which insurance is placed by the agent, ended the instruction with the phrase, “and (the agent) is expected to know the relative financial strength of the company.”

While the appellant does not assign error in the instructions, and we do not reach the instructions on this appeal, we do not agree that the trial court settled the law in the above quoted portion of plaintiffs’ instruction No. 3, or that the quoted portion of the instruction is the settled law. We conclude that the appellant has properly analyzed the facts as reflected by the evidence when it states in its brief as follows:

“Here, . . . the insurance policy was procured in a company authorized to engage in the business of writing insurance in the State of Arkansas which some four years later went into conservatorship, its policies transferred to or reinsured by another company in Arkansas authorized to do business by the Insurance Department of the State and considered by said Department at the time of the reinsurance to be a sound and solvent company but which, after some eight months of operation, also went into receivership and was unable to pay the loss suffered by Appellees.”

We are also impressed by the appellant’s quote from 43 Am. Jur., § 178, p. 235, as follows:

“The general rule is that an insurance agent or broker is not a guarantor of the financial condition or solvency of the company from which he obtains the insurance. However, he is required to use reasonable care, skill, and judgment with a view to the security or indemnity for which the insurance is sought, and a failure in such respect may render him liable to the insured for resulting losses due to the insolvency of the insurer. Consequently, where a policy is procured in a company which is known by the agent to be insolvent, the agent is liable for a loss suffered thereby, while on the other hand, where the company was solvent when the policy was procured, the subsequent insolvency of the company does not impose liability on the agent or broker.”

We hold that the general rule as above set out is the rule to be applied to the facts in this case. We further hold that the appellees failed to sustain their burden of proving that the appellant failed to use reasonable care, skill, and judgment with a view to the security or indemnity for which the insurance was sought. We find no evidence in the record that the appellant knew, or by the exercise of reasonable care could have known, that the companies were insolvent at the time the policy was issued, or at the time the risk was reinsured.

According to all the evidence in the record, Peoples Indemnity was definitely solvent when the policy was issued, and there is no evidence at all that Homestead was insolvent , at the time it took over the assets and liabilities of Peoples. The evidence is to the contrary. We conclude that the trial court should have directed a verdict for the appellant at the close of the evidence in this case.

The judgment of the trial court is reversed and this cause dismissed.


author: Conley Byrd, Justice.

text:
    Leffel GENTRY and U. A. GENTRY v. Dick H. STRICKLIN et ux
    5-5422
    461 S. W. 2d 580
    Opinion delivered January 11, 1971

      Leffel Gentry and U. A. Gentry, pro se.

      House, Holmes ir Jewell; By: Robert L. Robinson, Jr., for appellees.
   Conley Byrd, Justice.

The sole issue on this appeal by Leffel Gentry and U. A. Gentry is whether a preponderance of the evidence supports the Chancellor’s finding that they had abandoned their right to enforce a restrictive covenant in a deed from them to George T. Robinson et ux, from whom the appellees Dick H. Stricklin and Daisy L. Stricklin acquired their title.

The record shows that appellants at one time owned a quarter section of land on Faulkner Lake Road. In subdividing the land into one and two acre parcels, they proceeded with the idea of restricting it to residential purposes. To carry out this purpose, they placed in each of their twenty-two deeds the following restriction:

"LAND USE AND BUILDING TYPE. Said property shall not be used except for residential purposes. No building shall be erected, altered, placed or permitted to remain on the described tract other than one detached single-family dwelling not to exceed two and one-half stories in height, a private garage for no more than two cars, and appropriate accessory buildings, such as well house, smoke house, chicken house, etc.’’

Appellants later sold a substantial portion of the quarter section south of Faulkner Lake Road to Reed McConnell without placing any restriction in the deed.

The proof shows: that Mrs. U. A. Gentry owns a duplex on one parcel; Mr. U. A. Gentry’s home parcel is now owned by the Besancons, who use the maid’s quarters for a rent house; that the parcel originally sold to the Blands was used by them for a riding stable and now by the O’Quinns in connection with an Esso oil distributorship; that the Walker parcel is used in distributing crickets and worms; that the Hudson parcel is consistently used to park the trucks used in his business; and on the parcel sold to Billy Smith dogs are raised for sale.

The law on the subject is set forth in Moore v. Adams, 200 Ark. 810, 141 S. W. 2d 46 (1940), in this language:

“ ‘One can not obtain relief in equity against the violation of a restrictive agreement entered into in pursuance of a general plan if he, himself, is guilty of a substantial breach of the same restriction. Nor will the violation of a restriction be enjoined where it has been disregarded by the property owner seeking the injunction as well as by other property owners generally, even though their infringements of the restriction have not been to the extent of the one against which injunction is sought.’ ”

We are unable to say that the chancellor’s conclusion under the law and the facts is contrary to a preponderance of the evidence.

Affirmed.


author: Frank Holt, Justice. John A. Fogleman, Justice,

text:
    James H. WOODWARD v. Mary J. BLYTHE, Adm’x estate of Kermit A. Blythe, deceased
    5-5364
    462 S. W. 2d 205
    Opinion delivered January 11, 1971
    [Rehearing denied February 15, 1971.]

      Wright, Lindsey & Jennings, for appellant.

      Guy H. Jones, Sr., Phil Stratton and Guy H. Jones, Jr., for appellee.
   Frank Holt, Justice.

This case, resulting from a multiple car collision, is before us for the second time. The circumstances surrounding the accident were extensively detailed in our first opinion, Woodward v. Blythe, 246 Ark. 791, 439 S. W. 2d 919.

Appellee’s decedent, Kermit Blythe, was driving a red Corvair in, an easterly direction on Highway 70 in the early morning hours of February 14, 1966. He was followed by appellant in a light blue Dodge. A white Cadillac, also headed east, was stalled on the right shoulder of the road and left there unlighted and partially on the pavement. The decedent, veering suddenly to his left to avoid the stalled automobile, sideswiped an oncoming white Pontiac. The impact caused a forward halt and counterclockwise rotation of the Corvair, positioning its left front portion in the path of appellant’s eastbound Dodge. Within a few seconds, the Dodge, after skidding 83J4 feet, struck the left front or driver’s side of the Corvair, then deflected slightly to the right for a distance of 25 to 50 feet where it struck the rear of the stalled Cadillac and there came to a stop. The Cor-vair traveled another 50 feet eastward after the second impact before coming to rest. A few minutes thereafter, appellee’s decedent, having sustained head injuries, a crushed chest, broken legs and other bodily injuries, was found dead in his Corvair. The left front portion and door of his car were crushed inward. The driver’s seat, partially torn loose, was pushed to the right, as were the steering shaft and wheel. The decedent’s body was found strapped in his seat and lying to the right.

In an action for wrongful death, a jury awarded $137,000 to appellee against appellant and a codefend-ant, Leonard Johnson, who was the operator of the stalled Cadillac. Johnson did not appeal from the judgment against him. Appellant, however, appealed and gained a reversal on the basis of a deficiency of proof as to whether his negligence was a proximate cause of decedent’s death. Upon retrial, a jury verdict and judgment of $150,000 was entered against appellant. The present appeal follows.

For reversal appellant contends that he was entitled to a verdict and judgment as a matter of law because there was no substantial evidence that he was negligent. We cannot agree. On first appeal, appellant likewise contended that there was no substantial evidence to support a finding that he was guilty of negligence. We held to the contrary, stating:

[W]e cannot say as a matter of law that the evidence is insubstantial that the appellant was following too closely or failed to keep a proper lookout, or failed to keep his vehicle under control.

This holding has become the law of the case. Since the evidence offered at the first trial as to the issue of negligence was reproduced upon retrial, our previous decision regarding the existence of substantial evidence of negligence is now conclusive upon the parties. St. Louis S. W. Ry. Co. v. Jackson, 246 Ark. 268, 458 S. W. 2d 41; Moore, Adm’x., et al v. Robertson, 244 Ark. 857, 427 S. W. 2d 796 (1968).

Appellant next asserts for reversal that the evidence is deficient as to proximate causation. We said on first appeal:

From the evidence in this case, we are forced to the view that only by conjecture and speculation could it be said that appellee’s decedent was or was not alive when this second impact occurred and that negligence on the part of appellant was a proximate or contributing cause of the death.

On remand, appellee adduced from the testimony of four doctors that the decedent was “medically alive” at the time of the second collision. However, none of the doctors could or would give an opinion as to which impact caused what injuries. Appellant therefore argues that it was still mere conjecture and speculation for the jury at the second trial to have found that his negligence was a proximate or contributing cause of the decedent’s death because fatal injury was not shown to have resulted from the collision between the Dodge and the Corvair.

We cannot agree with appellant’s reasoning. At the second trial appellee adduced additional evidence. Dr. Robbins, an expert physicist whose qualifications are admitted, testified regarding the physical dynamics of the accident. After studying photographs of the damaged vehicles and determining the angles of the two impacts in the context of a hypothetical reconstruction of the multiple collision, Dr. Robbins stated with reasonable scientific certainty that the initial impact against the oncoming white Pontiac halted the forward motion of decedent’s Corvair and displaced its momentum into a counterclockwise rotation which resulted in the positioning of its frontal left portion in the path of appellant’s blue Dodge. He further noted, again as a matter of reasonable scientific certainty based on the law of physics, that “the left front door of the red Corvair would move in a circle which would move it away.from the line of action of this oncoming car, this white car,” and therefore that the decedent’s face never came closer to the Pontiac than it was at the instant of the initial impact. This expert testimony demonstrated that the severe damage to the left portion of the Corvair — the crushed-in side, dislocated driver’s seat and bent steering shaft and wheel — resulted from the second impact, a conclusion which was further substantiated in that fragments of blue paint were found imbedded in the crushed left side of the red Corvair.

Since there was medical evidence that death resulted from “brain injury and internal injuries,” the jury certainly had substantial evidence, by virtue of Dr. Robbins’ testimony, that appellant’s negligence was a proximate or contributing cause of the fatal injuries. In view of the testimony of the physicist, it is highly improbable that the decedent suffered any brain injury as a result of the first impact. In a somewhat similar case, Lester v. Rose, 130 S. E. 2d 80 (W. Va. 1963), it was aptly said:

The plaintiff’s decedent’s death was caused from injuries to her head as a result of the accident. If she received injuries to the front of her head as a result of the Rose truck striking the truck in which she was riding, and severe injuries to the back of her head as a result of the defendant Blankenship’s automobile striking the rear of the truck in which she was a passenger, which there is evidence in this case to support, both the defendant Rose and the defendant Blankenship would be guilty of negligence which proximately caused or contributed to the death of plaintiff’s decedent, and although the evidence may be conflicting, it is a case for jury determination, and in such a case a jury verdict will not be disturbed if there is sufficient evidence to support it.

See, also, Leinbach v. Pickwick Greyhound Lines, 135 Kan. 40, 10 P. 2d 33 (1932); and Horvath v. Tontini, 126 Conn. 462, 11 A. 2d 846 (1940).

It is apparently appellant's position also that ap-pellee can recover only upon specifically delineating the precise injuries proximately caused by the second impact. Such a requirement is unrealistic. The problem of proving proximate causation and delineating the injuries from the respective causes in multiple collision cases has long perplexed the courts of many jurisdictions. See 100 ALR 2d 1 — 170 (1965). Our case precedent requires that proof of proximate or contributory causation go beyond mere conjecture or choice of possibilities. See Woodward v. Blythe, supra, and cases cited therein. Our prior case law, however, also establishes that “[wjhere, although concert is lacking, the separate and independent acts of negligence combine to produce directly a single injury, each is responsible for the entire result, even though his act or neglect alone might not have caused it.” Southwestern Gas & Elec. Co. v. Godfrey, 178 Ark. 103, 10 S. W. 2d 894 (1928). See, also, Brown v. Stair, 227 Ark. 757, 301 S. W. 2d 16 (1957); Lydon, et al v. Dean, 222 Ark. 367, 260 S. W. 2d 465 (1953); Ark. Stat. Ann. § 34-1001 et seq (Repl. 1962). If proof of the precise damage proximately caused by each tort-feasor were nonetheless required, as appellant seems to insist, then joint and severable liability would be an unnecessary luxury for a plaintiff since by so proving proximate cause he would simultaneously be apportioning damages among the tortfeasors and thereby limiting his recovery in accordance therewith.

The trend in this area of the law is not so exacting of injured plaintiffs to the benefit of wrongdoing defendants. In 7 Am. Jur. 2d, Automobiles and Highway Traffic, § 370, it is stated:

Separate and distinct but concurrent negligent acts of travelers causing injury to a third person are each regarded as the proximate cause of his injurry ***.

The Restatement of the Law of Torts, § 879, reads:

[E]ach of two persons who is independently guilty of tortious conduct which is a substantial factor in causing a harm to another is liable for the entire harm in the absence of a superseding cause, [emphasis added]

Of like import is 38 Am. Jur., Negligence, § 257:

According to the great weight of authority, where the concurrent or successive negligent acts or omissions of two or more persons, although acting independently of each other, are, in combination, the direct and proximate cause of a single injury to a third person, and it is impossible to determine in what proportion each contributed to the injury, either is responsible for the whole injury, even though his act alone might not have caused the entire injury, or the same damage might have resulted from the act of the other tortfeasor, and the injured person may at his opdon or election institute suit for the resulting damages against any one or more of such tortfeasors separately, or against any number or all of them jointly.

See, also, Prosser on Torts, § 45 (2d ed. 1955) and I Cooley, Torts, § 86 (4th ed. 1932). These authorities effectively refute appellant’s position as we understand it.

It is interesting to note that some jurisdictions have extensively minified or even completely eliminated the requirement of proving proximate causation in factual situations similar to the case at bar. In Hackworth v. Davis, 390 P. 2d 422 (Idaho 1964), although medical testimony could not establish which of two impacts caused the fatal injuries or even if the decedent was alive at the time of the second impact, the court nonetheless held that the driver whose negligence occasioned the second collision was subject to joint and sever-able liability. It was stated in Gibson v. Bodley, 156 Kan. 338, 133 P. 2d 112 (1943), that:

The doctrine of proximate cause does not apply as between an innocent third party and joint tort-feasors where the negligent acts of the respective tortfeasors were substantially concurrent or successive and the negligence of each of them contributed directly to produce the injury, without the occurrence of any new and independent force or intervening efficient cause to break connection between such acts.
* * *
In such circumstances the degree of culpability of each is immaterial and each is liable for the entire damage.

In Copley v. Putter, 93 Cal. App. 2d 453, 207 P. 2d 876 (1949), it was held that the- burden is upon each of the tort-feasors “to absolve himself if he can.” The court noted:

It would be a frustration of justice for the wronged person to be permitted to show his injury and the simultaneous negligence of the two tortfeasors and be required to demonstrate which of the two had caused the damage.

See, also, Maddux v. Donaldson, 362 Mich. 425, 108 N. W. 2d 33 (1961); and Summers v. Tice, 33 Cal. 2d 80, 199 P. 2d 1 (1948).

In the circumstances of the case at bar, however, appellee clearly met her burden of proof by establishing appellant’s negligence and that his negligence, combined with that of another concurrent tortfeasor, was a proximate or contributing cause of a single injury.

It is next contended that the trial court erred in permitting Dr. Robbins, appellee’s expert witness in the field of physics, to testify .over the objections of appellant. The law in this regard is clear. Because of the impossibility of establishing with certainty the many factors that must be taken into consideration, attempts to reconstruct traffic accidents by means of expert testimony are viewed with disfavor; and, in the absence of anything to indicate that it was beyond the jurors’ ability to understand the facts and draw their own conclusions, such expert testimony is not admissible. Reed v. Humphreys, 237 Ark. 315, 373 S. W. 2d 580 (1963); Missouri Pacific R. R. Co. v. Barry, 172 Ark. 729, 290 S. W. 942 (1927). In the case at bar, however, the testimony of Dr. Robbins was necessary for an understanding by the jurors of the physical dynamics and causal relationships involved in the accident. See, e. q., Lester v. Rose, supra.

Appellant also argues for reversal that the trial court erred in giving an incomplete version of AMI 902, the “superior right to use of the highway” instruction. Since this very same instruction was given at the initial trial over appellant’s objection and not complained of upon first appeal, the law of the case again must be applied, and we are precluded from considering it now for the first time. Moore, Adm’x, et al v. Robertson, supra.

Finally it is urged by appellant that the judgment against him can in no event exceed the amount assessed against Johnson, the concurrent tort-feasor, in the first trial of this case. We do not agree. In cases such as the present where concurrent negligent acts result in a single injury, each tortfeasor is jointly and severably liable, and a plaintiff can institute an action against any or all tortfeasors, individually or jointly. Coleman v. Gulf Refining Co. of Louisiana, 172 Ark. 428, 289 S. W. 2 (1927); Cahill v. Bradford, 172 Ark. 69, 287 S. W. 595 (1926). If the suits are brought individually, they may, and usually do, result in inconsistent judgments since it is unlikely that two distinct juries will assess exactly the same damages. The present situation is tantamount to two individual trials. The first trial resulted in a judgment only against Johnson for $137,000 since appellant alone appealed and gained a reversal. The second trial resulted in a judgment against appellant for $150,-000. Under our Uniform Contribution Among Tort-feasors Act [Arle. Stat. Ann. §§ 34-1001 — 1009 (Repl. 1962)], satisfaction of either judgment entitles the tort-feasor against whom it is had to contribution from the other, although it does not discharge the other tort-feasor from liability to appellee. However, appellee’s first satisfaction must be credited to any subsequent satisfaction which he seeks. Smith v. Tipps Engineering b Supply Co., 231 Ark. 952, 333 S. W. 2d 483 (1960).

Appellant cites to us Southwest Gas & Elec. Co. v. Godfrey, supra, to support his contention that he is in no event liabile for more than $137,000. That case is distinguishable. There, both concurrent tortfeasors were tried together before a single jury, and the jury, in an attempt to apportion damages, returned a verdict of $4,000 against one and $14,000 against the other. Since the defendants were jointly and severably liable for the single injury, there could only be one recovery. Inasmuch as the defendant against whom the lower verdict was rendered was liable for the whole amount, there could be no greater recovery against either or both of the tortfeasors than the lower sum assessed by the jury. The joint and severable liability of both concurrent tortfeasors was, therefore, held to be $4,000. See Wear-U-Well Shoe Co. v. Armstrong, 176 Ark. 592, 3 S. W. 2d 698 (1928). Also, see Consequences of Proceeding Separately Against Concurrent Tortfeasors, 68 Harv. L. Rev. 697 (1955). In the case at bar, however, there was no attempted apportionment of liability between the tort-feasors. Two different juries simply arrived at two different verdicts, each representing the respective jury’s assessment of appellee’s total damages.

Affirmed.

Jones & Byrd, JJ., dissent, Fogleman, J., concurs.

John A. Fogleman, Justice,

concurring. I agree with the result reached in the majority opinion and with what I take to be the real reasons for reaching it. On the question of liability, it should be noted that the court has not yet embraced the doctrine that proof of proximate causation by a plaintiff in this or a similar factual situation should be eliminated, and that parties jointly sued must become adversaries sharing a burden not specifically placed upon one or the other. The opinion demonstrates that there is ample authority based upon sound logic for the result on this point.

The real purpose of this opinion is to express my point of view as to the treatment of certain precedents which I consider to be valid, binding and correct. I refer particularly to Southwestern Gas & Elec. Co. v. Godfrey, 178 Ark. 103, 10 S. W. 2d 894. The Godfrey court did say that relative degrees of fault were immaterial in a case such as this. It held that since there was only one injury, each joint tort-feasor whose independent negligence contributed to the resulting damage was liable for the whole damage, so that there could be no greater recovery than the smallest amount of damages arrived at by the same jury in separate verdicts. This result is logical because there cannot be two separate measures of the damages. See also Nowlin-Carr Co. v. Cook, 171 Ark. 51, 283 S. W. 7.

To this extent, in spite of the broad language of the opinion in Shultz v. Young, 205 Ark. 533, 169 S. W. 2d 648, the holding in Godfrey is and should be unimpaired. The only effect of the Uniform Contribution among Tort-feasors [Ark. Stat. Ann. §§ 34-1001 — 1009 (Repl. 1962)] was to permit the apportionment of damages between multiple tort-feasors solely for the purpose ot .determining rights of contribution among them. See Act 515 of 1941; 9 U. L. A. 235 and Commissioners’ Note, p. 236. Any question, which might have resulted from the broad language of the Shultz court, was completely laid to rest by the General Assembly by Act 35 of 1949.

Subsequent to our adoption of the Uniform Contribution Act, we have approved apportionment of damages, even in cases where the jury was not specifically instructed in that regard. See Wheaton Van Lines, Inc. v. Williams, 240 Ark. 280, 399 S. W. 2d 258. The court made it quite clear that its holding did not mean that where the damages were apportioned, a plaintiff could not recover the full amount of its damages from any one of the joint tort-feasors.

The verdict in the first trial was a joint one, even though the forms of verdict submitted would have permitted separate ones. Even so, both Johnson and Woodward were severally as well as jointly liable to appellee since the jury found them to be joint tort-feasors, and the judgment was so entered. The several liability of the individual tort-feasors was not affected by the contribution act. Dunaway v. Trout, 232 Ark. 615, 339 S. W. 2d 613. But this judgment was reversed as to appellant and the cause remanded for a new trial. Insofar as the parties here were concerned, the case stood as if no action whatever had been taken. They were restored to the same condition as they were before the first judgment was rendered. That judgment, insofar as they are concerned, became a nullity. Palmer v. Carden, 239 Ark. 336, 389 S. W. 2d 428. Still the judgment against Johnson, who did not appeal, was not in anywise affected by the reversal insofar as appellee and Johnson are concerned. Rook v. Moseley, 236 Ark. 290, 365 S. W. 2d 718. But as between appellee and appellant, their controversy was subject to retrial on all issues. Callaway v. Cherry, 229 Ark. 297, 314 S. W. 2d 506. One of these issues was the amount of damages. Since there is no privity between Johnson and Woodward and no possibility of any vicarious or derivative liability, the amount of damages awarded in the first trial should not be a limit, either maximum or minimum, on the amount of damages awarded by a jury in a new trial.

Of course, no question as to the rights of Johnson and Woodward, as between them, is now before us.

       The forms of verdict in this case indicated separate verdicts, but not a joint one, as the forms gave the jury no opportunity to find against the defendants jointly.


author: Carleton Harris, Chief Justice.

text:
    Lamar HUGHES, Lavonne Hughes and Wayne BRIDGES v. STATE of Arkansas
    5540
    461 S. W. 2d 940
    Opinion delivered January 18, 1971

      No brief for appellants.

      Joe Purcell, Attorney General; Mike Wilson, Asst. Atty.. Gen., for appellee.
   Carleton Harris, Chief Justice.

Lamar Hughes, Lavonne Hughes, and Wayne Bridges, appellants herein, were charged with robbery, and on trial, were convicted of the lesser offense of assault with intent to rob. The jury fixed their punishment at five years confinement in the State Penitentiary. From the judgment entered in accordance with the verdict, appellants bring this appeal. No brief has been filed by the appellants, and the Attorney General has filed a brief pursuant to Rule 11 (f) of the procedural rules of this court. The appeal is heard on the alleged errors asserted in the motion for a new trial, which motion was denied by the Circuit Coürt. Sixteen such errors are listed, but the first seven alb deal with whether there was substantial evidence offered on behalf' of the state to support the conviction.

Clayton Blaschke, 36 years of age, who lives near Subiaco with his brother-in-law, testified that on April 22, 1970, he drove to the Dairy Queen in Paris at approximately 9:45 p.m. While he was sitting in his car, two of the appellants, Wayne Bridges and Lamar Hughes, got into the automobile, one on each side of Blaschke, Bridges asking for money. The witness said that he refused the request and Bridges started hitting him, and then he was struck by Hughes. Hughes then drove the car away from the premises, and the third appellant, Lavonne Hughes, was picked up, after which they drove to Henry’s Tavern. Lamar Hughes held Blaschke and Bridges got a ten dollar bill out of his (Blaschke’s) pocket. Lavonne Hughes (from subsequent evidence), and Bridges went into the tavern and bought a case of beer. They returned, and the car was driven to the “spillway”, located on the city lake near Paris. Blaschke testified that Bridges and Lamar Hughes then beat him. He stated that Lavonne Hughes did not take any part in the beating but stood by, drinking beer. Two dollars, which he had in the ash tray of the car, was taken while at the spillway. Photographs which were made on the morning following the alleged occurrence, reflect that Blaschke had apparently received a severe beating. Joe McCloskey, who lives on North Express Street in Paris, where the Blaschke car was found the following day, testified that around 2:00 or 2:30 a.m. he was awakened by profane language, and a lot of “hollering and whooping” and observed four boys on the adjoining street, about one hundred feet from his bedroom window. The witness said that the three went toward town (the profanity was emanating from these three) and the other went back the opposite direction. Horace Pilgreen, a night patrolman for the city of Paris, testified that he found Lamar Hughes about a block from McCloskey’s and the other two appellants were apprehended later at the home of Bridges. Barbara Jones, a niece of Blaschke’s, testified that he came to her home about 2:00 a.m., his face bloody and swollen, and that he could hardly see. She said that his lips were “busted” and bleeding. Mrs. Henry Anhault who, with her husband, operates Henry’s Tavern, testified that Lavonne Hughes and Bridges came into the tavern about 10:00 or 10:15 p.m. on the night of April 22, and purchased a case of beer, also some chips and peanuts, paying for it with a ten dollar bill. The beer amounted to $6.00 and she said that she gave some change and three bills back. Henry Anhault corroborated this testimony. Both were positive in their identification of Lavonne Hughes, stating that they did not see Lamar Hughes. The related testimony, if believed by the jury, was ample to sustain the convictions.

It is next asserted that the court erred in allowing the testimony of Sheriff Raymond Henson as to the statements of appellants because they were not offered counsel and a demand for counsel had been made. This fact is very much disputed. It might be said at the outset that in the statements made to the officers, none of the defendants ever admitted that they robbed, or attempted to rob, Blaschke. The sheriff said that Lavonne Hughes stated that he was not present at the time of any beating, being on a date with a girl friend. According to the sheriff, Lamar Hughes and Bridges stated that Bridges and Blaschke became involved in a fight, and Lamar struck Blaschke when he saw the latter trying to get a knife. The two said that they got into another fight with Blaschke out at the spillway, and had another row in town. They admitted purchasing the case of beer, but stated that Blaschke gave them the ten dollar bill with which the beer was bought. Henson testified that the Hughes boys were friends of his and that, before any statement was made, the prosecuting attorney advised them of their right to remain silent; that they had the right to have an attorney present when they were being questioned, and if they were not able to employ an attorney, the court would appoint one for them. The two Hughes boys were questioned together, and Bridges was subsequently questioned, but the sheriff stated that all three were advised, as heretofore set out, before any statement was made. According to the officer the appellants Hughes said that they did not wish a lawyer and would voluntarily make a statement. Before Bridges was questioned, his father was asked to go with the officials when they talked with Bridges, but refused; Bridges volunteered to tell the officials “part” of what happened. On trial, neither of the Hughes boys made any complaint that their statements had been involuntary, nor did they deny that they had been advised of their constitutional rights. Bridges testified on cross-examination by the prosecuting attorney, that the latter had told him to get a lawyer and “that is the reason I didn’t talk to you”. He further stated that “all I told you was that Tobe [Blaschke] hit me and I hit him back”. Though Bridges testified that the trouble started when Blaschke tried to touch or grab his privates, this was not mentioned to the officers. As stated, there was no admission of the crime charged, but, at any rate, it certainly appears from the record that appellants were advised of their constitutional rights and that the statements were voluntarily made.

It is next asserted that “The court erred in permitting the prosecuting witness, Clayton Blaschke, to testify that the defendants robbed him where his testimony was so inaudible, incoherent and not understandable, that he was beaten and robbed by defendants without specifying who, when and where, and such testimony was so confusing that it was not worthy of belief, over the defendants’ objections to all of which the defendants duly saved their exception”. This point, of course, relates somewhat to the one just discussed, since the state could not have obtained a conviction without the testimony of Blaschke. It is true that some of his statements were inconsistent, particularly with reference to where he was beaten, and where Lavonne Hughes got into the automobile, but Blaschke very clearly testified that he was beaten by Bridges and Lamar Hughes and his money forcibly taken. He said that Lavonne Hughes did not strike him, but that Lavonne was present, standing by, drinking beer, while at least one of the beatings was administered. There is an indication from the questions asked, and objections made, that Blaschke might be considered as mentally retarded. The court properly did not permit certain questions asked by the state, relating to Blaschke’s mentality, to be answered by some of the witnesses, those witnesses not being experts, but Blaschke was characterized as “slow” in the testimony. Be that as it may, the jury saw and heard this witness testify from the stand, as well as the appellants, and other witnesses both for the state and the defense, and it was within their province to determine which witnesses to believe.

It is next contended that the court erred in permitting photographs which depicted Blaschke’s physical condition the morning after the alleged beatings. We have held that the admission of such photographs largely rests within the discretion of the trial court. Stanley v. State, 248 Ark. 787, 454 S. W. 2d 72. Certainly there was no abuse of discretion where the photographs reflected Blaschke’s condition the day after the alleged incident, particularly when one of the appellants testified that Blaschke “got a whipping” but that he did not classify it as a “beating”.

Appellants contend that the court erred in each and every instruction given. There is no merit in this contention. None of the instructions are unusual, but rather they are the standard instructions on burden of proof, presumption of innocence, definition of reasonable doubt, credibility of the witnesses, and a definition of principals and accessories; a definition of robbery, and assault with intent to rob were also given.

Point number fourteen asserts that the court erred in giving instruction number six, which defines principals and accessories. Actually, no specific objection was made to any of the court’s instructions; this instruction which told the jury that “all persons who stand by, aid or abet, assist or advise or in any way participate in a criminal act are guilty as principals” was correct. The objection refers to the role of Lavonne Hughes, who, according to the state’s evidence, though present, did not actually participate in the beatings, but went in and purchased the beer with the ten dollar bill taken from Blaschke and subsequently stood by while another beating was being administered by his brother and Bridges. Lavonne Hughes testified, and other witnesses testified on his behalf, that he was not with his brother and Bridges at the time the alleged assaults took place, but this too was a jury question, and not only because of Blaschke’s evidence, Mr. and Mrs. Anhault having positively identified Lavonne Hughes as the man who purchased the beer, along with Bridges, about 10:00 or 10:15 p.m. on the night of April 22.

It is argued that the court erred in allowing the state to cross-examine the defendants and other witnesses concerning other law violations. Lavonne Hughes was asked on cross-examination if he had been convicted on the charge of contributing to the delinquency of a minor, and replied “I was convicted of the charge but I didn’t do it”. He was also asked if he was convicted of drinking on the highway and of giving drinks to a minor and he replied that he was. Wayne Bridges was also asked about two convictions which he admitted. Lamar Hughes was asked “Did you take some money off Bobby Horne?” and the defendant answered, “Yes, sir”. He later stated that he was not convicted. Also, the four witnesses who testified in behalf of the defendants were asked on cross-examination about convictions and all admitted at least one conviction. We have said numerous times that when a defendant takes the stand, he is subject to the same rules of evidence as other witnesses, and for the purpose of throwing light on his credibility, may in good faith, be asked about other crimes he may have committed, and other convictions, but he cannot be asked if he has been charged, indicted, or accused of other crimes. See Johnson v. State, and cases cited therein, 236 Ark. 917, 370 S. W. 2d 610. It will be noted that both defendants and witnesses were asked about convictions and acts they had committed, rather than accusations that might have been made against them. There was no error in permitting these questions.

Finally, it is alleged that the court erred in refusing to disqualify the last three jurors, the defense having exhausted peremptory challenges, over the objections and exceptions of the defendants. The voir dire examination of prospective jurors does not appear in the record and in the absence of the questions and answers given on voir dire, we have held that it must be presumed that the discretion of the court was properly exercised. In Gribble v. State, 189 Ark. 805, 75 S. W. 2d 660, this court said:

“The examination of these jurors, upon voir dire, is not brought forward in the bill of exceptions. We do not know, and cannot ascertain from the transcript filed in this case, the nature or extent of the examination of these jurors, nor can we determine whether or not there was any abuse of the court’s discretion, and it must be presumed by us that the discretion of the court was properly exercised.”

As herein set out, the court committed no reversible error, and it appears that the appellants received a fair trial.

The judgment is affirmed.

       The record reflects that the two Hughes boys were 21 year old twins, and Bridges was 19 years of age.

       On behalf of appellants, four young men testified to similar occurrences. Bridges said that it had happened with him before but, “usually when I tell him to leave me alone, he leaves me alone. Usually he doesn’t hurt me when he grabs me, and I just tell him to leave me alone and he will leave me alone”. On the other hand, two employers of Blaschke, a merchant and a farmer, testified that they had known him for a long number of years and had never heard of him “approaching” other men, nor attempting to molest any person.

       It is also asserted that the court erred in refusing to give an instruction that appellants could not be convicted on the testimony of Blaschke alone since he was an accomplice. We do not understand this objection as, of course, Blaschke was a victim, not an accomplice.


author: George Rose Smith, Justice.

text:
    Henry Lee COOPER v. STATE of Arkansas
    5549
    461 S. W. 2d 933
    Opinion delivered January 18, 1971

      McKay, Chandler & Choate, for appellant.

      Joe Purcell, Attorney General, Don R. Rebsamen, Asst. Atty. Gen., for appellee.
   George Rose Smith, Justice.

This is a petition for postconviction relief under our Criminal Procedure Rule 1. Ark. Stat. Ann., Vol. 3A, 1969 Supp., p. 91. The trial court, without conducting an evidentiary hearing, found, in the language of the Rule, that the original record “conclusively” showed that the petitioner was entitled to no relief, for the reason that the asserted violation of the petitioner’s constitutional rights had been waived. For reversal the petitioner insists that the trial court should have granted a hearing upon the petition.

This petitioner and Willie Lee Paschal were jointly convicted of burglary and grand larceny. Paschal alone appealed and obtained a reversal, on the ground that the testimony of a third defendant, an accomplice, had not been sufficiently corroborated. Paschal v. State, 245 Ark. 396, 432 S. W. 2d 879 (1968).

After that decision Cooper filed a petition under Rule 1, asserting that in his case the corroborating evidence had likewise been insufficient. The trial court rejected that contention, pointing out that at the original trial the State had introduced a pair of pliers that had been found in Cooper’s car after the police impounded the vehicle. In the jaws of the pliers were particles of an insulating material identified by laboratory analysis as being the same as the insulation in the safe that had been carried away and broken into by the burglars. We agree with the trial court’s conclusion that the evidence about the pliers sufficiently connected Cooper with the offense.

Cooper then filed the present petition under Rule 1. The petition is not verified, as the Rule requires. The petition, after referring to the trial court’s rejection of the earlier petition, then goes on to state: “That said search and seizure by Officer Smalley were made in violation of Petitioner’s constitutional rights as secured by the Federal and State Constitutions; that a hearing should be held to determine the constitutionality of the aforementioned search and seizure, and that this Court’s findings of fact and conclusions of law aforementioned should be set aside until said hearing is held.”

We affirm the trial court’s' decision, but we do not rest our affirmance upon a finding of waiver. Where a Rule 1 petition involves matters that arose in the course of the original trial and were within the knowledge of the defendant, his failure to interpose an objection, as required by applicable procedural rules, may preclude him from raising the issues in a postconviction proceeding. Ballew v. State, 249 Ark. 480, 459 S. W. 2d 577 (1970). On the other hand', a waiver of a basic constitutional right must ordinarily be conscious and deliberate, under the rules announced in recent Supreme Court decisions. Kaufman v. United States, 394 U. S. 217 (1969); Henry v. Mississippi, 379 U. S. 443 (1965); Fay v. Noia, 372 U. S. 391 (1963).

Here we do not reach the question of waiver, because Cooper’s unverified petition is insufficient on its face. His pleading, prepared by counsel, states no facts whatever to support the asserted conclusion that the search and seizure were in violation of Cooper’s constitutional rights. To the contrary, the petition asks that a hearing be held “to determine the constitutionality of the aforementioned search and seizure.” Thus the petitioner, without stating a single fact tending to show the inadmissibility of the pliers, merely calls upon the State to conduct a hearing to explore the possibility that the search and seizure may have been unlawful. If those allegations were held to state a cause of action, the circuit courts would quickly be so overwhelmed with similar petitions as to leave little or no time for the dispatch of their regular business.

in Evans v. State, 242 Ark. 92, 411 S. W. 2d 860 (1967), we discussed the necessity for properly verified statements of fact in Rule 1 petitions. Among other things it was said:

It was not the purpose of Criminal Procedure Rule No. 1 to give a person convicted of a crime a holiday from the penitentiary for the purpose of a hearing, but to conscientiously protect his constitutional rights. If trial courts will therefore insist upon proper verification of pleadings and pre-trial statements, any abuse of the privilege of post-conviction proceedings can be remedied through prosecution for perjury.

Where, as here, the petition wholly fails to state facts constituting a cause of action, we find no abuse of discretion in the trial court’s refusal to conduct an eviden-tiary hearing merely to set at rest the possibility that a denial of constitutional rights may have existed.

Affirmed.


author: Lyle Brown, Justice. George Rose Smith, Justice,

text:
    Thomas W. ARMSTRONG et ux v. Leo Juanita McCRARY
    5-5416
    462 S. W. 2d 445
    Opinion delivered January 18, 1971
    [Rehearing denied February 15, 1971.]

      Frank H. Cox, for appellants.

      Howell, Price, Howell ir Barron, for appellee.
   Lyle Brown, Justice.

This litigation was commenced by appellee, Leo Juanita McCrary, in which she sought to restrain appellants, Thomas W. Armstrong et ux, from interfering with appellee’s use of a driveway situated between the homes of the parties. The chancery court granted relief and the Armstrongs appeal. They advance two points for reversal, (1) that appellee failed to establish by clear and convincing evidence the existence of a joint driveway, and (2) that any use of the driveway by appellee and her predecessors in title was permissive and therefore never ripened into a prescriptive right, the element of notice of adverse claim not having been established.

The driveway is located on East Sixth Street in Little Rock. It runs north and between appellants’ and appellee’s homes. Record title to most of the driveway is vested in appellants, the Armstrongs, with appellee, Mrs. McCrary, owning record title to the remainder. The Armstrong residence is at 604 East Sixth and Mrs. McCrary’s home is at 608 East Sixth. There appears to be little dispute about the origin of the driveway. Long before the turn of the century the property now in litigation was a part of a larger tract of land on which was located a stately home called Curran Hall, which faced Fifth Street. This driveway, made of cobblestones, served as a carriage drive to the described homestead. The driveway entered from Sixth Street. That portion of the Curran property which faced Sixth Street was parceled into lots. Mr. Snodgrass acquired the property which is now 604 East Sixth Street, and his partner, Mr. Bracy, acquired the adjoining property which is now 608 East Sixth, and each of the men constructed a home. The cobblestone driveway was located between the two properties. In about 1952 Mr. Snodgrass and Mr. Bracy constructed a double garage behind the houses and astraddle the property line. Mr. Snodgrass could drive an automobile directly from the driveway into his side of the garage. Mr. Bracy could drive his car down the driveway until he reached a point about twenty feet from the garage; then he had to veer to his right and get completely on his property to reach his side of the garage.

In 1939 appellee moved into the Bracy house at 608 East Sixth, and purchased it in 1946. In 1956 appellants purchased the Snodgrass home. In 1969 appellants erected a metal fence down the property line, connecting it at the center of the double garage. The new fence made it impossible for appellee to reach her garage from East Sixth Street. The erection of the fence resulted in this lawsuit.

Appellee testified that from 1959 to 1949 her family did not have an automobile but that they constantly used the driveway as a walk way, that her two sons used it to bring their bicycles to the rear of the home, and that deliveries were made to her over the driveway. She testified that her husband (now deceased) acquired a car in 1949 and that from that time until 1965 they used the driveway without objection from anyone; that they often parked overnight in front of their garage doors, which was on their property; that for thirty years she raked and mowed half the driveway; that until parking became prohibited on East Sixth Street they often parked in front of the house; and that after her husband’s death in 1962 she had extensive repairs made to the home and the workmen utilized the driveway. She related that they never sought permission from anyone to use the driveway because they considered it “partnership property”; that it was not until 1965 that any question was raised; that appellant Armstrong at that time made an objection; and that she, as a result of the complaint, looked into the possibility of building a driveway entirely on her property, but found it not to be economically feasible.

Witness Mary Bracy Manning related that she was born in 1905 in the house now owned by appellee; that during her early years the driveway was used by the occupants of both houses; that in 1952 she and her husband moved into the 608 East Sixth Street property and lived there for seven years; and that during those years of occupancy the Mannings owned an automobile and used the driveway and the joint garage. The Man-nings moved just two houses down the street in 1959 and of course were in a position to observe the use of the driveway during subsequent years. When the Man-nings moved out, appellee and her family moved in. The witness related that she observed appellee’s two sons frequently using the driveway with their bicycles and as they grew to manhood they drove their cars over the same route and parked near the garage on ap-pellee’s property. The witness corroborated appellee with reference to the use of the driveway for the Mc-Crary family car continuously since 1949.

Van Manning testified that he rented the Bracy house in 1925 for the benefit of his mother and sisters and during their occupancy he frequently used the driveway. The witness further related that in about 1944 he had a survey made of the Bracy property in anticipation of selling it; that it was determined that the front of the dual garage was not on the true property line; that a contractor was employed to lift the garage and move it to where it would be exactly astraddle the property line; and that Manning and M. E. Michell, who then owned the Snodgrass property, shared the cost.

Witness Essie Hall has lived in the first house east of appellee’s property for twenty-five years. She testified that Mrs. McCrary, appellee, frequently used the driveway throughout the years that the McCrary family had an automobile; and that prior to that time, Bill Mc-Crary, the son, had an automobile and he utilized the driveway.

Witness Robert McCrary, son of appellee, testified as to the frequent use of the driveway by him, his brother, mother, and father. His testimony generally coincided with the evidence given by his mother.

Appellants produced four witnesses, including one of the appellants, Thomas Armstrong. Witness M. E. Michell purchased the Snodgrass property in 1946 and resided there about two years. He cut down the terrace just inside the curb and installed a concrete apron to facilitate the use of the driveway for modern cars. He testified that he could not recall ever having seen anyone other than his family using the driveway. He conceded that his position took him out over the State quite frequently. When he was home he paid little attention, he said, to his neighbors. In fact he never recalled having seen the McCrary boys.

Mrs. Edwin Sharp testified that she bought the Snodgrass house from Michell and lived there from about 1946 to 1956; that to her knowledge the McCrary family did not use the driveway, nor did they park their car at the end of the driveway over next to the Mc-Crary garage. She said that on many occasions the Sharp automobile was parked in the driveway and it could not be traversed by another car. She conceded that she was away from home a great deal of the time, apparently teaching school.

Since 1908 Mrs. Averell Reynolds Tate has spent most of her life in the immediate neighborhood, and in sight of the property of the litigants. She testified that she never observed the McCrarys using the driveway. It was her observation that the families who occupied the Snodgrass house through the years made a practice of parking cars in the driveway and that fact made it impossible for the McCrarys to travel the driveway. On cross-examination she recalled that appellee’s family did use it but very infrequently.

Appellant Thomas W. Armstrong purchased the Snodgrass property in 1956. He asserted that throughout the years he had maintained the driveway and over to the iron fence on appellee’s property, cutting the grass, raking the leaves, and trimming back appellee’s hedge so it would not interfere with his use of the driveway. He insisted that neither appellee nor members of her family used the driveway, except on rare occasions, one such exception being when appellants were on vacation. There was another instance in which he said he granted permission to appellee to use the driveway; that was the spring of 1969 when parking on Sixth Street was prohibited — appellant said he granted permission with the understanding that appellee would shortly make other arrangements. When he pressed her, so appellant asserted, appellee contended that he had no right to block the driveway. That was when appellants decided to construct the fence which resulted in the lawsuit.

The burden was on appellee to establish by a preponderance of the evidence that her right to the use of the driveway had become vested by prescription; and she also assumed the burden of establishing that the driveway has been used adversely under a claim of right. (Appellants contend that clear and convincing evidence is required but their contention is in error.) Abbene v. Cohen, 228 Ark. 266, 306 S. W. 2d 857 (1957); Duty v. Vinson, 228 Ark. 617, 309 S. W. 2d 318 (1958). The continued use of a passageway without objection and over a long period of years can establish adverse use so as to ripen into title by limitation. Rochelle v. Piles, 244 Ark. 606, 427 S. W. 2d 10 (1968); Fullenwider v. Kitchens, 223 Ark. 442, 266 S. W. 2d 281 (1954); McGill v. Miller, 172 Ark. 390, 288 S. W. 932 (1926). Our holdings in that respect comport with the great weight of authority; particularly with reference to a passageway lying along the boundaries between two lots under separate ownership. In 27 A. L. R. 2d, p. 332, § 4, is this statement:

In the great majority of instances in which a lane, private road, alley, driveway, or passageway lying over and along the boundary between lots or tracts has been used without interruption by the adjoining owners for the full prescriptive period, and for a common purpose, and without any oral agreement therefor being shown, the user of each owner has been regarded as adverse as to the other and the claim of prescriptive easement upheld as against any attempt to restrict or deny the use.

We are unable to say that the findings of the chancellor are against the preponderance of the evidence. Whether appellee used the driveway and under a claim of right was highly disputed, as can be seen from our summary of the testimony. The chancellor elected to give greater credibility to the evidence proffered by ap-pellee and he was in much better position than are we to make the choice. Additionally, the construction of the double garage in 1982 by Snodgrass and Bracy is highly persuasive. Each had contributed part of the land that went into the project and they endeavoured to place the double garage astride the common boundary. Entrance to Mr. Bracy’s side of the garage from the street could be gained only by traversing the established driveway. The hedge and wrought iron fence on the Bracy property, instead of being straight, curved at the north end so as to permit Mr. Bracy to deviate to the right at the north end of the driveway and enter. the garage. The enumerated physical facts were visible to appellants and to their predecessors in title. An ordinary inspection of the premises. by. appellant Armstrong, at the time when he was a prospective purchaser, would surely have put him on inquiry, which would have led to the knowledge that the occupants of the property adjoining him had long used the driveway to get to the garage or the parking area adjacent thereto. We have held that when ordinary inspection of the premises by a purchaser, followed by reasonable inquiry, would reveal the existence of a servitude then he is charged with notice. Hannah v. Daniel, 221 Ark. 105, 252 S. W. 2d 548 (1952).

Affirmed.

Harris, C. J., and George Rose Smith, J., dissent.

George Rose Smith, Justice,

dissenting. In the recent case of Stone v. Halliburton, 244 Ark. 392, 425 S. W. 2d 325 (1968), we restated familiar rules that I consider to be controlling in the case at bar:

Use which is permissive in its inception can never ripen into an adverse or hostile right no matter how long continued unless the statutory period has elapsed after notice of the adverse claim has been brought home to the owner. Harper v. Hannibal, 241 Ark. 508, 408. S. W. 2d 591. Some act or circumstance, in addition to, or in connection with. the use of a way across unenclosed lands of another and tending to indicate that the use was not merely permissive is required to establish a right prescription. LeCroy v. Sigman, 209 Ark. 469, 191 S. W. 2d 461.

Here the use of the driveway began when the adjoining properties were owned by Mr. Snodgrass and Mr. Bracy, who were business partners for many years. There is not the slightest suggestion of any hostile claim between those two friends and neighbors. Nor was there any hint of hostility on the part of the Man-nings, who occupied the property until 1939.

The appellee moved into the property as a tenant in 1939 and bought it in 1946. Her sons were aged 13 and 9 when the family first occupied the house. Surely it is not seriously suggested that a hostile claim was established by the activities of those children in riding their bicycles along the driveway, no matter how continual that activity may have been.

The McCrarys did not acquire a car until 1949. Thereafter they used the driveway from tíme to time, as a convenient means of access to their back door. Mrs. McCrary admitted, however, that they never parked their car in their half of the double garage and that as often as not they parked it in the street. She did not testify that she or anyone else ever brought notice home to the neighbors, by words or by acts, that a hostile claim was being asserted. To the contrary, she said that no question was raised until appellant Armstrong objected to her use of the driveway in 1965. Instead of asserting her supposed rights at once, Mrs. McCrary investigated the cost of putting in a driveway on her own property, where there is ample space for such a facility. It was not until she discovered that the cost would be more than she wanted to pay that she. first gave any indication of an adverse claim to the easement.

Under our law, a use originally permissive can become adverse only by the assertion of a hostile claim in such a fashion that notice of it is brought home to the landowner. I do not find any point in time when such a claim was asserted, nor does the majority opinion mention such a point. I do not find any action on the part of the McCrarys so unequivocally hostile as to constitute such notice to their obliging and unsuspecting neighbors, nor does the majority opinion mention such conduct. In my opinion the chancellor’s decree should be reversed as being contrary to the preponderance of the proof.