text:
    Vance v. Johnson.
    5-3443
    386 S. W. 2d 240
    Opinion delivered February 1, 1965.

      Kaneaster Hodges and W. E. Billingsley, for appellant.

      Smith, Williams, Friday & Boioen, Ponder & Lingo,. for appellee.
   Sam Robinson, Associate Justice.

On June 11, 1963, a special election was held in Sharp County, Arkansas. Among the issues voted upon were: (1) The elimination of the two present county seats at Hardy and Evening-Shade, and (2) the establishment of a new, single county seat at Ash Flat.

Principally at issue is the necessary ‘ ‘ majority vote’ ’ io enact such a change.

Following the election, the County Judge of Sharp County made an order of the court declaring the results, to wit:

For Change 1438
Against Change 618
For Ash Flat 1424
Against Ash Flat 623

There is no contest with respect to the above tabulations.

The County Court then found that there were 2,991 qualified electors in Sharp Counyt as reflected in the 1962-63 poll tax list filed in the office of the County Clerk; that although a substantial majority of those casting ballots voted for the change, 1,438 was not a majority of the 2,991 persons having paid a poll tax. This order was rendered on June 18, 1963. On December 2, 1963 (some five months later) an appeal was taken to the Sharp Circuit Court. That court held that a majority of those casting ballots in the election had voted for the change and that this was sufficient in law to establish the county seat in Sharp County at Ash Flat. Thus this appeal.

On appeal appellants contend:

(1) That the appeal from the County Court was not filed within the time allowed by statute.

(2) That removal of a county seat in Sharp County requires the consent of a majority of those having paid a poll tax.

(3) That there is no lawful authority for removing a county seat in Sharp County.

Under the Constitution appeals from judgments of the County Court are to the Circuit Court, under such restrictions as may be prescribed by law. Article 7, Sec. 33. The time within which an appeal may be taken has been limited to six months. Ark. Stat. Ann. § 27-2001 (Repl. 1962). Here appellee appealed within six months, but appellants assert appellee must comply with further limitations found in § 3-1203 and § 13-1216. We do not agree. Section 3-1203 requires that all actions to contest a county election shall be commenced within twenty days following the election. The case at bar is in no sense of the word the contest of an election. An election contest involves the matter of going behind the returns and inquiring into the qualifications of the electors and other matters affecting the validity of the ballots. Jones v. Dixon, 227 Ark. 955, 302 S. W. 2d 529; Parson v. Mason, 223 Ark. 281, 265 S. W. 2d 526. Here, neither appellants nor appellee questions the certified returns, the elector’s qualifications or any other matters regarding the validity of the ballots. On the contrary, both parties vigorously rely on these returns to establish their case. Appellee’s sole concern on appeal is the law applied to these returns.

Section 13-1216 allows thirty days in which to appeal the County Court’s order as to the results of the election. An appeal from that order would merely test the correctness of the Court’s tabulation of the returns. Jones v. Dixon, supra; Parsons v. Mason, supra. The present appeal does not test the correctness of the Court’s tabulations. To the contrary, appellee affirms these tabulations and merely attacks the law as applied to them. An appeal directed toward the Court’s finding as to the tabulation is one thing. An attack on the law as applied to that tabulation is something entirely different. Jones v. Dixon, supra. As a matter of right, appellee had six months in which to appeal. Ark. Stat. Ann. § 27-2001 (Repl. 1962).

Authority for the removal of a county seat is found in Act 86 of 1875 (digested in Ark. Stat. Ann. § 17-201, et seq. [Repl. 1956]). Section 10 of this Act provides:

‘ ‘ That to ascertain the number of qualified voters of any county for the purpose of this act, and the lawful majority necessary to authorize the change or removal as herein provided for, the county court shall be governed by the number of persons liable to pay a poll tax as returned upon the assessor’s boohs.” (Emphasis ours.)

In 1901 this section was amended to read “shall be governed by the number of persons who have paid their poll tax . . . provided, this act does not apply to the counties of . . . Sharp ...” (Nineteen other counties were also exempted.) Ark. Stat. Ann. § 17-209 (Repl. 1956). Because this Act exempted twenty counties, all agree that it was a local one. It remains valid, however, and in force until repealed, since it was enacted prior to the constitutional prohibition of local legislation adopted in 1926. Amendment Fourteen to the Arkansas Constitution provides:

“The General Assembly shall not pass any local or special act. This amendment shall not prohibit the repeal of local or special acts.”

In 1963 there was an attempted “reenactment” of the 1901 local act. In addition to somewhat materially changing the body of the act itself, it deleted Sharp County from the list of exempted counties so as to bring Sharp within the purview of the 1901 amendment. While the Constitution prohibits enactment or amendment of local legislation, it allows repeal. Appellants argue that the 1963 Act is repeal and therefore, not violative of the Fourteenth Amendment. We cannot agree. The “repeal” is of an exception, the final effect of which is to add on to local legislation and this procedure has been declared void and of no effect. Johnson v. Simpson, 185 Ark. 1074, 51 S. W. 2d 233. Therefore, the County of Sharp, having been expressly exempted from the operation of the 1901 Amendment and because the 1963 Act is void and of no effect, remains subject to original Section 10 of the 1875 Act. Velvin v. Kent, 198 Ark. 267, 128 S. W. 2d 686. Thus, it would appear from the Act that the necessary, lawful majority required for removal of a county seat in Sharp County is a majority of those liable to pay a poll tax as returned on the Assessor’s list.

The undisputed proof in the record shows that since 1947 there have been no assessments of poll taxes, and therefore, no lists kept of persons liable to pay poll taxes in Sharp County. There was no such list available on the date these election results were to be declared (apparently there have been no snch lists maintained in the entire state since 1947).

Though Section 10 of Act 86 of 1875 requires the consent of a majority of those liable to pay a poll tax, other sections of the Act speak in terms of the consent of a “majority of the qualified voters of the county”. Ark. Stats. Ann. §§ 17-201, 206 (Repl. 1956). Language similar to the latter has been interpreted to mean the consent of a majority of those voting at the election. Glover v. Hot Springs Kennel Club, 230 Ark. 544, 333 S. W. 2d 902.

Article XIII, § 3 of the Arkansas Constitution provides that the consent of a majority of those voting at the election is sufficient to change a county seat (though the Legislature may prescribe greater standards). Vance v. Austell, 45 Ark. 400.

Since the Act of 1875 provides for two standards, and since one has, in all practicality, become inoperative, the other must control; the people’s business should not be stifled for lack of machinery to carry it into effect. Therefore, the consent of a majority of those voting at the election, as provided for in Act 86 of 1875 (Ark. Stats. Ann. § 17-201, et seq.) and consonant with the Constitution of the State of Arkansas, is laAvfully sufficient to change a county seat in Sharp County.

The proviso in the 1901 Amendment contains this language: “Provided, this act does not apply to the counties of . . . Sharp ...” (emphasis ours.) Appellants suggest that the words “this act” refer to the 1875 Act (as opposed to the 1901 Amendment) and thus Sharp, along Avith nineteen other counties, are Avithout any lawful procedure for changing a county seat. We find no merit in such an interpretation.

Affirmed.


source: Caselaw Access Project

author: Jim Johnson, Associate Justice.

license: Public Domain

text:
    City of North Little Rock v. Ark. Power & Light Co.
    5-3329
    386 S. W. 2d 236
    Opinion delivered February 1, 1965.

      Glenn G. Zvtnmerman and William G. Fleming, for appellant.

      House, Holmes & Jewell, for appellee.
   Jim Johnson, Associate Justice.

This suit involves a purchase contract between a municipality and a utility.

In March 1950 appellant City of North Little Rock and appellee Arkansas Power & Light Company entered into a contract in which the city agreed to purchase all the electric power it needed to supply the municipally-owned electrical distribution system serving North Little Rock and certain adjacent areas. The company had been serving the city under a ten-year contract entered into in 1943, but due to its growth the city was unable to receive an adequate power supply through the one point of delivery then existing. To improve and increase the electric supply, the city built a new transformer station and the company constructed an additional point of delivery to the new transformer station. The contract, which was incorporated into a city ordinance, sets out, inter alia, the net monthly rates, kilowatt demand, term, discount and service regulations. The city was billed and paid according to the 1950 rate until January, 1957, when an additional charge of two mills per kilowatt was added to the billings. This increase was made following a Public Service Commission order allowing such an increase for all bills under a number of filed Rate Schedules, including Schedule 21 for “Large Public Utility Resale Customers”. Another increase was added in May, 1957, following a Commission allowance of a fuel adjustment in Rate Schedule 21. The city paid the increased bills until August 1960, at which time it refused to pay any charges in excess of the 1950 rate.

On April 20, 1961, appellant filed suit in Pulaski Circuit Court against appellee to recover $669,934.95 allegedly paid in excess of the contract rate from January 1957 through July 1960. Appellee counterclaimed for $230,472.91, the amount in excess of the alleged contract rate for which the city had been billed but refused to pay from August 1960 through May 1961. Trial was held before the court on June 12, 1963. In its judgment entered October 30, 1963, the court dismissed appellant’s complaint and granted appellee judgment for $269,334.06 after finding that appellant had “wrongfully withheld payment of lawful billings” for electric service in the total sum of $230,472.91 plus six percent interest. The city has prosecuted this appeal from the judgment, urging several interesting points for reversal.

The appellee power company in turn eloquently argues additional theories to sustain its point of view, all of which results in a lively discussion spanning a large portion of the entire field of utility regulation.

Owing to the simplicity of the question decisive of this case we find it unnecessary to unduly extend this opinion by discussing the myriad questions urged for our consideration.

The portions of the contract germane to this appeal are as follows:

“1. Company will make available to City at the points of delivery specified herein, eleetric service up to a maximum of 19,000 KW, at approximately 13,800 volts, 3 phase and a nominal frequency of 60 cycles per second. ’ ’

‘ ‘ 3. Company will supply and City will take and pay for all electric service required by City for the above operation in accordance with the following rate schedule; but no monthly bill for electric service will be based on less than 2,000 KW or less than $2,576.64 during the term of this agreement or any extension thereof. Said Rate Schedule is subject to such changes as may be lawfully made . . .

Net Monthly Rates

$980.00 for the first 500 KW or less of Demand

1.25 per KW for all additional KW of Demand

0.60‡ per KWH for the first 360,000 KWH

0.50^5 per KWH additional, up to a total consumption of 360 KWH per KW of Demand

0.38^5 per KWH for all additional KWH

Minimum:

The Demand Charge for the current month, but not less than $1.50 per KW. of the highest Demand established during the 12 months ending with the current month.

Adjustment:

The above rate shall be subject to an increase or decrease in proportion to the amount of new taxes or increased taxes which the Company may hereafter have to pay, which are levied or imposed or increased or decreased by laws which are not in effect on June 1, 1941, provided, hoivever, that this adjustment shall only be applied tohen authorized by order of the Public Service Commission . . .

Term and Primary Service Discount

5% discount for a new 10 year Agreement for Electric Service.

5% Primary Service Discount for City owning and maintaining all of the substations (except metering equipment). Service will be metered at 13.8 KV.

Service Regulations

Service under this Schedule is subject to the Service Regulations of the Company as they are now on file, and as they may in the future be filed, with the Arkansas Public Service Commission. . . .

“5. All bills for electric service hereunder shall be rendered monthly, are dne upon presentation and are payable within 30 days from the date thereof at the Company’s office in Little Rock, Arkansas ...”

“8. The term of this Agreement shall be from June 1, 1950 to June 1, 1960, and shall be automatically extended for successive periods of one year until terminated by written notice given by one party to the other not more than six months nor less than three months prior to the expiration of the original term or any anniversary thereof.

“9. This constitutes the entire and only Agreement between the parties hereto with reference to the subject matter hereof, and supersedes all previous understandings whether written or oral.” [Emphasis ours.]

A careful study of this contract indicates that the contract is quite complete and answers virtually any question within its four corners. Most of the references in the contract to the Public Service Commission are self-limiting and are obviously applicable only to the particular clause in which it is mentioned. However, the phrase at the close of the first paragraph of Section 3, “Said rate schedule is subject to such changes as may be lawfully made,” is ambiguous. It is argued by appellee that the phrase implies Public Service Commission supervision, whereas appellant argues, au contraire, that the phrase is limited to those changes provided for in the contract itself. With such an ambiguity it is necessary for us to look outside the contract for interpretation of this phrase. Yellow Cab Co. of Texarkana v. Texarkana Municipal Airport, 230 Ark. 401, 322 S. W. 2d 688.

Ry reference to the evidence, we find (1) that the rate schedule contained in the 1943 contract was identical with Schedule 21, as was the “Net Monthly Rates” provision, supra, of the 1950 contract; (2) that when appellee sought a rate increase before the Commission, appellant had notice of the proceedings and specifically ordered its city attorney to appear at the hearings; and (3) that the increased billings following the Commission’s order were paid by the city without protest for three years or more. These facts, with the uncontradicted testimony of the now-retired manager of the City’s electrical department that when he received each bill “we checked it with our daily readings and power cost and then checked the calculation of it and if everything was correct I would sign the affidavit and in turn turn it over to the Mayor’s office and the Board of Public Affairs approved it and take it down stairs and it was approved by the Chairman of the Electric Committee,” after which the city council “approved the payment of it, ’ ’ all of which leaves no doubt that the parties intended to be bound by Rate Schedule 21 as approved by the Commission.

It follows, therefore, the ambiguous language in the contract, “Said rate schedule is subject to such changes as may be lawfully made, ’ ’ means that this rate schedule is subject to such changes as the Commission may make in Rate Schedule 21.

Affirmed.


author: Frank Holt, Associate Justice.

text:
    Smith v. Dixon.
    5-3432
    386 S. W. 2d 244
    Opinion delivered February 1, 1965.

      William II. Drew, for appellant.

      Ovid T. Sivitzer and W. P. Sivitser, for appellee.
   Frank Holt, Associate Justice.

The appellee, as purchaser, brought this action against appellants, as sellers, for the specific performance of a contract for the sale of realty and in the alternative sought damages for nonperformance of the contract.

The appellants are E. F. Smith, his wife, and their children and spouses. This entire family constitutes a business firm known as E. F. Smith & Sons, A Partnership. The “Contract For Sale Of Realty With Lease” was signed by one of the appellants, W. R. Smith, on behalf of the family partnership.

By the terms of the contract, executed in March 1962, the partnership agreed to sell the 750 acre “Cracraft” plantation for $200,000.00 and convey title to the appellee on January 3, 1963. In the interim, by the lease provisions, the appellee took possession, farmed, and improved a portion of the property. Upon refusal of the appellants to convey the land as recited in the contract, the appellee instituted this action. The chancellor denied specific performance and awarded appellee special damages in the amount of $11,512.73.

On appeal the appellants contend that the contract “prepared for signature of all owners, their wives, and the escrow agent, was never executed by the intended parties and, therefore, no obligation was incurred thereunder” and, further, the contract was never ratified by the owners of the land. The contract was signed “E. F. Smith & Sons, a partnership By: W. R. Smith” and also by the appellee, “W. T. Dixon”. Appellee’s attorney, who drafted the contract, prepared an extra page for the signatures of the other members of the family constituting the partnership. However, the appellee recorded the instrument without ever requiring the additional signatures. Appellants argue that the contract is not enforceable against the partnership because the record title is in the name of the individual members of the family as tenants-in-common. In other words, the title has never been transferred from individual family ownership to the partnership. We find no merit in this contention as did the chancellor.

The partnership was created a short time after the lands in controversy were acquired by the family in 1951. The court found that:

“Soon after the purchase of ‘Cracraft’ [the lands in question] and the ‘Sterling Place,’ the Smiths, at the suggestion and on the recommendation of the financial institutions, who were to finance the farming operations for them on the farms, organized and formed a partnership known as E. F. Smith & Sons. They term the partnership an ‘operating partnership’. The general purpose of the firm was to engage in farming operations on the farms, including direct cultivation and renting to others. The operation was later expanded to engage in the general farming business in the area. The partnership agreement was oral and has never been reduced to writing. Mr. AY. R. Smith is the predominent member of both the partnership and the Smiths. He serves as the managing partner with general powers, with Mr. Charles Smith in charge of production. The other members of the partnership did not, nor at the present time, appear to have any direct participation or responsibility in the operation.

8. The association of Smith and Sons with the land: Smith and Sons assumed possession of the land after the formation of the partnership and have been in exclusive possession ever since. The firm has no lease, either written or verbal with the Smiths. It does not pay any rental, as such, for the use of the land, to the record owners. The firm cultivates a portion of the land and rents the remainder to others. It collects the income and rentals from the land. The firm mortgages the crops and rentals for operating purposes. It pays the taxes, insurance and upkeep on the property. The firm pays the installments on the mortgage loan. The U. S. Department of Agriculture contract is in the firm name.

The firm, by and through its managing partner, Mr. AY. R. Smith, has acted as agent for, or under contract with, the Smiths in the sale of the ‘Sterling Place’ to Mr. Rankin, in a similar capacity in another land conveyance and as trustee for another purchase.”

It appears undisputed that appellant AY. R. Smith was authorized by the members of the partnership to negotiate for the sale of the lands in question to the appellee. However, it is claimed that his authorization was based upon different terms of sale, mainly, a price of $225,000.00 instead of $200,000.00. Therefore, it is urged that the contract is unenforceable since it was not signed nor ratified by other members of the family.

In the case of May v. Ewan, 169 Ark. 512, 275 S. W. 754, we held that a partnership is bound by the acts of a partner when he acts within the scope or apparent scope of his authority. There we quoted with approval:

í t * # * in order to determine the apparent scope of the authority of a partner, recourse may frequently be had to past transactions indicating a custom or course of dealing peculiar to the firm in question.”

See, also, Ark. Stats. Ann. § 65-108' — -110 (Repl. 1957). In the case at bar it was customary in past transactions, as in the present one, for the partnership to rely upon the co-partner, W. R. Smith, to transact the business affairs of the firm. We agree with the chancellor that appellant W. R. Smith was acting within the apparent scope of his authority as a partner when he signed the contract and that it is binding and enforceable upon the partnership.

Appellants also urge that the contract is invalid because the bank as escrow agent did not sign the contract and the appellee did not comply with the escrow provisions of the contract. A copy of the contract was delivered to the Eudora Bank where appellee’s certificate of deposit in the amount of $15,000.00 was held with the knowledge of the escrow provisions. The contract provided for the bank to hold $15,000.00 in escrow to guarantee appellee’s performance of the contract. We agree with the chancellor that there was substantial compliance with the escrow provisions of the contract.

Appellants next urge that a suit for specific performance, or in the alternative, damages, is an inconsistent remedy and, therefore, in seeking specific performance the alternative claim “for damages is a nullity”. We find no merit in this contention. The contract specifically provided for liquidated damages in the sum of $15,000.00 in the event of breach by either party. Furthermore, in the very recent case of Loveless v. Diehl, 236 Ark. 129, 364 S. W. 2d 317, we recognized that even though, no such specific provision for stipulated damages appears, it is within the discretion of the chancellor to award damages where specific performance of the contract is denied. See, also, 81 C.J.S. Specific Performance § 163, pp. 778 and 782.

The appellants also urge for reversal that the contract lacked mutuality and, therefore, was not binding. Appellants contend that appellee was never bound by the contract since by its terms appellee had the right to rescind upon appellants’ failure to meet the express warranty that a 225 acre allotment went with the land. It later developed the allotment actually amounted to 178.3 acres, or 46.7 acres less than the amount warranted in the instrument itself. Therefore, appellants argue that the contract lacked mutuality since it was optional with the appellee as to whether or not he would require performance of the contract or invoke the provision for stipulated damages. The appellee had the right to accept such reduced acreage which he offered to do. We think such an option did not render the contract lacking in mutuality. Bonner v. Little, 38 Ark. 397; Braley v. Arkhola Sand & Gravel Co., 203 Ark. 894, 159 S. W. 2d 449; 92 C.J.S. Vendor & Purchaser § 216, p. 78.

The contract also provided that if appellants could not transfer the rice allotment to their other lands they could not be required to convey the lands. When the contract was entered into, the appellant, W. It. Smith, maintained that the rice allotment could be transferred to other lands. It developed that the rice allotment could not be assigned or otherwise transferred to any other farm due to existing federal regulations. The fact that the rice allotment could not as a matter of law be transferred was not the fault of the appellee and should not affect the validity of this contract. Appropriate to the case at bar, we find in 17A C.J.S. Contracts § 463 (1) p. 611, the following:

“Where a party enters into a contract knowing that permission of government officers will be required during the course of performance, the fact that such permission is not forthcoming when required does not constitute an excuse for nonperformance.”

Appellants’ final contention is that the chancellor’s award of $11,512.73 to the appellee as special or actual damages is not sustained by the pleadings or the proof. The appellee, on cross-appeal, contends that he is also entitled to stipulated damages. The appellee sued for $15,000.00 stipulated damages as recited in the contract and also sought the further sum of $8,981.23 for permanent improvements he had made on the “Cracraft” farm as a lessee in anticipation of acquiring title. The trial court denied liquidated damages and instead awarded appellee $11,512.73 actual damages. The chancellor refused to apply the contract provision for $15,000.00 stipulated damages since he construed such as a penalty. After hearing considerable testimony on the subject of special damages, the court deemed it necessary to hold an additional hearing in an effort to determine with more exactness appellee’s expenses or the damages he had incurred as lessee in the draining, improving, and ridding the land of weeds and grasses. After the latter hearing, the chancellor stated that:

“* * * if it were not for the element of surprise, which probably both parties could claim, the court would reconsider its finding on stipulated damages, vacate same and find that such damages stipulated in the contract should prevail over actual damages.”

Thus, it is apparent that the ascertainment of special or actual damages was a vexing problem, difficult and fraught with uncertainty. The stipulated damage provision for a breach of the contract on the part of appellants reads in pertinent part:

“It is hereby expressly agreed between the parties hereto that in the event this contract shall fail due to a material breach on the part of Seller because of inability to convey good title * * * or, inability to convey # * * minimum cotton acreage allotment, * * * or, should Seller elect to refuse to convey because of inability to transfer the rice acreage from this land to other lands owned by Seller, then Purchaser’s damages are agreed hereby to be the sum of Fifteen Thousand and No/100 Dollars ($15,000.00), plus the costs, apportioned to either or both of the above improvements, whichever might have been located on the premises by Purchaser, and such damages, including the cost of the above mentioned improvements, shall be deemed liquidated * *

The “above mentioned improvements” referred to the right of appellee to move Ms house and also build an equipment shed upon the lands, neither of which was ever done.

In Hall v. Weeks, 214 Ark. 703, 217 S. W. 2d 828, we said:

“The general rule governing liquidated damages is that an agreement in advance of breach will be enforced if the sum named is a reasonable forecast of just compensation for the injury, if the harm is difficult or incapable of accurate estimation. Restatement of Contracts, Chapter 12, § 339.”

See, also, Foran v. Wisconsin & Arkansas Lbr. Co., 156 Ark. 346, 246 S. W. 848; Robbins v. Plant, 174 Ark. 639, 297 S. W. 1027; Westbay v. Terry, 83 Ark. 144, 103 S. W. 160; 25 C.J.S. Damages § 116, p. 702.

In the case at bar the stipulated damages of $15,000.00 amount to only 7%% of the purchase price in the contract, while in Hall v. Weeks, supra, it amounted to 10%. We do not construe this amount as a penalty, even though it appears that the provision for stipulated damages resulted to some extent from a “race horse contest” as an outgrowth of appellants’ insistence and the appellee’s dubiousness that the rice allotment could be moved from the ‘ ‘ Cracraft” farm to other lands owned by appellants. Instead of a penalty, we find there is a reasonable relation between the amount of the stipulated damages and the agreed purchase price of $200,-000.00. Further, the chancellor found that the value of the rice allotment which could not be transferred had a minimum value of $18,000.00 which, of course, is in excess of the $15,000.00 stipulated damages. We do not consider this amount of stipulated damages as being extravagant or disproportionate to the losses suffered by the appellee in the case at bar. Also, the appellee was equally liable for $15,000.00 stipulated damages for nonperformance on his part.

Therefore, we think the stipulated damages provision in the contract should prevail over any assessment of actual damages. Accordingly, the decree is affirmed on direct appeal and modified and remanded on cross-appeal with directions for entry of a decree disallowing special damages and awarding the stipulated damages.


author: Carleton Harris, Chief Justice.

text:
    Lilly, Adm’x v. J. A. Riggs Tractor Co.
    5-3453
    386 S. W. 2d 488
    Opinion delivered February 8, 1965.

      Mann & McCulloch, Monteclonico, Boone & Gilliland, Heiskett é Loch, Memphis, Tenn., for appellant.

      W. E. Dillahunty, Eale é Fogleman, E. J. Butler, for appellee.
   Carleton Harris, Chief Justice.

On July 7, 1962, Roy Lilly was hilled while working for K. -S. Reece Construction Company. His death occurred while Lilly and others were endeavoring to repair a broken cable on certain earth-moving equipment, vis, a Caterpillar machine (Cat 619C). Lilly’s widow, individually, and as administratrix of the estate, instituted suit in the St. Francis Circuit Court against the J. A. Riggs Tractor Company, appellee herein, an authorized dealer for Caterpillar Tractor Company, alleging that appellee company had entered into negotiations with Reece Construction Company for the sale of the Cat 619C; that the machine was delivered to the job site, and put into use by the Reece Company, Lilly being one of the employees designated by Reece to operate the equipment; that Lilly was permitted “to begin the operation of the equipment without warning as to its dangerous propensities. No warning was given of the fact that it would be highly dangerous to get close to, or to climb upon the equipment, if the main cable on the equipment should break and become snarled. No instructions or warnings were given to Plaintiff’s Deceased as to the proper and safe manner for unsnarling said cable in event it should break and become snarled. The failing to give said instructions and warnings constitutes negligence on the part of the agents and employees of Defendant, who were at the time acting within the scope of their employment for Defendant.” It was further alleged that Lilly’s death -was a proximate result of the aforesaid negligence, and total damages were sought in the amount of $203,201.48. The Riggs Tractor Company answered, denying negligence, and further asserting that Lilly’s death was due to his own negligence, and that of his fellow workmen. The case proceeded to trial, and at the conclusion of appellant’s evidence, appellee moved for an instructed verdict. This motion was granted, and judgment was entered in accordance therewith. Prom such judgment comes this appeal.

Only one point is raised for reversal, it being urged that the court erred in directing a verdict for appellee at the close of appellant’s case. It might also be stated here that only one act of negligence is alleged, vis, the allegation heretofore set out verbatim from appellant’s complaint. Accordingly, in determining the litigation, there is really only one question, which we are called upon to answer. Did the failure of appellee to give instructions or warnings relative to the proper and safe manner for unsnarling a cable (in event it should break and become snarled) constitute actionable negligence? Of course, if the answer to this question is “Yes,” it is also necessary that appellant establish that such negligence as the proximate cause of Lilly’s death. However, under our finding, as hereinafter set out, we do not reach that question.

At the outset, it might be well to describe the function and manner of operation of the Cat 619C, as same appears from the evidence offered. The Caterpillar machine, here under discussion, is a large earth-moving machine, weighing approximately one hundred thousand pounds, and capable of moving eighteen yards of earth at one load. In the process of loading, the pan part of the machine is lowered, and with the assistance of a tractor pushing at the rear of the machine, the dirt is scraped up by the pan, and is thus loaded. In unloading, an ejector is pulled forward by a metal cable, thereby pushing the dirt out of the machine. The ejector is returned to its original position through the use of large springs. The fatal injury to Lilly occurred under the following circumstances. According to the testimony of K. S. Reece, Lilly; was operating the machine on July 7, 1962. A cable on the Caterpillar was broken during operation, and Lilly drove the scraper to the shop. Reece went to the shop, and Joe Gordon, a worker there, was also present. Lilly and Gordon had pulled off all of the cable except a piece about fifteen feet long, which was hung in the machine. The Caterpillar was backed up to a tree, and the cable was hooked to the tree. Reece, Lilly, and an employee of Gulf Oil Company, who had gone to the shop to deliver fuel, then endeavored to pull the ejector back, but were unable to do so. Reece testified that prior to making any effort to free the cable, he (Reece) told Lilly twice that they should get a serviceman from the Riggs Tractor Company to “lace” the cable, but that Lilly stated, “I can lace it myself, but we have got to pull this ejector back. ’ ’

After failing to pull the cable loose, it was decided to cut it. According to Joe Gordon, Lilly said:

“Unconnect that cable and we will study some way to get that piece of cable out back there.”

Gordon continued, “About then we got to twisting it and we got a crow bar and tried to drive it out and we couldn’t get it to come loose and me and the fuel man got to twisting on it. ’ ’ Again, referring to Lilly, ‘ ‘ Then he said, ‘Go to the shop and get a cold chisel and some pliars and hammer and we will cut it,’ and I hit it a couple or three licks and it come back and it tkrowed me ten or twelve feet.”

According to Reece, Gordon was standing on the; “slide bar” of the machine; Reece was standing behind the right rear tire; the Gulf employee was apparently also standing behind the right rear tire (this is not clear from the record), and Lilly was standing about three feet from him, toward the front of the machine; all were within a five-foot circle, and could have touched each other. When the last strand was cut, the ejector sharply returned to its proper position, striking Lilly, who had evidently moved onto the machine. The witnesses could see his legs protruding from between the ejector blade and the frame of the scraper — as stated by Joe Gordon, ‘ ‘ Right down in the pan, the front of the pan comes back to the other, that is where he was, down in there.”

Appellant asserts that the Caterpillar was inherently dangerous, but we do not agree. Black’s Law Dictionary, Fourth Edition, Page 921, defines “inherently dangerous” as “danger inhering in instrumentality or condition itself at all times, so as to require special precautions to prevent injury, not danger arising from mere casual or collateral negligence of others with respect thereto under particular circumstances.” Of course, no citation of authority is necessary to support the statement that the mere fact that one is injured by a machine, or instrument, does not mean that the machine or instrument is inherently dangerous. It has been said that a product is inherently dangerous where the danger of injury stems from the nature of the product itself. An automobile, driven at a high rate of speed — or without proper brakes — or, if at night, without headlights — or if operated by one who is intoxicated — can certainly become a highly dangerous instrument, capable of causing death and crippling injuries. Yet, there is general agreement among the jurisdictions that motor vehicles are not inherently dangerous (Annot. 74 A.L.R. 2d 1111). Numerous articles or substances, which have been held not to be inherently dangerous within the meaning of the rule, include an electric body-vibrating machine, an electric stove, a chain, a haybaler, a flat iron, a gas stove, a porch swing, a sofa, a refrigerator, and others too numerous to mention. See Defore v. Bourjois, Inc., 105 So. 2d 846. Still, all of the articles or instruments named can, by particular use, cause death or severe injury. In fact, as this court stated in Reynolds v. Manley, 223 Ark. 314, 265 S. W. 2d 714, “It is possible to use most anything in a way that will make it dangerous. ’ ’ Of course, certain substances or articles are inherently dangerous, such as dynamite, nitroglycerin or other explosives, poisons, and many others. In the case before us, we are definitely of the opinion that the Caterpillar itself was not inherently dangerous; it was the manner of repairing that created the danger, i.e., it was the fact that the cable was deliberately cut, causing the spring to pull the ejector sharply back, that caused Lilly’s death, rather than the fact that the Caterpillar was equipped with a cable and spring.

As previously stated, appellant’s sole contention of negligence on the part of appellee company was that the latter did not sufficiently explain proper operation of the machine; actually, this simply means that appellee did not explain that if a cable should break and become snarled, it should not be cut, for this act would cause the' ejector to spring back to its original position.

We have concluded that there was insufficient evidence on the issue of negligence to make a jury question. It has already been said that the machine was not inherently dangerous, and there is no evidence that death or injury had previously occurred to any other person because of the “snarling” of the cable on the caterpillar, so as to put appellee on notice of a possible hazard; in fact, there is no evidence that a cable had ever become “snarled.”

James Beece, son of K. S. Beece, was Safety Personnel Officer on this particular job, and he testified that safety meetings were held once a week. Beece stated that no one from the Biggs Company told him how to operate the machine (and apparently he did not ask), but that he did not feel that he needed anyone to teach him how to operate it. Appellant points out that previous to obtaining the Caterpillar, the Beece Company had used machines with hydraulic equipment instead of cable equipment, and this is the principal reason that appellant asserts a duty on the part of appellee to explicate the operation. Beece explained as follows:

“On both machines, insofar as the cable and hydraulic are concerned, they perform three actions, one is to raise and lower the scraper, one is to pull the ejector forward to push the dirt out, there is an apron in front that holds the dirt in, it raises and lowers the apron. On this particular piece of equipment all three of those were done by cable. On the Euclid equipment it is done by hydraulic cylinders. * * * They [hydraulic cylinders] have three control levers at your right hand that are connected with the hydraulic hose with the cylinders, it has a place for hydraulic oil that goes from the valve on the front to the cylinders. ’ ’

Beece testified that he, though never hauling a load of dirt with the 6190, drove the machine for a while, experimenting with it. He explained the procedure of bringing the ejector forward and returning it to its original position. He stated that in handling the lever, which controlled the ejector, a sudden move could not he made, hut that rather it was a “feeling process.” “I turned it loose too quick one time, and it went back and almost knocked the backend out.” It appears, therefore, that, though Beece received no instructions from Biggs, he was familiar with the difference in operating cable equipment and hydraulic epuipment.

K. S. Reece was also familiar with the difference in operating by cable and operating hydraulically, and he testified that Lilly that he had operated this type of machinery. Reece said that the day before Lilly’s death, he (Reece) had called Lilly’s attention to the manner in which the ejector returned when released, “Yes, sir, I told Roy, I said, ‘Let that thing back a little easier, its going to knock the whole backend out.’ ”

Yery pertinent to this litigation was the testimony of the elder Reece, relative to what happened only a short time before Lilly’s death. The four men (Reece, Lilly, Gordon and the Gulf Oil man) were discussing how to pull the cable free, and Lilly (according to Reece) said, ‘ ‘ I have never saw a cable break like this before. ’ ’ Reece replied, “I don’t know anything about this machine, let’s drive it out here and let’s call a serviceman from Riggs to lace it.” Lilly then stated, “I can lace it myself but we have got to pull this ejector back.” Reece, as earlier mentioned, testified that he suggested twice that a serviceman from the tractor company be called, but Lilly reiterated that he could do the job himself. It thus appears that Lilly voluntarily insisted on doing the repair work, even though Reece twice suggested that they should call a serviceman from the Riggs Company.

There was no error in directing a verdict for appellee.

Affirmed.

       Pictures of a Caterpillar are in the record, but none of the parts are marked or labeled, making it somewhat difficult to visualize or properly describe the operation of the machine. Some witnesses also refer to the Caterpillar as a scraper.

       According to Reece, it takes about two hundred and eight-five feet of cable for the machine.

       The court excluded this testimony.


author: Ed. P. McPaddin, Associate Justice.

text:
    Dove v. Ark. National Life Ins. Co.
    5-3455
    386 S. W. 2d 495
    Opinion delivered February 8, 1965.

      Martin, Dodds S Kidd, By: Lowber Hendricks, Jr., for appellant.

      McMillen, Teague & Bramhall, for appellee.
   Ed. P. McPaddin, Associate Justice.

This appeal involves an action brought by appellant against appellee insurance company on a binder receipt issued when application was made for a policy.

On December 14, 1962, Jackie Ray John Holt, son of appellant, Mrs. Maxine Dove, made application to appellee insurance company for a policy of insurance on his life and naming the appellant as beneficiary. The first monthly premium of said policy, if issued, would have been $3.80; and applicant paid this amount to the soliciting agent. The germane portion of the application reads:

“. . . if full payment of the first premium is made in cash with this aplication, in exchange for the company’s printed receipt signed by an authorized agent of the company, then in that event any insurance granted hereunder shall take effect as of the date of the approval of this application by the Company’s authorized officers at its Home Office in Little Bock.” (Emphasis supplied. )

The germane portion of the receipt reads:

“If full payment of the first premium is made in cash with the application and if said application is approved by authorized officers of Arkansas National Life Insurance Company, at its Home Office in Little Rock, Arkansas, then such insurance subject to the terms and conditions of the policy issued, shall take effect as of the date of such approval.” (Emphasis supplied.)

On December 16, 1962, two days after the said application and receipt, Jackie Ray John Holt was killed in a traffic mishap. Appellant refused the tender of the $3.80 'by appellee and filed this action for the face amount of the policy, plus penalty and attorneys’ fees, claiming that the $3.80, along with the binder receipt and the application made an existing insurance contract. Denial was made by the appellee and trial in the Circuit Court without a jury resulted in a finding and judgment for the appellee, from which appellant brings this appeal and urges two points:

“1. The contract prepared by the appellee is ambiguous and should be construed against the party preparing it.
“II. The receipt given to Jackie Ray John Holt by the appellee’s agent in connection with the application for in appellee company constituted a binding contract of insurance which became effective at the time the premium was accepted and the receipt given. ’ ’

I.

As to appellant’s first point, little need be said. The law is well settled that any ambiguity in a contract is to be construed against the party preparing it. We have applied this rule many times in insurance contracts. Ross v. Equitable Life Assurance Society, 237 Ark. 643, 375 S. W. 2d 222; Union Life Ins. Co. v. Rhinehart, 229 Ark. 388, 315 S. W. 2d 920. But, in the case at bar we find no ambiguity in the application or in the binder receipt issued by the appellee. This will be discussed in the second point. It is well here to quote again what was quoted in National Life & Accident Ins. Co. v. Baker, 234 Ark. 670, 354 S. W. 2d 1:

‘But unless such an ambiguity or uncertainty exists there is no more room for construction of an insurance contract, legally and fairly entered into by the parties, than there is for construction of any other contract. ‘ ‘ The court cannot make contracts for the patries, and it is its duty to enforce them as the parties have made them.” ’

II.

For her second point the appellant insists that the receipt given to the applicant by the agent of the insurance company constituted a binding contract of insurance which became effective at the time the premium was accepted and the receipt given; in other words, the appellant insists that the binder receipt created temporary insurance from the time of the application for the policy was approved or disapproved.

Appellant cites and strongly relies on our case of Union Life Ins. Co. v. Rhinehart, 229 Ark. 388, 315 S. W. 2d 920. But the binder receipt issued in that case and the facts therein differ materially from the binder receipt and the facts in this case. The language of the binder receipt and the application are set out in the opinion in the Rhinehart case; and from such language it is clear that the binder receipt was temporary insurance. Here, the application and the binder receipt both clearly stated that the policy would not be in force until the application was approved. The application said if a policy was issued it “ ... shall take effect as of the date of the approval of this application by the company’s authorized officers . . . ”; and the binder receipt likewise specified: “. . . if said application is approved by the authorized officers . . . then such insurance . . . shall take effect as of the date of such approval. ’ ’ The quoted language is too clear to admit of any doubt. There was no insurance in effect until the application was approved ; and the testimony herein clearly established that the application was never at any time approved by the authorized officers of the appellee insurance company. The ease at bar is governed by onr holding in Cooksey v. Mutual Life Ins. Co., 73 Ark. 117, 83 S. W. 317, wherein we said:

“. . . the clause in the application and the receipt given by the solicitor, which are to be read together, stipulate expressly that the insurance shall become effective only when the ‘ application shall be approved and the policy duly signed by the secretary at the head office of the company and issued. ’ It constituted no agreement at all for preliminary or temporary insurance.”

The holding in the Cooksey case was reaffirmed in National Life & Accident Ins. Co. v. Baker, 234 Ark. 670, 354 S. W. 2d 1. In the present case both sides refer to the annotation in 2 A.L.R. 2d 943, styled: “Temporary life, accident, or health insurance pending approval of application or issuance of policy. ’ ’ Of course, by suitable language there may be temporary insurance pending approvel of the application or issuance of the policy; but suitable language is necessary to provide for such temporary insurance and there is no such language in the case at bar. We call attention to the statement in Section 21 of the foregoing annotation, as found on page 994 and 995 of 8 A.L.R. 2d:

‘ ‘ Where a binding receipt is issued to the applicant making the obligation of the company conditional upon ‘ acceptance ’ or approval ’ by the company and as a fur-the condition requires issuance, or even delivery, of the policy, the company is not bound before the happening of these events, but is bound if it is found that the policy was issued or delivered. Kennedy v. Mutual Ben. L. Ins. Co., 205 F. 677; Marks v. Hope Mut. L. Ins. Co., 117 Mass. 528; Grier v. Mutual L. Ins. Co., 44 S.E. 28; Long v. New York L. Ins. Co., 180 P. 479.”

To the foregoing cases there may be added the case of Reese v. American Life Ins. Co., 175 F. 2d 793.

The present case is not one wherein there was to be insurance pending approval of the application: rather, this is a case wherein both the application and the receipt clearly stated that there was no insurance until approval of the application. The facts here clearly show that there was no approval, since the death of the applicant occurred before any such action could reasonably have been taken. The Trial Court was correct in so holding- and the judgment is affirmed.

       It is well to remember that in such a trial the findings of the Circuit Court on any and all disputed factual issues have the force and effect of a jury verdict. Gulledge v. Howard, 23 Ark. 61; and Mattar v. Moeller, 230 Ark. 699, 326 S.W. 2d 808.

       The finding of the Trial Court was against the appellant on any dispute as to the facts on this issue.


author: George Rose Smith, J.,

text:
    French v. Castleberry.
    5-3461
    386 S. W. 2d 482
    Opinion delivered February 8, 1965.
    D. A. Clarice, for appellant.

      Robert B. Gibson, for appellee.
   George Rose Smith, J.,

This is a suit by the appellant, James H. French, for specific performance of an oral contract by which he was to buy two farms, totaling 554 acres, from the appellees, B. C. Castleberry and his wife. French relies upon part performance to take the contract out of the statute of frauds. Our rule is that both the making of the oral contract and its performance must be proved by clear and convincing evidence. Hudspeth v. Thomas, 214 Ark. 347, 216 S. W. 2d 389. The only question before us is whether the chancellor was right in holding that the proof did not sufficiently establish part performance of the agreement.

The plaintiff and his two brothers owned various farm lands individually, but they cultivated property as a partnership, French Brothers. The partnership, as a tenant, had operated the two Castleberry farms for some years before the oral contract in question was made. The plaintiff testified, and the chancellor found, that on September 10, 1957, the Castleberrys orally agreed to sell the farms, together with certain farming equipment, to the plaintiff for $86,000. Pending completion of the sale the partnership continued to rent the lands from year to year. When the abstracts of title were brought down to date the examining attorney discovered a defect of title that had to be corrected by litigation. On July 3, 1959, while the curative suit (Fee v. Leatherwood, 232 Ark. 817, 340 S. W. 2d 397) was on appeal to this court, Castleberry notified James French by mail that he was canceling any oral contract that French might be relying unon concerning the purchase of the farms. The present «nit was filed almost four years later, giving rise to a plea of limitations that we need not consider.

To support his claim of part performance the plaintiff attempted to prove that he took possession of the property, made substantial improvements, and paid part of the purchase price. We agree with the chancellor’s conclusion that the proof lacks the clarity and cogency that the law demands.

First, possession: When the parol agreement was made French Brothers had possession of all the 554 acres except for a parcel of 13 acres that the Castleberrys were occupying as their home and curtilage. A month or two later the Castleberrys went to Louisiana. The plaintiff and his family then moved into the manor house on the 13-acre tract, where they were still living at the time of the trial.

These facts do not establish such possession as is needed to satisfy the statute of frauds. James French’s occupancy of only 13 of the 554 acres acres manifestly did not take the case out of the statute. Ozan Lbr. Co. v. Price, 219 Ark. 709, 244 S.W. 2d 486. The partnership’s possession of the remaining land cannot supply the deficiency, because possession, to be sufficient, must be referable to the oral contract of purchase. Rolfe v. Johnson, 217 Ark. 14, 228 S. W. 2d 482. Here it is undisputed that both before and after the oral contract was made the partnership operated the farms as the Castleberrys’ tenant from year to year. That posession did not owe its existence to James French’s purchase agreement. In fact, the Castleberrys were really in possession, through their tenant.

Secondly, improvements: In the interval between the making of the oral contract and its cancellation French spread dirt from several spoil banks, dug a number of drainage ditches, replaced certain fences, picked up chunks, pulled stumps, and built a bridge on the home place at an estimated cost of $51. It is plain enough, as the chancellor found, that nearly all this work was the type of routine maintenance to be expected of a tenant. To satisfy the statute the improvements must be so valuable and substantial that it would be inequitable to refuse specific performance. Blanton v. First Nat. Bank of Forerst City, 136 Ark. 441, 206 S. W. 745. That test has not been met in the case at bar.

Finally, part payment: It will be remembered that the oral contract of sale included certain farming equipment. In 1958 the partnership, in its accounting as a tenant, gave the Castleberrys a $2,000 credit for a tractor and equipment. James French testified that these were the chattels included in the sale and that he later reimbursed his brothers for their share of this outlay. Hence, lie asserts, tlie net effect of the two transactions was that he hinaself actually made a $2,000 payment upon the purchase price.

There are two ready answers to this contention. In the first place, the Castleberrys accepted the credit as an item in their tenant’s account, not a part payment by James French. We are not willing to say that a purchaser can create a part payment by reimbursing someone else for a remittance that was not originally considered by the sellers to have anything to do with contract of sale. In the second place, payment of the purchase price alone is not sufficient to satisfy the statute. Rolfe v. Johnson, supra. Yet this payment, if made, now stands alone, for we have already pointed out that neither the asserted possession nor the asserted improvements were sufficient to take the case out of the statute.

Affirmed.


author: Paul Ward, Associate Justice.

text:
    Sterling Stores, Inc. v. Martin.
    5-3448
    386 S. W. 2d 711
    Opinion delivered February 8, 1965.
    [Rehearing denied March 8, 1965.]

      Wright, Lindsey, Jennings, Lester $ Shults, for appellant.

      Milton G. Robinson, for appellee.
   Paul Ward, Associate Justice.

This litigation grows out of an injury resulting from a ‘ ‘ swinging door ’ ’ accident.

Appellant (Sterling Stores Company, Inc.) conducts a variety store in Stuttgart in a building facing Main Street. Prospective patrons enter and exit the building through two entrances on Main Street set back (into the building) three or four steps from the building line. At each entrance there are two swinging doors with double action hinges.

In her complaint appellee (Pattie J. Martin) alleged that after she had passed through one particular door (and was inside the building) she was suddenly struck by said door (on the back swing) with great force and violence; and, that the bottom of the door hit her across the top of the foot or instep while her foot was resting on the floor, resulting in severe injuries. Appellee also alleged specific instances of negligence, on the part of appellant, including the following: the said door was very heavy and had a metal strip across the bottom; that the bottom of the door was one and one-half inches from the floor of the building; that the springs on the door were adjusted to make it swing* harder than was necessary; and, that appellant knew of these conditions of the door. Appellant denied all material allegations, and argued that the accident was unavoidable, and that all injuries were caused by appellee’s negligence and carelessness.

The case was presented to a jury on the pleadings, depositions and oral testimony, and the trial resulted in á verdict in favor of appellee in the mount of $8,640. Appellant now prosecutes this appeal seeking-a reversal on the ground that the trial court erred: One, in refusing to grant its motion for a directed verdict; Two, in refusing to declare a mistrial; and, Three, in giving certain instructions. Appellant also contends the verdict is excessive.

One. Appellant did not demur to the complaint, but did offer the following instruction, which was refused by the court:

“At the close of the entire case, the Court instructs the jury that under the law and the evidence the plaintiff cannot recover from the defendant Sterling Stores and your verdict will be for the defendant.”

Although the meaning of the above instruction is not entirely clear, we will treat it as a challenge to the sufficiency of the evidence to support the jury verdict. The burden of appellant’s contention in this connection appears to be that there is no evidence to show any negligence on its part — calling attention to the fact that there is nothing in the testimony to show the door was defective, or that it differed in any way from the normal door used under the same conditions. A summary of the testimony offered on behalf of Mrs. Martin refutes, we think, the position taken by appellant on this point.

Appellee testified in substance: The door I went through (also the other doors) will swing open toward the inside and the outside; the door was open on the inside when I went through it — it was pushed back all the way as I have seen it on numerous occasions before; as I put my right foot in I saw the door coming and I threw up my hands, but it was coming with such force I couldn’t hold it back; the door struck my foot — just, rolled up on my foot, i.e. my foot was caught under the door, and Mrs. Cash had to help me get it free. I have been trading at that store for seventeen years. Appellee’s husband testified: I inspected the door at the request of my attorney; it has three double-spring hinges which can be adjusted to make it swing harder or easier, and weighs about 75 or 80 pounds; I examined the hinges and they didn’t appear to have been adjusted lately; the door did not have a register to slow it down, but had a metal strip on the bottom. Other testimony showed the bottom of the door was about one and one-half inches above the floor. A Mrs. Cash testified she was in the store when the accident happened, saw the door when it swung toward appellee and hit her, and called a doctor. Ola Mae White who has worked for appellant several years in the Stuttgart store testified: I am familiar with the door in question; there is no way to prop the door back on the inside because of a popcorn machine. Mrs. John Raab, a witness for appellant, testified on cross-examination she was familiar -with the door, that it swung too hard and that “it would hit you like a ton of brick”.

Viewing the above evidence in the light most favorable to appellee, we cannot say there is no substantial evidence from which the jury could have found appellant guilty of negligence in failing to adjust the hinges of the door to make it swing easier and in allowing the bottom of the door to swing one and one-half inches above the floor. It is urged that “liability of the owner or tenant of a building for injury resulting from the defective or dangerous condition of a swinging door must be predicated upon knowledge of such condition upon the part of such owner or tenant”. This matter will be referred to under the next point. We feel it would serve no useful purpose to review the many authorities cited in appellant’s brief on this point, because none of them announces any legal bar to recovery in a case of this nature.

Two. (a) In the opening statement appellees’ counsel made this statement:

“Now I think the proof in this case will show that the doors that are now located at the Sterling Store is not the same door that was involved in this accident.”

Appellant objected to the statement and asked for a mistrial. In chambers the trial judge told appellees’ attorney, for the record, he would only be allowed to introduce evidence with reference to the door in place at the time of the accident, and there was no further objection or request by appellant on that point. In fact, a fair inference from appellant’s reply is that he was satisfied with the court’s ruling. It would be unfair now, we think, to find reversible error was- committed under those circumstances.

(b) Under this same point appellant raises another question that has given us considerable concern. C. M. Baldenweck (manager of the store at Stuttgart) was called as a witness by appellant. On cross-examination the following occurred:

“By Mr. Robinson:
“ Q. Do you know that other people have been hurt with that door?
“Mr. Storey: If the Court please, Mr. Robinson knows that is an improper question and I ask the Court to have it stricken from the record and ask for a mistrial at this time.
‘ ‘ The Court: I think it can go to the jury for what it is worth.
‘ ‘ Mr. Storey: The Court is going to permit a question like that?
“The Court: Yes, sir I think it is proper.
“Mr. Storey: I would like to object strongly to that question and renew my motion for a mistrial.
“The Court: Overruled, save your exceptions.
“Mr. Storey: Note the defendant’s exceptions.
“Mr. Robinson:
“‘Q. Do you know that other people have been hurt on that door?
“A. Yes, sir. Not that particular door though.
“Q. The others are just like it, are they not?
“A. Yes, sir.” (Emphasis added.)

Appellant ably and vigorously argues that the trial court committed reversible error in refusing to strike or disallow the testimony previously set out, but we are unable to agree. As previously pointed out it was important for appellees to show appellant knew or should have known the dangerous condition of the door. The general rule which we think is applicable here is well stated, and sustained by many cited authorities, in 65 C.J.S. NEGLIGENCE § 234 (6), in this language:

“Where knowledge or notice of a danger or defect is in issue, evidence of the occurrence or near occurrence of other accidents or injuries at a particular place or from the doing of a particular act or the employment of a particular method or appliance on occasions prior to the one in question is admissible to show that the person charged knew or should have known of the danger therein or thereat . . .”

In the early case of Burdette Cooperage Co. v. Bunting, 113 Ark. 45 (at pages 52-53), 167 S.W. 77 (at pages 79-80), a witness was asked if it was not generally known that the derrick (on which appellee was killed) was dangerous. The answer was “Yes”. There was a general objection which was overruled by the trial court. This testimony was approved by us “as tending to establish notice on the employer’s part of the defective character of the machinery. ‘It is not competent to prove the ultimate fact that the instrumentality was actually an unsuitable one.’ ” In the case of Haynes Drilling Corporation v. Smith, 200 Ark. 1098, 143 S. W. 2d 27, where appellee was injured while working on a drilling rig owned by appellant, there appears the following statement.

“Mr. J. E. Senter testified that he had been informed that Wardlow, in charge of the night shift, had aad trouble with the slips. There was no error in permitting this testimony. It shows that Senter, who was the foreman, had notice of some defect or some diffi3ulty with the slips, and there is no evidence that appel.ee knew anything about this.”

It is noted that the testimony herein objected to by appellant was elicited by appellees on cross-examination of the manager of appellant’s store and that in a sense the testimony was volunteered. This fact, we think, tends to allow appellant to seek a reversal based on its own testimony. At any rate the objection by appellant was general and not specific and therefore not • sufficient where the testimony was admissible for any purpose. See Lisko v. Uhren, 130 Ark. 111, 196 S. W. 816. In an article in 15 Ark. L. Eev. 69 on the subject of “Objections to Evidence” we find the rule concisely stated at page 71 in these words: “If a particular piece of evidence is admissible for some purpose, the trial court does not err in admitting it over a general objection.” (Cases cited.)

Three. We do not think the trial court erred in giving appellees’ requested Instruction No. 1 which reads:

“Plaintiffs allege that the defendant was negligent in permitting to exist on its premises as defective, unsafe or dangerous condition and that injuries to Pattie Martin resulted therefrom. In that regard, you are instructed that the owner, occupant or person in charge of premises owes to invitees or business visitors thereon the duty of exercising reasonable care to keep the premises in a reasonably safe and suitable condition. ’ ’

The contention by appellant that there is no evidence to justify or support the instruction has been answered already. Also, it is pointed out that appellant offered Instructions No. 5 and No. 8 which were similar in content to the one challenged.

Four. We are unable to say the judgment ($8,640) is excessive when we consider the evidence most favorable to appellee. The record contains testimony which, in substance, shows: she suffered great pain at the time of the injury and was taken to the clinic; she returned to the clinic the next day, her foot was put in a cast some nine days later — she stayed in the hospital five or six days; the pain continued after the cast was removed; she used crutches for a week and after that just hobbled along; she is still not able to walk normally — the injured leg is one inch smaller than the other one — her anide is stiff; she cannot wear high heels, and will never be able to dance again (as was the custom of her and her husband); the injury also aggravated a mild form of epilepsy which she suffered before the injury. The medical testimony shows she still suffers from pain and that she will so suffer in the future; that she will have medical expenses in the future, and she has a 15% or 20% permanent disability to the injured foot. We have said many times there is no definite or satisfactory rule to measure compensation for pain and suffering, that the amount of damages must depend upon the circumstances of each particular case, and much must be left to the discretion of the jury. Chambliss v. Brinton, 229 Ark. 526, 317 S. W. 2d 143; Missouri Pacific R.R. v. Hendrix, 169 Ark. 825, 277 S.W. 337; Fletcher v. Johnson, 231 Ark. 132, 328 S.W. 2d 373.

Affirmed.

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