author: Ed. F. MoFaddiN, Associate Justice.

text:
    Hamilton v. Kelley-Nelson Construction Co.
    5-1440
    309 S. W. 2d 323
    Opinion delivered February 3, 1958.

      J. Fred Jones, for appellant.

      Wright, Harrison, Lindsey & Upton, for appellee.
   Ed. F. MoFaddiN, Associate Justice.

This is a Workmen’s Compensation case. The precise question to be decided is whether there is substantial evidence to support the finding of the Commission, that appellant’s healing period terminated on June 27, 1956 without any residual disability.

That appellant received an injury on October 12, 1955, is admitted. On that date he and two other men were working for appellee, Kelley-Nelson Construction Company, in sliding a steel beam from a truck. Appellant, a man 52 years of age, was braced under the beam when it was pulled clear of the truck. The other two men dropped their part of the load, shifting the entire weight to the appellant. He received a lumbosacral strain and was sent to Dr. Carruthers for examination and treatment. Appellant never resumed full work thereafter. He was examined and treated by numerous doctors at the instance of appellee’s insurance carrier from October 12, 1955 to January 26, 1957. On February 12, 1957 the Commission held its final hearing in this matter; and on March 28, 1957 rendered its decision, finding, inter alia, that appellant had fully recovered on June 27,1956 with no residual disability. The Circuit Court affirmed the Commission’s decision; and appellant brings this appeal urging that there is no substantial evidence to support the Commission’s finding.

As aforesaid, appellant was examined and treated by numerous physicians from October 12, 1955 until January 26, 1957. The reports of these physicians to ap-pellee’s insurance carrier are in the record. Under date of October 17, 1955, Dr. Carruthers reported that he examined appellant on October 12, 1955 and found him suffering with “severe lumbosacral strain.” The x-rays failed to show any evidence of fracture. He was admitted to the hospital on October 15th for traction, heat, body baths, and medication by vein. On October 25th Dr. Carruthers reported of appellant: “He is now reporting to my office daily for additional heat treatment.” On November 15th Dr. Carruthers reported that appellant was receiving daily treatments; and that he had advised appellant to try to resume work, “on a trial and error basis and to report back to my office in one week. ’ ’ On January 12,1956 Dr. Carruthers reported no substantial change: “He has followed out that old saying, ‘A sprain is worse than a break.’ ”

Appellant was sent to other doctors. An x-ray of January 31, 1956 revealed no fractures but disclosed a congenital defect in the region of the 5th lumbar vertebra and the sacrum, showing a condition called “second degree spondylolisthesis.” This condition is thoroughly explained in the testimony; but Webster’s International Dictionary defines it as “a forward displacement of a lumbar vertebra especially on the sacrum.”

On February 3,1956 Dr. Nixon reported to the insurance carrier the following diagnosis and prognosis of appellant’s condition:

“DIAGNOSIS:
1. From examination, dental caries.
2. From history, physical and x-ray examination, a second degree spondylolisthesis.
3. From history and physical examination, a lumbo-sacral strain.
PROGNOSIS:
This man was instructed to apply considerable heat to his lower back, and instructed in exercises, designed to increase the strength of his lumbar muscles. I suggested to Mm that he return to wort of a light type for one month, and then return for re-evaluation. I see no reason to expect any permanent disability as the result of this injury.”

Again, on July 2nd, Dr. Nixon reported to the insurance carrier that he had examined the appellant on June 27th. That report will be copied in full later. Appellant tried to resume work but was unable to do so. He was examined by Dr. Semmes of Memphis, who, oh August 6, 1956, recommended that appellant be referred to an orthopedic surgeon for a back support or other treatment. Thereupon, Dr. Steele treated appellant and made a three-page report in November, 1956, recommending further hospitalization and treatment. The Commission so ordered; and appellant was returned to the hospital on January 17, 1957 and remained there as a patient of Dr. Steele until January 26,1957. Dr. Steele testified before the Commission on February 12, 1957 that appellant’s condition was caused by the trauma of October 12, 1955. Dr. Steele testified before the Commission on February 12, 1957 that the appellant had a 5 per cent to 10 per cent disability to his body as a whole. Notwithstanding all of the above, the Commission found, as aforesaid, that on June 27, 1956 appellant had fully recovered from the lumbosacral strain and was without any residual disability.

The only statement in the record to support such a date and finding is the letter that Dr. Nixon wrote the Commission under date of July 2, 1956; and we copy it in full:

“Lum Hamilton returned to my office on June 27, 1956, at which time he complained of pain in his lower back. He has worked a few days since his last visit. He is getting no better or worse.

“Examination reveals that he still has his bad teeth. He locates his pain in the lumbosacral area. The shape of the hack is good. The muscles are soft, and he has a good range of motion. There continues to be a positive test on anteroposterior rotation of the lumbosacral joint.
“He was again instructed to seek dental care, and to continue the application of heat. It is my opinion that his disability at this time is due to the presence of spondylolisthesis. I see no reason to further examine or treat him. I can find no evidence upon which to base any permanent disability.”

It must be remembered that Dr. Nixon had reported to the Commission on February 3, 1956 that appellant had three ailments — bad teeth, second degree spon-dylolisthesis, and a lumbosacral strain, — and Dr. Nixon had recommended that the appellant return to work of a light type for a month and then return for re-evaluation. The appellant tried to resume work and went back to Dr. Nixon on June 27th. Dr. Nixon reported at that time, “He is getting no better or worse.” Certainly this statement does not indicate that appellant was restored to the ability to work. Dr. Nixon further said that the disability at that time was due to the spon-dylolisthesis. The disabling effect of such condition had never existed prior to the injury. Appellant probably had the congenital defect in the 5th lumbar vertebra ail of his life, but he never had any trouble from it until he got the severe lumbosacral strain on October 12, 1955; and then the spondylolisthesis followed in the same region of the lumbosacral strain. Dr. Nixon’s report of July 2, 1956 is the only place in the evidence where the date of June 27, 1956 is indicated; and Dr. Nixon’s letter clearly shows that appellant had not recovered on that date.

We have repeatedly held that an injury which brings about an aggravation of a preexisting condition is com-pensable under our Workmen’s Compensation Law. In Sturgis Bros. v. Mays, 208 Ark. 1017, 188 S. W. 2d 629, we said:

“Nor is it a defense that the workman had some predisposing physical weakness but for which he would not have broken down. If the employment was the cause of the collapse, in the sense that but for the work he was doing it would not have occurred when it did, the injury arises out of the employment.”

See also Herron Lbr. Co. v. Neal, 205 Ark. 1093, 172 S. W. 2d 252; McGregor & Pickett v. Arrington, 206 Ark. 921, 175 S. W. 2d 210; Harding Glass Co. v. Albertson, 208 Ark. 866, 187 S. W. 2d 961; Green v. Lion Oil Co., 215 Ark. 305, 220 S. W. 2d 409; Triebsch v. Athletic Mining, 218 Ark. 379, 237 S. W. 2d 26; Shanhouse v. Simms, 224 Ark. 86, 272 S. W. 2d 68; and Tri-State Const. v. Worthen, 224 Ark. 418, 274 S. W. 2d 352.

We, therefore, conclude that there is no substantial evidence to show that the appellant had completely recovered without residual disability on June 27, 1956. The judgment of the Circuit Court is reversed and the cause is remanded to the Circuit Court, with directions to set aside its judgment and enter a judgment reversing the decision of the Commission and remanding the case to the Commission for further proceedings not inconsistent with this opinion.

BobiNsoN, J., not participating.

       Dr. Steele explained spondylolisthesis as follows: . it is a defect of development in the bones of the lower spine and it is usually found between the last lumbar vertebra and the sacrum. The defect is placed in such a way it allows the fifth or last lumbar vertebra to drift forward slowly on the surface of the sacrum since it is unchecked and it is displaced forward.”


source: Caselaw Access Project

author: Mm OR. W. Mill wee, Associate Justice.

license: Public Domain

text:
    Duty v. Vinson.
    5-1394
    309 S. W. 2d 318
    Opinion delivered February 3, 1958.

      Eli Leflar, Jeff Bice, Jeff Duty and E. J. Ball, for appellant.

      Vol T. Lindsey, for appellee.
   Mm OR. W. Mill wee, Associate Justice.

Appellant, Claud Duty, owns a business building located on the Northwest corner of Block 8, Original Town of Rogers, Arkansas, in the center of the Rogers business district. Duty and his wife brought this suit to quiet title to the property which includes a plot 50 feet wide and 85 feet long on which the building is located and a strip about 15 feet wide and 50 feet long adjacent to the rear of the building on the South. Appellees, Mr. and Mrs. E. W. Vinson and Alice Laner, intervened claiming they and their predecessors in title and the general public had acquired an easement by prescription over the 15 ft. x 50 ft. strip by adverse use for more than 30 years. After an extensive hearing the chancellor held that appellants’ title to the disputed strip was subject to an easement by prescription in favor of appellees and the public as an alleyway. The principal issue is whether this finding is supported by a preponderance of the evidence.

Except for certain additions to the Vinson property, the location of the disputed strip of land in relation to other property in the area is reflected by the following rough sketch of said Block 8 introduced at the trial by agreement:

It is noted that Walnut Street runs along the north side of the block, First Street along the east side, Elm Street along the south side, Second Street along the west side; and there is an alley 20 feet wide running north and south through the center of the block. The strip in question is also designated “alley” on the sketch and extends from Second Street .east along the rear of the Duty and Laner Buildings to the west side of the rear of the Stroud Building where it comes to a dead end.

Lots 2, 3 and 6 located in the Northwest corner of the block were owned by Stroud & Ferrenberg about 1895 when they began constructing buildings crosswise on Lots 2 and 3 facing north on Walnut Street. The Stroud Building was first erected and occupies the entire east 60 feet of Lots 2 and 3. The Laner Building was next constructed on, the middle 30 feet of the two lots and originally extended from Walnut Street south about 50 feet but was later extended to within 8 or 10 feet of the south line of Lot 3. The Duty Building was next constructed about 1897 and covered all of the west 50 feet of Lots 2 and 3 except the disputed strip on the south. Duty purchased the property in September, 1949.

' Vinson acquired the west 80 feet of Lot 6 in 1933 and the first building was placed on the northwest corner of the lot adjacent to the disputed strip facing Second Street sometime between 1943 and 1947. It is a temporary prefabricated restaurant building about 20 feet long and 20 feet wide. It belongs to the lessee of the property with the right of removal and is known as the “Snack Shack.” In 1954 Vinson constructed the Brewer Building between the “Snack Shack” and the south line of Lot 6 completely enclosing the vacant area of Lot 6 fronting on Second Street.

It is undisputed that the strip of land in question was never platted or dedicated to the City of Rogers as an alley, or for public use, and the city has never so claimed it. Representatives of the city and the gas, telephone and electric companies testified the strip was shown as private property on their records and they disclaimed any right of easement over it. In the chain of title from the Government down to Duty no reference to an easement across the strip has ever been made nor do the deeds to Vinson and Laner contain any reference to an easement. Vinson has never mentioned an easement in his various leases of Lot 6.

Many witnesses testified about the use of the disputed strip and the adjacent area south of it for the past 30 or 40 years. A former owner and several lessees of tlie Duty Building testified that for several years prior to 1933 there was a small sheet iron building on Lot 6 which connected with a shed attached to the rear of the east half of the Duty Building, blocking any use of the disputed strip as a passageway. This was disputed by John Myler who assisted in the original construction of the buildings.

Vance Hill testified that he operated an automotive parts and supply store in the west half of the Duty Building from 1938 to 1947 during which time the disputed strip was used to change and repair tires and for other work in servicing the cars and trucks of his customers; and that it was not used as a driveway while he was there. Prior lessees of that part of the building stated they used the strip for similar purposes; and that before the erection of the “Snack Shack” all of Lot 6 except the space occupied by the small sheet iron building was vacant and unenclosed. Prior to 1946 the customers and tenants of the Duty and Laner Buildings used Lot 6 for their convenience in crossing from Second Street to the alley east of the Stroud Building, for parking wagons, cars and trucks and for transfer of merchandise to and from the stores. According to witnesses on both sides there was no systematic or exclusive use of any particular portion of either the disputed strip or Lot 6 during this period, but people entered upon the entire area at random. Similar use of the area south and east of the “Snack Shack” continued after it was placed on the Lot until 1954 when the Brewer Building was constructed.

Ivan Bose had operated a drug store in the west 25 feet of the Duty Building for about seven years prior to the trial. He stated he had an agreement with two successive operators and lessees of the “Snack Shack” permitting them to use the 15 foot strip for parking cars in the back of the restaurant in exchange of their agreement to allow him to park his car there; and that the agreement continued until about three months prior to the trial when T. A. Bichards, lessee of the “Snack Shack” for 5 years prior to the trial, notified him not to park there any more unless he paid a fee. The testimony of Richards tends to corroborate that of Rose as to the arrangement although he further stated the strip had also been used for the delivery of merchandise through two doors on the north side of the “Snack Shack” adjacent to the strip, and that it had been used generally as a passageway for many years without objection.

John Haw testified that he and two others operated a tire and battery shop in the east side of the Duty Building for about 10 years prior to 1931 and used a shed in the disputed strip behind the building for storage of old tires and the installation of new tires and other accessories. They buried an oil tank in the disputed strip which they used in their business and it is still there. He stated no use was made of the strip as a driveway or alley while they were there; that vehicles could not have been driven over the strip to the Laner Building; and that he never heard of any one claiming a right-of-way over it. Elvin Buell who had operated a paint store in this part of the building for about 5 years prior to the trial stated the strip had been used to haul trash from a bin behind the “Snack Shack” and the unloading of merchandise by trucks that back in from Second Street.

Tenants who operated clothing and dry goods stores in the Laner Building from 1929 to 1949 testified they occasionally used the narrow strip behind their place of business to dispose of trash; that all deliveries of merchandise were made through the front door of the store; and that they knew of no one using, or claiming the right to use, the area as an alley. Alice Laner’s son operated a shoe store in the building from 1949 until 1953. He stated he used the disputed strip for the delivery of merchandise, and that many years ago his father had a shed at the rear of the building in which he kept his horse and carriage. The tenant of a shoe shop located in the building at the time of the trial stated that trucks backed into the disputed strip to unload merchandise occasionally.

An agent of the Railway Express Company in Rogers since 1937 stated he always made deliveries of merchandise through the front doors of the Duty and Laner Buildings and never used the disputed strip for that purpose. Others testified that in making deliveries of wood and coal to the rear of the buildings prior to 1947 there was no well defined route or passageway used but they entered over all the vacant lots along Second Street. After 1947 the deliveries were made by backing trucks into the disputed strip.

Gas and electric meters are attached or adjacent to the rear of the Duty and Laner Buildings but, as previously indicated, the companies are not claiming an easement over the strip in question. Seven water meters formerly located at the rear of the buildings were moved to and installed in the sidewalk along Second Street by Duty in August, 1955. There is a utility pole at the southwest corner of the Stroud Building with electric and telephone lines running to the various buildings but only those running to the Duty Building cross the disputed strip. The only water or sewer lines crossing the strip are those serving the Duty Building but a gas service line traverses it from a meter back of the Duty Building to the “Snack Shack.” The manager of the gas company “assumed” they had a verbal agreement for the running of this line and the lines from the alley east of the Stroud Building across Lot 6 and to the meters behind the various buildings in the area.

Duty formerly maintained a trash bin in the strip over which the trash was removed. When Yinson constructed the Brewer Building in 1954 his tenants moved the bin to the rear of the “Snack Shack” and tenants of the Yinson, Laner and Duty properties have since been using it and the trash has been removed over the strip. Also in 1954 Yinson constructed an embankment behind the “Snack Shack” and Brewer Building to divert water into the disputed strip that formerly flowed south of the buildings because the lots slope from north to south. Downspouts from the Duty and Laner Buildings drain water into storm sewers in Second Street. A “corrugated” concrete sidewalk and approach to the strip was constructed about 1925 when Second Street was paved and “no parking” signs were maintained there. The walk was so constructed to afford traction for vehicles using the area, but it should be remembered that the strip was then being used for changing tires and the general servicing of the cars and trucks of the customers of the automotive supply stores operated in the Duty Building.

Witnesses for appellees testified generally that the disputed strip had been used as an alleyway or passageway for many years but most of them who had actually used this and the other vacant area of Lot 6 stated they used it occasionally for their convenience or as customers of tenants of the Vinson, Laner and Duty Buildings. Most of them also conceded that all this vacant area was used at random in crossing from Second Street to the north-south alley prior to 1946, and that this use continued in part thereafter until 1954.

While the owner of one lot may acquire an easement over the unenclosed land of another by open, continuous and adverse use thereof under a claim of right for a period of seven years, a mere user does not ripen into a prescriptive right unless the circumstances are such as to put the owner of the servient estate on notice that the way is being used adversely under a claim of right. Bond v. Stanton, 182 Ark. 289, 31 S. W. 2d 409; Barbee v. Carpenter, 223 Ark. 660, 267 S. W. 2d 768. The burden was upon appellees to show by a preponderance of the evidence that the use of their tenants and the public generally of the disputed strip was adverse to appellants and their predecessors in title and not under their permission. In support of their contention that this burden was met, appellees rely on Bond v. Stanton, supra; Kirby v. City of Harrison, 202 Ark. 1, 148 S. W. 2d 666; and Harrison v. Knott, 219 Ark. 565, 243 S. W. 2d 642. Particular reliance is also had on Robb & Rowley Theaters, Inc. v. Arnold, 200 Ark. 110, 138 S. W. 2d 773, which involved long and continuous usage by the public and adjacent owners of a paved alleyway in the business section of the City of Little Rock.

While former decisions are rarely controlling on the factual issue of whether a particular use is permissive or adverse, we think the decision here is controlled by the principles applied in LeCroy v. Sigman, 209 Ark. 469, 191 S. W. 2d 461; Brundidge v. O’Neal, 213 Ark. 213. 210 S. W. 2d 305; and Abbene v. Cohen, 228 Ark. 266, 306 S. W. 2d 857. In our opinion a preponderance of the evidence does not support the conclusion that appellees and the public generally acquired an easement by prescription over appellants’ lot by open, continuous and adverse use for the required period of seven years. On the contrary we think the greater weight of the testimony is to the effect that the use shown was fitful and permissive only.

The decree is accordingly reversed and the cause remanded with directions to dismiss the intervention and cross-complaint of appellees. Appellants will recover all appeal costs except the amount of $135.60 which will be reimbursed to appellees for their supplemental abstract of the record occasioned by appellants’ delay in filing a narrative statement of a part of the testimony and their failure to abstract the testimony of certain witnesses named in their designation of record.


author: G-eorge Rose Smith, J.

text:
    Kansas City So. Ry. Co. v. City of Ft. Smith.
    5-1420
    309 S. W. 2d 315
    Opinion delivered February 3, 1958.

      Hardin, Barton, Hardin & Garner, for appellant.

      Pettus A. Kinoannon, City Attorney, and Chas. A. Beasley, for appellee.
   G-eorge Rose Smith, J.

The Kansas City Southern Railway Company’s passenger station, freight depot, and allied facilities formerly occupied an area of three blocks, lying contiguously in a straight line, in the city of Fort Smith. In authorizing the original construction of the railroad terminal in 1911, the city adopted ordinances vacating the alleys in these three blocks and the two streets crossing this rectangular area. Floods destroyed the carrier’s branch line into Fort Smith in 1943, and the company discontinued regular passenger rail service into the city, substituting a shuttle bus service between the city and the company’s main line in Oklahoma. Later on the railway company sold or leased various parts of its terminal facilities to its codefend-ants in this case.

This action in ejectment was brought by the city in 1956, to recover possession of, and reopen, the streets and alleys within the three-block area in question. It is the city’s theory that it originally owned these streets and alleys in fee simple and vacated them only on condition that tlie railroad company, should continue to furnish the community with passenger service by rail. Upon this premise the city contends that the company, by abandoning that type of service in 1943, lost its right to occupy the streets and alleys. This theory is disputed by the appellants, who insist that the public ways were vacated unconditionally and can be reacquired only by condemnation.

The case was tried without a jury, upon an agreed statement of facts. In the main the court sustained the city’s position, awarding it possession of the streets and alleys. Compensation to the defendants was allowed only with respect to two structures that had been erected in recent years pursuant to building permits issued by the municipality.

The city’s asserted right to reopen these streets and alleys is based in part upon its contention that it has all along owned the fee simple title to these public ways, instead of a mere easement in them. Upon this assumption counsel present a rather involved argument to show that the vacation of the streets and alleys did not vest ¿he title thereto in the railroad company, which at the •Arne owned all the abutting property.

The simplest answer to this argument is that the city’s claim to the fee is not well founded. The pertinent facts are stipulated. A substantial part of Fort Smith was formerly a federal military reservation. Pursuant to an act of Congress most of the reservation was platted as lots and blocks and was conveyed by the United States to the city. Two separate patents were issued by the government. The first, executed March 12, 1885, conveyed to the city about 115 platted blocks (including those now in question), in trust to be sold for the benefit of the public schools. The second patent, executed July 29, 1885, granted five additional blocks to the city for its own use and also ‘ ‘ the streets and alleys and avenues for the use of the public.” In obedience to its trust the city, during the succeeding'ten years, sold all the lots conveyed by the first patent and executed deeds describing the various parcels by their lot and block numbers.

We do not agree with counsel’s contention that Congress, by directing the issuance of two separate patents, evidenced an intention that the streets and alleys should be forever held by the city in fee. The federal act indicates clearly that two patents were resorted to because part of the property was being conveyed to the city in trust for the schools and part to the city for its own use. Presumably the streets, alleys, and avenues were not mentioned in the first patent for the reason that the city was not expected to offer them at public sale for the benefit of the schools.

Absent anything establishing a contrary intention on the part of the government, the property interest created by the conveyances to the city should be determined by state law. United States v. Illinois Central R. Co., 154 U. S. 225, 14 S. Ct. 1015, 38 L. Ed. 971. By our law the grants to the city, describing the land by reference to the plat, contemplated the existence of a public easement only in the streets and alleys, and that easement alone was reserved when the city in turn sold the lots to private owners. Reichert v. St. L. & S. F. Ry., 51 Ark. 491, 11 S. W. 696, 5 L. R. A. 183; Lincoln v. McGehee Hotel Co., 181 Ark. 1117, 29 S.W. 2d 668.

Thus the public had only an easement in these ways when the railroad company, in about 1910, purchased the three blocks in question and undertook the construction of a terminal. The city co-operated in the proposal by adopting, in 1910 and 1911, ordinances vacating the streets and alleys now in controversy. It cannot be doubted that Fort Smith, as a city of the first class, had the power to take this action. Ark. Stats. 1947, § 19-2304; Greer v. City of Texarkana, 201 Ark. 1041, 147 S. W. 2d 1004; Barbee v. Carpenter, 223 Ark. 660, 267 S. W. 2d 768.

The remaining question is whether these public ways were vacated absolutely or only as long as passenger service should be maintained. We find next to nothing in the ordinances to suggest a conditional vacation. The 1910 enactment, to which the one of 1911 is similar, declares unequivocally that the streets ‘ ‘ are hereby vacated and closed for the purpose of allowing the Kansas City Southern Railway Company to build its tracks, train sheds and platforms in a continuous manner over and across” the two streets in dispute. Neither ordinance contains language of the kind ordinarily employed for the imposition of a condition. That the city gave its reason for closing the streets is easily understandable, but this expression of purpose did not by itself create a determinable estate. Lynch v. Cypert, 227 Ark. 907, 302 S. W. 2d 284.

If the issue were open to serious doubt, the fact that the carrier gave value for the city’s action, instead of receiving a gratuity, would tend to negative the existence of a condition. See Davis v. St. Joe School Dist., 225 Ark. 700, 284 S. W. 2d 635. The ordinances required the railroad company to spend at least $100,000 in the construction of a passenger station; in fact the company’s total investment exceeds $300,000. The city also required the company to purchase neighboring land and provide at its own expense a paved street that represents to some extent a substitute route for the traveling public. All these matters confirm the view that both the city and the carrier understood that the streets and alleys were being permanently closed. We conclude that the appellants are correct in their insistence that the city can achieve its present purpose only by the exercise of the power of eminent domain.

Reversed and dismissed.


author: Paul Ward, Associate Justice.

text:
    Carter v. Olsin.
    5-1444
    309 S. W. 2d 328
    Opinion delivered February 3, 1958.

      Paul K. Roberts, for appellant.

      G. T. Sims, for appellee.
   Paul Ward, Associate Justice.

Appellant prosecutes this appeal, contending the trial court had no right to modify its order after the lapse of the term at which it was rendered where no statutory ground therefor was alleged or proven. The issue presented is strictly one of law, and the background and facts necessary to present this issue may be briefly and generally stated.' Many of these facts are set forth in a former appeal of this case. See: Carter v. Olsin, 226 Ark. 760, 293 S. W. 2d 890.

On the former appeal we held that appellant had the right to drive his cattle across appellee’s land to reach a pasture belonging to appellant. Incidentally it was developed, on the first appeal, that appellee and appellant had improvised a passage-way running east and west with gates at both ends. The south line of this passageway ran along the south border of appellee’s land, but the wire fencing on the north side was placed on poles belonging to the Arkansas Power & Light Company. This resulted in the east end of the passage-way or lane being only a few feet wide and in the west end being 150 yards wide. The litigation all began when appel-lee obstructed the openings or gates at the east and west ends of the lane.

Our mandate on the first appeal, issued December 13, 1956, directed the Chancery Court “to enter an order compelling appellee to remove the obstructions from the lane . . .” This, of course, referred to the gates which appellee had closed. When the matter was presented to the trial court upon remand it was determined that appellee had removed the fence on the north side of the lane while the first appeal was pending. Consequently the Chancellor not only ordered appellee “. . „ to remove the obstructions from the lane . . .” but (by.an order made on December 13, 1956 and entered nunc pro tunc on February 4, 1957) also ordered appel-lee . . to restore the fence along the north side of the lane . . as it previously existed . . except that said wire will not he attached to the power poles . . .”, giving appellee 45 days from February 4, 1957 to comply with the court’s order.

It is admitted that the June, 1956 term of Chancery Court for Drew County expired on February 3, 1957.

On March 19, 1957, appellee filed a petition setting forth, in effect, that no court order had established the size of the lane; that there was no need for the lane to be 150 yards wide at the west end, and; that the present lane contained about 7 acres of appellee’s land while one-half acre was ample. The prayer was that the court, after notice to appellant, fix the boundaries of the lane and that appellee be given additional time to comply with whatever order the court might issue.

Pursuant to the above petition, the trial court on May 14, 1957, at a hearing attended by both parties, issued its order definitely fixing the boundaries of the lane, making its width from north to south 30 feet and uniform. It was the contention of appellant then and now that the trial court had no power or jurisdiction to issue the above order since it lost all control over orders issued prior to the expiration of the term of court on February 3, 1957. In support, appellant cites Spivey v. Taylor, 144 Ark. 301, 222 S. W. 57; Bright v. Johnson, 202 Ark. 751, 152 S. W. 2d 540; and Moon v. Moseley, 205 Ark. 134, 167 S. W. 2d 871.

While we agree with the principle of law cited above and relied on by appellant, we do not think it is applicable to the facts of this case. When the trial court, on December 13, 1956, ordered appellee to replace the north fence and fixed the date for compliance beyond the expiration date of that term of court, the court thereby retained jurisdiction of the matter for further proceedings. The matter of the width of the lane was, at all times, incidental to the main issue — the right of appellant to drive his cattle across appellee’s land. When the trial court on December 13, 1956 ordered appellee to restore the fence on the north side of the lane it, in effect, if not in fact, issued a mandatory injunction against appellee. In such a situation we have repeatedly held that the court does not lose control or jurisdiction with the lapse of the term of court. See: Stane v. Mettetal, 213 Ark. 404, 210 S. W. 2d 804; Local Union No. 656 et al. v. Missouri Pacific Railroad Co., Thompson, Trustee, 221 Ark. 509, 254 S. W. 2d 62, and; Self v. Taylor, 224 Ark. 524, 275 S. W. 2d 21.

Appellant does not complain that he has been denied any of the fruits of his victory. He has a passageway for his cattle, and he makes no contention that a 30 feet wide lane is not adequate for the purpose for which it is to he used.

Affirmed.


author: Paul Ward, Associate Justice. Ed. F. McFaddiN, Associate Justice,

text:
    Stegall v. Bugh.
    5-1449
    310 S. W. 2d 251
    Opinion delivered February 3, 1958.
    [Rehearing denied March 17, 1958]

      Spencer S Spencer, for appellant.

      Mahony & Yocum, Grumpier & O’Connor, J. S. Brooks, B. L. Allen and Sam Pichará, for appellee.
   Paul Ward, Associate Justice.

The question for decision is: Do the words ‘1 except the mineral interest in said lands,” following the description in a warranty deed, include oil and gas nnder the peculiar facts and circumstances of this case? The trial judge held that the words did not include oil and gas, and appellant prosecutes this appeal to reverse said holding.

The issue arose in the manner presently set forth. A summary statement will suffice because there is little, if any, dispute over facts which we deem essential. On November 6, 1900, B. H. Stegall and his wife (parents of appellant) executed a warranty deed conveying 120 acres of land in Section 23, Township 17 South, of Range 14 "West, Union County, to one M. F. Goodwin. The deed contained the exception clause as mentioned above. Appellant is now the owner of the mineral rights reserved under the above deed, and appellees claim an interest in the oil and gas as remote grantees of the said M. F. Goodwin.

Appellant’s main contention is that B. H. Stegall, at the time he executed the deed to Goodwin in 1900, understood the word “mineral” to include oil and gas. To prove that B. H. Stegall had such understanding, appellant introduced evidence to the effect that, in 1900, there appeared traces of oil or a substance resembling oil on several springs (called “oil springs”) on or near the land conveyed. It was also shown by testimony that B. H. Stegall was careful to select a scrivener to prepare a deed that would reserve to him the oil and gas. There was other testimony from all of which the trial judge might have been justified in finding that B. H. Stegall actually meant to reserve all rights to oil and gas when he executed the deed in question.

Based on the above testimony showing the intention of B. EL Stegall to reserve oil and gas rights at the time he executed the deed in 1900, appellant relies on language used by this court in the case of Brizzolara v. Powell, 214 Ark. 870, 218 S. W. 2d 728, for a reversal. In considering a similar exception in the cited case, we said that “the question involves the intent with which these words were used,” etc. From the quoted language and other similar language found in the cited case, appellant appears to conclude that the “intent” of tlie grantor is controlling here. Expressed another way, appellant’s argument appears to he that, based on the Brissolara case, supra, it is our duty to determine from the testimony just what B. H. Stegall had in mind when he used the word “mineral” in the exception in the conveyance to Goodwin. We do not agree that this is a correct interpretation of the holding in the Brissolara case, supra, or of the holdings in similar decisions to which that case makes reference and which we will mention presently. We think that the meaning which this court has heretofore and should hereafter give to the word “mineral,” in connection with its use in situations similar to those of this case, is governed not by what the grantor meant or might have meant, but by the general legal or commercial usage of the word at the time and place of its usage. The testimony in the case under consideration justified the trial court, we think, in finding that the word “mineral,” in its accepted legal and commercial usage, did not include oil and gas in Union County in 1900. This testimony was to the effect that there was no oil production in Union County until about 20 years after the deed in question was executed and that the word “minerals,” as commonly used in Southern Arkansas and in Union County in 1900 would not have included oil and gas. A geologist with the Arkansas Oil & Gas Commission for about 6 years stated that the first showing of oil in Union County was in 1920; that in 1900 there was no oil produced in East Texas, or Northern Louisiana; that the understanding of the people engaged in the oil business in 1900 and until 1919 was that there would never be any production in the southern part of Arkansas, and; that the word “minerals,” from the standpoint of the oil industry in Union County during the above mentioned period would not have included oil and gas.

The conclusion which we have reached above is, we think, consistent with and supported by former decisions of this court, to which we wish to make only brief reference.

Missouri Pacific R. Co., Thompson, Trustee, v. Strohacker, 202 Ark. 645, 152 S. W. 2d 557. This case dealt with deeds, executed in 1892 and 1893, conveying lands in Miller Connty, which excepted “all coal and mineral deposits.” We held these words did not include oil and gas, hut, in doing so, said: “If the reservations had been made at a time when oil and gas production, or explorations, were general, and legal and commercial usage had assumed them to he within the term ‘minerals/ certainly appellant should prevail.” The court found however, from testimony which it is not necessary to restate, that such Usage was not shown. The rule of interpretation (of the word “mineral”) employed hy the court in reaching the decision it did is shown by these expressions used or quoted with approval: “. . . the best and surest method of expounding an instrument is by referring to the time when, and the circumstances under which it was made,” and “The best construction is that which is made by viewing the subject of the contract as the mass of mankind would view it; for it may be safely assumed that such was the aspect in which the parties themselves viewed it.”

Missouri Pacific Railroad Company, Thompson, Trustee, v. Furqueron, 210 Ark. 460, 196 S. W. 2d 588. This case construed the same exception language contained in a deed executed in 1894 which conveyed land also in Miller County. It was there held that the questioned language did not include oil and gas. We followed the Strohacker case, supra, although we were specifically urged to over-rule it.

Carson v. Missouri Pacific Railroad Company, Thompson, Trustee, 212 Ark. 963, 209 S. W. 2d 97. There the deed in question was executed in 1892 and the reservation was “ all coal and mineral deposits . . and we held, following the reasoning in the Strohacker and Furqueron cases, supra, that Bauxite was not included. Among other things the court pointed out: “We conclude that the rule announced in the Strohacker case, supra, as well as the unreasonableness, under the circumstances, of the construction asserted by appellee, requires a holding that bauxite was not in the contemplation of tlie parties to the contract when this reservation of mineral rights was made.”

Brizzolara v. Powell, supra. Here all the cases mentioned above were referred to and all were unanimously approved by this court. It was stated that the holdings in these cases had “become a rule of property on which have been founded innumerable important transactions.” The deed under consideration there was executed in 1897.

The deed (containing the exception) under consideration was executed only 7 years after the deed in the Strohacker case, supra, and only 3 years after the deed in the Brissolara case, supra. There is no testimony by appellant tending to show any change in oil and gas development or in the general usage of the word “minerals’’ during the indicated interval of time. We see no reason therefore why we should not here follow the rule announced in the cases heretofore mentioned.

Affirmed.

McFaddiN, J., dissents.

Ed. F. McFaddiN, Associate Justice,

dissenting. I think the time has come when this Court should declare that by January 1, 1900, it was generally considered and understood that oil was a mineral. Such conclusion prompts the dissent.

Because of our decisions in the Strohacker case and others since then, as herein mentioned, there has been left open the question as to when oil (i.e. petroleum) came to be generally considered in Arkansas as a mineral. Oil may be of three kinds: animal, vegetable, or mineral. Webster’s Dictionary so states concerning “oil.” The kind of oil we are considering in this case is mineral oil; and the other word for mineral oil is petroleum, which itself comes from two Latin words — petra, meaning rock; and oleum, moaning oil — so petroleum means rock oil. The question is this: in 1900 was petroleum generally considered in Arkansas to be a mineral? I say it was.

Certainly, petroleum was considered a mineral (a) by the man who made the deed here involved; and (b) by the oil fraternity generally; and (c) by the world at large as a matter of general information. I will demonstrate:

(a) The deed here in question was dated November 6,1900, from B. H. Stegall to M. F. Goodwin; and immediately following the description of the land in the granting-clause, there was this language: ‘. . . except the mineral interest in said lands. . . .” The evidence shows that Mr. Stegall, the grantor, lived in Union County and understood that oil was a mineral. He discussed with many people the possibility of oil and gas within the area of his land and told them that some day oil would be produced in Union County; and these conversations were before 1900. 'When he sold the lands here involved to Mr. Goodwin on November 6, 1900, Mr. Stegall told the grantee that he wanted to reserve all of the oil. The grantee agreed and stated that all he wanted was the surface rights. Mr. Stegall spent several days looking for someone who knew how to make a mineral reservation; and the person drawing the deed used the language, “except the mineral interest in said lands.” Of course, the test is not what was in the mind of the grantor, but what was the general understanding of the words; so my first point is that the grantor, living in Union County in 1900, understood that oil was a mineral.

(b) The next point is that prior to 1900 the oil fraternity generally understood that oil (i.e. petroleum) was a mineral. The record here before us shows that as early as 1887 and 1888 there were reported traces of oil in wells drilled in Sebastian County, Arkansas ; that oil had been discovered in Louisiana before 1900; and that gas had been discovered in East Texas as early as 1868. The record shows that in 1895 and 1896 oil had been developed in commercial quantities in the fields in Corsicana, Texas. If people in Sebastian County, Arkansas, and in North. Louisiana, and in Corsicana, Texas, considered oil as a mineral in the years mentioned, why should the oil fraternity of Union County, Arkansas, be considered to be less intelligent?

(c) Then, there is the matter of general information. Publication of the Ninth Edition of the Encyclopedia Britannica was completed in 1889; and in Yol. 18 of that edition, beginning on page 72, there is an article of several pages on the subject of petroleum, which is called “rock oil.” Likewise, in the same Ninth Edition of the Encyclopedia Britannica (publication completed in 1889) there is in Yol. 16 at pages 346 to 431, an exhaustive article on the subject of “Mineralogy,” which is the study of minerals. It is there stated on page 346: ‘ ‘ Mineral bodies occur in the three physical conditions of solid, liquid, and gas.” Then on page 430 of the same volume — in the index of minerals — petroleum is listed as Mineral No. 707; and on page 428, in discussing “petroleum,” it is again listed as a mineral. Let it be remembered that it was in 1889 that the Ninth Edition of the Encyclopedia Britannica completed its publication; and copies of this edition have been in Arkansas since before 1900. So, I make the point that by January 1,1900, petroleum was considered as a mineral by general information; and we should now so declare.

The importance of such a declaration is apparent when we consider our cases. In the Strohacker case (Mo. Pac. v. Strohacker, 202 Ark. 645, 152 S. W. 2d 557) this Court was construing a deed made in 1892 which used this language, “. . . reserving all coal and mineral deposits in and upon said lands. . . .” We held that in 1892 oil (i.e. petroleum) was not considered a mineral. This Court said:

“If the reservations had been made at a time when oil and gas production, or explorations, were general, and legal or commercial usage had assumed them to be within the term ‘minerals, ’ certainly appellant should prevail. As early as 1911 gas was referred to in this state as a mineral. Osborn v. Arkansas Territorial Oil & Gas Company, 103 Ark. 175, 146 S. W. 122. See, also, Bodcaw Lumber Com pany v. Goode, 160 Ark. 48, 254 S. W. 345, 29 A. L. R. 578, where Ruling Case Law, and Thornton on the Law Relating to Oil and Gas, are quoted. ’ ’

The Strohacker decision was rendered on May 26, 1941; and the only effect of the Strohacker decision was to say that in 1892 oil was not considered generally in Arkansas to be a mineral. The opinion did say that as of the date of its rendition, “. . . it can no longer he doubted that a reservation of minerals or of mineral rights is sufficient to identify oil and gas. . . . ” So the opinion officially recognized that by 1941 everybody knew that oil and gas were minerals. The question left open in the Stro-hacker case was when — as between 1893 and 1911 — oil and gas came to be generally recognized in Arkansas as minerals.

The next case on reservations was the Furqueron case, decided on October 7, 1946 (Mo. Pac. v. Furqueron, 210 Ark. 460, 196 S. W. 2d 588). That case involved a deed dated December 12, 1892, and used the same language as that in the Strohacker case: so, naturally, the decision in the Strohacker case carried over to the decision in the Furqueron case.

The next case on reservations was the Carson case, decided February 23, 1948 (Carson v. Mo. Pac., 212 Ark. 963, 209 S. W. 2d 97). That case involved the question of whether bauxite was embraced within the word “minerals” on August 21, 1892; so that case does not bear on the petroleum question here involved, except that the majority opinion in the Carson case construed the holding in the Strohacker case in the following language:

‘ ‘ In the Strohacker case it was shown that oil was discovered in the United States in Pennsylvania on August 29,1859; later, in 1860, in Kansas; in Colorado in 1862, in Wyoming in 1867, in California in 1875, in Indian Territory in 1891, and in Texas in 1887; and that the possibility of existence of oil in Arkansas was recognized as early as 1885. The earliest reported case, involving oil or gas in Arkansas, was decided in 1911. Under this factual situation we held in the Strohacker case that recognition of oil and gas as minerals was not sufficiently general in this part of the country in 1892 to authorize a holding that these deposits were contemplated in the reservation used in the deed of the railroad company involved in that case.”

The fourth case to which 1 refer is the Brizzolara case, decided March 14, 1949 (Brizzolara v. Powell, 214 Ark. 870, 218 S. W. 2d 728). That case involved a deed executed in 1897 containing the same worded reservation as in the Strohacker case. We remanded the Brizzolara case to the Trial Court for further development, because we wanted proof as to what was the understanding generally in this State in October, 1897, as to whether oil was a mineral. We said this in the remand:

“But the parties as well as the chancellor seem to have overlooked the poiut that the rule deals with a question of fact rather than of law. The Strohacker opinion held that in the deed there construed, executed in 1892, the same language as is now before us did not as a matter of fact express an intention to reserve oil and gas. The Furqueron case, on similar proof, ruled that this same intention prevailed as to another Iron Mountain conveyance in 1894. Here, however, the question involves the intent with which these words were used in a different deed in 1897. At the trial neither party offered proof on this point, as every one assumed that the earlier cases were decisive. The Chancellor based his decision on that assumption. Thus, the case, tried upon an erroneous theory, was not fully developed. We have discretion in determining whether an equity case should be reopened for additional proof. Nakdimen v. Atkinson Imp. Co., 149 Ark. 448, 233 S. W. 694. Here we think it best to remand so that the facts may be ascertained. ’ ’

Thus, this Court put itself on record as saying that there must be some date fixed as to when oil (i.e. petroleum) became generally considered in Arkansas to be a mineral. I think it is important that we set a date; and I think the date should be set at January 1, 1900. This case shows to me that when the deed here involved was executed in November, 1900, (a) that the man executing the deed understood it reserved minerals; (b) that the oil fraternity operating in nearby sections understood that oil was a mineral,- and (c) that the Encyclopedia Britannica listed petroleum as a mineral. The time has come when we should do away with uncertainty in this matter; and I think January 1,1900, is the date to fix.

        Mo. Pac. v. Strohacker, 202 Ark. 645, 152 S. W. 2d 557.

       See the word “petroleum” in Webster’s New International Dictionary, Second Edition, Unabridged.

       In the Arkansas Historical Quarterly, Vol. 16, p. 336 (issue for the Winter of 1957) there is a splendid article by Annie Laurie Spencer of El Dorado, Arkansas, entitled, “Arkansas’ First Oil Refinery”; and that article is well worth reading.

       In McLaughlin v. Ford, 168 Ark. 1108, 273 S. W. 707 (decided June 8, 1925), this Court (in a statement not essential to the holding) said: “The discovery of oil and gas and other minerals. . . .”


author: Sam RobiNsoN, Associate Justice.

text:
    Tucker v. Leonard.
    5-1445
    311 S. W. 2d 167
    Opinion delivered February 3, 1958.

      Vol T. Lindsey, for appellant.

      Chester P. Leonard and Little and Enfield, for ap-pellee.
   Sam RobiNsoN, Associate Justice.

This is an appeal from an order of the chancery court sustaining a demurrer to the complaint. Appellants alleged in the complaint filed in chancery court that a fraud had been practiced upon the probate court in obtaining an order to sell certain property. We do not reach the question of whether the allegation of fraud is well pleaded.

Courts of equity have jurisdiction to grant relief from judgments and orders fraudulently obtained in probate courts. Levinson v. Treadway, 190 Ark. 201, 78 S. W. 2d 59; Manning v. Manning, 206 Ark. 425, 175 S. W. 2d 982. But there must be no remedy at law. The court said, in Corney v. Corney, 108 Ark. 415, 159 S. W. 20, “In the absence of a statute giving a complete remedy at law, a court of equity is the appropriate forum for granting-relief against fraud in the procurement of judgments.” And in West v. Waddill, 33 Ark. 575, “But when fraud is shown, or such a state of facts or circumstances presented as shows an irreparable injury impending, against which a prohate court is powerless to grcmt relief, the courts of equity may interpose.” (Emphasis supplied) The Complaint does not allege there is no remedy at law.

Ark. Stat. § 62-1508, provides that an administrator’s account when confirmed shall never thereafter be subject to investigation except on an allegation of fraud in the chancery court. Se Beckett v. Whittington, 92 Ark. 230, 122 S. W. 633. But the complaint in the case at bar does not allege a final account has been made or confirmed.

Ark. Stat. § 29-506, provides: “The court in which a judgment or final order has been rendered or made, shall have power, after the expiration of the term, to vacate or modify such judgment or order, * * * (Fourth) For fraud practiced by the successful party in the obtaining of the judgment or order.” This provision of the statute applies to probate courts as well as other courts. Bright v. Johnson, 202 Ark. 751, 152 S. W. 2d 540. Hence, it appears that appellants have a eóürplete remedy at law to correct the alleged fraud.

Appellants further contend that upon a finding that jurisdiction was not vested in the chancery court, the chancellor should have transferred the matter to the probate court, but the record does not show that the chancellor was requested to take such action.

Affirmed.


author: Sam RobiNson, Associate Justice.

text:
    Equitable Life Assurance Society of the U. S. v. Gordy.
    5-1452
    309 S. W. 2d 330
    Opinion delivered February 3, 1958.

      Rose, Meeh, House, Barron & Nash, and Phillip Carroll, for appellant.

      H. B. Stubblefield, for appellée.
   Sam RobiNson, Associate Justice.

The issues here are whether the trial court erred in allowing an attorney’s fee and 12 per cent penalty, as provided by statute-(Ark. Stat. § 66-514) where the plaintiff recovered on the disability feature of three policies of insurance, and whether the attorney’s fee allowed is excessive.

During the years 1916 and 1917, the appellant insurance company issued to appellee, Victory G. Gordy, three policies of insurance, each providing, among other things, $100 per year disability benefits to the insured in the event he became totally and permanently disabled under the terms of the policies while less than 60 years of age. In 1949 Gordy became totally and permanently disabled.

In February 1956, the insurance company had not paid anything by reason of the permanent and total disability of the insured. On February 17th of that year, the insured’s attorney offered to settle with the insurance company for five years’ benefits immediately preceding that date. This offer was made in view of the five year statute of limitation. The offer to accept payment for the five year period of disability was not agreed to by the insurance company, and Gordy filed suit, but instead of limiting his claim to the five year period, he asked for six years’ disability. Two suits were filed. The first involved two policies; the second involved one policy. The company answered in both cases, and in addition to a general denial the insurance company pleaded as a defense the failure on the part of the insured to give proper notice of his disability, and pleaded the five year statute of limitation (Ark. Stat. § 37-209).

The first suit, involving two of the policies, was filed by the plaintiff on April 3, 1956; the second suit was filed in November, 1956. Subsequent to the time the answers were filed in which the five year statute of limitation was pleaded, the plaintiff amended his complaints to ask only for the sum due during the five year period not barred by the statute. Later, on January 17, 1957, a pre-trial conference was held and the two cases were consolidated for trial. On February 8th, the defendant filed amended answers, in which it offered to confess judgment and made tender of the disability benefits accruing during the five year period not barred by the statute of limitation. In other words, the amount tendered was the amount plaintiff asked for in the amended complaints. The trial court entered judgment for that amount and assessed a $750 attorney’s fee for both cases and 12 per cent penalty on the amount recovered on the policies.

On appeal the appellant contends that in the circumstances it is not liable for the attorney’s fee and penalty. Appellant argues that because of the five year statute of limitations it was not liable for the amount sought by plaintiff in the original complaint, that the plaintiff did not recover the amount sought in the original complaint, and that there is no liability on the part of the insurance company for the statutory attorney’s fee and penalty. In support of its theory, appellant cites several Arkansas cases. But these cases do not support appellant on the identical point involved here:

National Fire Ins. Co. v. Kight, 185 Ark. 386, 47 S. W. 2d 576. In that case the plaintiff had demanded $2,800 during the negotiations for a settlement, but filed suit for only $2,675. The insurance company promptly confessed judgment for that amount. It does not appear that the insurance company ever had an opportunity to settle for an amount as small as that asked in the complaint.

Broadaway v. The Home Ins. Co., 203 Ark. 126, 127, 155 S. W. 2d 889. This case presented the same situation as the National Fire Insurance Company case. Prior to filing suit, plaintiff had demanded $850, hut sued for only $750, which the insurance company promptly paid. The court said: “This was $100 less than the appellant had ever offered to settle for, * # V’

Great Southern Fire Ins. Co. v. Burns & Billington, 118 Ark. 22, 175 S. W. 1161. In this case the plaintiff amended the complaint to ask for a lesser amount. The defendant insurance company made no offer to pay the lesser amount, hut proceeded with the trial, and there was a jury verdict for the amount asked for in the amended complaint. The insurance company contended that because the original complaint asked for a larger sum, no attorney’s fee and penalty should he allowed. This contention was rejected, the Court pointing out that the company made no offer to pay the lesser amount, hut continued to deny liability, and in these circumstances it was proper to allow the attorney’s fee and penalty. By way of dictum the Court said that the insurance company could have avoided the attorney’s fee and penalty by offering to confess judgment for the amount sued for in the amended complaint, hut that issue was not before the Court, as the insurance company had not offered to pay the amount sued for in the amended complaint.

Appellant here also relies on the cases of Colorado Life Co. v. Polk, 191 Ark. 151, 83 S. W. 2d 534; Life & Casualty Co. v. Sanders, 173 Ark. 362, 292 S. W. 657; and DeSoto Life Ins. Co. v. Jeffett, 210 Ark. 371, 196 S. W. 2d 243; but there is no showing in any of these cases that the insurance company could have settled for a smaller amount than sued for in the original complaint.

In the case at bar, it was recognized by the policyholder’s attorney that a portion of the benefits provided for by the terms of the policy could be barred by a plea on the part of the insurance company of the five year statute of limitation. There was never any doubt about that plea being available to the insurance company if they desired to assert it. Therefore, in the negotiations for a settlement before any suit was ever filed, the policyholder’s attorney offered to accept the benefits accruing under the provision's of the policy during the five year period immediately preceding the time suit would be filed. But the insurance company refused to accept the offer to settle for the five year period, and therefore the policyholder was compelled to file suit. In the suit the insured asked for the full amount provided by the policy. Of course, it would be reasonable to expect that the insurance company would plead the statute of limitation as to that portion of the claim accruing more than five years last past, but the policyholder’s attorney had no way of knowing for sure that the insurance company would take advantage of the statute. The defendant could have waived the five year period of limitation if it had desired to do so, but when the insurance company filed its answers and did plead the statute- of limitation as to that portion accruing more than five years before suit was filed, the insured promptly amended his complaint to ask for the benefits accruing only within the five year period. Even then, the insurance company did not offer to confess judgment, but a pre-trial conference was held and the trial was set for a later date, but before the trial date arrived the insurance company did confess judgment for the amount asked in the amended complaint. The insurance company was in no way prejudiced by the amount sued for in the original complaint. In the negotiations for a settlement the insured had offered to take less — he had offered to take only the amount accruing during the five year period not barred by the statute — but the claim was not paid. If he had asked for the same relief in his original complaint as he did in the amended complaint, the insurance company would have had to pay the attorney’s fee and penalty. ■

Ark. Stat. § 66-514 provides:

“In all cases where loss occurs and the * * * company * * * liable therefor shall fail to pay the same within the time specified in the policy, after demand made therefor, such person, firm, corporation and/or association shall be liable to pay the holder of such policy, in addition to the amount of such loss, twelve (12) per cent damages upon the amount of such loss, together with all reasonable attorneys’ fees for the prosecution and collection of said loss; * * *”

And we have held that the attorney’s fee and penalty attaches if the insured is required to file suit, even though judgment is confessed before trial. Globe & Rutgers Fire Ins. Co. v. Batton, 178 Ark. 378, 10 S. W. 2d 859; Commercial Union Assurance Co. v. Leftwich, 191 Ark. 656, 87 S. W. 2d 55. A good faith denial of liability is no defense to the claim for attorney’s fee and penalty. Life & Casualty Ins. Co. of Tenn. v. Wiggins, 224 Ark. 377, 273 S. W. 2d 405.

Appellant complains that the $750 attorney’s fee allowed by the trial court is excessive, and on cross-appeal appellee says the amount allowed is not enough and that an additional amount should be allowed for the appeal. Evidence was introduced on the point, and the trial court took into consideration that by establishing the liability of the insurance company in recovering $1,-700 for past due benefits, future payments would be made on the policy, bnt no donbt the court also took into consideration the fact that it was not necessary to go through with the trial, and plaintiff’s attorney was thereby relieved from the time and effort of a trial and also the hazard of the outcome of a trial. When everything is considered, we believe the attorney’s fee allowed by the trial court is reasonable for both sides, and in the circumstances it was enough to also take care of the appeal.

Affirmed.

G-eorge Rose Smith, J., not participating.


author: CarletoN Harris, Chief Justice.

text:
    Hardy v. Raines.
    5-1397
    310 S. W. 2d 494
    Opinion delivered February 10, 1958.
    [Rehearing denied March 24, 1958]

      Quinn Glover, Langston & Walker, Wayne Foster, for appellant.

      Howell, Price & Worsham and Max Howell, for ap-pellee.
   CarletoN Harris, Chief Justice.

Appellee, E. E. Raines, Jr., instituted suit against Robert L. Hardy, appellant herein, alleging that Hardy alienated the affections of Mary H. Raines, wife of appellee, and asking actual damages in the sum of $200,000, and punitive damages in the sum of $50,000. Upon trial of the case, the jury returned a verdict for $65,000. Prom such judgment comes this appeal.

Appellant relies upon five points for reversal, it first being contended that the cou^t erred in overruling appellant’s motion for a directed verdict at the close of appellee’s case. The law applicable to the matter is expressed in the case of Roach v. Scott, 157 Ark. 152, 247 S. W. 1037, wherein Justice Wood cited several cases from other jurisdictions and quoted from Elliott on Evidence as follows:

“To entitle the plaintiff to recover, in an action for alienating affections, the burden of proof is upon the plaintiff, and the plaintiff must show that there was a direct interference upon the part of the defendant, that not only was there infatuation of the husband or wife for the defendant, hut that the defendant, by wrongful act, was the cause of it. The plaintiff must show a wrongful attempt on the part of the defendant to alienate.-the affections of plaintiff’s husband or wife. The burden is also upon the plaintiff to. show that the attempts were successful and without the consent of the plaintiff.”

Appellant’s counsel contend that the acts of Hardy did not meet the above definition. It is argued that Hardy was the “pursued” rather than the “pursuer.” No point would be served in detailing the evidence, though we agree that many acts unfolded by the testimony substantiate, to some degree, appellant’s assertion; still, we are only concerned with whether there was sufficient evidence to send this case to the jury, or stated differently, whether there was substantial evidence to support the verdict, and in determining this question, we are required to examine the evidence in the light most favorable to ap-pellee. Vaughan Hardware Co. v. McAdoo, 196 Ark. 471, 118 S. W. 2d 280. According to appellee’s evidence, Hardy was frequently at appellee’s home, during his absence, with Raines’ wife . . . sometimes alone . . . sometimes with other persons . . . when Raines would walk into the room, the conversation between Hardy and Mary Raines would cease . . . they met over at the stables . . . began going on horseback rides together ... at least twice alone, and once at three o’clock in the morning ... on occasions at night spots they constantly danced together . . . Hardy called her by affectionate names, such as “Pre-sctis ’ ’ and ‘ ‘ Cupcake. ’ ’ According to Raines ’ testimony, at a party at Lake Hamilton, Hardy “put his arm around her several times and embraced her, taught her how to drive his boat *' * He further testified they were always together on this trip. -Applying the rule in Vaughan, supra, we find no error.

It is next urged that the court erred in permitting evidence of facts and circumstances subsequent to the divorce to go to the jury over the objections and exceptions of appellant, and in giving the following instruction:

“You are instructed that no testimony as to the relationship, if any, existing between the defendant and the former wife of the plaintiff subsequent to November 1, 1955, the date on which the plaintiff and his former wife were divorced, is to be considered by you as acts contributing to the alienation of the affections of the wife of tie plaintiff.
The testimony of the conduct and relationship, if any, between the defendant and Mary Raines subsequent to November 1, 1955, is admitted only for the purpose of aiding you in determining whether or not there were willful and wrongful relations by the defendant with the former wife of the plaintiff during any of the associations you may find the defendant had with her, prior to her divorce from the plaintiff. You may also consider such evidence, if any, for the purpose of determining the state of their feelings, if any, toward each other prior to said separation and divorce, insofar as same might be explanatory of whether or not the defendant’s conscious conduct caused the separation and alienation of her affections, if any.”

Appellant concedes that, by the weight of authority, evidence of the association and behavior of a plaintiff’s wife and a defendant, after a divorce obtained by the wife, is admissible as showing a continuous line of conduct, Paulson v. Scott, 260 Wis. 141, 50 N. W. 2d 376, 31 A. L. R. 2d 706, but contends that this rule is only ini tended in those cases in which there is conduct requiring explanation. Suffice it to say, that we are of the opinion some of the acts heretofore mentioned might well require an explanation, and the jury was entitled 'to consider evidence of actions by the parties subsequent to the divorce to aid in determining their relationship prior to the divorce. The proof showed a number of contacts between Hardy and Mrs. Raines following her divorce from appellee. The evidence reflects that Hardy saw Mrs. Raines at hotels in Peoria, Illinois, Washington, D. C., and Memphis, Tennessee . . . numerous long distance telephone calls from appellant . . . several chartered airline flights by Hardy between Little Rock and Memphis while Mrs. Raines was there . . .■ the use of Hardy’s airline credit card by Mrs. Raines on a trip from Washington to Memphis under the assumed name of Mary Marshall, and various other incidents. The above instruction properly instructed the jury as to the law.

It is next contended that the court erred in refusing to admit the certified and authenticated copy of the pleadings filed in the divorce action of Raines v. Raines. Mrs. Raines filed suit for divorce against Mr. Raines in July, 1955. Raines filed his answer, and subsequently moved that W. L. Hutson, father of Mrs. Raines, be made a third party defendant in the action. On September 13th, Raines filed a cross complaint against his wife and Hutson. During cross examination of Raines in the instant trial, he was asked if he had not alleged in his cross complaint that his wife “had merely used him and did not love him.” Counsel for appellee objected to the question, stating, “That was another lawsuit, and I dictated those pleadings. I filed those pleadings on behalf of Mr. Raines, and the matter is strictly collateral and has no materiality to this lawsuit.” The court sustained the objection.

Raines was also asked on cross examination, if he had not, in his cross complaint, accused his father-in-law, W. L. Hutson, of alienating the affections of his daughter from Raines; this he denied. Under some circumstances, pleadings in former litigation are admissible. For instance, in Kirkpatrick v. American Railway Express Co., 177 Ark. 334, 6 S. W. 2d 524, a complaint filed by the same plaintiff in a former case against a different defendant was admitted which contradicted some of the allegations of the complaint in the case being tried. The admission of this evidence was assigned as error. This court, however, in upholding the admissibility, said:

“Appellant admitted that the filing of the complaint was authorized by him, and was based upon information furnished by him to the attorney who prepared it.”

In Taylor v. Evans, 102 Ark. 640, 145 S. W. 564, plaintiff filéd an original complaint and subsequently amended the complaint, making contradictory allegations. Counsel for defendants attempted to read the original complaint into evidence. The court refused to permit this to be done, and this was assigned as error. On appeal, this Court said:

“The evidence being competent only for the purpose of showing an admission, or as establishing a contradictory statement of the plaintiff, it is not admissible, where it does not appear that the plaintiff knew of the allegations of the original complaint, or at least where it affirmatively appears that he was not aware of the contents of the complaint. It would be without probative force, either as an admission or as a contradictory statement, unless it was shown that the plaintiff was aware of the contents of the paper. * *

Of similar import is Griffin Grocer Co. v. Thaxton, 178 Ark. 736, 11 S. W. 2d 473. In Mo. Pac. Railroad Co., Thompson, Trustee v. Zolliecoffer, 209 Ark. 559, 191 S. W. 2d 587, the appellant assigned as error, the refusal of the trial court to admit in evidence a certified copy of a complaint filed by the plaintiff in another circuit court against a third party defendant some years earlier. Appellant was attempting to show that some of the injuries complained of in the case under trial had actually been received in the earlier mishap. In upholding the refusal of the trial court to admit such evidence,. this Court said:

“In the suit at bar, Zolliecoffer was interrogated respecting his former allegations, his injuries, and their duration. He had neither signed nor verified the complaint; and he testified that the specific allegations were entirely those of his attorneys * *

Likewise, in the cause before us, Raines neither signed nor verified the complaint, and apparently was not too familiar with its contents. This is best shown by an answer made during cross examination. From the testimony :

“Q. As a matter of fact, you made the statement also that it was your father-in-law that alienated your wife’s affections from you, haven’t you, Mr. Raines?
A. No, I didn’t make that statement.
Q. You didn’t make that statement? Did you ever hear your lawyer make that statement for you while you were present?
A. I know it is written there, hut I didn’t make the statement.”

A careful reading of the cross complaint shows that no such allegation was made, and Raines apparently confused the purported allegation with an allegation that actually had been made (that Hutson had schemed to obtain appellee’s property). At any rate, we think appellant’s counsel, through both cross examination of Raines and direct examination of Hutson, made it obvious to the jury appellant was contending that appel-lee had, in the divorce case, asserted that Hutson was the person who had alienated Mrs. Raines’ affections from her husband. Raines apparently was confused as to just what had been alleged, and we actually are of the opinion that his answers, elicited on the cross examination, and the answers given by Hutson during his examination, made a stronger impression in behalf of appellant than would have been made by the pleadings, since, as stated, the .cross complaint of appellee contained .no such allegation.

It is next contended that the court erred in permitting evidence of appellant’s financial condition to go to the jury over the objections and exceptions of appellant. The evidence, which was brought out on cross examination, reflected that Hardy is the owner of several thousand shares of well known corporate stocks, lands, and other assets, sufficient to support a mortgage of $850,000. As stated in 27 American Jurisprudence, page 167, Section 565:

“Evidence of the financial condition of the defendant, of how much or how little wealth he has, generally is not admissible in an alienation of affections suit, or in an action for criminal conversation, as affecting compensatory damages to be awarded. Evidence is admissible, however, to show that the defendant used his or her wealth as an aid in seducing or alienating the affections of the plaintiff’s spouse. * * * Where exemplary or punitive damages are recoverable, evidence of the wealth or financial condition of the defendant is admissible, and is a proper element for the jury to consider in finding such damages, for it is obvious that what would be of no consequence to a rich man might be ruinous to a poor man, * *

Appellant asserts there is not “one shred of evidence” that Hardy used his wealth as a means of alienating the affections of Mary Raines. Though we should agree, it would be of no help to appellant in the present instance. The complaint sought punitive damages. Hardy, as previously mentioned, was asked several questions on cross examination relating to his financial condition. The court advised appellee’s attorney that such questions were not responsive to the interrogation on direct examination, and that counsel would have to make Hardy his witness for the purpose of showing financial holdings. The attorney for appellant then stated: “I don’t think any of his cross examination has been responsive to the direct examination, however, I want the jury to know all the facts as far as they can bring them out. For that reason, I have not objected.” Counsel for ap-pellee then agreed to make Hardy his witness for that particular line of questioning, and proceeded to further interrogate him. After several more questions, appellant’s attorney again objected with the statement: “I don’t see what the amount of money or lack of money has to do with the alienation of affections suit, and I move that this testimony be excluded.” This motion was denied. The questions did relate to the charge of alienation of affections because punitive damages were sought in the complaint, andprior evidence warranted the interrogation relative to appellant’s financial resources. It was therefore proper that the evidence be admitted. Sometime thereafter, the testimouy was concluded, and appellee requested an instruction (Plaintiff’s Requested Instruction No. 15) advising the jury: * * if you find for the plaintiff in compensatory damages and you further find from a preponderance of the evidence that the defendant, Robert L. Hardy, wilfully, maliciously, and intentionally alienated the affections of the plaintiff’s wife, then you may assess punitive damages against the defendant. In this connection, you are told that punitive damages are defined as damages assessed by way of punishment to the wrongdoer or as an example to others; and may not be assessed in any event, however, except after compensatory damages have been assessed against the defendant.”

The court, apparently feeling that the instruction was not justified under the proof, refused to grant same, and the issue of punitive damages did not go to the jury. Appellant contends that this testimony was prejudicial to his case for he says that while such proof was only admissible as relating to punitive damages, that issue was not submitted; yet, the evidence was admitted, and the court refused to grant same, and the issue of punitive damages did not go to the jury. Appellant contends that this testimony was prejudicial to his case for he says that while such proof was only admissible as relating to punitive damages, that issue was not submitted; yet, the evidence was admitted, and the jury had the benefit of testimony concerning Hardy’s wealth in fixing the amount of compensatory damages. Appellant’s argument is sound'— except — that he did not request an instruction directing the jury to disregard such evidence in reaching their verdict. In the Texas case of J. R. Radford Grocer Co. v. Hothan, Tex. Civ. App., 42 S. W. 2d 119, the Court said:

“The evidence referred to in the nineteenth proposition was properly admissible under the plaintiff’s pleadings upon the issue of exemplary damages. As heretofore pointed out, this issue was not submitted to the jury, but that did not affect the admissibility of evidence upon the issue. When the court determined not to submit the issue of exemplary damages, appellant should have asked an instruction to the jury to disregard the evidence which had been previously admitted upon the issue.”

Other cases denote a similar holding. We accordingly find the contention to be without merit.

Finally, it is urged that the judgment for $65,000 is “plainly and outrageously excessive.” We know of no rule or yardstick to use in this type of case. It is true that this is apparently the largest judgment that has ever been awarded in this state in this type of action, but that, within itself, is certainly no reason to consider it excessive. How can one judge, in a monetary sense, the value of a wife’s love and companionship? For that matter, a wife, children, and congenial home life mean more to some men than to others. We are confident that the man who is happily married would not sell that happiness, or the love and affection of his wife for $65,000. As was stated by this Court in Hammond v. Peden, 224 Ark. 1053, 278 S. W. 2d 96:

“Finally it is insisted by appellant that the verdict is excessive, but his brief points out no reason, testimony or circumstances to support this contention except to assert that in a majority of similar cases heretofore considered by this court the judgments were less than the judgment in this case. Since, as we have concluded above, the evidence was sufficient to sustain a judgment in some amount in favor of the appellee, we know of no established rule by which to weigh in dollars and cents the value to appellee of the loss of. the - companionship, love and affection of his wife and children. This was a matter for the jury to pass upon after listening’ to all of the testimony and the instructions of the court.”

Finding no reversible error, the judgment is affirmed.

       From the testimony: “Q. Well, what else happened on that trip? A. Well, they were always together out there. Mary chased Bob and Bob chased Mary all over the place.”

       The parties were divorced on November 1, 1955.

       At the Town Park Motor Hotel and Peabody Hotel, she was registered as Mrs. M. Marshall.

       Raines was then asked: “Q. Did you ever make a statement. Mr. Raines, that your wife had merely used you and didn’t love you? A. I might have after she ejected me from the house out there.”

       Emphasis supplied.


author: J. SeaborN Holt, Associate Justice.

text:
    Thomas v. Barnett. Thomas v. Barnett.
    5-1384
    5-1488
    310 S. W. 2d 248
    Opinion delivered February 10, 1958.
    [Rehearing denied March 17, 1958]
    Opinion delivered February 10, 1958.

      Coleman, Gantt & Ramsay, for appellant.

      Wiley A. Branton, for appellee.

      Coleman, Gantt & Ramsay, for appellant.

      Wiley A. Branton, for appellee.
   J. SeaborN Holt, Associate Justice.

These two companion cases have been consolidated for hearing before this court.

Case No. 1384

Robert Thomas, a Negro about 80 years of age, died in Jefferson County in May 1956. Walter Thomas claiming to be a cousin and sole heir at law of the deceased, caused an administrator of his estate to be appointed. Pour days later Costella Thomas Barnett (ap-pellee) filed her petition in objection to the appointment of the administrator and sought determination of heir-ship to Robert Thomas’ estate under provisions of Sec. 62-2914, Ark. Stats. 1947, alleging that she was the daughter and sole heir at law of the deceased, Robert Thomas. Appellant, Walter H. Thomas (and the administrator) filed separate responses in which they denied that appel-lee was a daughter of the decedent and appellant prayed that he be declared decedent’s sole heir.

Upon a trial the court, on December 4, 1956, found and adjudged that Costella Barnett, appellee, was the legitimate daughter and sole heir of Robert Thomas and entitled to the distribution of his estate as the sole heir at law, and further found that-Walter H. Thomas, appellant, has failed to establish that he was an heir. This appeal followed.

The testimony disclosed that appellee was born July 30, 1915 to Mahalia Turrentine, while Mahalia was married to and living with Ralph Turrentine. The presumption, therefore, is, although a rebuttable one, that Cos-tella was a legitimate child of Ralph Turrentine. She claimed, however, that she was the illegitimate child of Robert Thomas. Turrentine filed suit for a divorce from appellee’s mother, some few days before appel-lee’s birth, in which he alleged that he was past 70 years of age and his wife about 28, that she had deserted him and was pregnant by another man and that he had had nothing to do with her for twelve months prior thereto. A divorce was granted to Turrentine August 28, 1915, after appellee’s birth, and on March 6, 1917 appellee’s mother married decedent, Robert Thomas.

In further support of appellee’s claim of illegitimacy, over the objection of appellant, she offered the deposition of her mother, in which her mother stated that she married Turrentine September 14, 1911 and that he divorced her in August 1915; that she married Robert Thomas, the decedent, March 4, 1917 and that one child was born to her by Robert Thomas, Costella Thomas, the appellee. That the child was born to her before she married Robert Thomas and while she was still married to Turrentine and that Costella was one year and seven months old when she married Robert Thomas and that he always acknowledged the child to be his; that Cos-tella lived in the house of Robert Thomas until she married at the age of 18 and that she always went under the name of Thomas. She further testified that Robert Thomas acknowledged that Costella was his child at the time of her birth and took care of her. Appellant contends that appellee was born while her mother was married to Ralph Turrentine, and, therefore, the presumption would be that appellee was the legitimate daughter of Ralph Turrentine. In order to overcome this presumption appellee relied strongly upon the allegations in Turrentine’s cause for a divorce in 1915 and the above testimony of appellee’s mother, Mahalia. At the outset appellee was under the heavy burden of overcoming a presumption of legitimacy, one of the strongest known to the law, that a child born in wedlock is legitimate and this presumption continues until overcome by the clearest evidence that the husband was impotent or without access to his wife.. We have adhered to this rule throughout our decisions. As indicated, it is undisputed that appellee here was born while her mother was married to and living with Ralph Turrentine.

“There is a well recognized presumption that children horn to a couple lawfully married are the children of the husband. We have held that this is one of the strongest presumptions known to the law and that it continues until overcome by the clearest evidence that the husband was impotent or without access to his wife,” West v. King, 222 Ark. 809, 262 S. W. 2d 897. There is no showing that Turrentine was impotent. “Generally, neither husband nor wife is permitted to bastardize a child born in lawful wedlock by testifying to their own nonaccess with one another,” 97 C. J. S. Sec. 90, p. 487 and in a footnote on page 488, 97 C. J. S. “No rule of evidence is better settled than that husband and wife are alike incompetent witnesses to prove the fact of non-access while they lived together.” Without this testimony of appellee’s mother, we hold that appellee has fallen far short of showing nonaccess of her mother to Turrentine, her mother’s husband at that time. This testimony of appellee’s mother was incompetent, in so far as it might tend to show nonaccess to her husband Turrentine.

“In the absence of a statute in express words making the mother competent to testify to the nonaccess of her husband, we hold that she can not do so,” Kennedy v. State, 117 Ark. 113, 173 S. W. 842. It does not appear that we have any such statute in Arkansas. “This court is committed to the so-called Lord Mansfield rule to the effect that a husband or wife is incompetent to testify as to the husband’s nonaccess in affiliation proceedings where such testimony would tend to prove a child conceived after marriage to be illegitimate. Even in bastardy proceedings where the statute (Ark. Stats. Sec. 34-712) makes the mother a competent witness, this court lias consistently applied the rule and excluded such evidence on the grounds of decency, morality, and public policy. In Liles v. State, ex rel. Johnson, 117 Ark. 408, 174 S. W. 1196, the mother was permitted to testify that she had not cohabited with her husband for more than four years at the time the defendant had sexual intercourse with her. This court held such testimony inadmissible and so prejudicial as to call for a reversal of the case. See, also Kennedy v. State, 117 Ark. 113, 173 S. W. 842, L. R. A. 1916B, 1052; Scott v. State, 173 Ark. 625, 292 S. W. 979. We reaffirmed the rule in the recent case of Shatford v. Shatford, 214 Ark. 612, 217 S. W. 2d 917.” Reed v. State, 222 Ark. 119, 120, 257 S. W. 2d 362, 38 A. L. R. 2d 567.

There was other evidence that decedent recognized appellee as his daughter, and evidence to the contrary, however, after examining it all, we think the great preponderance, if not all, fails to show nonaccess of Tur-rentine to his wife, Mahalia.

As to the appellant’s claim that he was the sole heir, as the cousin of decedent, we hold that the finding of the trial court against him, was not against the preponderance of the evidence. It appears that appellant first met the decedent in 1951 or 1952, and except what he claims decedent told him he produced no other evidence that he was decedent’s cousin, and heir.

Reversed.

Case No. 1488

Following the judgment (December 4, 1956) in Case No. 1384 above,' appellant on February 20, 1957, filed this second suit which is a companion suit and between the same parties and involving the same estate. He sought in his petition to have a certain written instrument, dated December 28, 1951, admitted -to probate as the last will of Robert T. Thomas. Appellee, Costella Barnett, contested the petition on two grounds; (1) first, that it was a forgery and second, (2) that appellant’s proof was not sufficient to sustain,' or prove, the alleged will as that of decedent under the provisions of Sec. 62-2117 and 62-2118 Ark. Stats. (1957 Snpp.). The trial court held that “the proponents of said will have failed to establish that the proffered instrument is the last will and testament of Robert T. Thomas, deceased” and denied its admission to probate, and we think correctly so.

The record shows that shortly after the judgment in case No. 1384 on the issue of heirship, a letter from J. W. Williams, dated December 11, 1956, mailed in North Little Rock, and addressed to “Mr. Robert Thomas and W. W. West, Wabbaseka, Arkansas,” was received and opened by Jesse Bogy, operator of W. W. West Company, and was found to contain an alleged will of decedent. The will, dated December 28, 1951, was signed “R. T. Thomas”, and attested by “John McCoy” and “J. W. Williams”. Attesting witness, John McCoy died before the death of Robert Thomas and appellant was not able to find and produce the other attesting witness, Williams.

Appellant, .therefore, attempted to establish the alleged will in the manner provided in subdivision (2) of Sec. 62-2117 above. After some unsuccessful effort to locate Williams, appellant offered the testimony of Wesley L. Withers and Levi McCoy (the son of John McCoy) who testified that John McCoy was dead and that they were present in John McCoy’s store and saw Thomas sign the will and Williams and McCoy sign as witnesses. This testimony was contradicted by other witnesses and when analyzed is not convincing. On the question of the genuineness of the signature of the testator (R. T. Thomas) on the alleged will, we are convinced that the evidence shows it was a forgery, and we must affirm for this reason. While the testimony on this issue was in conflict, we find in the record enlarged photographs of the admitted signature of the decedent on a number of exhibits, and the signature on the alleged will and it is apparent- to us that the signature on the alleged will is not the genuine signature of R. T. Thomas, but in fact a forgery, —- and accordingly we affirm this case (No. 1488).

To sum up, tlie judgment in Case No. 1384, as indicated, is reversed and remanded for further proceedings to determine heirship, and the judgment in No. 1488 is affirmed.

HaRkis, C. J., not participating.