author: J. Fred Jones, Justice.

text:
    HARDING GLASS COMPANY v. William B. CRUTCHER et al and Bill Laney, Comm'r. of Labor
    5-4507
    426 S. W. 2d 403
    Opinion delivered April 15, 1968

      Shaw, Jones & Shaw, for appellant.

      McMath, Leatherman, Woods & Youngdahl and John P. Sizemore and Luke Arnett, for appellees.
   J. Fred Jones, Justice.

This appeal from the Sebastian County Circuit Court involves an unemployment compensation case in which the employer is insisting the claims of a number of employees on the grounds that the employees are ineligible for benefits because their unemployment was brought about by a labor dispute within the meaning of Ark. Stat. Ann. § 81-1105 (f) (Repl. 1960), which is as follows:

“If so found by the Commissioner, no individual may serve a waiting period or be paid benefits for the duration of any period of unemployment if he lost his employment or has left his employment by reason of a labor dispute other than a lockout at the factory, establishment, or other premises at which he was employed (regardless of whether or not such labor dispute causes any reduction or cessation of operations at such factory establishment or other premises of the employer), as long as such labor dispute continues, and thereafter for such reasonable period of time (if any) as may be necessary for such factory, establishment, or other premises to resume normal operation. Provided, however, that this subsection shay not apply if it is shown that he is not participating in or directly interested in the labor dispute; and he does not belong to a grade or class of workers of which, immediately before the commencement of the labor dispute there were members employed at the factory, establishment or other premises at which the labor dispute occurs, any of whom are participating in or directly interested in the labor dispute. Provided, that if in any case, separate branches of work which are commonly conducted as separate businesses in separate premises, are conducted in separate departments of the same premises, each such department shall, for the purpose of this subsection, be deemed to be a separate factory, establishment or other premises. ’ ’

The facts are not seriously in dispute and may be briefly stated as follows: Appellant manufactures glass at its plant in Fort Smith and appellees are members of Local No. 4, United Glass and Ceramic Workers Union and regularly employed at appellant’s plant. A separate class of employees at the plant were members of Local No. 7, Window Glass Cutters League of America. The collective bargaining agreement between appellant and Local No. 7 expired in June of 1966, and thereafter Local No. 7 periodically picketed appellant’s plant. When the dispute arose with Local No. 7, about 285 of the ap-pellee members of Local No. 4 were placed on aTay-off status and started drawing unemployment compensation benefits without question. Twenty-five members of Local No. 4 were not placed on a lay-off status and these employees crossed the picket line established by Local No. 7 and continued to work until October 10, 1966.

The collective bargaining agreement between appellant and Local No. 4 was to have expired on August 1, 1966, but was verbally extended from time to time. On October 10, 1966, the president of Local No. 4 advised appellant that Local No. 4 employees did not have a contract and were not going to continue to work. The 25 employees who had continued to work until October 10 failed to return to work on that date and the other 285 employee members of Local No. 4 remained on a lay-off status. A number of Local No. 4 employees (ap-pellees) were requested to return to work at various times between October 10 and November 16, 1966, and refused to do so. On November 16, 1966, a new contract was signed by appellant and Local No. 4 and the ap-pellees returned to work as requested after that date. The claims involve a period of time from October 10, 1966, until the claimant employees were requested to return to Avork after October 10, 1966.

The decision of the Board of Re\dew, which was affirmed by the trial court, is as follows:

“The determination denying benefits to the claimants Avho left their Avork on October 10 due to the labor dispute was correct and is affirmed. The determination denying the other claimants benefits from the date they Avere directed to report to Avork and failed to do so was correct and is affirmed as they became a part of the dispute or participated in the dispute by their refusal to report to work as directed. The determination of the Agency denying the claimants benefits subsequent to November 19, the end of the week the dispute was settled, is reversed because the lack of production was nqt caused by this labor dispute. ’ ’

On appeal to this court the appellant employer designates one point relied on for reversal, as follows:

“The circuit court erred in affirming the findings of the Arkansas Employment 'Security Division wherein the Employment Security Division allowed unemployment compensation benefits to certain of the appellees during the period of October 10, 1966, to November 16, 1966.”

The appellees had no interest in the labor dispute in which members of Local No. 7 were involved. In fact they crossed the picket line established by Local No. 7 and were unaffected by the dispute Avith Local No. 7 except that a slowdoAvn in production was probably caused by the dispute with Local No. 7 and resulted in the layoff of appellees prior to October 10, 1966. So, the fact situation presented on this appeal is one in which all regular employees, with the exception of 25, were laid off for lack of work and were entitled to, and were receiving, unemployment compensation benefits. While these employees were still on lay-off status for lack of work and were still drawing benefits, the collective bargaining contract of their union expired and the employer was advised that none of appellee members of Local No. 4 (including the 25 who had not ceased work) would continue to work without a contract. The 25 who had worked all along failed to report for work as usual following the notice to the employer, and the remaining employees who were on lay-off status and drawing unemployment benefits, were not notified that work was available nor were they requested to return to work until sometime after notice had been given to the employer that they would not return without a contract.

The question then, boils down to whether the employees who were laid off for lack of work and who were drawing unemployment benefits, were still entitled to draw unemployment benefits until they were notified to return to work and refused to do so. In other words, does notice to the employer by the union president that employees do not intend to work without a contract, suspend the right to continued compensation payments to those employees who are on a lay-off status and already out of work when the notice is given and a labor dispute arises, or is it necessary that such employees be notified to return to work and refuse to do so before their unemployment benefits are suspended?

We are of the opinion that such employees should be notified to return to work and refuse to do so before the payment of their unemployment compensation benefits should be suspended.

As we understand the record, the appellant contends that there is only one labor dispute involved in this case; that the only labor dispute involved is between appellant and appellees and arose on October 10, 1966, when the president of Local No. 4 advised the appellant that appellees would not continue to work without a contract and would no longer cross the picket line established by Local No. 7, and that because of this dispute the appellees who were on lay-off status when the dispute arose, forfeited their rights to unemployment compensation benefits when it was shown that the 25 employees who had worked on October 9, 1966, participated in the dispute by failure to report for work on October 10, and since appellees belonged to the same grade or class of workers as the 25 who immediately before the commencement of the labor dispute were employed in appellant’s plant and participated in the dispute by failure to report for work available to them.

Subsection (f), supra, provides that “no individual . . . may be paid benefits ... if he lost his employment or has left his employment by reason of a labor dispute. ... ” It further provides that “this subsection [f] shall not apply if it is shown that he [the employee] is not participating in or directly interested in the labor dispute ; and he does not belong to a grade or class of workers of which, immediately before the commencement of the labor dispute there were members employed at the factory ... at which the labor dispute occurs, any of whom are participating in or directly interested in the labor dispute.”

Now, assuming that subsection (f), supra, does apply to the appellees who were not working immediately before the commencement of the labor dispute, because it was not shown that they did not belong to the same grade or class as the 25 workers who were working immediately before the commencement of the dispute and Avho did participate in the dispute, still the question remains; did these employees lose or leave their employment “by reason of a labor disputed” To us the record seems clear that they did not. "We conclude that the ap-pellees did not lose or leave their employment by reason of the labor dispute which arose on October 10, 1966; but that they remained on a lay-off status and did not participate in the labor dispute until they were notified to return to work and they failed to do so. For it was then, and only then, that they lost or left their employment by reason of the labor dispute.

Our decision in the case of Fort Smith Chair Co. v. Laney, Commissioner, 238 Ark. 636, 383 S. W. 2d 666, relied on by both the appellant and the appellees, does not quite reach the situation presented in the case at bar. In the Chair Co. case a labor dispute arose on May 21, 1961, while Ballard, Wilson and Rhodes were on layoff because of lack of business. They lost or left their employment by reason of a labor dispute, however, when they were notified to return to work on June 13 and they refused to cross a picket line and return to work. In the Chair Co. case the employees’ rights to benefits between May 31, 1961, when the dispute arose, and June 13, when they were notified to return to work and refused to do so, were not in issue. This corresponding period is the only'one that is in issue in the case at bar.

In the Chair Co. case, the claim was for benefits covering a period after the employees were notified to return to work and they refused. In the case at bar, the claims are for the period of time after the labor dispute arose, but before and until appellees were notified to return to work and they refused to do so. In the Chair Co. case, after the employees were notified to return to work they refused to do so because of the labor dispute, thereby participating in and becoming a part of that-dispute. In the case at bar, until such time as appellees were notified to return to work, they had no opportunity or obligation to return or refuse, so it can hardly be said that they were participating in the dispute until they were afforded an opportunity to do so.

In 28 A.L.R. 307 § 9, is found the following:

“While it seems clear that if a strike occurs during a layoff imposed by the employer for its own reasons, the statutory disqualification for benefits where work is stopped because of a labor or industrial dispute will come into operation during the period following the strike, the eases also indicate that disqualification will not occur unless the employer notifies the striking employees that work is available for them.
“If unemployment is originally caused by a lack of work, and a labor dispute develops during the continuance of the unavailability of work, such labor dispute does not disqualify the employee until work becomes available and he refuses the work beeause of the labor dispute. Muncie Foundry Div. of Borg-Warner Corp. v. Review Board (1944) Ind. App. 475, 51 NE 2d 891.
“In Employees of Lion Coal Corp. v. Industrial Commission. (1941) 100 Utah 207, 111 P 2d 797, where a coal operator voluntarily caused work to cease sometime prior to the calling of a general strike, it was held that there must be some evidence given and something shown by such operator to indicate when it desired work to begin again, from which it might be found that the stoppage of work was no longer due to the opei’ator’s act but was due to a strike within the meaning of the statute.”

The Employment Security Act was intended to withhold benefits from those who bring about their own unemployment by bringing about or participating in a labor dispute. Knox Consol. Coal Corp. v. Review Board, (1942 Ind. App.), 43 NE 2d 1019 reversed on another point in 221 Ind. 16, 46 NE 2d 477.

We conclude that the appellees in the case at bar did not bring about their own unemployment by bringing about, or participating in, a labor dispute until they were notified to return to Avork following their layoff and they joined in the labor dispute by failing to return to Avork.

The judgment of the trial court is affirmed.


source: Caselaw Access Project

author: J. Fred Jones, Justice. John A. Fogleman, Justice,

license: Public Domain

text:
    Carl W. WIDMER v. FORT SMITH VEHICLE and MACHINERY CORPORATION
    5-4511
    427 S. W. 2d 186
    Opinion delivered April 15, 1968

      Carl W. Widmer, pro se.

      Hardin, Barton, Hardin & Jesson, for appellee.
   J. Fred Jones, Justice.

This is another appeal by Carl Widmer from an adverse decision of the Sebastian County Circuit Court wherein Widmer sought judgment for more than $6,000.00 against Fort Smith Vehicle and Machinery Corporation without the necessity of offering proof of the allegations in his complaint, and without the necessity of a trial of the issues on their merits.

On June 12, 1962, Widmer purchased a used Case grain combine from the appellee, Fort Smith Vehicle and Machinery Corporation, under a conditional sales contract for a total cash purchase price of $1,050.00' of which amount $250.00 was paid in cash. The contract provided for the balance to be paid in semi-annual installments of $269.25 on December 15, 1962, $218.45 on June 15, 1963, $227.70 on December 15, 1963, and $236.90 on June 15, 1964. The purchase agreement was drawn up on a printed form designated “Purchase Order,” and the form was designed for use in the sale of John Deere equipment. Under the terms of the contract title was retained by the seller until the combine was fully paid for. A section designated “Warranty and Agreement” appears in bold type in the face of the form and this section of the contract provides as follows:

“Seller warrants each new John Deere machine to be free from defects in materials or workmanship. The obligation of Seller under this warranty is limited to replacing parts which prove defective with normal and proper use within a period of 6 months from date of delivery to Purchaser. In no event shall Seller be liable for incidental or consequential damages or injuries including loss of crops or inconvenience or loss in performing contracts.
“The above warranty is in lieu of all other warranties, statutory or otherwise, expressed or implied, all other representations to Purchaser, and all other obligations or liabilities with respect to such machines including implied warranties of merchantability and fitness. No warranty or representation whatsoever, expressed or implied, has been made by the manufacturer or wholesale distributor of John Deere machines and relied on by Purchaser, and Seller has no authority to make any such warranty or representation on behalf of such manufacturer or wholesale distributor.
“Seller maltes no warranty (including the implied warranty of merchantability and fitness) or representation, expressed o-r implied, and disclaims all obligations and liabilities whatsoever, as to: (a) batteries and rubber tires; (b) any second hand goods; (c) tractor engines not manufactured by John Deere, except that this warranty includes Detroit Diesel 2 cylinder engines on light industrial and light agricultural tractors; and (d) any other goods not specifically named in the first paragraph of this warranty (whether or not sold on or with John Deere machines). As to any such goods Purchaser agrees to look solely to the written warranty, if any, undertaken by the manufacturer thereof. However, in the ease of certain such goods Seller may elect to give a written warranty in the form of a certificate or other written statement specifically designated ‘Warranty’ in which case the provisions of such Warranty shall govern.
“No assistance given to Purchaser by Seller or anyone. acting with him in the repair or operation of the goods shall constitute a waiver on the part of Seller of the conditions of this Warranty and Agreement.” (Emphasis supplied.)

According to the complaint the combine was repossessed by the appellee in the latter part of December 1963, and according to the answer the combine was repossessed because Widmer had paid nothing on the purchase price except the down payment and had defaulted in the payment of all of the first three semi-annual installments at the time the combine was repossessed by the appellee.

On March 2, 1967, Widmer filed suit against the appellee alleging the purchase of the combine under an express verbal agreement by Bill Woody, salesman and agent of the appellee, that the combine “as is” 'would harvest all of Widmer’s grain without difficulty, and that the machine was so warranted; that the actual sale price of the combine was $950.00, but that Widmer agreed to give the appellee an additional hundred dollars to replace and repair any worn or damaged parts and to generally check and completely service the machine, etc.; that the combine was not delivered when agreed and that all the agreed work had not been done on the combine when it was finally delivered; that numerous breakdowns occurred after its delivery, and that one such breakdown lasted for more than a week before the machine was put back into service by the ap-pellee’s employees.

Widmer alleged that because the combine failed to perform as warranted, he was late in harvesting his grain crop, and because of this delay he was late in getting his bean crop planted, and because of the delay in planting the fall soy bean crop, a large part of that crop did not mature and that as a result of loss in grain and the sov bean crop, he was damaged in the amount of $6,500.00.

Under a second count in the complaint, Widmer alleged ownership of the combine and damage to the extent of its value, as well as punitive damages in unlawful trespass committed by appellee in repossessing the combine. On March 10, the appellee filed a “Motion to Elect” praying an order requiring the plaintiff, Widmer, to pursue his cause of action in either contract or tort. On March 14, Widmer filed “Request for Admission of Facts” requesting the appellee to admit as true eighteen paragraphs of statement including the alleged delay in harvest due to breakdowns and repairs, the consequential delay in planting 150 acres of soy beans resulting in failure of the soy bean crop to mature, and that the net fair market value of the soy bean crop that did not mature would have been $3,600.00.

On March 17, defendant filed a motion to quash the request for admissions, and on March 17, Widmer filed his response to defendant’s motion to elect, concluding the response as follows:

“[A] 11 rights and defenses as to both parties to the action and as to both Counts arise out of and come into being as a result of a purchase order dated June 12, 1962; the purchase order in question being the contract in this action; thus, it is apparent that plaintiff’s action is based on contract, and defendant’s motion for plaintiff to elect is superfluous.”

On April 12, the trial court granted defendant’s motion to quash the request for admissions; granted defendant’s motion to elect and set the case for trial on May 2, 1967. Under date of April 20, 1967, Widmer filed a motion to vacate the order granting defendant’s motion to quash request for admission of facts. He subsequently complied with the order to elect and elected to proceed under the first count of his complaint, and on April 21 he filed motion for summary judgment on the theory that since the defendant had not responded to the request for admission of facts which the court had quashed, the facts set out in the request would be taken as true and would entitle Widmer to a judgment on his complaint as a matter of law.

Appellee filed a demurrer to the complaint combined with its answer and also filed a motion for a summary judgment. On May 29, the cause was heard by the court sitting as a jury and the motions for summary judgment were denied. Widmer stood on his demand for a summary judgment and refused to go forward with evidence in support of his complaint. The complaint was dismissed by the trial court, and on his appeal to this court Widmer designates two points he relies on as follows:

“That the trial court erred in not deeming all requested admissions contained in request for admission of facts dated March 14, 1967, as being deemed admitted.
“That the trial court erred in not granting appellant’s motion for summary judgment.”

In support of the points appellant relies on, he argues in his brief, as follows:

“The plain, cold, and obvious facts are that appel-lee just has not complied with the plain and simple provisions of sub-part (,2) of subsection (a) of Statute 28-358 concerning written objections and the explicit requirement for ‘Notice of Heai'ing.’ ”

We consider the plain, cold and obvious facts to be, that appellant purchased a used Case combine and almost five years after he purchased it and some three years after it ivas repossessed for nonpayment, he filed suit on breach of warranties in his contract of purchase and alleged prospective damages measured in acres of grain he did not harvest and soy beans he did not produce.

The record reveals that appellant previously filed this identical law suit in the Sebastian County Circuit Court and followed exactly the same procedure in filing the identical requests for admissions of identical facts and when appellee complied with the requests in that case, appellant refused to go forward with his proof in the trial of the law suit but took a voluntary nonsuit. Appellant refiled the present suit and again filed identical requests for identical admissions, all of which he had a perfect right to do, but under the risk of becoming vexatious to the point of necessary intervention of the trial judge in protecting the rights of other parties to the laiv suit and the orderly conduct of the business of the court. We are of the opinion that the trial court did not abuse its discretion in quashing the appellant’s request for admissions and in requiring tbe appellant to proceed with his burden of proof in the orderly trial of this law suit on its merits.

Appellant lias apparently overlooked two recent decisions of this court in which the argument he now advances in support of the points he relies on was rejected. In the ease of Widmer v. Wood, 243 Ark. 457, 420 S. W. 2d 828, and again in Carl Widmer v. R. G. Wood, 243 Ark. 32, 421 S. W. 2d 872, we held that where objections to a request for admissions fail to include a notice for hearing thereon, such omission does not constitute a defect so fatal as to result in the defendant’s admission of the truth of the requests. We so hold again in the case at bar.

It should not be necessary to point out that the discovery statutes were intended to assist in clarifying the issues in a law suit and help eliminate the elements of surprise and resulting delay in reaching a fair and impartial result at the trial of a law suit on its merits.

The purpose of discovery procedure is to simplify the issues at the actual trial and is not intended to take the place of the actual trial, nor is it intended to relieve the plaintiff of the burden of proving the allegations of his complaint in a civil case. The request for admissions within our discovery procedure is intended to eliminate the effort, expense and time involved in proving such facts as are admitted and is not intended as some new or modern legal method of winning law suits without trial. The object of the civil court trial still remains to attain justice between the parties as nearly as possible, and the rules of civil procedure, including discovery, are intended to aid in that object.

We know of no unique procedure under our code of practice Avhereby a plaintiff may completely abandon his burden of proof and safely rely on requests for admissions to which his adversary may finally grow weary and fail to respond and thereby automatically- entitle the plaintiff to a judgment on any kind of complaint ivithout any kind of proof or any kind of trial. The business of the circuit court of this state is serious business and although a party litigant has a right to represent himself and to devote his full time to the job if he desires to do so, he does not have the unlimited right to convert the rules of civil procedure into a game of legal wits and unduly burden his adversary with expense of counsel in responding to unnecessary and frivolous' pleadings simply because they are permitted by statute. The trial court has a duty and inherent power to quash such pleadings and its actions in doing so will not be disturbed on appeal unless that discretion is abused.

Appellant seems to recognize, and we agree, that his entire law suit is predicated on a breach of warranty by appellee in the contractual sale of the combine. At page 35 of appellant’s brief he states:

“It must be kept in mind that the 12 SP Case Combine that is the subject of this action was sold with a Avarranty and guarantee on the part of appellee.”

Appellee, in its verified answer to the complaint, specifically denied that any Avarranties of any kind were ever made in connection with the purchase of the combine as alleged by the appellant. Even if appellee had admitted all the other facts requested by appellant, there Avould have been no substantial evidence upon which the court could have rendered judgment for the appellant for breach of warranty.

Appellant cites Hambrick v. Peoples Mercantile & Implement Co., 228 Ark. 1021, 311 S. W. 2d 785, in support of the Avarranties he alleged. The Hambrick case is very much in point Avith the case at bar but sustains appellee’s contention that there were no warranties, rather than appellant’s contention that there were warranties. The Ilambrick case involved the sale of a used cotton picker. The contract contained express warranties on new machines and merely stated that the warranties on the new machines did not apply to used machines. Thus, since the express warranty in the Ilambrick contract did not apply to used machines, the used cotton picker was left subject only to such warranties as the law implies as to fitness for the purpose it was sold. The last paragraph of the Ilambrick decision clearly distinguishes it from the case at bar. In referring to the seller who prepared the Ilambrick contract, in the last paragraph of that decision we said:

“It [the seller] failed to insert a declaration that there should be no warranty of second-hand goods and instead contented itself with the statement that such goods should not carry the warranty applicable to new machines. We therefore conclude that the implied warranty which the appellants sought to prove was not excluded by the agreement.”

The exact wording of the contract in the Ilambrick case is as follows: “This warranty does not apply to used or secondhand goods,” (emphasis supplied) whereas in the case,,at bar the language of the contract states affirmatively: “Seller makes no warranty ^.including the implied warranty of merchantability and fitness) or representation, expressed or implied, and disclaims all obligations and liabilities whatsoever, as to: .. . any second band goods.” (Emphasis supplied). The other warranty provisions of the contract in the case at bar, quoted supra, are so clear and unambiguous nothing would be accomplished by restating them here.

The appellant alleged warranties and their breach by the appellee. The appellee, by verified answer, denied the existence of warranties and affirmatively disclaimed all obligations and liabilities whatsoever as to this second-hand Case combine. The burden was on the appellant to prove the existence of the warranties he alleged, as well as their breach by the appellee, and this the appellant failed to do. As a matter of fact in order for appellant to have proved warranties in this case, it wonld have been necessary for him to have disproved the written terms of the contract he relied on. Appellant not only failed to prove the warranties and their breach by the appellee, as alleged in his complaint, he refused to even attempt to do so.

The judgment of the trial court is affirmed.

John A. Fogleman, Justice,

concurring. I concur in the result. When appellant elected to stand on his motion for summary judgment, his request for admissions had been quashed. Although he had filed a motion to vacate the order quashing his request, no action was taken thereon. By his election to stand on his motion for summary judgment, he waived the motion to vacate. Appellant could not have been entitled to a summary judgment unless the trial court was required to consider his request as admitted.

Appellee had filed a pleading called “Motion to Quash” in response to the request. While this is not a proper pleading on a request for admissions under the statute, we are committed to the rule that a pleading is to be treated according to its substance rather than its title. Parker v. Bowlan, 242 Ark. 192, 412 S. W. 2d 597. Appellee’s motion stated that the request for these admissions in this case, after the same requests had been answered in a previous action on the same cause between the same parties, showed that it was made for the purpose of annoyance,-expense, embarrassment and oppression contrary to the spirit and purposes of the discovery procedures. Appellee further stated that the requests were irrelevant and argumentative and that the requests were otherwise improper. The trial court granted the motion. This motion actually constituted a written objection to the requests, which, in effect, was sustained by the trial court.

Examination of the requests indicates that the motion may well have been granted upon the basis that some were irrelevant and some argumentative. Although the answer contains a general denial, it also contains certain specific statements ivhich might he deemed to have sufficiently answered some of appellant’s requests. Each request should have been phrased so that it could be admitted or denied without explanation. 2A Federal Practice & Procedure, Barron & Holtzhoff (Wright), Rules Edition, p. 503, Chapter 9, § 832. Some of the requests might well have been found to be argumentative because they would have been difficult, if not impossible, to answer without explanation.

Appellant elected to stand on his motion for summary judgment. The premise of that motion is that the court was required to take the requests to be admitted, because no notice of hearing of appellee’s motion, to quash was given. Appellant does not question here the propriety of the granting of the motion to quash by the court, except because of appellee’s failure to give the. notice.

Appellant cited only one case to support his contention, namely, United States v. Kellert, 101 F. Supp. 698. Since this case ivas decided before Arkansas adopted Rule 36 of FRCP, he urged that we adopted the construction of the rule in this case. While this rule of statutory interpretation is sound, it is doubtful that the decision of a district court would be as binding on us as that of an appellate court. Furthermore, there is a factor in the.case upon which appellant relies that prevents the decision from constituting authority for the rule he urges. In the Kellert case, the court relied upon the failure of the defendant to attempt to obtain a hearing on his motion to dismiss the request for admissions at any time within the year intervening between the filing thereof and the granting of the summary judgment. No such period of time elapsed here and this motion was heard by the court. If there was undue delay about the disposition of the motion, there was nothing to keep appellant from having asked for a hearing. We have previously held against appellant on this point and I think the holdings are proper. See Widmer v. Wood, 243 Ark. 457, 420 S. W. 2d 828; Widmer v. Wood, 243 Ark. 32, 421 S. W. 2d 872. I am not aware of any ease that follows the rules suggested by appellant here which was decided before our adoption of Rule No. 36. It is interesting to note that at least two district courts have held that failure to accompany objections to a request for admissions with a notice of hearing does not render the objections ineffective where local practice and procedure has eliminated oral hearings on motions. J. R. Prewitt & Sons, Inc. v. Willimon, 20 FRD 149 (D. C. Mo. 1957); Eastman Kodak Co. v. U. S. F. & G. Co., 34 FRD 490 (D. C. Md. 1964).

The majority opinion suggests that requesting the same admissions as were sought in a prior non-suited action may be considered as vexatious. I do not agree that this is the case. The statute clearly states that an admission made pursuant to request is for the purpose of the pending action only and may not be used in any other proceeding. If this is the intended effect of the holding by the majority, I consider it an ill-advised limitation of a very salutary provision of our procedural statutes. The scope and purpose of this provision is broader than simply clarifying the issues. It is also for the purpose of eliminating issues as to which there can be no controversy in good faith. Like the motion for summary judgment, the request for admissions is designed to remove the shielding cloak of formal allegations in a pleading. Mid-South Ins. Company v. FirstNational Bank of Fort Smith, 241 Ark. 935, 410 S. W. 2d 873. Its use for that purpose should not be discouraged, particularly where that most evasive of all pleadings, the simple general denial, has been utilized.

I am authorized to state that Browh, J., joins in this concurring opinion.


author: Conley Byed, Justice.

text:
    PENNSALT CHEMICAL CORP. et al v. CROWN CORK & SEAL CO., INC. et al
    5-4341
    426 S. W. 2d 417
    Opinion delivered April 15, 1968

      Hale & Fogleman and Rose, Meek, House, Barron, Nash & Williamson and McMath, Leatherman, Woods & Toungdahl and Nance, Nance & Fleming, for appellants.

      Frierson, Walker & Snellgrove and Wright, Lindsey & Jennings and McDonald, Kuhn, McDonald, Crenshaw & Smith and Rieves & Rieves, for appellees.
   Conley Byed, Justice.

Personal jurisdiction 'over nonresident appellees Crown Cork & Seal Company, Inc., a New York corporation with its principal place of business in Philadelphia, Pennsylvania; Superior Valve & Fittings Company, a Pennsylvania corporation; and Chase Products Company, an Illinois corporation, under Ark. Stat. Ann. § 27-2502 C. 1(d) (Supp. 1967) (being § 103 [a] [4] of the Uniform Interstate and International Procedure Act), is the issue on this appeal by appellants W. C. Hull and Lillie Hull, his wife, and Pennsalt Chemical Corporation, a Pennsylvania corporation, which has filed a third party complaint against appellees. The statute provides:

‘ ‘ C. Personal jurisdiction based upon conduct.
1. A court may exercise personal jurisdiction over a person, who acts directly or by an agent, as to a (cause of action) (claim for relief) arising from the person’s
(a) transacting any business in this State;
* # *
(d) causing tortious injury in this State by an act or omission outside this State if he regularly does or solicits business, or engages in any other persistent course of conduct in this State or derives substantial revenue from goods consumed or services used in this State;
* * *
2. When jurisdiction over a person is based solely upon this section, only a (cause of action) , (.claim for relief) arising from acts enumerated in this section may be asserted against him.”

This case originated in the trial court as a tort action and a breach of warranty action, which were consolidated for trial purposes, against Pennsalt Chemical Corporation, a Pennsylvania corporation; Crown Cork and Seal Company, a New York corporation; Chase Products Company, an Illinois corporation; Superior Valve & Fittings Company, a Pennsylvania corporation; and in the warranty action against Budlock Refrigeration Supply Company, Inc., a Tennessee corporation.

The action arises out of an explosion on May 16, 1962, of a can of refrigerant manufactured by Pennsalt Chemical Corporation and labeled “ PENNSALT HAN-DI-CAN REFRIGERANT 12.” The can and top for the refrigerant were manufactured by defendant Crown Cork & Seal Company. The refrigerant was packaged in the can by Chase Products Corporation. The valve used by Hull in attempting to put the refrigerant into the air conditioner of an automobile was manufactured by Superior Valve & Fittings Company. The allegation in the complaint is that Hull’s employer, the McCaa Chevrolet Companjr, purchased the Pennsalt Handi-can Refrigerant 12 from Budlock Refrigeration 'Supply Company, Inc.

The trial court restricted all interrogatories about appellees’ solicitation of business and the revenues derived therefrom to matters arising before May 16, 1962, and upon the record made held that the court had no personal jurisdiction over appellees Crown Cork & Seal Company, hereinafter referred to as Crown Cork; Chase Products Company, hereinafter referred to as Chase; and Superior Valve & Fittings Company, hereinafter referred to as Superior Valve.

For reversal appellants contend that the trial court erred in holding that appellees’ activities were not embraced within § 27-2502 C. 1(d), and in limiting or restricting interrogatories on the subject to the period before accrual of plaintiff’s cause of action.

For affirmance appellees contend (1) that the cause of action involved herein did not arise from actions enumerated in § 27-2502 C. 1(d) as the same is restricted by subsection C. 2 of the statute; (2) that to submit them to the jurisdiction of the Crittenden Circuit Court would violate due process of law; (3) that appellees were not regularly doing or conducting business or engaged in any other persistent course of conduct in Arkansas or deriving substantial revenue from goods consumed or services used in Arkansas; (4) that § 27-2502 C. 1(d) does not apply to a warranty case and (5) that appellants did not preserve their right on appeal to argue the limitation of interrogatories in the trial court.

It is admitted that appellees are not authorized to engage in business in the state of -Arkansas, have no offices or places of business in the state and have no agents or servants resident in the state. It is further admitted that up to May 16, 1962, appellees had no warehouses and stored no merchandise in the state of Arkansas for delivery to customers.

The facts show that Chase does not sell directly to persons, firms or corporations in the state of Arkansas but does sell through independent brokers and manufacturers’ agents. During the three years immediately before the accident it sold through such agents and shipped by common carrier to Little Rock Wholesale, Little Rock, Arkansas, an item known as “Super Spraysno.” The amount shipped in 1960 was $1,987.78; in 1961 was $546.48; and in 1962 (up to May 16) was $123.60. Its annual sales volume is over $5,000,000. It had processed $22,000 worth of units for Pennsalt in connection with “Pennsalt Handi-can Refrigerant 12” for the period involved. This processing consisted of 63,955 units in 1960, no units in 1961, and 49,779 units in 1962 up to May 16. The units processed were, upon orders of Pennsalt, shipped by common carrier to all of the states bordering Arkansas.

Notwithstanding its shipments to the bordering states and the fact that it knew the intended use of the refrigerant, Chase denies that it had knowledge or reason to believe that the cans would be sold or used in Arkansas.

Superior Valve makes valves for high and low pressure gas industries; fire extinguishers and refrigeration; and allied assemblies such as manifolds, heat exchangers, liquid indicators and charging hoses for refrigeration and air conditioning. Valves and fittings for air conditioning and refrigeration use and valves for use with gases such as chlorine and oxygen are shipped to customers in Little Rock, Conway, Port Smith and El Dorado, Arkansas. Annual sales made to such customers through manufacturers’ agents amounted to $670 in 1959, $2,025 in 1960, $3,423 in 1961, and $2,743 in 1962. Superior Valve admits that it manufactured the FITZ-ALL valve described in the complaint, but states that from January 1, 1960 to October 15, 1965, it had shipped only twelve such valves to the state of Arkansas for a total revenue of $11.60. The manufacturers’ agents for Superior Valve left its advertising brochures with customers from time to time, and Superior Valve would mail them to a customer upon request. The only advertising of its products through news media was in national trade papers and magazines, none of which are published in Arkansas.

The interrogatories and affidavits of Crown Cork show that it manufactures containers and crowns. It admitted making cans of the type used by Pennsalt which it delivered to Chase in the state of Pennsylvania. In 1960, $332 worth of cans of this same type were sold to Southwest Aerosol of Little Rock, Arkansas, and $2,-621 worth in 1961 to Reasor Hill Company, Jacksonville, Arkansas. It had one salesman who called on customers in Arkansas not more than eight times a year. Its Arkansas sales in 1960 totaled $719, in 1961 $3,191 and in 1962 $379. In an affidavit Crown Cork stated that its annual sales were $141,000,000 and that its Arkansas sales amounted to .24% of the total. Appellants interpret the total annual sales allocable to Arkansas as .24% of $141,000,000, or $338,400._

The right of a state court to exercise personal jurisdiction over a nonresident for acts committed outside the state but affecting a resident of the state has been recognized in McGee v. International Life Ins. Co., 355 U. S. 220, 2 L. Ed. 2d 223, 78 S. Ct. 199 (1957), where Justice Black in speaking for the court stated:

“Since Pennoyer v. Neff, 95 U. S. 714, 24 L. Ed. 565, this Court has held that the Due Process Clause of the Fourteenth Amendment places some limit on the power of state courts to enter binding judgments against persons not served with process within their boundaries. But just where this line of limitation falls has been the subject of prolific controversy, particularly with respect to foreign corporations. In a continuing process of evolution this Court accepted and then abandoined “consent,” “doing business,” and “presence” as the standard for measuring the extent of state judicial power over such corporations. See Henderson, The Position of Foreign Corporations in American Constitutional Law, c.V. More recently in International Shoe Co. v. State of Washington, 326 U. S. 310, 66 S. Ct. 154, 90 L. Ed. 95, the Court decided that “due process requires only that in order to subject a defendant to a judgment in personam, if he be not present within the territory of the forum, he have certain minimum contacts with it such that the maintenance of the suit does not offend “traditional notions of fair play and substantial justice.” Id., 326 U. S. at page 316, 66 S. Ct. at page 158.
“Looking back over this long history of litigation a trend is clearly discernible toward expanding the permissible scope of state jurisdiction over foreign corporations and other nonresidents. In part this is attributable to the fundamental transformation of our national economy over the years. Today many commercial transactions touch two or more States and may involve parties separated by the full continent. With this increasing nationalization of commerce has come a great increase in the amount of business conducted by mail across state lines. At the same time modern transportation and communication have made it much less burdensome for a party sued to defend himself in a State where he engages in economic activity.”

The only restriction in International Shoe Co. v. State of Wash., 326 U. S. 310, 66 S. Ct. 154, 90 L. Ed. 95, 161 A. L. R. 1057 (1945), and McGee v. International Life Ins. Co., supra, is that before a state can exercise such jurisdiction it is essential that there be a showing that the defendant purposefully availed itself of the privilege of conducting activities within the forum state. It is recognized that such activities may be carried on by mail, Travelers Health Ass’n. v. Commonwealth of Va., 339 U. S. 643, 70 S. Ct. 927, 94 L. Ed. 1154 (1950), and by an independent agent or manufacturer’s representative, Jackson v. National Linen Serv. Corp., 248 F. Supp. 962 (W. D. Va. 1965); Gray v. American Radiator & Sanitary Corp., 22 Ill. 2d 432, 176 N. E. 2d 761 (1961); Johnson v. Equitable Life Assur. Soc., 22 App. Div. 2d 138, 254 N.Y.S. 2d 258 (1964); and Coreil v. Pearson, 242 F. Supp. 802 (W. D. La. 1965).

We think the facts here show enough of a persistent course of conduct within the state of Arkansas by each of the nonresident corporations, either through its own agent or an independent manufacturer’s agent, to constitute the minimum contacts necessary to give a state jurisdiction without offending the traditional notions of fair play and substantial justice. As pointed out in Gordon Armstrong Co. v. Superior Court, 325 P. 2d 21, 160 Cal. App. 2d 211 (1958), in determining this issue much consideration must be given to. the forum which is more convenient and to the facilities of modern transportation and communication. Under today’s mode of travel, the city of Little Rock is closer and more easily accessible to Dallas than it was to Pine Bluff, a mere distance of 45 miles, a generation ago. Consequently, we hold that the exercise of personal jurisdiction does not violate the due process of law provisions of the United States Constitution.

Appellees’ arguments (1) and (3), above, are based on the premise that subsection C. 2 makes it mandatory that the conduct that gave rise to the injury must have some relation to the activities upon which service is founded. Thus appellees argue that subsection C. 1(d), as modified by subsection C. 2, requires that the tortious injury must arise out of the business regularly solicited or engaged in by appellees. This argument is contrary to the comment of the commissioners in adopting the act, which specifically points out as follows:

“It should be noted that the regular solicitation of business or the persistent course of conduct required by section 1.03 (a) (4) need have no relationship to the act or failure to act that caused the injury. No distinctions are drawn between types of tort actions.”

Furthermore, to adopt appellees’ construction would limit the jurisdictional reach of subsection C. 1(d) to that of subsection 0. 1(a) (“transacting any business in this State;”), thus making subsection C. 1(d) sur-plusage. We think the better construction is that an action brought under subsection C. 1(d) must be limited to a tortious injury in this state arising out of an action or omission outside of this state, thus preventing a citizen injured in Missouri from bringing a cause of action in Arkansas. But we do not interpret subsection C. 2 as applying to the qualifying portion of subsection C. 1(d) —i. if he regularly does or solicits business, or engages in any other persistent course of conduct in this State or derives substantial revenue from goods consumed or services used in this State; ...” This interpretation places beyond jurisdictional reach of the statute those isolated transactions where the nonresident has no other contact with the state, Hill v. Morgan Power Apparatus Corp., 259 F. Supp. 609 (E. D. Ark. 1966), but on the other hand recognizes that one who pursues a persistent course of conduct or otherwise derives substantial revenue from activities in this state will be liable for acts committed outside this state resulting in injuries in this state. Therefore, we hold that the trial court erred in quashing service of summons upon the nonresident appellees.

Furthermore, we find that subsection C. 1(d) applies both to actions for breach of warranty and to actions in tort. Appellees’ contention in this respect would unduly restrict the interpretation of the word “tortious.” Most authorities treat personal injuries arising from an implied warranty as tortious in nature. See Prosser, Torts, Ch. 19 (3d ed. 1964); and Harper & James, The Law of Torts, Ch. XXVIII (1956). Also, in Evans Laboratories v. Roberts, Judge, 243 Ark. 987, 423 S. W. 2d 271 (1968), we recognized that a personal injury action for implied breach of warranty fell within our venue statute for personal injuries rather than being an action upon a contract.

It follows that the argument over whether appellants properly objected to the trial court’s action has become moot. Since the issue may arise in the future, we point out that the testimony relative to the persistent course of the nonresident’s conduct and to whether it derived substantial revenues subsequent to the date of the accident is ordinarily within the permissible scope of inquiry under subsection C. 1 (d).

Reversed and remanded.

Fogleman, J., disqualified and not participating.

       It is not contended that the valve here involved is one oí the twelve shipped to Arkansas.


author: Conley Byrd, Justice.

text:
    Don HALE et al v. SOUTHWEST ARKANSAS WATER DISTRICT
    5-4441
    427 S. W. 2d 14
    Opinion delivered April 15, 1968
    [Rehearing denied May 21, 1968.]

      Eugene B. Hale Jr. and Fred Pickett, for appellants.

      Hayes McClerJcin, for appellee.
   Conley Byrd, Justice.

Appellee -Southwest Arkansas Water District, a public non-profit regional water distribution district formed under Act 114 of 1957, Ark. Stat. Ann. §§ 21-1401 — 1415 (Supp. 1967), for the counties of Hempstead, Little River, Miller, Lafayette and Columbia, instituted this action to condemn a right-of-way some six miles long for pipe lines and a canal to transport water from the Millwood Dam Reservoir on Little River to a point east of Highway 71 south of Ashdown. The canal was to commence at the Millwood Dam Reservoir and end at the plant of Nekoosa-Edwards Paper Company, and since Nekoosa-Edwards Paper Company was the only consumer of the water district at that time, appellants Don E. Hale et al, Robert L. Black et al, and Wayne L. Carver et al contended that the taking was for private rather than public use, which is prohibited by article 2, section 22 of the Constitution of Arkansas.

The act under which the water district was incorporated, Ark. Stat. Ann. § 21-1408 (Supp. 1967), requires it to transport, distribute, sell, furnish and dispose of such water to any person at any place. Section 21-1409 gives to any person aggrieved by the water district’s service or rates the right to petition the Circuit Court to issue such orders as may be necessary and proper to protect his rights therein.

After its organization the water district obtained from the United States government a contract for the acquisition of 265,000,000 gallons of water daily from the Millwood Dam Reservoir. The purpose of the contract with the Corps of Engineers was the contemplated distribution of water for municipal, industrial and agricultural purposes to the surrounding area. The evidence shows that the water district as such had no funds with which to construct or make any distribution and that it depended wholly upon revenue bonds for the construction of improvements. Consequently, before any improvements could be undertaken the district needed a contract with sufficient guaranteed revenues to float a bond issue. In this case, in addition to floating a bond issue upon the revenues derived from the Nekoosa-Ed-wards Paper Company contract, the district applied to the Economic Development Administration, an agency of the federal government, and obtained a grant of $1,-870,000 to aid in the construction of the canal. Furthermore, the over-all planning by Brown & Root, Inc., the project engineers, covered all of the multi-county area included in the water distribution district south and west of Little River. However, the construction plans covered only the canal here involved. The present design capacity of the canal is adequate to serve all expected needs south and west of Little River, including the cities of Ash-down, Foreman, Texarkana and a hoped-for paper company near McNab.

In Railway Co. v. Petty, 57 Ark. 359, 21 S. W. 884 (1893), we had before us somewhat the same issue as the one here. There the railroad had instituted eminent domain proceedings for the purpose of constructing an additional side track across Petty’s land to that of an adjacent and competing coal miner. In upholding the right of the railroad to exercise eminent domain, we said:

“To be public the user must concern the public. If it is an aid in facilitating the business for which the public agency is authorized to exercise the power to condemn, or if the public may enjoy the use of it not by permission but of right, its character is public. When once the character of the use is found to be public, the court’s enquiry ends, and the legislative policy is left supreme, although it appears that private ends will be advanced by the public user. It is common for the interest of some individuals to be advanced, while that of others is prejudiced, by the location of railway stations and switches when there is no motive on the part of the railway officials to discriminate between them. That result is seen in the original location of every line of railway. But the courts do not assume to interfere with the right of the company to locate its line, stations or switches. In this case, the railway located its sidetracks contiguous to the mine of the coal company, rather than to that of the appellee who is a rival miner. The evidence is abundant that side tracks were necessary to facilitate and hasten the business offered to the company at that point. That, of itself, is sufficient to give public character to the uso to ivhich the land was to he devoted. Moreover, at that point upon this very land, as the proof shows, there is established a shipping station for coal. The railway’s franchise empowers it to establish none but public stations. It can place no unreasonable restraint on the right of the public to use it. If the railway maintains a coal shipping station at that point, and unreasonably refuses to accord to the appellee, or others who have occasion to ship coal therefrom, facilities for doing so, the courts can afford a remedy for the wrong; and if the railway abuses the privilege of condemning private property for a public use by turning the property acquired by condemnation to a private use, doubtless the easement it acquired by condemnation may be revoked, and the possession restored to the owner of the fee.”

Thus the water district here stands in much the same position as the railroad. By law it is obligated to serve any member of the public desiring its services, and while the statute does not specifically set it forth, it would appear that this would be upon the same terms and conditions applied to Nekoosa-Edwards Paper Company — i. e., the cost of such services to any prospective customer would be that only which was necessary to pay for the water plus the amortization of the investment in the canals necessary for distribution of the water. Our position would be otherwise if Nekoosa-Edwards Paper Company were the only customer who had a right to use the water. It is true that at present the canal would serve only Nekoosa-Edwards Paper Company; but we feel that we would be unduly restrictive in our interpretation of the right of eminent domain if we required a utility to have a going business before it laid its first trunk line for the distribution of its product. The testimony here showed without doubt that the canal was to serve as a trunk line not only for Nekoosa-E'd-wards but for all other customers who might demand service south and west of the river. Under these circumstances we hold that a preponderance of the evidence shows that the proposed use of the canal by the water distribution district is for a public purpose. Nor can we find anything to the contrary in City of Little Rock v. Raines, 241 Ark. 1071, 411 S. W. 2d 486 (1967).

It is also argued that the trial court erred in finding that the landowners had the burden of proving that the taking was for private use. Since in our opinion a preponderance of the evidence when construed in connection with the statute shows that the taking was for a public use, this issue is moot.

Appellants Don Hale et al urge other points for reversal, such as that the trial court erred in finding that the pleadings should be amended to conform to the proof; in not granting appellants’ motion for continuance ; in not granting resubmission of the case and transferring the cause to equity; and in permitting entry until just compensation was determined and paid.

On these allegations we find no error. Appellant Hale failed to show in what different manner he would have prepared bis case had a continuance been granted, and certainly the mere recording of mortgages on the condemned land by the water district would not call for a resubmission of the case and a transfer to equity. The alleged error with respect to the entry until a just compensation was determined and paid is argued here for the first time.

Since the statutory authority for the exercise of eminent domain refers to “rights-of-way,” we hold that the trial court erred in taking the fee title of appellants ’ properties rather than an easement for right-of-way. The term “right-of-way” ordinarily refers to an easement only. Graham v. St. Louis I. M. & S. R. Co., 69 Ark. 562, 65 S. W. 1048, 66 S. W. 344 (1901). By limiting the eminent domain to an easement, appellants have the security pointed out in Railway Co. v. Petty, supra, should the water district abase its privilege of condemning private property for public ase by taming the property acquired into a private use.

Affirmed as modified.

Brown, J., not participating.


text:
    LEGAL SECURITY LIFE INSURANCE CO. v. Mrs. Jessie BROOKS et al
    5-4479
    426 S. W. 2d 784
    Opinion delivered April 15, 1968
    [Rehearing denied May 13, 1968.]

      Perry V. Whitmore, for appellant.

      Jack Young and Jack Sims, for appellees.
   Conley Byrd, Justice.

Appellant, Legal Security Life Insurance Company, was sued on two counts .by Mrs. Jessie Brooks for transactions she had had with American Teachers Life Insurance Association, a fraternal life insurance association, and for transactions with Kelly-Barrett Company, Inc., which held a management contract with American Teachers Life Insurance Association. The record shows that the policies of American Teachers were assumed by Southern United Life Insurance Company; that Southern United was consolidated into American Commerce Life Insurance Company; and that American Commerce Life Insurance Company was merged into appellant Legal Security Life Insurance Company of Dallas, Texas.

The first count in Mrs. Brooks’ complaint was on a $5,000 note executed on May 10, 1963. The second count was an equitable garnishment, it being alleged that Kelly-Barrett Company was indebted to Mrs. Brooks in the amount of $11,866.50, for which judgment had been obtained; and it further being alleged that as of October 17, 1963, American Teachers was indebted to Kelly-Barrett in the sum of $12,941.61, which is still due. The allegation then followed that the liabilities of American Teachers were assumed by Southern United, for which appellant Legal Security now stands obligated.

Appellant denies that the contract of Southern United assumed the responsibilities of American Teachers ; denies that the $5,000 note is an obligation of American Teachers; and in the alternative pleads fraud in the procurement of the contract between American Teachers and Southern United, and that the obligation of American Teachers to Kelly-Barrett 'Company was extinguished by an accord and satisfaction. Appellant filed a third-party complaint against J. C. Kelly, J. G-. Barrett and Kelly-Barrett Company, Inc., based on an indemnification clause in the contract between Southern United and American Teachers.

From a decree holding appellant liable on both counts and dismissing its third-party complaint against J. C. Kelly (J. Gr. Barrett and Kelly-Barrett Company, Inc., not having been served), appellant appeals, raising the same issues.

The agreement between Southern United and American Teachers, insofar as applicable, provides:

“(2) Southern United Life Insurance Company further agrees to assume all of the legal liabilities of American Teachers Life Insurance Association including all liabilities under and by virtue of all outstanding policies of insurance issued by said Association. . .”
* # *
“(6) It is agreed and understood that this assumption of all liabilities and all insurance in force by Southern United Life Insurance Company of American Teachers Life Insurance Association is based upon certain warranties and covenants made by the officers of American Teachers Life Insurance Association, and said officers whose names are affixed to this agreement do hereby indemnify the said Southern United Life Insurance Company from any and all claims over and above those herein listed. Specifically, it is agreed that the purported claims of Jo Ann Abel in the amount of $1,000.00, Kate C. Nunn in the amount of $1,250.00, Cities Service in the amount of $474.31, Golden Galaries in the amount of $649.18, and Tom Blackwell of Austin, Texas in the amount of $69.53, are actually individual liabilities and are not liabilities of the company for which the company would in any way become liable.”

Obviously the above contract provisions placed Southern United in the position of assuming the liabilities of American Teachers if any were owed, despite the fact that they were not listed on the contract. Therefore we find without merit appellant’s contention to the contrary.

In urging that it was not liable on the contract between Southern United and American Teachers, appellant contends that the contract was procured by fraud of American Teachers’ officers. They also argue that the trial court erred in excluding certain evidence tending to show fraud. The latter we need not consider, for the record is clear that American Teachetfs ’ books showed the obligations of Mrs. Brooks and Kelly-Barrett Company as those of American Teachers. In fact, the Insurance Commissioner had audited the books as of July 31, 1963, and his audit included the obligations as liabilities of American Teachers. The record further reflects that the contract between American Teachers and Southern United was initiated by the Insurance Commissioner, and that agents of Southern United actually examined American Teachers’ books and records before entering into the contract. While Southern United’s president, Mr. Mendenall, denied any personal knowledge of such obligations, the agents who examined the books were not called to testify. Since Mr. Mendenall stated that he did not rely on the representations made by American Teachers but on examination of the books by Southern United’s agents, we hold that appellant failed to show that there was any fraud on the part of American Teachers in the procurement of the contract. Fausett & Go., Inc. v. Bullard, 217 Ark. 176, 229 S. W. 2d 490 (1950).

The record shows that Mrs. Brooks advanced to J. C. Kelly $5,000 at the time the preliminary certificate of American Teachers was issued early in 1963. This $5,000 was placed in a bank under the joint control of J. C. Kelly and the insurance commissioner-and served as the bond required by Ark. Stat. Ann. § 66-4704(2) (Repl. 1966) for the issuance of the preliminary certificate. American Teachers’ permanent certificate to do business was issued on April 30, 1963. Subsequent to the issuance of the permanent certificate the money was withdrawn from thembank and concededly went into the assets of American Teachers. On May 10, 1963, the $5,-000 note here involved was executed. The note was on a form designed for use by individuals. On the signature lines first appeared the name of J. G. Barrett and then that of J. C. Kelly. To the right of their signatures appeared “American Teacher Ins Assn — P O 3095, Little Rock, Ark”. Both Mrs. Brooks and J. C. Kelly testified that the note was an obligation of American Teachers. There is no testimony to the contrary, except for the appearance of the note, and we hold that under the record this was sufficient to establish the note as an obligation of American Teachers — particularly since the Insurance Commissioner’s audit so listed it as of July 31.

As a further defense to liability on the note, appellant contends that American Teachers, being a fraternal benefit society, had no authority to borrow money and thus its conduct in making the obligation was ultra vires. In view of Ark. Stat.’Ann. § 66-4704(6) Repl. 1966), we find this contention to be without merit. That section specifically provides that such corporations would have such powers “as are necessary and incidental to carrying into effect the objects and purposes of the society,” and it would be unduly restrictive of such a society to hold that it could not borrow money. To hold otherwise would prevent such a society from building its own office building.

The issue on equitable garnishment resolves itself into one of accord and satisfaction. It is conceded that if American Teachers is not presently obligated to Kelly-Barrett, Mrs. Brooks’ equitable garnishment must fail. Mr. Kelly testified without equivocation that at the time of the contract and the assumption of liabilities by Southern United on October 17, 1963, American Teachers was not personally indebted either to him or to J. G. Barrett. He stated that the obligation was owed to Kelly-Barrett Company, Inc. Mr. Mendenall testified, without contradiction, that Southern United’s check No. 1654 for $250, dated October 16, 1963, and its check No. 1655 for $902, dated October 17, 1963, were given in complete satisfaction of all obligations owed by American Teachers to Kelly-Barrett Company, Inc.

The record also shows that Kelly-Barrett was incorporated for the sole purpose of managing American Teachers; that it ceased to do business about August 31, 1963, when negotiations were started for the reinsurance with Southern United; and that, except for the obligation owed by American Teachers to Kelly-Barrett, it had no assets as of October 17, 1963.

Kelly was president of American Teachers and Barrett Avas vice president at the time the October 17, 1963, contract with Southern United was executed. The record is not clear as to what Barrett’s status was with Kelly-Barrett Company, (it appearing that he had resigned from its board of directors), but it does show that Kelly was the principal officer of Kelly-Barrett Company at that time.

Under the circumstances the payments by Southern United to J. C. Kelly and to J. C. Kelly and J. G. Barrett were obviously sufficient to constitute an accord and satisfaction. Pettigrew Machine Co. v. Harmon, 45 Ark. 290 (1885).

To refute the accord and satisfaction argument, Mrs. Brooks points to the fact that on check No. 1655, made payable to Glen Barrett and' J. C. Kelly in the amount of $902, there was this notation:

“Full and final settlement for any claims on American Farm Life Insurance Association and American Teachers Life Insurance Association.”

From this notation Mrs. Brooks argues that parol evidence such as Mr. Mendenall’s was insufficient to contradict the notation on the check. Tillar v. Wilson, 79 Ark. 266, 96 S. W. 381 (1906). We hold Mrs. Brooks’ contention to be without merit, for the clear and uncon-tradicted proof shows that no obligation was personally owed to J. C. Kelly and Glen Barrett; and under the holding in Tillar v. Wilson, supra, it is specifically recognized that clear, cogent and convincing evidence can be introduced to contradict a written instrument when properly pleaded. We find that the pleadings in this case were sufficient to raise the issue. Furthermore, Mrs. Brooks’ argument overlooks check No. 1654 for $250, made payable to J. C. Kelly, without any notation.

The $5,000 note above was not on the itemized list of obligations attached to the contract between American Teachers and Southern United. Under the facts here, paragraph 6 above clearly shows that J. C. Kelly and J. G. Barrett agreed to indemnify Southern United for any such obligations not appearing on the list. Therefore we hold that the trial court was in error in not awarding judgment against J. C. Kelly for the $5,000 obligation for which Mrs. Brooks is entitled to judgment against appellant Legal Security Life Insurance Company. Appellee Kelly argues that appellant has waived this argument by not arguing it in this court. We disagree, and hold that appellant is entitled to judgment against Kelly for $5,000.

Therefore, the trial court’s judgment against appellant Legal Security Life Insurance Company upon the equitable garnishment is reversed and dismissed; its judgment against appellant and in favor of Mrs. Brooks for the $5,000 is affirmed; and its dismissal of appellant’s claim of indemnity against appellee J. C. Kelly is reversed with directions that judgment he entered for $5,000.


text:
    Ross DOPSON v. METROPOLITAN LIFE INSURANCE COMPANY
    5-4535
    426 S. W. 2d 410
    Opinion delivered April 15, 1968

      Ben D. Lindsey, for appellant.

      Mahony & Yocum, for appellee.
   Conley Byrd, Justice.

Appellant Ross Dopson instituted this action in chancery court for specific performance of a rider giving coverage to his wife, Aurelle Dopson, under a group hospitalization policy issued hy appellee Metropolitan Life Insurance Company. From a decree denying relief to appellant and awarding relief upon a cross-complaint to appellee, appellant relies upon the following points for reversal:

I. THE FINDING OF THE COURT THAT APPELLANT HAD FAILED TO DISCLOSE THE HISTORY OF HIS WIFE’S PRIOR BACK TROUBLE IN THE APPLICATION IS NOT SUPPORTED BY A PREPONDERANCE OF THE COMPETENT EVIDENCE.

II. THE FINDING OF THE COURT THAT APPELLANT’S FAILURE TO DISCLOSE HIS WIFE’S PRIOR BACK TROUBLE IN THE APPLICATION WAS MATERIAL TO THE RISK IS NOT SUPPORTED BY A PREPONDERANCE OF THE COMPETENT EVIDENCE.

The record shows that Ross Dopson had known his present wife for approximately six months before their marriage in December 1964. He and his children by his first wife already had coverage under the group policy and previous riders. The application for the rider to cover his wife, Aurelle, and her three children was made on June 8, 1965, at Dopson’s home. Appellee’s agent, Burton R. Mullins, Jr., prepared the application signed by Dopson. In obtaining the information necessary for the preparation, Mr. Mullins directed his questions to Mrs. Dopson rather than to Mr. Dopson.

There is a dispute between the Dopsons ’ testimony and that of Mullins about whether Mrs. Dopson told Mullins about her back trouble in May 1964. Mr. and Mrs. Dopson testified that she did. Mullins testified that she did not. It is uncontradicted that she entered the hospital with a back problem in May 1964, at which time her doctor ran a myelogram. The chancellor found the issues in favor of appellee and we can not say that his finding is contrary to a preponderance of the evidence.

Appellant argues, however, that Dopson himself made no representation because the undisputed proof shows that he had no knowledge of Mrs. Dopson’s hack: trouble. While it is true that Dopson is the only party to the lawsuit and that he was honest insofar as his personal knowledge was concerned, we hold that his lack of knowledge does not prevent appellee ’6 defense under Ark. Stat. Ann. § 66-3208 (Repl. 1966), which provides in part:

“Representations in applications. — (1) All statements in any application for a life or disability insurance policy or annuity contract, or in negotiations therefor, by or in behalf of the insured or annuitant, shall be deemed to be representations and not warranties. Misrepresentations, omissions, concealment of facts, and incorrect statements shall not prevent a recovery under the policy or contract unless either:
(a) Fraudulent; or
(b) Material either to the acceptance of the risk, or to the hazard assumed by the insurer; or
(c) The insurer in good faith would either not have issued the policy or contract, or would not have issued a policy or contract in as large an amount or at the same premium or rate, or would not have provided coverage with respect to the hazard resulting in the los-s, if the true facts had been made known to the insurer as required either by the application for the policy or contract or otherwise. . . [Acts 1959, No. 148, § 275, p. 418.]” ((,Emphasis supplied.)

Upon the second issue appellant relies on Inter-Ocean Casualty Co. v. Huddleston, 184 Ark. 1129, 45 S. W. 2d 24 (1932). There we held that a misrepresentation would not void liability under a policy unless the failure to disclose was material to the risk involved. Under § 66-3208, supra, our holding in the Huddleston case has been modified to the extent that a recovery will be denied where the “omissions” or “incorrect statements” are such that the company -would not have provided coverage with respect to the hazard resulting in the loss had it known the true facts.

As part of the foregoing, appellant argues that there is no competent evidence to prove a connection, between the back trouble of 1964 and the injury of 1965. Appellee points out that in an affidavit one E. R. Ryan referred to Mrs. Dopson’s past medical history and definitely stated that, had the May 1964 back trouble information been available to the Metropolitan Life Insurance Company, it would not have issued the rider without an exclusion relative to Mrs. Dopson’s back. E. R. Ryan’s affidavit was put in the record under the following stipulation:

“MR. YOCUM: May it please the Court, I have an affidavit here by Mr. E. R. Ryan, who is the Assistant Supervisor of the Underwriting Section of Metropolitan Life Insurance Company and it’s my understanding that with Mr. Lindsey, that we will stipulate that Mr. Ryan would testify a§ to the contents of this affidavit if he were here.
MR. LINDSEY: I will agree to that, Your Honor.
THE COURT: Let this be marked.”

Under the stipulation we hold that the affidavit was competent evidence to show that Metropolitan Life Insurance Company would not have provided coverage of Mrs. Dopson’s back had it been advised of the 1964 back trouble.

Affirmed.


author: Carleton Harris, Chief Justice.

text:
    Alta RISOR, Adm’x v. Gordon BROWN
    5-4498
    426 S. W. 2d 810
    Opinion delivered April 22, 1968

      Smith, Williams, Friday & Bowen, for appellant.

      Moses, McClellan, Arnold, Owen & McDermott, for appellee.

      Lyle Williams, for amicus curiae, Commissioner of Revenues B. Bryan Larey.
   Carleton Harris, Chief Justice.

The question at issue on this appeal is whether a part of the federal and state estate tax paid bv Alta Risor, Administratrix of the estate of Oddie M. Anderson, deceased, is to be apportioned against the inter vivos donee of stock, Gordon Brown, appellee, such stock being included in the gross taxable estate, or whether the tax is entirely payable from the residuary estate. Brown received an inter vivos gift of stock from Mrs. Anderson on March 4, 1964, in the amount of $22,000.00. At the time the gift was made, Oddie M. Anderson was 86 years of age, had been bedridden for over 2 years, and was paralyzed on her entire left side as a result of strokes suffered in December, 1962, and September, 1963. She died testate 7% months after making the gift, leaving a specific bequest to ap-pellee in the amount of $350.00. Both the federal and state estate tax returns were filed in January, 1966, by the decedent’s personal representative, and all taxes due were paid from assets in the probate estate. Soon thereafter, the Internal Revenue Service examined the return, and determined that the $22,000.00 gift to Brown, made within 3 years of Mrs. Anderson’s death, was a transfer in contemplation of death within the provisions of Section 2035 of the Internal Revenue Code (26 U. S. C.), and was subject to the federal estate tax. Assessment was made in accordance with this determination, and $3,022.04 in taxes, plus $176.56 in interest, was paid to the United States and the state of Arkansas by the personal representative. Mrs. Risor instituted an action in the Pulaski County Probate Court, seeking an order decreeing that Brown was a distributee and beneficiary of the estate of Mrs. Anderson within the meaning of the Arkansas apportionment statute, Ark. Stat. Ann. § 63-150 (Supp. 1967); that he was liable for his proportionate share of the federal and state estate taxes paid by the personal representative, and it was prayed that ap-pellee be required to pay to Mrs. Risor, the adminis-tratrix, his proportionate share of the taxes, plus his proportionate share of all interest paid to the Internal Revenue Service on account of the gift made to him by the decedent. On trial, the court dismissed the action, holding that Brown was only liable for his pro rata part of the state and federal estate taxes due on the $350.00, which he received as a legatee under the will of Mrs. Anderson, thus in effect holding that Brown was neither a distributee nor beneficiary of the decedent’s estate within the meaning of Section 63-150. Prom the judgment so entered, the administratrix brings this appeal.

It is regrettable that we cannot decide this case on its merits, since the question involved has not been heretofore passed upon, and is of some importance. However, the Probate Court had no authority to determine the issue before us, i. e., it had no jurisdiction of the subject-matter. In Shane v. Dickson, 111 Ark. 353, 163 S. W. 1140, we said:

“This contention involves a misconception as to the nature of this action. It is not a matter ‘relative to the probate of wills, the estate of deceased persons, executors, administrators,’ etc., but is a suit by the executor to recover a debt due the estate. The probate court has no jurisdiction of contests between an executor or administrator and third parties over property rights or the collection of debts due the estate. Its jurisdiction is confined to the administration of assets which come under its control, and, incidentally, to compel discovery of assets. [Citing cases.] ”

This court has been very strict where the matter of the jurisdiction of the trial court is involved. "We have held that the question of jurisdiction of the subject matter cannot be waived, but is always open, and may be raised for the first time on appeal. See Magnet Cove Barium v. Watt, 215 Ark. 170, 219 S. W. 2d 761, and cases cited therein. As recently as April, 1967, in Catlett v. Republican Party of Arkansas, 242 Ark. 283, 413 S. W. 2d 651, we held that it is immiaterial that the parties have not raised the issue of jurisdiction, and, though both sides ask this court to pass on the question at issue, we cannot do so where the trial court had no jurisdiction.

In the present litigation, the question of jurisdiction is raised, albeit the record is not in very good shape. The question was presented to the trial court, but an abbreviated record was sent to this court, which did not include that portion of the record wherein appellee raised the question of jurisdiction, nor is the order of the court, wherein it held that the Probate C'ourt had jurisdiction, included in the transcript. Appellee does argue that the Probate Court had no jurisdiction, and in her reply brief appellant includes a copy of the court’s order, wherein it overruled appellee’s motion relative to jurisdiction, and held the court had jurisdiction over the cause of action. At any rate, we held in Price v. Madison County Bank, 90 Ark. 195, 118 S. W. 706, that, even though the question of jurisdiction is not raised, “yet the question of jurisdiction of the subject-matter always presents itself, for it is well settled that consent cannot give jurisdiction of the subject-matter where none exists. [Citing cases]” In McCain, Commissioner of Labor v. Crossett Lumber Company, 206 Ark. 51, 174 S. W. 2d 114, this court stated that the question of jurisdiction “presents itself, and must be determined by the court. ’ ’

In the present case, the suit is not a .matter ‘ ‘ relative to the probate of wills, the estate of deceased persons, executors, administrators, etc.,” but is actually a suit by the administratrix seeking contribution from one she alleges to be a distributee and beneficiary (under the provisions of Section 63-150). As pointed out in Shane, the Probate Court’s jurisdiction was “confined to the administration of assets which come under its control,” i. e., assets which were a part of the estate devised or bequeathed by Mrs. Anderson in her will.

In accordance with what has been said, the judgment of the Pulaski County Probate Court is reversed, and, matters of contribution being cognizable in courts of equity, the cause is remanded with directions to transfer same to the Pulaski County Chancery Court.

It is so ordered.

       According to 37 A.L.R. 2d 172, “The doctrine had its origin in courts of equity upon the principle that equality among those in aequali jure is deemed to be equity. 13 Am Jur 6, 7, Contribution §§ 3, 4.”


author: Paul Ward, Justice.

text:
    Ancil DOUTHIT et al v. Thomas L. ALLEN
    5-4549
    426 S. W. 2d 812
    Opinion delivered April 22, 1968

      Joe G. Kemp, City Attorney; Perry V. Whitmore, Asst. City Attorney, for appellants.

      Chowning, Mitchell, Hamilton & Burrow and Cock-rill, Laser, McGehee, Sharp & Boswell, for appellee.
   Paul Ward, Justice.

This is an appeal from a decree, issued by the Chancery Court (3rd Div.) of Pulaski County, which enjoined and restrained the City of Little Rock from awarding a contract to purchase a “crawler tractor”.

Facts. The City, acting through its manager, An-cil Douthit, and other officials (hereafter referred to ns appellants) published an “Invitation to Bid” in proceeding to purchase the tractor. All prospective bidders were furnished a description of the tractor and minute details of pertinent terms and conditions. When the bids were opened on June 22,1967 the only response was that made by J. A. Riggs Tractor Company. Previously this litigation had been instituted.

Thomas L. Allen (appellee), a citizen and taxpayer of the City, filed a complaint against appellants, alleging that the Invitation to Bid (with specifications) is illegal and in excess of the authority delegated to said defendants for the following reasons:

(a) The Invitation violates the City Code and certain statutes;
(b) Appellee has no remedy at law.

The prayer was for an order permanently enjoining appellants from awarding a contract under the Invitation to Bid. Attached to the complaint, as Exhibit A, are the Invitation, the bond, and detailed specifications — constituting nineteen pages in the record.

After a temporary restraining order was issued, appellants answered, denying all material allegations in the complaint.

On July 17, 1967 the trial court, after hearing testimony, entered a decree, holding, in substance:

(a) The Invitation to Bid together with Exhibit A is in violation of the City Ordinances and the State statutes relating to competitive bidding;
(b) The threatened acts of the City in awarding a contract are illegal and in excess of its authority under said ordinances and statutes;
(c) The 'City is permanently enjoined from awarding a contract pursuant 'to the “Invitation to Bid set out in Exhibit A.”

It is the contention of appellants, in seeking a reversal, that; (1)' Thé hid procedures employed do not violate Amendment 10 of the State Constitution; (2) “The construction placed upon the contract offered for bids was erroneous.”

For reasons presently mentioned we have concluded that the decree of the trial court must be affirmed. First, however, it is pointed out that appellee makes no contention here that the City has violated, or will violate', Amendment 10 to the State Constitution.

We find it necessary to consider only two phases of the proposed purchase contract. One relates to repairs on the tractor, and Two relates to a resale of the tractor to the successful bidder.

One. Under the City’s proposal the successful bidder must guarantee that the maximum cost of repairs on the tractor for a period of five years would not exceed $20,000. Item 2 E. provides, in effect, that regardless of the amount involved on any repair job, the City and the bidder could agree on the costs. Obviously this procedure violates City Ordinance § 2-43 and § 2-44 which requires competitive bidding “Where the amount of expenditure for any purchase or contract authorized . . . exceeds the sum of one thousand dollars ...”

Two, Item 3B. of the specifications provides, in effect, as follows: Any time within five years after delivery of the tractor or at the end of 15,000 operating hours the successful bidder is bound, at the option of the City, to repurchase the tractor for the sum fixed in the specifications. Thus, again, this places the City in a position to dispose of an expensive piece of property without the safeguard of competitive bidding, and is in violation of Ordinances § 2-42 and § 2-44.

In addition to what -we have said above, we think there is another aspect which also calls for an affirmance.

Robert J. Wilson, vice-president of a local machinery company, gave several reasons why his company could not submit a bid in this instance. His reasons are set forth in a letter to the City as follows:

(a) There are six indefinite items which a bidder would have to consider in connection with cost of repairs. 1 — price increase on repair parts over a period of five years; 2 — cost of labor; 3 — competency of City service personnel; 4— competency of operating personnel; 5 — how tractor would be used, and; 6 — major repairs.
(b) Requirement of bidder to repurchase tractor —for a fixed amount after five years imposed questionable and indefinite factors; 1 — mechanical condition of machine; 2 — -economic conditions; 3 — local market conditions; 4— technical improvements in machinery, and; 5 — his company’s inventory of machinery.

We think the trial court could have properly found that these uncertainties, inherent in the specifications, would tend to stifle competitive bidding and would not, therefore, be in the public interest. In the early case of Fones Hardware Co. v. Erb, 54 Ark. 645, 17 S. W. 7 this Court said that “Any arrangement which excludes competition prevents a letting to the lowest bidder. . .” In 43 Am. Jur., Public Works and Contracts, § 23, et seq., in a discussion of this same matter there appears this statement:

“Experience has shown, however, that the interests of the public are best conserved by offering contracts for public work to the competition of all persons able and willing to perform it, and in most, if not all, jurisdictions there are mandatory and peremptory, constitutional and statutory provisions, as well as provisions of municipal charters and ordinances, which prescribe competitive bidding by all persons who wish to obtain such contracts, and the letting by public authorities of the contracts to the lowest bidders. . .”

It is our conclusion therefore that the decree of the trial court should be, and it is hereby, affirmed.

FoglemaN, J;, not participating.


author: Lyle Brown, Justice.

text:
    Claude WILLIAMS et al v. Russell ELROD et al
    5-4620
    426 S. W. 2d 797
    Opinion delivered April 22, 1968

      Odell Pollard and Darrell Hickman, for appellants.

      Rose, Meek, House, Barron, Nash & Williamson, for appellees.
   Lyle Brown, Justice.

The plaintiff-appellants are taxpayers, residents, and electors of twenty-five of the State’s senatorial districts. The defendant-appellees constitute all State Senators. Plaintiffs below sought a writ of mandamus to require the thirty-five senators to draw lots to fix their terms of office at two or four years in accordance with Sec. 6 of Art. 23 of our Constitution. The case was submitted on the pleadings, requests for admissions and responses, stipulations, and motion for summary judgment. Plaintiffs’ motion for summary judgment was denied and the complaint dismissed.

In Block v. Allen, 241 Ark. 970, 411 S. W. 2d 21 (1967) we explained the history of the senatorial apportionment provisions of our Constitution and the pertinent decisions of this court. That explanation need not here be detailed; reference is made for the benefit of interested parties. However, for clarity we should reiterate that Amendment 23 requires senatorial drawing by lot following reapportionment after' each federal census. At the drawing eighteen senators would draw terms of two years and the remainder would draw terms of four years.

The taxpayers contend there is no conflict between the cited provisions of Amendments 23 and 45 (which fixes senatorial terms at four years); there being no conflict, they assert that since there was a reapportionment as directed by Yancey v. Faubus, 238 F. Supp. 290 (E. D. Ark. 1965), there should be an immediate drawing by the twenty-six senators not affected by the decision in Catlett v. Jones, 240 Ark. 101, 398 S. W. 2d 229 (1966). The nine senators in Catlett were elected to four-year terms in 1964. Their districts were not altered by the court-ordered reapportionment resulting from Yancey v. Faubus. We therefore held they could serve the remainder of their terms. Contra, the senators assert that Amendment 45 gives them an unqualified right to serve four years, superseding the required lot-drawing provisions of Amendment 23. Alternatively, the senators contend that lot-drawing is not required as a consequence of a court-ordered apportionment, and specifically that any drawing is restricted to every ten years following the regular federal census.

First, we dispose of the contention that Sec. 6 of Amendment 45 nullifies the lot-drawing provisions of Amendment 23. The involved portion of Amendment 45 reads as follows:

“At the next general election for the State and County officers ensuing after any such apportionment, Representatives shall be elected in accordance therewith, Senators shall be elected henceforth according to the apportionment now existing, and their respective terms of office shall begin on January 1 next following. Senators shall be elected for a term of four years at the expiration of their present terms of office.” (Emphasis supplied.)

Four-year terms for senators, reapportionment, and drawing by lots are thoroughly embedded in our law. Those principles are found in every Arkansas Constitution, four in all, since 1836. Having been harmonized for 131 years, it is not reasonable to believe that the electorate intended to sever those provisions merely by approving the customary four-year term for senators. Repeal by implication is not favored.

The contention that Amendment 45 eliminates drawing by lot would in effect defeat redistricting. That is true because without Amendment 23 there would never be a time when all senate terms expired simultaneously. In effect the senatorial districts would be frozen, a result which was declared unconstitutional in Yancey v. Faubus.

We encounter no difficulty in harmonizing the two provisions, that is, the four-year term in Amendment 45 and the lot-drawing provision in Amendment 23. We agree with the statement in the concurring opinion in Block v. Allen, that the decision in Ycmcey v. Faubus did not affect Sec. 6 of Amendment 23.

It is next contended by the taxpayer-appellants that Sec. 6 of Amendment 23 is applicable to the 1965 reapportionment made pursuant to the decision in Ycmcey v. Faubus. If that contention is correct, an immediate drawing would be required, rather than wait until the 1970 federal census.

The only administrative procedure in our constitution requiring members of the Senate to be “divided into two classes by lot” is Sec. 6 of Amendment 23, which provides:

“. . . At the first regular session succeeding any apportionment so made, the Senate shall be divided into two classes by lot, eighteen of whom shall serve for a period of two years and the remaining seventeen for four years, after which all shall be elected for four years until the next reapportionment hereunder. ’ ’

The apportionment referred to in Sec. 6 is defined in Sec. 4 as being the apportionment immediately following each federal census:

“The Board [of Apportionment] shall make the first apportionment hereunder within ninety days from January 1, 1937; thereafter, on or before February 1 immediately following each Federal census, said Board shall reapportion the State for both Representatives and Senators ...”

It must he conceded that those provisions amount to a restriction upon the length of the terms of office for which some of the senators are elected. However, that provision, being in the Constitution, is well known to all senatorial candidates and they cannot complain if they become affected by it. But we do not think an additional restriction should he placed on their tenure in the absence of constitutional sanction.

In Butler v. Democratic State Committee, 204 Ark. 14,160 S. W. 2d 494 (1942), this court held that the election of an entirely new senate should he conducted after the federal census and then only when the Board of Apportionment altered the boundaries of any of the senatorial districts. In Catlett v. Jones, supra, we declined to shorten the elected terms of office of the involved nine senators. They were found to have been elected “in accordance with the Board’s plan” of reapportionment after Yancey v. Fembus, supra. Our holding today is in conformity with those two cases; to hold to the contrary would actually be inconsistent with Butler and Catlett. Furthermore, the problem now before us was fully explored when Block v. Allen, supra, was under consideration. There, as here, we had the benefit of exhaustive briefing, and the Block case was orally argued. In Block v. Allen we concluded there was “logic and apparent merit” in the theory of appellees that an immediate drawing was not then required. Additional consideration of the question has served only to strengthen that conclusion. Quoting from the concurring opinion in that case, it is our holding that “there is no occasion for a drawing until at least after the 1970 Federal census has been taken.”

We would also point out that appellants seek a mandatory drawing for twenty-six senators, whereas the Constitution requires that thirty-five senators participate.

If any change is made by the Board of Apportionment (or by this court on appeal) in the boundaries of the senatorial districts as a result of the 1970 census, it will necessitate the election of an entirely new senate. The newly-elected senators would then draw for tenure as required by Sec. 6. Butler v. Democratic State Committee, supra.

We express no opinion upon the right of a group of taxpayers to here litigate an action against the Senate. That question was not raised, in fact all parties here seek a full determination of the case on its merits.

For the recited reasons we hold that the taxpayer-appellants’ motion for summary judgment should have been denied and their complaint dismissed.

Affirmed.