text:
    Dana WILLIAMS v. ARKANSAS OAK FLOORING CO. and LIBERTY MUTUAL INSURANCE COMPANY
    CA 79-65
    590 S.W. 2d 328
    Opinion delivered November 28, 1979
    Released for publication December 19, 1979

      Brockman & Brockman, by: E. W. Brockman, Jr., for appellant.

      Coleman, Gantt, Ramsay & Cox, by: Martin G. Gilbert, for appellees.
   David Newbern, Judge.

In this workers’ compensation case, the Workers’ Compensation Commission denied compensation for the claimed temporary total disability on the basis the claimant had failed to produce substantial evidence of his disability. Over the objection of the appellees, the commission permitted the appellant to recover costs of consultation with a chiropractor from whom he has recently begun to receive treatment. The appellees cross-appeal, contending these costs should be denied the claimant. We affirm the commission’s decision.

The appellant was injured January 12, 1977, suffering a strained or sprained back while working for the appellee Arkansas Oak Flooring Co. He returned to work for the appellee January 17, 1977, and worked there until February 7, 1977, when he was discharged because of a dispute over his time card. He has held two jobs since he left the employ of the appellee. His claim is that pain from the injury was a reason for his losing at least one job. He claims temporary total disability for the following periods: February 7, 1977, through February 25, 1977; June 6, 1977, to June 26, 1977; and August 1, 1978 to the present. The commission concluded these dates were more representative of “time off between jobs . . . than recurring disability.”

The appellant’s first contention on appeal is that the commission made a “finding” that the report of a physician, Dr. Wilkins, who treated the appellant, was not in the record. Although there was some confusing language in the “conclusions” section of the commission’s decision, it is clear the commission had before it a report by Dr. Wilkins who treated the claimant, apparently at the instance of the appellees, at the time of the injury. The commission’s decision was, in fact, básed on the failure of the appellant, with one exception, to seek treatment.for the allegedly painful condition he contends to have been the cause of his disability during the one and one half years between Dr. Wilkins’ examination and one by a Dr. Bierman, who is a chiropractor. Thus, as the commission bases its decision, in part, upon a date established by Dr. Wilkins’ examination, and makes reference to Dr. Wilkins’ report in its “statement of the case,” we cannot say there was a finding the report was not before the commission. The confusion evident in the commission’s opinion is at most harmless error.

The second point raised by the appellant is that his claim should have been allowed because he proved his case. We affirm the commission if there is substantial evidence to support its action. Ryan v. NAPA, 266 Ark. 802, 586 S.W. 2d 6 (Ark. App. 1979). In cases in which the commission has denied a claim because of a failure to show entitlement by a preponderance of the evidence, this standard can be translated as follows: we will affirm if the commission’s opinion displays a substantial basis for the denial of relief.

Here, the basis of the denial was that, despite his allegations of pain causing disability, the claimant admittedly saw only one physician between January 12, 1977, and August 28, 1978, the date he consulted Dr. Bierman. The one physician he saw in addition to Dr. Wilkins was an orthopedist, Dr. Logue, who found some “strain and sprain” but made no statement with respect to disability. Neither Dr. Wilkins nor Dr. Bierman, the chiropractor, stated any finding of disability. There was a substantial basis for the commission to deny the claim.

The appellee’s cross-appeal urges the appellee be found not responsible for payment for the treatments by Dr. Bier-man. Dr. Bierman has proposed a plan of treatment for the appellant which the appellant apparently wishes to pursue. The ground urged by the appellee (cross-appellant) is the appellant’s failure to comply with Workers’ Compensation Commission Rule 21. That rule provides:

The employer and/or insurance carrier has the right and duty in the first instance to provide prompt medical care to injuried employees through physicians and hospitáis of the respondents’ choice. A claimant, subsequently, may obtain a change in treating physicians to a physician of the claimant’s choice, the costs of such treatment to be borne by the employer or the employer’s insurance carrier, provided (1) the claimant’s healing period shall not have ended; (2) the claimant is not seeking to change physicians from one of his own choice, previously selected by the claimant; (3) the physician to whom the claimant wishes to change is qualified in the particular field of medicine needed for claimant’s particular difficulties; (4) the claimant files with the Commission a petition for a change in physicians, gives the name of the physician to whom he wishes to change and asserts that the physician to whom he wishes to change is competent to treat his particular ailment; (5) rio unresolved issue exists over whether claimant is legally entitled to medical care at the expense of respondents.

We find no fault with the commission’s determination. We assume the commission was aware of and operating pursuant to its own rule. It apparently found all the conditions permitting a change of doctors. We may regard their determination as satisfying the requirement of subsection (4) of Rule 21 to the effect that the permission of the commission must be obtained. We note the commission made no order that the appellee pay the bill for Dr. Logue’s examination, and thus the disqualification of Rule 21 (2) should not apply. That subsection should apply only when the insurer or employer is paying a physician selected by the claimant who then seeks to change to another physician of his choice. Although there is some qustion whether a chiropractor qualifies as a “physician’ ’ under the Rule, that point has not been argued.

Affirmed.

Judges Howard and Penix did not participate.


source: Caselaw Access Project

author: David Newbern, Judge.

license: Public Domain

text:
    Lonnie GILBOW & J. W. EOFF v. Sandra ANDREWS
    CA 79-150
    590 S.W. 2d 673
    Opinion delivered November 28, 1979
    Released for publication December 19, 1979

      Niblock & Odom, by: Richard P. Osborne, for appellants.
    No brief for appellee.
   David Newbern, Judge.

In this replevin action the appellee sought return of her pickup truck and some clothing in the truck she alleged had been taken by the appellants. She also sought damages of $1700.00 resulting from the alleged wrongful detention of and injury to her property. A jury verdict awarded the appellee possession of the property and damages of $2500.00. The damage award was reduced to $1700.00 to conform to the prayer in the complaint, and a judgment was entered upon the verdict. The appellants’ first point for reversal is “that the evidence was insufficient to support a finding by a preponderance of the evidence that appellant had wrongfully detained the property of appellee. ’ ’

We assume the appellants realize we cannot reverse on the basis of our own determination of the preponderance of the evidence, as it was the prerogative of the jury to determine that. We will affirm if there was any substantial evidence in support of the verdict. Boyd v. Reddick, 264 Ark. 671, 573 S.W. 2d 634 (1978), and Love, et al v. H. F. Construction Co., 261 Ark. 831, 552 S.W. 2d 15 (1977).

If we assume the appellants are not asking us to determine the preponderance of the evidence, their first point must be that the evidence was not sufficient to have been allowed to go to the jury. As Rule 50 (e) of the Arkansas Rules of Civil Procedure was not in effect at the time this case was tried, we will review the matter, reluctantly, although the abstract does not show that a motion was made for directed verdict, judgment n.o.v. or new trial. Our reluctance is heightened in that appellants’ counsel does not cite one case which supports the notion that insufficiency of the evidence may be a basis of appeal or reversal in the circumstances presented here.

It is enough for us to say that the evidence in this case was in great conflict, but the appellee’s testimony thkt she had left her truck on the appellant Eoff s property only three and 1/2 hours while assisting her mother, who was one of Eoff s tenants, was clearly sufficient to controvert the evidence presented by the appellants on their primary theory of the case, which was that the appellee had abandoned her truck and clothing for some 30 days on the appellant Eoff s property. The question clearly was for the jury to decide.

As his second point, appellants’ counsel asserts that Gilbow, who was the agent of Eoff, allegedly acting upon Eoff s instruction, could not be liable in this matter because he was acting solely as the agent of Eoff. The appellants’ counsel sought and was denied an instruction to that effect.

The trial court did not err in refusing the requested instruction. The only cases cited by the appellants are to the effect that a principal is not liable where an agent exceeds his authority. It is elementary agency law that the liability of a principal for his agent’s act does not absolve the agent. Burt v. Missouri Pac. R. Co., 294 F. 911 (E.D. Ark. 1924), Sell, Law of Agency, §§ 195 and 198 (1975), and Mechem,Law of Agency, §§ 1455 and 1456 (1914).

Affirmed.

       The case was appealed to the Arkansas Supreme Court and assigned to us in accordance with Rule 29(3).


author: James H. Pilkinton, Judge.

text:
    Glen HAWTHORNE, d/b/a GLEN HAWTHORNE WHOLESALE MEAT (Reeder Meat Company) Uninsured Employer v. Gloria DAVIS, Widow of James DAVIS, Deceased Employee
    CA 79-34
    596 S.W. 2d 329
    Opinion delivered November 28, 1979
    Petition for Review granted January 7, 1980
    Affirmed by Supreme Court February 25, 1980
    Released for publication April 2, 1980

      Wood, Smith, Schnipper & White, for appellant.

      W. H. “Dub” Arnold, for appellee.
   James H. Pilkinton, Judge.

This is a.workers’ compensation case. James Davis died in a traffic accident on June 15, 1978. He left appellee as his widow, and two minor children. The Workers’ Compensation Commission allowed a claim for death benefits under the Arkansas Compensation Act. Appellant has appealed.

It is well settled that the burden is on the appellee claimant to establish the claim for compensation by a preponderance of the evidence before the Commission. Crouch Funeral Home, Inc. v. Crouch, 262 Ark. 417, 557 S.W. 2d 392 (1977). It is also well settled that this court on appeal reviews the evidence, and all reasonable inferences deducible therefrom, in the light most favorable to the findings of the Commission which, like those of ajury, will be upheld if there is any substantial evidence to support the action of the Commission. Barksdale Lumber Co. v. McAnally, 262 Ark. 379, 557 S.W. 2d 868 (1977).

Viewed in the light most favorable to the findings of the Commission, the record discloses the following facts. James Davis was employed by appellant on June 15, 1978, and was working at a slaughter house in Arkadelphia, Arkansas. This business was known locally as the Reeder Meat Company as it was previously owned by the Reeder family but was purchased by Glen Hawthorne in January of 1978. Mr. Glen Hawthorne also had a meat plant at Hot Springs, and continued to reside in Hot Springs. His son, Howard Hawthorne, who was working for Union Carbide at Hot Springs when his father purchased the plant at Arkadelphia, went to work at the Arkadelphia business. While his father at times directed things over the phone from Hot Springs, Howard Hawthorne represented his father at the Arkadelphia plant and acted for him there. On June 15, 1978, James Davis was working at the slaughter house in Arkadelphia, under the supervision of Howard Hawthorne, and they finished the day’s work at the business shortly before noon. Howard Hawthorne asked James Davis to drive him to a livestock auction barn in Glenwood, Arkansas. Hawthorne said he needed to look at some cattle to buy for the slaughter house. Glenwood is located approximately 35 miles northwest of Arkadelphia. James Davis owned a motorcycle and used it to go to work each day. Howard Hawthorne rode on the back of the motorcycle behind Davis from Arkadelphia to Glenwood. Upon arriving in Glenwood, James Davis drove directly to the livestock barn where the regular Thursday sale was in progress. Howard Hawthorne dismounted from the motorcycle and went into the auction barn. Davis drove his vehicle back onto the highway and was in the process of returning to Arkadelphia when his cycle collided with a log truck which turned left in front of him. Davis was killed on impact.

One of the witnesses, Bobby Sanders, testified that he is a practicing attorney in Arkadelphia and also the Municipal Judge; that on June 16, 1978, Gloria Davis (wife of the deceased) was in his office and Howard Hawthorne was called in to discuss the accident. At that time Mr. Sanders was making an investigation for a possible wrongful death action. Mr. Sanders testified as follows with reference to a statement that Howard Hawthorne made to him the day after the accident:

Q. Did he advise you as to what happened that particular day of June 15th, as to why he and James Davis went to Glenwood?
A. Yes. As I recall he was very desirous of helping the Davis family, he was upset about the occurrence of the day before, he was trying to tell me everything that he knew about what occurred because I was investigating it for obvious legal purposes at the time.
Q. Would you relate as he related to you on that date what caused he and James to leave Arkadelphia and go up there?
A. Well, I asked him had they been working that day out at the slaughterhouse and he told me, as I recall, that he and James Davis had been there by themselves that afternoon and that the work was somewhat slow that afternoon and he made the decision, Howard Hawthorne made the decision to close down early, he said, why don’t we just take off because I needed to go to Glenwood to look at some cattle at the sale barn. I asked him who was in charge of the plant that day or the slaughterhouse and he said he was. I remember asking him, was he James’ supervisor and he said, well, yes, he worked for me, is the words he said.

Clarence Davis and Shirley Hawthorne were present when the above statement was made; and, Gloria Davis was there a part of the time.

Although there was testimony to the contrary, the Commission found that Howard Hawthorne was the supervisor of the employee Davis and the trip of June 15, 1978, was in part for Howard Hawthorne to look at cattle at the sale barn in Glenwood for his father’s business. The Commission said:

Death has sealed the lips of James Davis and he cannot be heard on behalf of his widow and children. Respondent admits he was subject to the workers’ compensation laws of Arkansas and with knowledge had not obtained coverage until after the death of James Davis.
With nothing more, the weight of the testimony might necessarily favor the respondent; but the testimony of the only completely disinterested witness, Judge Bobby Sanders, cannot be explained; nor, is there any reason for the impeachment of the integrity of his testimony. Clarence Davis corroborated Bobby Sanders’ testimony and Gloria Davis candidly admitted she did not hear Howard’s statement to Bobby Sanders. It is incredible that neither Howard Hawthorne nor Shirley Hawthorne remembers Howard’s statement to Bobby Sanders.

I.

Appellant first argues that the Commission erred in finding,that decedent’s death arose out of and in the course of his employment, such finding not being supported by any substantial evidence. In support of this point, appellant says the authority of an agent cannot be shown by his own declarations in the absence of the party to be affected by them, citing Zullo v. Alcoatings, Inc., 237 Ark. 511, 374 S.W. 2d 188 (1964). That was not a workers’ compensation case. Further, it is a well established rule of law as to principal and agent that the nature and extent of an agent’s authority, where the evidence is in conflict, is a question for the fact finders. Bradley Advertising, Inc. v. Froug Stores, Inc., 193 Ark. 639, 101 S.W. 2d 789 (1937). The Commission found that the testimony of Gloria Davis and Clarence Davis supported the testimony of Bobby Sanders, and tended to show that Howard Hawthorne was in fact the deceased’s supervisor.

Section 27 of the Arkansas Workers’ Compensation Act, Ark. Stat. Ann. § 81-1327(a) (Repl. 1976), provides:

PROCEDURE BEFORE THE COMMISSION, (a) In making an investigation or inquiry, or conducting a hearing, the Commission shall not be bound by technical or statutory rules of evidence or by technical or formal rules of procedure, except as provided by this Act, but may make such investigations or inquiry, or conduct the hearing in a manner as will best ascertain the rights of the parties ...

100 C.J.S., Workmen’s Compensation, § 535 at page 535:

In a proceeding where compensation is sought for the death or disability of an employee, the testimony of the employer, or a person authorized to act for the employer, is generally admissible as to matters which are within the knowledge of the witness, such as the nature and scope of the employee’s employment; and where the technical rules as to the admissibility of evidence are relaxed, a statement signed by the employer may be admitted in evidence . . .
In a compensation proceeding evidence is admissible as to statements made by an employer or his representative where the statement constitutes a declaration or admission against the employer’s interest; and an admission by an employer that workmen were injured in an accident arising out of and in the course of their employment may be admissible in evidence although the claim for compensation is being contested by the employer’s insurance carrier.

We find no merit in the first point argued by the appellant.

II.

Appellant also argues that the Commission erred in finding that the widow of decedent is entitled to benefits. Appellant says there is no proof of dependency in the record as required by law. He cites Ark. Stat. Ann. § 81-1315(c) (Repl. 1976) and points out that in order for a widow to recover benefits under the act she must make some proof of dependency upon the deceased employee. That is true. However, in this case the parties stipulated below that the only fact issue to be presented was simply whether or not the circumstances surrounding the accident and death of Mr. James Davis arose out of and in the course of his employment within the meaning of the workers’ compensation laws of the State of Arkansas. The record clearly shows that all other fact questions, which might have been disputed, were stipulated and agreed to by both sides. Apart from such agreement, appellant did not raise this question below, and cannot raise it for the first time on appeal. Jeffery Stone Co. v. Raulston, 242 Ark. 13, at 17, 412 S.W. 2d 275 (1967).

III.

Appellant also argues that the Commission erred in basing its decision in favor of claimant solely on the hearsay testimony of Bobby Sanders. Thus the appellant finally zeros in on what could have been the most crucial issue in this case: Will hearsay evidence alone sustain an award under the Arkansas Workers’ Compensation Act? See 3 Larson, Workmen’s Compensation Law, §§ 79.00 — 79.42 (1952), and Davis, Administrative Law, § 14.10 at pp. 291-303 (1958). The residuum rule, discussed by Larson and Davis, requires a reviewing court to set aside an administrative finding based upon hearsay evidence unless the finding is also supported by other evidence which would be admissible in a jury trial. The residuum rule has been the subject of great controversy. Although the residuum rule actually originated in a workmen’s compensation case decided in New York in 1916, Carroll v. Knickerbocker Ice Co., 218 N.Y. 435, 113 N.E. 507 (1916), there has been no discussion of it in Arkansas workers’ compensation appeals. See Ark. Stat. Ann. § 81-1327(a) (Repl. 1976) as to declarations of deceased employee concerning injury. Also § 81-1325(b)(4) which makes “insufficient competent evidence’’ a ground for reversal. But also see Garrison Furniture Co. v. Butler, 206 Ark. 702, 177 S.W. 2d 738 (1944), Comer v. Pierce, 227 Ark. 926, 302 S.W. 2d 547 (1957), Holstein v. Quality Excelsior Coal Co., 230 Ark. 758, 324 S.W. 2d 529 (1959), Covington, Judicial Review of the Awards of the Arkansas Workmen’s Compensation Commission, 2 Ark. L. Rev. 139 (1948), and Youngdahl, Rules of Evidence in Administrative Proceedings, 15 Ark. L. Rev. 138 (1960).

Although this point gives rise to a most interesting question, we do not reach it because appellant made no objection to the hearsay evidence of Bobby Sanders and Clarence Davis when it was presented below. An objection should have been made at the time the hearsay was offered before the Commission. Clark v. Peabody Testing Service, 265 Ark. 489, at 506, 579 S.W. 2d 360 (1979). This issue cannot be raised for the first time on appeal. In dealing with a similar situation in Jeffery Stone Co. v. Raulston, supra, the Arkansas Supreme Court said:

. . . the issue was not raised before the Commission and, under our well established procedural practice, it cannot be raised here. [242 Ark. at p. 17]

As the findings of the Commission are supported by substantial evidence, the judgment of the Commission must be affirmed.

Affirmed.


author: Ernie E. Wright, Chief Judge.

text:
    Marvin GEORGE and Laverne TEAS v. Shirley Dean GEORGE et al
    CA 79-165
    591 S.W. 2d 655
    Opinion delivered December 5, 1979
    Released for publication January 9, 1980

      Guy H. Jones, Phil Stratton, Guy Jones, Jr., and Casey Jones, by: Guy H. Jones, for appellants.

      Brazil, Roberts & Courtney, for appellees.
   Ernie E. Wright, Chief Judge.

This appeal was filed in the Arkansas Supreme Court and transferred to the Court of Appeals pursuant to Rule 29 (3).

Shirley Dean George, a nominal appellee, was granted a decree of divorce in August, 1977 from Marvin George, who, along with his mother, Láveme Teas, are appellants from a decree rendered in December, 1978 cancelling a 99 year lease Marvin George had executed to Láveme Teas in August, 1976 for a recited rental consideration of $10.00 per year, plus payment of taxes.

Appellants contend the trial court erred in cancelling the lease.

The decree from which the appeal stems was pursuant to an intervention filed by Nathan E. Gentry and wife and by the trustees of the First Baptist Church of Mayflower, Arkansas, the respective purchasers of the two separate parcels of land sold at public auction as ordered in the divorce decree for the purpose of accomplishing the allocation of Mrs. George’s statutory property rights upon divorce. At the commissioner’s sale Mr. and Mrs. Gentry purchased the 10.3 acre tract of land and the trustees for the church, hereinafter referred to as “the church”, purchased the 3 2/3rds acre tract of land.

Each of the two intervenors paid the respective purchase prices in full, the court confirmed the sale and the commissioner’s deeds were issued to the respective purchasers. Mrs. George received from the clerk of the court her portion of the net proceeds awarded to her by the order of distribution dated November 22, 1977 and there was no appeal from that order.

The appellants have not accepted any of the funds arising from the sale and have refused to recognize the sale or surrender possession of the property to the purchasers. The purchasers filed interventions herein against Mr. George, made Mrs. Teas a third party defendant and sought cancellation of the lease as a cloud upon their titles.

Mr. George and his mother, Mrs. Teas, contend the lands were not subject to sale because of the 99 year lease Mr. George executed to his mother in August, 1976. The complaint of the intervenors alleged the lease was a fraudulent conveyance and a sham and should be decreed null and void.

It is true, the law does not preclude a husband from conveying in good faith, in absence of fraud, his interest in non-homestead real estate without the wife joining in the conveyance. However, where the wife does not join in the conveyance the grantee of such conveyance or lease takes title burdened with the dower interest of the wife. Box v. Dudeck, 265 Ark. 165, 578 S.W. 2d 567 (1979).

Chancery cases are tried de novo on appeal and if the decision is correct for any reason, we affirm. Apple v. Cooper, 263 Ark. 467, 565 S.W. 2d 436 (1978).

Following are some of the facts in evidence supporting the decree cancelling the lease:

(1) When Mr. George executed the 99 year lease to his mother in August, 1976, his wife did not join in the lease and had no knowledge of the transaction.

(2) The lease called for a consideration of only $10.00 per year for both tracts of land, plus pyament of taxes, and was signed by Mrs. Teas as lessee at the instance of her son.

(3) Prior to the execution of the lease in August, 1976 Mr. George had filed suit for divorce in June, 1976 and stated in the complaint there was no property to be settled. There had previously been one or more divorce actions filed by one of the parties against the other. Mrs. Teas was aware of the marital difficulties between the parties.

(4) The divorce was granted to Mrs. George pursuant to her complaint filed in May, 1977. She had no knowledge of the lease until after the court had ordered the land sold.

(5) The lease, although having a notary’s signature and seal affixed and placed of record, was not acknowledged.

(6) The 3 2/3rds acre tract which had two rent houses and a mobile home thereon was the marital homestead of the parties. One of the houses rented for $45.00 per month and the other rented for $35.00 per month. Mr. and Mrs. George resided in the mobile home.

(7) The two tracts sold for a total sum of $12,550.00 at the commissioner’s sale.

(8) Mr. George continued to look after the property and was living on the 3 2/3rds acre tract at the time of the trial of the interventions. He pays no rent to Mrs. Teas. Mrs. Teas does not reside upon either tract.

(9) Mrs. Teas in response to a question as to who has charge of the land testified, “I guess I have, if that lease is any good”. She also testified she told Mr. Harris, one of the church trustees, after the commissioner’s sale and conveyance, that all her son “had was that little bit of property and I was going to stand by him as long as I live and could stand by him”.

(10) Mr. Harris, a trustee of the church, testified that after he obtained the commissioner’s deed for the church and later learned about the lease he talked to Mrs. Teas and she told him she was keeping the land for her son, Marvin.

(11) The intervenors purchased the property at public auction for substantial considerations, without actual or constructive notice of the lease, and paid the purchase monies in full.

Under the facts and circumstances in this case the decree cancelling the lease was warranted. It is clear the purchasers did not have actual knowledge of the lease and they were also not charged with constructive notice. Ark. Stat. Ann. § 49-201 sets out the requirements of an acknowledgment of an instrument for the conveyance of an interest in land and Ark. Stat. Ann. § 49-211 requires an acknowledgment before an instrument can be admitted to record. Moore v. Ollson, 105 Ark. 241, 150 S.W. 1028 (1912) held that a mortgage that was notarized and recorded but not acknowledged was not enforceable against a subsequent grantee of the property. The court quoted with approval a prior case, holding “an unrecorded mortgage, however honestly made, is wholly invalid against. . . . subsequent purchasers, who take with full knowledge that they are defeating another’s lien and who intended to do so”.

Ark. Stat. Ann. § 68-1301 provides that a conveyance in trust to the use of the person making the conveyance is void against existing creditors and subsequent purchasers. In the case of Hardy v. Hardy, 228 Ark. 991, 311 S.W. 2d 761 (1958), the husband executed transfers of stocks and mortgaged certain personal property to his mother after his wife had filed suit for divorce. The husband’s mother was then made a party to the suit and cancellation of the transfers were sought. The court on appeal held the transfers to the mother were for the purpose of defeating the wife’s property rights and quoted with approval from the case of Oles Envelope Corporation v. Oles, 193 Md. 79, 65 Atl. 2d 899, as follows:

A conveyance made by a husband before and in anticipation of his wife’s suit for alimony, or pending such suit, or after a decree has been entered therein in the wife’s favor, to prevent her from obtaining alimony, is fraudulent and may be set aside, unless the grantee took in good faith, without notice and for value. The grantee’s knowledge of or participation in the fraud of the grantor must be gathered from the various facts composing the transactions and all the surrounding circumstances. . . .

In Renn v. Renn, 207 Ark. 147, 179 S.W. 2d 657 (1944), the husband contemplating a divorce suit by his wife permitted his land to sell for taxes. His brother bought the land from the state and the husband continued in possession. On divorce being granted the court ordered the land sold by commissioner with one-third of the proceeds to be paid to the wife. The brother holding the deed from the state sought to enjoin the commissioner’s sale. The wife countered the brother’s claim contending the forfeiture of the land for taxes and the state deed to the brother was a subterfuge and fraud to defeat her of her dower, that the brother acted as an agent for the husband in getting the state deed, and that the husband was the real owner of the land and the brother a mere trustee. The court dismissed the complaint of the brother.

In upholding the chancellor the court said equity would pierce the sham of a fraudulent conveyance even though Mrs. Renn was a subsequent creditor rather than an existing creditor. The court said:

That this whole scheme was in the contemplation of Adolph Renn when he allowed the land to forfeit for taxes, may be reasonably inferred from the testimony of G. A. Renn that the husband and wife had been having marital difficulties for ten years and divorce suits had been filed and dismissed.

The Court also stated:

A conveyance made by the husband in anticipation of the wife’s libel for divorce, and to prevent her from recovering alimony is fraudulent and may be set aside unless the purchaser took without notice and for value. .. . To invalidate a conveyance of the husband’s property, the grantee ordinarily must have had actual or constructive notice that the conveyance was for the purpose of defeating the wife’s claim to alimony.

In Rush v. Smith, 239 Ark. 706, 394 S.W. 2d 613 (1965) involving a suit to set aside as a fraudulent transaction the transfer of assets to the husband’s sister, the court said:

We think it almost too plain for argument that the supposed sale was in fact a sham that did not divest Paul Rush either of his ownership of the stock or of his control of it. A husband’s colorable disposition of assets to defeat his wife’s property rights in a pending or anticipated divorce suit may be found to be fraudulent. ... It cannot be doubted that Paul Rush’s ostensible sale to his sister was intended to hinder Virginia Rush in the assertion of her property rights.

While the chancellor merely held the lease to be void in the present case because the wife did not join in the execution of the lease, there is ample evidence in the record warranting the chancellor in inferring from the evidence that the lessee, Mrs. Teas, who entered into the lease for a nominal consideration, had knowledge that her son’s purpose in executing the lease to her was to prevent his wife from realizing her statutory interest out of the land upon divorce. This being true, we affirm the decree, although not on the ground articulated by the chancellor. In Moose v. Gregory, 267 Ark. 86, 590 S.W. 2d 662 (1979), the Supreme Court stated the settled rule to be that on appeal a trial judge’s decision will not be reversed if he reached the right result.

There is another reason for affirming the decree cancel-ling the lease to the 3 2/3rds acre tract of land. The undisputed evidence shows that it was the homestead of the parties. Mrs. George did not join in the execution of the lease. The land was not within an incorporated town or city and therefore the entire tract was the homestead regardless of value. The lease was void and subject to cancellation under the provision of Ark. Stat. Ann. § 50-415 which provides:

No conveyance, mortgage or other instrument affecting the homestead of any married man shall be of any validity except for taxes, laborers’ and mechanics’ liens, and the purchase money, unless his wife joins in the execution of such instrument and acknowledges the same.

The appellees as grantees under the commissioner’s deeds acquired all of the rights and interests of Mr. and Mrs. George, and under the circumstances here have standing to seek cancellation of the lease.

Affirmed.


author: M. Steele Hays, Judge. George Howard, Jr., Judge,

text:
    Jack L. GUSTAFSON, Sr. v. STATE of Arkansas
    CA CR 79-48
    593 S.W. 2d 187
    Opinion delivered December 5, 1979
    Released for publication January 23, 1980

      Duncan-& Davis, for appellant.

      Steve Clark, Atty. Gem, by: Ray Hartenstein, Asst. Atty. Gen., for appellee.
   M. Steele Hays, Judge.

The appellant was charged with burglary and theft of property. Prior to trial, a hearing was held on the appellant’s motion to suppress. His motion was denied, and the case proceeded to trial where the appellant was acquitted on the burglary charge but found guilty of theft of property. The jury sentenced the appellant to ten years imprisonment and fined him $3,000. He appeals from the judgment.

Appellant’s first contention is that the trial court erred in failing to suppress the evidence seized in a warrantless search and seizure. Testimony during the hearing reveals that officers went to appellant’s apartment after an investigation concerning stolen CB equipment led to appellant’s son’s house. The officers and Mr. Jay Petray, the owner of the stolen equipment, were told by the appellant that he had no knowledge of his son’s possession of the stolen equipment. However, Mr. Petray noticed an antenna on top of appellant’s apartment. Consequently, the officers asked if the appellant had any CB equipment and also asked if they could search the apartment. Appellant told the officers that he had company and to come back later.

At this point, the officers decided to obtain a search warrant. One of the officers left to obtain the warrant while Sheriff Vaughn and Mr. Petray remained near the premises to keep the apartment under surveillance. The two then observed the appellant come out of the apartment. Sheriff Vaughn testified that he was carrying an armload of “stuff ’ and was running with it. They watched as appellant went through the garden located behind the apartment and into a wooded area where he placed the equipment. Sheriff Vaughn and Mr. Petray went to the area where the articles were hidden. Petray identified the articles as the CB equipment stolen from his store, and the appellant was arrested.

We cannot agree with the appellant’s contention that this was an unreasonable search and seizure under the fourth amendment. Coolidge v. New Hampshire, 403 U.S. 442 (1971), requires that inferences which reasonable men draw from evidence should be drawn by a neutral and detached magistrate. This is required because one should feel secure from governmental intrusion while in his dwelling or other places where he has a reasonable expectation of privacy.

The appellant cites Sanders v. State, 264 Ark. 433 (1978), as supporting authority for the rule that one’s dwelling and curtilage have consistently been held to be areas that are considered free from governmental intrusion. A garden has been considered a part of one’s curtilage. Durham v. State, 251 Ark. 164, 471 S.W. 2d 527 (1971);Sanders, supra. However, the facts in Sanders are clearly distinguishable from this case. In Sanders, the officers had gone to appellant’s trailer house for the purpose of searching his dwelling pursuant to an invalid search warrant. Subsequently, they went behind his trailer, crossed a fence, and seized 50 marijuana plants they found in a garden.

In the instant case, the officers went to appellant’s apartment merely to ask some questions. They became suspicious after seeing a CB antenna on his roof. They seized the equipment after they watched the appellant run out of his apartment and dump it in a wooded area behind the garden.

A search of open land without a warrant is permissible. Hester v. United States, 265 U.S. 57 (1924); Rules of Criminal Procedure, Rule 14.2 (1976). The Arkansas Supreme Court has held that wooded areas are open land, Bedell v. State, 257 Ark. 895, 521 S.W. 2d 200 (1975); even when the land in question belonged to the appellant, Wyss v. State, 262 Ark. 502, 558 S.W. 2d 141 (1977). We believe that the appellant had no reasonable expectation of privacy in the wooded area behind his apartment and this is not within the purview of one’s “curtilage” as defined in Sanders, supra. Hence, the trial judge was correct in his denial of appellant’s motion to suppress.

Appellant’s second contention is that the trial court abused its discretion in denying appellant’s motion for mistrial. The motion was made after the prosecuting attorney, in his closing argument, made statements to the jury which, appellant contends, were highly prejudicial. Previously, in the appellant’s closing argument, the defense counsel had commented on the credibility of two of the State’s witnesses. In response to this, the prosecutor stated:

But, I think you ladies and gentlemen know, in matters of common expertise, that in the sewer of crime the good people don’t go only the rats, and the rats talk to each other and the rats commit crimes together. (T. 193, 194)

Appellant also objected to the prosecuting attorney’s closing argument in the sentencing proceeding. Prior to this time, defense counsel had attempted to rebut the State’s evidence of prior convictions by stating that the date of the last conviction was 24 years ago and that “a lot of things have happened, since 24 years ago.” The prosecutor, in response to this statement, commented to the jury:

I suggest to you that there has been a lot of things that happened since then, as evidenced by this trial, and others, and I leave it to your speculation as to what others may be, that we don’t have here today. (T. 215)

The trial judge sustained both objections by appellant, instructed the jury to disregard the prosecutor’s reference to certain persons as “rats,” and instructed the prosecutor to stay inside the record. Appellant moved for a mistrial on both statements and was overruled.

We agree with the appellant that these statements by the prosecutor are highly improper. However, the granting of a motion for mistrial is an extreme remedy and has largely been within the province of the trial court. Gammel and Spann v. State, 259 Ark. 96, 531 S.W. 2d 474 (1976); Hill v. State, 255 Ark. 720, 502 S.W. 2d 649 (1973); Johnson v. State 254 Ark. 293, 493 S.W. 2d 115 (1973).

As was stated in Simmons v. State, 233 Ark. 616, 346 S.W. 2d 197 (1961):

This court has repeatedly observed that the prosecuting attorney acts in a quasi judicial capacity and that it is his duty to use all fair, honorable, reasonable, and lawful means to secure a conviction of the guilty in a fair and impartial trial.

As a general rule, th.ere are three types of improper statements made by a prosecuting attorney: improper, prejudicial, and prejudicial per se. [See Hall, The Bounds of Prosecutorial Summation in Arkansas, 28 Ark. L. Rev. 55 (1974).] Improper statements do not lead to reversal but should be avoided on ethical grounds. Prejudicial statements will lead to reversal unless it is harmless error, and prejudicial per se statements invariably lead to reversal. The permissible bounds of prosecutorial summation will depend on the various facts and circumstances of each case. (For the general rule pertaining to prosecutorial summation see ABA Standards for Criminal Justice, The Prosecuting Function §5.8(1971).)

The general rule is that the prosecutor may not assert the defendant’s character is questionable where there is no adequate justification in the evidence. However, where the prosecutor has improperly demeaned the defendant, an admonition by the trial court may be adequate. Hence, in Henshaw v. State, 67 Ark. 365, 55 S.W. 157 (1900), an admonition by the trial court to the jury when the prosecutor referred to the defendant as a “jailbird” was held sufficient. Also, in Johnson v. State, 254 Ark. 293, 493 S.W. 2d 115 (1973), the Supreme Court upheld a conviction of the appellant on counts of burglary and grand larceny, stating that an admonition by the trial judge was sufficient when the prosecuting attorney suggested that the defendant’s plea of not guilty was an insult to the jury’s intelligence as to warrant double punishment. The court stated that for a mistrial to be warranted, it must appear that justice can not be served by continuation of the trial.

In this case, we can not say that the prosecutor’s statements were so highly prejudicial as to warrant a mistrial. We regard the prosecutor’s statement as highly improper, but we conclude that the admonition by the trial court was adequate to offset the impropriety. We are confident that jurors will not take such unprecedented comments made by the prosecutor into consideration and would not be inflamed or prejudiced by such, particularly where the trial judge has expressed his disapproval. Moreover, where the opposing counsel has made credibility an issue, the bounds of permissible argument on that issue are considerably broader. Tomlinson v. United States, 93 F. 2d 952 (1937).

As to the second statement made by the prosecutor, we again do not approve such comments but hold that an admonition by the trial judge was sufficient. These comments were made during the sentencing proceedings after a guilty verdict had been rendered. It is a well settled rule in Arkansas that the trial judge has wide discretion in determining the prejudicial effect of counsel’s closing arguments to the jury. Murchison v. State, 249 Ark. 861, 462 S.W. 2d 853 (1971); Peters v. State, 248 Ark. 134, 450 S.W. 2d 276 (1970); Fisher v. State, 241 Ark. 545, 408 S.W. 2d 894 (1966); Head v. State, 221 Ark. 213, 252 S.W. 2d 617 (1952). The trial court has the opportunity to observe its prejudicial impact upon the jury, and its decision will not be reversed unless there has been an abuse of discretion. We do not believe that the appellant was unduly prejudiced and therefore hold that the trial court properly denied appellant’s motion for a mistrial.

Appellant’s third point for reversal is that the trial court erred in unduly limiting appellant’s closing argument. The contention is based on a denial by the trial judge to allow the appellant’s counsel to argue that the testimony of a witness for the State, Officer Reynolds, was for impeachment purposes only and not as substantial evidence. However, appellant voiced no objection when the witness testified nor did he request that a limiting instruction be given to the jury. Only after the jury had rendered a guilty verdict and was deliberating on the sentence did he object. We believe that the objection was untimely and was properly overruled. Golden v. State, 265 Ark. 99, 576 S.W. 2d 955 (1979); Uniform Rules for Circuit and Chancery Courts, Rule 13.

Lastly, appellant argues that the trial court erred in allowing the prosecutor to question the State’s witness, Mr. Alan Ophof, regarding the length of time an inmate must serve before becoming eligible for parole. We agree with appellant that ordinarily this is not an area which can be dismissed either in argument or interrogation; however, appellant’s citations do not reach the issue as presented in the context of this case, for here, counsel for appellant first broached the subject by the questions which he posed on cross-examination. At several points on cross-examination, counsel asked questions aimed at showing that the witness’s testimony was given in consideration of a promise of early parole. This was not improper cross-examination, but it does, to some extent, open the door to questions from the prosecution to refute the inference. Allen v. State, 260 Ark. 466, 541 S.W. 2d 675 (1976). Without retreating from the general rule in criminal cases that parole procedures are not proper areas of either comment or inquiry where the purpose is to influence the sentence, we find that the trial court did not err in permitting some counter interrogation by the prosecutor on re-direct examination. It can also be said that the objection failed to reach the character of the question which appellant now contends was offensive, that, its prejudicial influence upon the sentence. Yet the objection made was to its relevancy. This seems to be drawing afine line and perhaps so; but it is settled law that for the trial court to have committed reversible error, it must be said that timely and accurate objection was made, so that the trial court was given the opportunity to correct such error. West v. State, 255 Ark. 668, 501 S.W. 2d 771 (1973); Callaway v. State, 258 Ark. 352, 524 S.W. 2d 617 (1975); Ray v. Fletcher, 244 Ark. 74, 423 S.W. 2d 865 (1969).

Affirmed.

Howard, J., dissents.

George Howard, Jr., Judge,

dissenting. Unlike the majority, I think there is merit to appellant’s argument that the trial judge committed reversible error in permitting a State’s witness, Allen Ophof, to testify about the mechanics of the Arkansas Parole System in general and the application of the rules, in particular, to Ophof s sentence to the Department of Correction. The following is the exchange that took place between the prosecuting attorney and Ophof, over the objections of the appellant:

By Mr. Farris:
Q. And you went down there and how long did you spend in the penitentiary?
A. Seven months and eight-days.
Q. Isn’t it pretty common knowledge that if you mind your manners when you go down there and stay on your P’s and Q’s. . . .
By Mr. Davis:
Objection, Your Honor, this is irrelevant to this proceeding.
By the Court:
I haven’t heard the question yet, Mr. Davis. Don’t answer Mr. Ophof, until I rule. You may continue.
By Mr. Farris:
What is the objection?
By Mr. Davis:
It is irrelevant, to this proceeding.
By Mr. Farris:
Well, the reason it is not irrelevant, Your Honor, is he tried to leave the inference with the jury that this man was paroled solely because he gave a statement to Sgt. Reynolds and I am trying to show that that is not the case.
By the Court:
You may continue.
By Mr. Farris:
Q. You have been down then at the penitentiary and seen just about how the parole law works, haven’t you?
A. Yes, Sir.
Q. And don’t you know that you end up, if you are good and don’t get in any fights and put in solitary or anything like that, you spend a sixth of your time if you are a first offender, is that right?
A. Yes, Sir.
Q. So if a jury gives you a sentence of say three years, you do six months.

Appellant argues, logically and persuasively, that the jury was told, in effect, that whatever sentence is imposed, appellant would be released upon serving a fractional part of the sentence and, therefore, in order for appellant to be confined to the penitentiary for any appreciable length of time, the jury should assess a stiff sentence. Appellant claims that he was prejudiced by this testimony.

The majority, while recognizing that the testimony was highly prejudicial, avoids the force of appellant’s argument by concluding that appellant’s counsel invited the testimony when counsel asked Ophof, the State’s witness, on cross-examination if Officer Reynolds had promised him an early parole if he (Ophof) cooperated in the case pending against appellant.

While the State was entitled, on redirect examination, to inquire of Ophof whether a deal had been offered Ophof, I submit the trial court abused its discretion in permitting Ophof to give a comprehensive analysis of the State’s parole program, before appellant’s jury, when such testimony was not relevant to any issue. Moreover, I do not agree that the testimony was invited by the line of inquiry made by appellant’s counsel. Appellant’s inquiry was proper on cross-examination; and the majority recognizes that it was proper.

For the sake of argument, assuming that appellant invited the extended excursion into the policies and practices of Arkansas’ parole system, the action of the trial court in not sustaining appellant’s objections is still a manifest abuse of its discretion.

Under Rule 403 of the Uniform Rules of Evidence, it is provided:

Although relevant, evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury . . .

The trial court was duty bound to sustain the objections of appellant to the testimony upon finding that the prejudicial effect outweighed any probative value that might be derived from Ophof s testimony. The record is silent as to any compliance, on the part of the trial court, with the provisions of Rule 403. Aside from the majority’s recognition of the prejudicial effect of such testimony, our Supreme Court, in Thackston v. State, 205 Ark. 493, 169 S.W. 2d 130 (1943), has indicated the prejudicial effect of testimony pertaining to the policies and practices of the parole system.

In Thackston v. State, supra, the prosecuting attorney argued to the jury that it ought to fix appellant’s sentence at twenty-one years and stated: ‘. . . you must bear in mind that he is entitled to parole when he has served a third of his time ... if he makes a good prisoner.’

The trial court immediately stated:

‘The court will sustain the objection and say to you gentlemen that you mustn’t consider that for any purpose in arriving at your verdict. That is something you are not concerned with and shouldn’t be considered by you whatever.’

While our Supreme Court affirmed appellant’s conviction, who had received the minimum punishment under the law, our court said:

There can be no doubt that the effect, if any, of this argument was eliminated by the court’s prompt, emphatic and vigorous admonition to the jury that it must not consider this remark for any purpose.

In the instant case, appellant received the maximum sentence on the charge for which he was found guilty. Moreover, the trial court gave no cautionary instructions to the jury.

It is plain, from a careful consideration of the testimony offered by Ophof detailing the parole system, the testimony was calculated to influence the jury against a recommendation of clemency. Appellant was prejudiced indeed. Accordingly, I dissent.

       Ophof denied that he ever cooperated with the State in the prosecution of the charges against appellant.


author: Marian F. Penix, Judge. David Newbern, Judge,

text:
    George W. MILLER et ux v Leo HARDWICK et al
    CA 79-166
    591 S.W. 2d 659
    Opinion delivered December 5, 1979
    Released for publication January 9, 1980

      George M. Callahan, for appellants.

      David M. Glover and G. Christopher Wolthall, for appellees.
   Marian F. Penix, Judge.

This case was appealed to the Supreme Court of Arkansas and by that Court assigned to the Arkansas Court of Appeals pursuant to Rule 29(3).

Appellees were granted summary judgment and from that judgment comes this appeal. The appellees do business as Hardwick Bros. Lumber Co. at Malvern. They sold home decoration articles and services to the appellants, the Millers, at Hot Springs. The Millers failed to pay the $4,392.11. Hardwick Bros, brought suit and attached to the complaint was an affidavit stating amount was owed. The Millers filed a general denial. Hardwick Bros, filed Interrogatories and Requests for Admission, which were answered. The Millers admitted there was a contract and did not dispute the contract price. However, the answers to the interrogatories did set out that not all of the goods received met the terms of the contract and there was at least partial lack of consideration. The affidavit of Miller specified those items which were not provided and those which were not satisfactory. From a pretrial hearing the court’s order granted Millers “thirty days to amend their answer to assert affirmative defenses and to more responsively plead.” Hardwick filed motion for Summary Judgment alleging no genuine issue as to any material fact. Millers filed a response to the motion for Summary Judgment in which they asserted their Responses to the Interrogatories and Requests for Admissions adequately outlined the defenses which would be relied on at trial; namely, lack of consideration. The affidavit attached to the Millers’ response to Hardwick’s motion for Summary Judgment specifically set out the items with which Millers were dissatisfied and which did not meet the terms of the contract. The court granted Hardwick’s motion for Summary Judgment. The judgment reads “ . . . the court considered the pleadings, the interrogatories, request for admissions , and answers thereto, the affidavits in support of and in response to the motion ...”

Whether the court based its finding on its assessment of the insufficiency of the pleadings or on the review of all the documents in the file, we find the decision to be erroneous and must be reversed. A Summary Judgment is an extreme measure. Justice is better served when cases are tried on their merits. Pleadings are for the purpose of informing all the parties what the issues are. Where there is no surprise or substantial prejudice the court can always, and often does, treat the pleadings as amended, to conform to the proof. Defects in pleadings are to be disregarded unless they substantially affect the rights of the adverse party. A variance between the pleadings and proof is not material unless it has actually misled the adverse party to his prejudice. Ark. Stat. Ann. § 27-1155 and 27-1160 (Repl. 1962). While the general denial did not apprise Hardwick of the Millers’ defense, the response to the interrogatories provided this notice. These responses, which become a part of the record without objection, were evidence to be considered by the judge. Once these became evidence, the pleadings are treated as amended to conform to the evidence. Bonds v. Littrell, 247 Ark. 577, 446 S.W. 2d 672 (1969).

At the outset the appellees insist that Bonds cannot rely upon the asserted collateral agreement, because he failed to plead that defense in his answer. It is true that Bond’s answer to the complaint was merely a general denial, plus special pleas not now relevant. But in response to the plaintiffs’ requests for admissions of fact Bonds made this statement under oath: ‘‘Defendant admits that a written memorandum of said agreement was made and that a copy is attached to the complaint . . . Defendant states, however, that said agreement was contingent upon the defendant’s obtaining the purchase money from the Houston Milk Producers Credit Union.” In the face of that assertion, and without rebutting it, the plaintiffs filed their motion for summary judgment.
Under the Federal Rules of Civil Procedure, from which our summary judgment statute (§ 29-211) was copied, the better view is that affirmative defenses may, at least in some situations, be raised by affidavit as well as by answer. We agree with Moore’s statement of the two views: “There is authority that defenses not pleaded in defendant’s answer may not be raised by affidavits on his motion for summary judgment. This is highly technical and illiberal. Either the answer should be deemed amended to conform to the proof offered by the affidavits or a formal amendment permitted, the affidavits considered, and the motion for summary judgment decided under the usual rule pertaining to the adjudication of summary judgment motions.” 6 Moore’s Federal Practice § 56.11[3] (1966)

See also Warner v. Warner, 221 Ark. 939, 256 S.W. 2d 734 (1953); Smith v. Moschetti, 213 Ark. 968, 214 S.W. 2d 73 (1958).

By the responses to the interrogatories as well as the counter-affidavit, the Millers raised the defenses of lack of consideration or breach of warranty.

Ark. Stat. Ann. § 29-211 provides:

The judgment sought shall be rendered forthwith if the pleadings, depositions, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact. . . .

Upon consideration of the pleadings, the responses to the requests for interrogatories, together with the affidavits, we believe there to be a material issue of fact. Hughey v. Bennett, 264 Ark. 64, 568 S.W. 2d 46 (1978); Purser v. Corpus Christi State National Bank, 258 Ark. 54, 522 S.W. 2d 187 (1975); Ashley v. Eisele, 247 Ark. 281, 445 S.W. 2d 76 (1969); Mid-South Insurance Co. v. First National Bank of Fort Smith, 241 Ark. 935, 410 S.W. 2d 873 (1967).

Reversed and remanded.

Newbern and Pilkinton, JJ., concur.

David Newbern, Judge,

concurring. My concurrence in the result reached by the majority is reluctant. The majority opinion’s statement of the facts is correct except that it omits to say the motion for summary judgment was filed after the 30 days given the defendants to amend had elapsed, and no amendment had been filed. I can conceive of a rationale that no material issue of fact remained to be decided, as this failure to amend was a waiver of defenses. I decline to go that far. However, I do wish to point out where I disagree with the majority in areas I feel to be important.

First, the issue here is not whether the defendants have raised a defense of lack of consideration or an affirmative defense of breach of warranty. Rather, it is whether they have denied the correctness of the verified account filed with the complaint. This is an action on account as contemplated by Ark. Stat. Ann. § 28-202 (Repl. 1979). Lack of consideration is not a defense as it might be when the action is on a contract. See Cawood v. Pierce, 232 Ark. 721, 339 S.W. 2d 861 (1960), and McWater v. Ebone, 234 Ark. 203, 350 S.W. 2d 905 (1961), for cases showing the nature of this action. It is apparent the only defense, aside from affirmative defenses and set-offs which would have to be pleaded, is incorrectness of the account as stated.

I would have agreed with the granting of the summary judgment but for one discovery response (which I assume was under oath) which denied that some minor items listed in the appellee’s affidavit were actually supplied. That was just barely enough, in my view, to raise an issue of fact.

Secondly, I cannot concur, in the context of an opinion evaluating the granting of a summary judgment, in a statement that ‘ ‘justice is better served when cases are tried on their merits.” Such a statement implies we look askance at the summary judgment procedure. That is not the case. When there is no disputed fact which is material, under the applicable law, there are no merits to be tried, and it is wholly proper for a trial judge to apply the law summarily in those circumstances.

It was not improper for the trial judge to invite the defendants to amend their answer so that it either raised a defense to an action on account, which a general, unverified denial is not, or to plead affirmative defenses. The defendants here are just lucky the plaintiffs asked in their interrogatory whether the defendants denied the accuracy of the account.

Judge Pilkinton joins in this opinion.

        McWater v. Ebone, cited, above, suggests that a verified denial might be sufficient, but the record here shows the answer to have been unverified.


author: David Newbern, Judge. Marian F. Penix, Judge,

text:
    Clara (Girardot) DERRYBERRY v. Russell SIMS et ux
    CA 79-158
    591 S.W. 2d 662
    Opinion delivered December 5, 1979
    Released for publication January 9, 1980

      Gardner & Gardner, for appellants.

      Bullock & McCormick, for appellees.
   David Newbern, Judge.

In this quiet title suit, a rather complicated set of facts presents a simple question. Does the filing of a complaint to quiet title on the basis of adverse possession satisfy the requirement of actual notice of plaintiffs claim of exclusive ownership to persons claiming to be cotenants? The chancellor held it was sufficient, and we affirm.

A. C. Girardot owned the 40 acres in question here. He died intestate and was survived by four daughters and one son. Three of the daughters are the appellants here. The appellees are the successors to the title of the other daughter, Louise Standridge, who filed her complaint to quiet title against her sisters in 1955.

The son of A. C. Girardot, whose name was A. D. Girardot, purchased the land from the state in 1938, after it had been forfeited for delinquent taxes. A. C. Girardot had been dead for several years. Although there is a question whether this purchase by A. D. Girardot amounted to a redemption which would have been for the benefit of himself and the other heirs, as well, we need not answer it in view of our finding that Louise obtained title by adverse possession.

A. D. Girardot conveyed the land to Louise by warranty deed dated December 14, 1940. Louise had been in possession, for a time with her mother and at least one of her sisters, since 1932. The mother died and the sister who had lived on the land, but in a separate house from Louise, left for California in 1952. This left Louise in exclusive possession. The appellants claim her possession was with their permission.

The year before Louise filed her suit to quiet title, she mailed to at least two sisters deeds which would have conveyed their interest in the land to Louise. They refused to execute the deeds, and that apparently precipitated the complaint to quiet title. In her complaint, Louise recited her warranty deed from her brother and her continuous adverse possession for more than 20 years. The appellants filed a motion to require Louise to make her complaint more definite and certain, to which Louise filed a response. The appellants did not, however, answer the complaint or seek any affirmative relief in the case until 1976, some three years after Louise had conveyed the land to others who preceded the appellees in title.

Assuming, without deciding, that the purchase by A. D. Girardot from the state might be considered a redemption on behalf of all the heirs, and thus not sufficient to convey the entire title to Louise, we are compelled to find Louise’s possession from 1955 until 1973 more than sufficient to establish her claim, and thus to establish the claim of the appellees. We recognize that adverse possession claimed against one’s cotenants must be based on clear notice to them. Dodson v. Muldrew, 239 Ark. 202, 388 S.W. 2d 90 (1965); Staggs v. Story, 220 Ark. 823, 250 S.W. 2d 125 (1952). However, we can think of no more unequivocal way of conveying notice than by filing a suit to quiet title. The filing, in 1955, of the motion to make more definite and certain confirmed that the appellants knew of the suit.

If we were evaluating a motion to dismiss the complaint for failure to prosecute the claim we would be confronted with a very different question from the one presented here. We must keep our attention focused on the fact that Louise was in exclusive possession at the time her complaint was filed. The appellants could have answered the complaint and sought affirmative relief anytime thereafter, but they did not do so until 1976. We have no hesitancy in saying Louise’s claimed adverse possession came to fruition at least as early as seven years after her complaint was filed.

Affirmed.

Judges Howard and Penix dissent.

Marian F. Penix, Judge,

dissenting. I disagree with the majority decision. A further statement of the facts will aid in understanding the equities involved.

A. C. Girardot owned the land in question. He died in 1931 or 32. His widow and daughter Clara continued living on the homestead. Appellee, Louise Standridge, a widowed daughter, moved in with her mother and Clara. The property went delinquent for taxes. A. D. Girardot, brother of Clara and Louise, redeemed the property from the State of Arkansas. He and his wife deeded the property to Louise Standridge and such deed was recorded in 1944. A year later the mother of Clara, Louise, A.D. and two other daughters, Evelyn Brown and Rena Chilton, died. Clara moved from the property leaving Louise and Louise’s children living on the property.

In 1955 Louise filed this action to quiet title. The defendants, three sisters of Louise, filed a Motion to make more Definite and Certain. In April 1955 a Response to that Motion was filed. From that date until 1973 neither the plaintiff nor defendants took any action. In November 1973, Louise deeded the property to Euel and Aileen Hill for $16,500.00. On December 11, 1973, the Hills sold the property to Kenneth and Bessie Childress for $21,000.00. On December 13, 1973, Kenneth and Bessie Childress conveyed the property to the actual purchasers, Russell Sims and Carol Sims, his wife. All of these parties were made party to this cause together with the Bank of Dover which held a mortgage executed by Russell Sims. On February 20,1976, the appellants filed a Motion to File Pleading, To Add Parties and to Expedite Disposal of Case and also filed a Lis Pendens. On April 29, 1976, the original defendants, the three Girardot sisters, filed an answer and a cross-complaint stating Louise’s possession has been at all times permissive and asking that the property be sold and proceeds divided one-fifth to each defendant and two-fifths to Louise — she having received her brother’s interest in 1944. The case was tried December 22, 1978. The Court quieted title in the appellee Louise, the original plaintiff. The Court based its decision on adverse possession, and the bars of laches and estoppel.

I

The three sisters, appellants, allege the court erred in establishing Louise, appellee, as owner by adverse possession against them. When the brother redeemed the property from the state the interest in the property remained the same as before the property became delinquent. His interest remained one-fifth.

It is also well settled that one tenant in common cannot add to, or strengthen, his title by purchasing title to the entire property at a tax sale, and that some purchases merely amount to a redemption which inures to the benefit of all the tenants and confers no right upon the tenant so purchasing except to demand contribution from his co-tenants. Zackery v. Warmack, 213 Ark. 808, 212 S.W. 2d 706 (1948) quoting Spikes v. Beloate, 206 Ark. 344, 175 S.W. 2d 579 (1943).

See also, Crouch v. Crouch, 241 Ark. 447, 408 S.W. 2d 495 (1966); Vesper v. Woolsey, 231 Ark. 782, 332 S.W. 2d 602; Wright v. Curry, 208 Ark. 816 at 821, 187 S.W. 2d 880 (1945); Jones, Arkansas Titles § 220.

When the brother deeded the redeemed property to Louise, she received no more than his one-fifth interest. Thereafter her interest remained two-fifths. There is no question but that Louise remained in possession of the property, but such possession was with the permission of her co-tenants. Before one co-tenant can acquire title by adverse possession from the others, knowledge of the claim must be brought home to the co-tenants. From the testimony it is apparent the appellants permitted Louise to live on the property because she was widowed with children, but that they believed her interest to be no more than that which she acquired as an heir. Furthermore, prior to filing suit to quiet title Louise requested her sisters sign deeds conveying their interest to her. The sisters refused. At this point Louise recognized her sisters as co-tenants. In Dodson v. Muldrew, 239 Ark. 202, 388 S.W. 2d 90 (1965), the court stated that notorious acts of an unequivocal nature were required to give notice to co-tenants of an adverse claim. Possession by one tenant in common is presumed to be the possesison of all and, further, that in view of the family relation stronger evidence of adverse possession is required. Because of the close family relationship of parties, stronger evidence of adverse possession was required than would otherwise be necessary. Staggs v. Story, 220 Ark. 823, 250 S.W. 2d 125 (1952).

I find no evidence of any notice or notorious acts which would “bring home” to the other co-tenants Louise’s claim of ownership by adverse possession prior to her filing of the lawsuit in 1955 to quiet title in herself. Louise had no cause of action at the date of filing her 1955 lawsuit.

II

Appellants allege the court erred in finding the bars of laches and estoppel are applicable in this case. In 1955, Louise Standridge gave notice to the world, including her sisters, she was claiming the property as her own. She brought the action to quiet title. The defendant sisters filed a motion to make more definite and certain. A response to that motion was filed. No further action of any kind was taken until February 1976. Rule 10 of the Circuit and Chancery Courts states:

In all civil cases wherein there has been no action of record during the 12 months just past, the Court shall cause notice to be mailed to the attorneys of record that such case will be dismissed by the Court without prejudice for want of prosecution unless on a day set for that purpose application is made to the Court and good cause shown why it should be continued as a pending case. If such application is not made or good cause is not shown, the court may dismiss each case without prejudice.

The trial court should have dismissed this case. It was incumbent upon that court to make sure the case was either tried or dismissed. This, however, was not done. Filing a lawsuit tolls the Statute of Limitations.

The actual commencement of a suit is sufficient to stop the running of the Statute of Limitations without any regard to, or dependence upon, any after diligence of the plaintiff in its prosecution. King & Houston v. State Bank, 13 Ark. 269 (1853).
Unless a statute of limitation expressly provides otherwise, its operation is ordinarily tolled by the commencement of an action rather than by its prosecution to judgment. General American Life Insurance Co. v. Cox, 215 Ark. 860, 223 S.W. 2d 775 (1949).

If filing a lawsuit tolls the Statute of Limitations what is equitable or logical about allowing the filing of a lawsuit — which tolls the statute — to begin a new period of limitations?

The parties did not pursue the lawsuit. There was testimony by the appellants they considered the lawsuit dropped. Neither party availed themselves of the remedies available. Now both are asking that equitable relief be provided.

The doctrine of laches is founded on the equitable maxims that he who seeks equity must do equity and that equity aids the vigilant, and hence while there is a great variety of cases in which the equitable doctrine is invoked, each case must depend on its own particular circumstances, and courts of equity discourage laches and delay without cause. Grimes v. Carroll, 217 Ark. 210, 229 S.W. 2d 668 (1950).

Louise, the movant in the action to quiet title, should not be allowed to avail herself of the equitable defense of laches as she has not been vigilant. She did not pursue her lawsuit to its fruition. Furthermore, laches is not generally available to a plaintiff in a lawsuit.

Laches is generally considered to be a shield of equitable defense rather than a sword for the investiture of legal title. Meadows v. Hardcastle, 219 Ark. 406, 242 S.W. 2d 710 (1951).

The court in this case has charged the appellants with the burden of carrying forward a suit which they did not initiate. The majority would have us reward Louise for her sisters’ lack of diligence when in fact she herself was not diligent. I believe the parties should be left in the same position as they were in 1955. In 1955 Louise and her sisters were co-tenants. Equitable relief should not be granted to either party. Each had the opportunity to seek timely judicial determination of the issue. All parties slumbered on their rights. Equity will not step in to change a situation produced by the actions or inactions of the parties.

The relationship between co-tenants is one of trust and confidence and it would be inequitable to permit one of them to do anything which prejudiced the interest of the other. Johnson v. Johnson, 250 Ark. 457, 465 S.W. 2d 309 (1971).

It is not equitable to allow one co-tenant to prejudice the rights of her co-tenants by filing a lawsuit which she never prosecuted to its conclusion. To allow her to establish her claim by adverse possession is unconscionable.

Ill

The appellants allege error in the court finding the appellees, Euel Hill and Aileen Hill, Kenneth Childress and Bessie Childress, John A. Sims, Russell Sims and Carol Yvonne Sims were innocent purchasers.

Louise Standridge sold the property to Euel Hill, a real estate broker, who had his attorney examine the abstract of title and render an opinion. Mr. Hill had been a real estate broker for 22 years. He testified he thought the land had gone for taxes but could not say who bought it. He also testified he had no idea there were any heirs. Both abstracts introduced into evidence indicate a tax forfeiture by A. C. Girardot and a subsequent redemption deed to A. D. Girardot. Certainly there is sufficient similarity in this unusual name to put a conscientious purchaser or a title examiner on notice of the possibility of other heirs and that the purchase by A. D. Girardot was nothing more than a redemption of the taxes due and inured to the benefit of all the co-tenants. Record title in A. D. Girardot constituted constructive notice to Euel Hill. A further inquiry would have brought to light the existence of the co-tenants. Mr. Sims, one of the appellees, received a phone call from one of the appellants, Mrs. Brown, telling him there were other heirs to the property.

I find there to have been sufficient notice and information available to the appellees to defeat the contention they were innocent purchasers.

It is my firm belief Louise Standridge did not acquire title by adverse possession but rather continued as a co-tenant. Therefore, in 1973 the only interest she had to convey was her two-fifths.

I would reverse. Therefore, I respectfully dissent.

Howard, J., authorizes me to state he joins me in this dissent.


text:
    Harvey L. ASHMORE et al v. George FORD, Special Personal Representative of the Estate of Grady T. LEE and ELECTROLUX CORP.
    CA 79-161
    591 S.W. 2d 666
    Opinion delivered December 5, 1979
    Released for publication January 9, 1980

      Ray & Donovan, for appellants.

      Penix, Penix & Mixon and Reid, Burge & Prevallet, by: Dan M. Burge, for appellees.
   David Newbern, Judge.

This tort action arose from an accident involving Harvey L. Ashmore, Jr., who was the rider of a motorcycle, and Grady T. Lee, who was the driver of an automobile. The two vehicles were approaching each other from opposite directions on a busy street when the Lee vehicle turned left in front of the motorcycle. Harvey turned his motorcycle to the left to avoid colliding with the car, and his leg struck, or was struck by, the rear panel and bumper of Mr. Lee’s car, causing serious injury to Harvey’s leg. This action was brought by Harvey L. Ashmore, Sr., and his wife, Clara Sue Ashmore, individually and as next friends of Harvey L. Ashmore, Jr. The defendants were the estate of Mr. Lee and Electrolux Corporation. The allegation of liability of Electrolux was based on the contention that Mr. Lee was an employee of Electrolux acting in the scope of his employment at the time the accident occurred. The issues presented here have mostly to do with proof of that relationship.

A jury found the accident to have been caused by the negligence of Mr. Lee to the extent of 65% and of Harvey L. Ashmore, Jr., to the extent of 35%. Based on that finding and a finding of damages suffered by the plaintiffs, the judgment awarded $13,000.00 to the parents on their individual claims and $13,000.00 to them on their son’s behalf. The jury found Mr. Lee to have been an independent contractor rather than an employee of Electrolux, and thus all of the damages were against Mr. Lee’s estate only. The judgment was appealed by the Ashmores to the Arkansas Supreme Court, and the case was assigned to us pursuant to Rule 29(3).

We find three of the appellant’s four points are sufficient bases for reversal. We will discuss all four, as they may arise again upon retrial.

I.

The appellants’ first point is that the court erred in refusing to compel Electrolux to produce a statement made by Mr. Lee to Electrolux or its insurer shortly after the accident. In its order, the court cited two cases, Dritt v. Morris, 235 Ark. 40, 357 S.W. 2d 13 (1962) and Curbo v. Harlan, 253 Ark. 816, 490 S.W. 2d 467 (1973).The Drift case involved responses to interrogatories allegedly within the “work product of the attorney” privilege. There the Arkansas Supreme Court found it should compel answers to some of its interrogatories but not others, applying the well known “necessity” test established in Hickman v. Taylor, 329 U.S. 495, 67 S. Ct. 385 (1947). In Curbo, the Supreme Court approved the trial court’s order compelling production of a statement obtained by an insurance investigator and subsequently given to an attorney. The trial court had ruled the statement was not part of an attorney’s work product.

After citing those cases, and without discussion of them, the court said it would not compel production of the statement for three reasons: (1) the appellants had interviewed Mr. Lee after the accident, (2) agency or acting within the scope of employment cannot be proven by the admission of the alleged agent, and (3) the statement would not be admissible because of the “ Dead Man’s Statute.” We will discuss these reasons in reverse order.

The “ Dead Man’s Statute,” found in Section 2 of the Schedule of the Arkansas Constitution of 1874, was repealed with the adoption of the Uniform Rules of Evidence in 1974. Ark. Stat. Ann. § 28-1001 (Supp. 1977). In Davis v. Hare, 262 Ark. 818, 561 S.W. 2d 321 (1978), it was held that this was a rule of evidence or a “procedural” change and thus the new rule was applicable because the trial, as opposed to the operative facts, occurred after the change in the law. That is the case here.

The second reason gives us equally little pause, as it went to admissibility rather than discoverability. Under the discovery statutes applicable at the time the order was entered, production of the statement could have been required regardless of its admissibility if the request appeared reasonably calculated to lead to the discovery of admissible evidence. Ark. Stat. Ann. §§ 28-356 and 28-348 (b) (Repl. 1962).

We might interpret the court’s first reason for denying production as being there was no “good cause” for production of the statement. Even if that had been the court’s reason in referring to the pretrial interview of Mr. Lee, it would have been invalid. Harvey T. Ashmore, Sr., said in testimony proffered at the trial that Mr. Lee had told him he was on his way to call on an Electrolux customer in the statement sought, that evidence would have been valuable to the appellants on the question of scope of employment, and possibly the general issue of employment. An excellent discussion on the need for liberal interpretation of discovery rules in the light of circumstances of the case at hand appears in Marrow v. State Farm Ins. Co., 264 Ark. 227, 570 S.W. 2d 607 (1978). There Judge Fogleman made it clear that when proof of a party’s case depends largely on testimony of his adversary and documents kept by his adversary, “the scope of discovery permitted should be broader than otherwise and . . . [the seeking party]. . . should be allowed to inspect any writing in the files ... [of the adversary] . . . which might lead to admissible evidence.” (264 Ark. at 237)

The appellees contend the error, if any, was harmless, as the jury found Mr. Lee was an independent contractor. That argument is specious, as the statement sought could have produced or led to evidence upon which the jury could have reached the conclusion Mr. Lee was an employee of Electrolux acting in the scope of his employment.

II.

The appellants’ second argument is that the trial court erred in not allowing Harvey L. Ashmore, Sr., to testify as to what Lea Vincent, an Electrolux office employee, told him about Mr. Lee’s activities on the day of the accident. The court ruled the proffered testimony was hearsay. The appellants contend the testimony is excepted from the hearsay rule under Rule 801 (d) (2) of the Uniform Rules of Evidence. Ark. Stat. Ann. § 28-1001 (Repl. 1979).

We approve the trial court’s action in excluding this testimony. The proffer was to the effect that Ms. Vincent, whose whereabouts at the time of the trial were unknown, told Mr. Ashmore that on the day of the trial Mr. Lee had been at the Electrolux office to “pick up his calls,” and that he had returned to the office shortly after the accident. This testimony was relevant on the question of the employment relationship between Mr. Lee and Electrolux, but to be admissible under Rule 801 (d) (2), supra, it must constitute an admission.

We find no Arkansas cases containing specific definition of “admission.” It is generally defined, however, as a concession or a statement by a party or his agent amounting to a prior acknowledgment of a fact the party denies. In Re Brooklyn Bridge Southwest Urban Renewal Project, 50 Misc. 2d 478, 270 N.Y.S. 703 (1966), and Hartford Accident & Indemnity Co. v. McCardell, 369 S.W. 2d 331 (Tex. 1963). At no time did Electrolux deny the facts sought to be asserted in Ms. Vincent’s statement to Mr. Ashmore. At one point in a deposition the Electrolux district manager denied Mr. Lee was working “in the course of his employment” at the time of the accident, but the abstract before us does not show that he or any other Electrolux representative denied that Mr. Lee was at their office on the day in question or that he had picked up his calls that day.

III.

The appellants’ third argument is that the trial court erred in refusing to permit Mr. Ashmore, Sr., to testify that Ms. Vincent asked him to fill out an accident report for Electrolux’s insurer. The appellants proffered Mr. Ash-more’s testimony and offered an instruction taken directly, and altered only insignificantly, from Delamar & Allison v. Ward, 184 Ark. 82, 41 S.W. 2d 760 (1931). The instruction, which was approved in the Delamar case, makes clear evidence of insurance coverage of a vehicle is admissible on the issue whether the vehicle was being driven for the purposes of or under the control of the party carrying the insurance.

In their response to the appellants’ argument, the appellees cite only Hogan Co. v. Nichols et al, 254 Ark. 771, 496 S.W. 2d 404 (1973), in which the Arkansas Supreme Court found evidence of an insurance agreement should not have been admitted to prove an employer-employee relationship. In that case, however, there was evidence that the alleged employer could not have purchased insurance covering vehicles hired but not owned by it, and covering them only when driven by an employee of the alleged employer. The Delamar case was distinguished in Hogan on the basis of proof in the latter that existence of the particular policy and its coverage was consistent with either independent contractor or employee status of the driver.

In the case before us, we have no evidence what the policy provided, nor do we have any evidence that Electrolux could not have purchased insurance covering its employees, no matter whose cars they drove. While we can distinguish this case from Hogan, we cannot distinguish it from Delamar.

The trial judge apparently made no discretionary determination under Rule 403, Ark. Stat. Ann. § 28-1001, supra, that any prejudice resulting from introduction of evidence of insurance would outweigh the probative value of the evidence. At least, if he did so, it does not appear in the abstract. Thus, we find no justification for the court to have refused to permit the testimony or to have given the requested instruction, had the testimony been permitted.

IV.

The final point made by the appellants is that the court erred in refusing to give A.M.I. 614, an instruction saying that a person confronted with a “sudden emergency” is charged only with the duty of care reasonably expected under those circumstances. The instruction points out that it applies only to sudden emergencies which are not caused by the negligence of the party requesting the instruction.

Two lines of Arkansas Supreme Court cases have developed on the propriety of giving this instruction. Some say the language of the instruction pointing out that it applies only where the negligence of the party seeking the instruction did not cause the emergency is a sufficient safeguard, thus implying the instruction may be given even when there is some evidence of negligence on the part of the party seeking the instruction. See, e.g., Hooten v. DeJarnatt, 237 Ark. 792, 376 S.W. 2d 272 (1964). Others say a party is not entitled to the instruction where his own negligence has created the emergency. See, e.g., Williams v. Carr, et al, 263 Ark. 326, 565 S.W. 2d 400 (1978). These approaches are not inconsistent. When they are combined, the result is that the trial judge may give the instruction in cases where there is some negligence on the part of the party seeking the instruction, but the instruction should not be given where the evidence is very strong that the party requesting the instruction has “created” the emergency by his own negilgence.

In the case before us, we are not asked to say there was not substantial evidence to support the jury’s finding of 35% negligence on the party of Harvey L. Ashmore, Jr., but we would have had difficulty finding that evidence had we been asked. At the very least, it is clear to us that there was no strong evidence that an emergency was created by negligence of Harvey. The instruction should have been given.

Reversed and remanded.

Judge Penix did not participate.

       The statute which required a showing of good cause for production of documents, Ark. Stat. Ann. 8 28-356 (Repl. 1962), was in effect at the time of this discovery request. The "good cause" requirement has been eliminated from the rule which has replaced the statute. See, A.R. Civ. P. 34.