author: George Rose Smith, J.

text:
    Lytle, Ex’r v. Zebold, Ex’r.
    5-2681
    357 S. W. 2d 20
    Opinion delivered May 7, 1962
    [Rehearing denied June 4, 1962]

      Brockman <& Brockman, for appellant.

      Coleman, Gantt <é Ramsay and John Harris Jones, for appellee.
   George Rose Smith, J.

W. W. West died testate in 1953. His will created a trust and directed that the trust income be paid to, or accumulated for, eight named life beneficiaries. Upon the death of the last surviving life beneficiary the trust property is to be distributed among the lineal descendants of those life beneficiaries who were kin to the testator by blood. Other details of the testamentary trust may be found in an earlier opinion involving this same will. Lytle v. Zebold, 227 Ark. 431, 299 S. W. 2d 74.

To discourage a will contest the testator directed that if any of the beneficiaries of the will should institute proceedings to nullify, change, or restrict any of its provisions, or should do any act for the purpose of impairing, setting aside, or invalidating any of its provisions, then those beneficiaries would be excluded from participation in the estate, the provisions in their favor would be void, and the trust property would ultimately go to the beneficiaries who had not violated this particular provision of the will.

The present proceeding is a petition for instructions filed by the appellee as the sole remaining executor and trustee under the will. The petition asserts that trust income is available for distribution among the life beneficiaries, but the trustee is unwilling to distribute the money until the probate court first determines whether five of the life beneficiaries forfeited their interest in the trust by filing the proceedings in Lytle v. Zebold, supra. After a hearing in the matter the court held that the first proceeding violated the no-contest paragraph in the will and effected a forfeiture of the rights of the five complaining beneficiaries. This is an appeal by the persons disqualified by the judgment.

The court’s decision was correct. The validity of such a prohibition against attacks upon the will is generally recognized and was upheld by this court in Ellsworth v. Ark. Nat. Bk., 194 Ark. 1032, 109 S. W. 2d 1258. Since the testator may leave his property to anyone he chooses he is at liberty to exclude from his bounty those beneficiaries who unsuccessfully seek to thwart his testamentary wishes.

We cannot agree with the appellants’ insistence that the earlier proceeding sought merely a construction of the will rather than its invalidation. There the dissatisfied beneficiaries contended that the testamentary trust was invalid and that the property should be distributed as if the testator had died intestate. Our opinion discussed and rejected three separate attacks upon the validity of the testamentary scheme. We cannot avoid the conclusion that the first petition was the very type of proceeding that the testator intended to forbid.

As a matter of fact, in the case at bar the appellants are making still another attack upon the validity of the trust. By this will the testator devised and bequeathed his residuary estate to his executors and trustees and then went on to outline the terms of the trust. In assailing this procedure the appellants rely upon the rule that an attempted limitation over after a fee simple devise is void for repugnancy. Bernstein v. Bramble, 81 Ark. 480, 99 S. W. 682, 8 LRANS 1028, 11 Ann. Cas. 343. This rule is inapplicable here, for the testator’s description of his testamentary trust is not a limitation over that is repugnant to the vesting of title in the trustees. It would obviously be impossible for any settlor to create a trust if he could not state the terms and conditions upon which the title was being placed in the name of the trustees.

A third contention is that the executor, under the counterclaim statute, should have asserted a forfeiture of the appellants’ interest in the first case and cannot do so now. Ark. Stats. 1947, '§ 27-1121. This contention is unsound. It was not until this court had announced its decision in the first proceeding that it became definitely known that the appellants had made an unsuccessful rather than a successful attack upon the will. Before the final judgment the issue was in doubt. Hence when the executor filed his answer he was not in a position to assert that the appellants had violated the prohibition against a will contest. By analogy, as the. appellee aptly points out, one who is wrongfully and maliciously made a defendant in a civil proceeding does not have to assert a claim for malicious prosecution in that very suit. It is not until the first case has been carried to its conclusion that the cause of action for malicious prosecution can be shown with certainty.

Attacks are also made upon the manner in which certain trust property was sold by the trustee. The appellants, having forfeited their interest in the estate, are not in a position to question the trustee’s conduct. We may assume that the appellants’ action did not affect the rights of the other trust beneficiaries, including these appellants’ lineal descendants, but those beneficiaries have not questioned the manner in which the property was sold.

Affirmed.

Harris, C. J., not participating.


source: Caselaw Access Project

author: Paul Ward, Associate Justice.

license: Public Domain

text:
    Gentry v. Jett.
    5-2706
    356 S. W. 2d 736
    Opinion delivered May 7, 1962

      Sexton & Morgan, for appellant.

      George E. Steel and Shaver, Tackett & Jones, for appellee.
   Paul Ward, Associate Justice.

This is a Workmen’s Compensation case. Appellant (Gentry) and appellee (Jett) were both residents of Polk County, • Arkansas. Appellee owned and operated a wholesale produce business. Although it has not yet been determined whether appellant’s status is that of an employee or an independent contractor-, for all purposes of this opinion, we will treat him as an employee of Jett. As. such employee appellant drove appellee’s truck to .make deliveries of produce to points outside of Arkansas.;

While on his way to Wichita, Kansas to deliver produce, appellant collided with a St. Louis-San Francisco Railway train in Oklahoma on June 22, 1958, receiving serious injuries. Soon- thereafter appellant instigated a series of legal actions to secure, redress, of his injuries.

On October 3, 1958 appellant sued tbe railroad company in tbe Circuit Court of Sebastian County, Arkansas, in tort, and secured an agreed judgment in tbe amount of $4,500 which was promptly paid to him.

On October 4,1958 appellant filed a claim before the Arkansas Workmen’s Compensation Commission based on the same injuries. During the pendency of the claim appellant learned that appellee (although he had the required number of employees) had not secured workmen’s compensation insurance. About this time appellant became a resident of Texas.

On February 11, 1959 (while his claim was still pending before the commission) appellant filed a common law tort action against appellee (for the same injuries) in the Federal District Court at Fort Smith. This suit was dismissed by final action of the Federal Court for the reasons that appellee’s tort liability was controlled by the law of Oklahoma (where the tort occurred), and that under such law the recovery against the railroad company released appellee of all liability for the tort.

Following that, appellant prosecuted his claim before the Workmen’s Compensation Commission with the result that the referee, the full commission and the circuit court all denied his claim, holding, in general, that the law of Oklahoma governed, that appellant had made an election, and that the Federal Court case was res judicata.

Appellant’s arguments for a reversal are based on the following points. (1) The Workmen’s Compensation law of Arkansas (and not of Oklahoma) applies; (2) The Federal Court action did not amount to an election of remedies; and, (3) The Federal Court action is not res judicata of his present claim.

One. Under the law of Oklahoma (as conceded by appellant) when appellant sued the third party (the railroad company) and recovered a judgment he was, thereby, barred from also receiving compensation under the law of Oklahoma. See Okla. Stats. Tit. 85 § 44 (1951) and Ridley v. United Sash & Door Co., 98 Okla. 80, 224 P. 351. This is not, however, the law in Arkansas (Ark. Stats. § 81-1340). It is conceded to be the law in Oklahoma that, in tort cases, recovery against one tortfeasor relieves all other co-tortfeasors from liability. It is also further conceded that, under the full faith, and credit clause of the Federal constitution, Arkansas is bound by the Oklahoma law as it relates to torts and the effect of a recovery against one tortfeasor.

Notwithstanding the above concessions, it is appellant’s contention that the constitutional clause relative to full faith and credit does not apply, under the facts in this case, to compensation claims. ¥e have concluded that appellant’s contention is meritorious and must be sustained.

In the first place there is a logical and vital difference between the nature of the liability arising from a tort and the nature of the liability arising out of Workmen’s Compensation laws. The former is based on a wrongful act while the latter is based on a contractual relationship — in fact, it is also based on the public welfare. That being true, there is no sound reason why another state should be able to keep this state from discharging its contractual obligation to one of its citizens. As to when one state must give full faith and credit to laws of another state is, of course, a federal question, so we can look to such decisions for authoritative answers. The cases presently mentioned support the view already expressed.

The case of Alaska Packers Association v. Industrial Accident Commission of California, 294 U. S. 532, 55 S. Ct. 518, 79 L. Ed. 1044, dealt with a problem much like the one now under consideration. Alaska Packers owned a business in California; it hired Palma (a resident of California) to work in Alaska, where he was injured. Both Alaska and California had compensation laws under either of which Palma might possibly have recovered. Section 58 of the California Workmen’s Compensation Act imposed jurisdiction “over all controversies arising out of injuries suffered without the territorial limits' of this state...” When the California commission made an award to Palma, Alaska Packers insisted in the Supreme Court of California and in the U. S. Supreme Court — “that as the Alaska statute affords, in Alaska, an exclusive remedy for the injury which occurred there, the California courts denied full faith and credit to the Alaska statute by refusing to recognize it as a defense to the' application for an award under the California statute ’ ’. While the manner in which the question was presented to the Court may be lacking in clarity, the answers given by the Court are clear and decisive. Among • others the Court made the following pronouncements:

1. “But where the contract is entered into within the state, even though it is to be performed elsewhere, its terms, its obligation and its sanctions are subject, in some measure, to the legislative control of the state. The fact that the contract is to be performed elsewhere does not of itself put these incidents beyond reach of the power which a state may constitutionally exercise.” (Citing cases.)
2. “While similar power to control the legal consequences of a tortious act committed elsewhere has been denied ... the liability under workmen’s compensation acts is not for a tort. It is imposed as an incident of the employment relationship, as a cost to be borne by the- business enterprise, rather than as an attempt to extend redress for the wrongful act of the employer.”

The Court also approved this statement:

“ ‘The contract creates a relationship under the sanction of the law and the same law attaches as an incident thereto an obligation to compensate for injuries sustained abroad amounting to a sort of compulsory insurance.’ ”

In the case of Industrial Commission of Wisconsin et al. v. McCartin, et al., 330 U. S. 622, 67 S. Ct. 886, 91 L. Ed. 1140, both the employer and the employee were residents of Illinois where the contract of employment was entered into. Appellee, who was injured while working in Wisconsin, first accepted a settlement from the Illinois Commission but reserved his right to apply for compensation in Wisconsin. Later appellee was refused an award by the Wisconsin courts. On appeal, by certiorari, to the U. S. Supreme Court, the issue was stated this way by the Court: “The troublesome problem that arises here is whether the compensation paid under the Illinois statute raises a full faith, and credit bar to a subsequent award in Wisconsin for an additional amount.” In an exhaustive opinion the Court held no such bar existed. The essence of the opinion is found in the following statement: “Illinois was the state where the parties entered into the employment contract and its legitimate concern with that employer-employee relationship permitted it to apply its own statute even though the injury occurred elsewhere.” (Citing cases.)

We have carefully examined the cases relied on by appellee but find nothing in conflict with the foregoing. We do not consider the Oklahoma cases cited by appellee to be controlling. It is our consludion, therefore, that the Workmen’s Compensation Commission and the trial court erred in refusing to consider appellant’s claim on the ground that the accident happened in Oklahoma and that the law of that state is controlling as to the allowance of benefits.

Two. We have likewise concluded that appellant’s suit in Federal Court did not amount to an election of remedies as contemplated under Ark. Stats. § 81-1304. Undoubtedly, under this section, if appellant had not sued the railway company, his suit against appellee in tort would have been an election and thereafter he could not have maintained a claim for compensation, assuming, of course, that appellant sued as an employee of Jett.

However, when appellant obtained a judgment against the railway company in tort, he thereby (under the Oklahoma law to which we must give full faith and credit, the action being in tort) released all other tortfeasors (including appellee) from liability. So, when appellant filed his complaint against appellee in tort there was no such cause of action in existence. That being true appellant did not have two causes of action to elect between — he had only the right to claim compensation. This view, we think, is clearly announced in Sharpp v. Stodghill, 191 Ark. 500, 86 S. W. 2d 934, 87 S. W. 2d 577, where the Court approved the following-statement :

“ ‘The general rule as to election of remedies is that where a party has a right to choose one of two or more appropriate but inconsistent remedies, and with full knowledge of all the facts of the case and of his rights, makes a deliberate choice of one, then he is bound by his election and is estopped from again electing or resorting to the other remedy, although the judgment obtained in the first action fails to afford relief to the party making the election.
“ ‘Election is to be distinguished from mistake in remedy. The pursuit of a remedy which one supposes he possesses, but which in fact has no existence, is not an election between remedies, but a mistake as to the available remedy, and will not prevent a subsequent recourse to whatever remedial right was originally available.’ ”

Also, to the same effect, see the rule as stated in 18 Am. Jur. Election of Remedies § 24. In Workmen’s Compensation cases there appears to be an even less strict adherence to the election rule than in other cases. In II Larson, Workmen’s Compensation Law § 67.22 there is the statement:

“The most troublesome question that emerges from the statute giving the employee an option to claim either common law damages or compensation from the uninsured employer is this: if the employee pursues one remedy to a fruitless conclusion, is he barred by his election from pursuing the other? The majority of cases have held that an unsuccessful damage suit does not bar a compensation claim... The theory, which has its beneficent counterpart in almost any other field of law where the harsh old Roman doctrine of election rears its head, is that an election of a remedy which proves to be non-existent is no election at all. Election, according to this view, is a choice between two valid bnt inconsistent remedies; it is not the mistaken pursuit of a misconceived right when only one right in fact existed. ’ ’

We do not find anything in Eastburn v. Gaylen, 229 Ark. 70, 313 S. W. 2d 794, or in any other decision of this Court cited by appellee that conflicts with the view above expressed.

Three. Having reached the conclusion announced just previously, it follows that the action in the Federal Court was not res judicata of appellant’s claim for compensation. The merits of appellant’s claim for compensation were not considered or passed upon in that case. . .

Since the Commission failed to determine the question of fact regarding appellant’s relationship to appellee — whether he was an employee or an independent contractor, the cause is remanded to the circuit court with directions to remand to the Workmen’s Compensation Commission for further proceedings consistent with this opinion.


author: Sam Robinson, Associate Justice.

text:
    Farm Bureau Mutual Ins. Co. v. Cusick.
    5-2620
    356 S. W. 2d 740
    Opinion delivered May 7, 1962

      Shaver, Tackett S Jones and T. E. Webber, for appellant.

      William R. Mitchell and M. G. Lewis, Jr., for appellee.
   Sam Robinson, Associate Justice.

Appellant issued its policy of fire insurance to appellee, insuring a dwelling house located near Hot Springs in the sum of $4,000.00 and insuring the personal property in the house for the sum of $2,000.00. Subsequently the house and contents were totally destroyed by fire. Appellee made her proof of loss, but the insurance company refused to pay the claim. Appellee then filed this action alleging the issuance of the policy, the fire and loss and the proof of loss. The appellant company answered admitting the issuance of the policy and the destruction of the property by fire; however, it denied the loss on the personal property amounted to $2,000.00 and it was alleged in the answer that the fire was not accidental.

After all the evidence was in and each side had closed their case, the trial court directed a verdict for the appellee in the sum of $6,000.00. To this amount was added the statutory penalty of 12 per cent and an attorneys fee of $1,500.00.

Appellant contends that the trial court erred in not permitting counsel to cross examine the appellee regarding her whereabouts on the night of the fire, The following occurred:

Counsel for appellant: “Q: Where were you the night of the fire ? ’ ’
The Court: “Mr. Tackett, you keep going into that. She has testified she was in Hot Springs, both on direct examination and cross examination, and you have asked the same thing again. Now do you want to continue along this line? She has testified she was in Hot Springs and with Howell Neice all that time and she got home about 12 o’clock that night. Now, you have gone all over that.”
Mr. Tackett: “I still don’t know where she was.”
The Court, “She testified she was in Hot Springs and that is sufficient.”
Mr. Tackett: “Save my exceptions.”

Appellee testified that she was in Hot Springs at the time of the fire. Appellant proffered no testimony to the contrary and there is no showing of materiality of the exact place where she was in Hot Springs.

Appellee testified that the value of the personal property destroyed was more than $2,000.00 and her father, Lee R. Frazier, gave testimony to the . same effect. One of the items was a piano which had been given appellant by Mr. Frazier. He testified that it was worth $500.00 and placed a total valuation of more than $2,000.00 on the personal property. The testimony of both appellant and Mr. Frazier was admissible. ‘ ‘ The testimony of an owner or former owner concerning the value of an object is competent evidence as to its worth.” Pettit v. Kilby, 232 Ark. 993, 342 S. W. 2d 93.

The case of Phillips v. Graves, 219 Ark. 806, 245 S. W. 2d 394, involved the value of furniture destroyed by fire and there the Court quoted with approval from 32 CJS 315, as follows: “Rules of evidence are not so technical as to require expert witnesses to prove the reasonable or market value of chattels such as household furniture in common use, where it is apparent that the value of the articles is within the knowledge of persons of ordinary intelligence and experience.”

In the first report appellee made to the insurance company she stated that she went to the picture show with Howell Neice, a state policeman, the night of the fire, but later she wrote to the insurance company that she was mistaken about being at the show that night; that she was with the officer as she had first stated, but they did not go to the show; that it was the night before the fire that they went to the show. We fail to see how the representation about having been at the show on the night in question was in any way material.

After all the evidence was in, appellant offered to confess judgment for the sum of $6,000.00, but at that stage of the proceedings counsel for appellee insisted on the statutory penalty and attorneys fee and would not accept the $6,000.00 tendered. Appellant offered no evidence to contradict appellee’s evidence of the loss.

The Court directed the jury to return a verdict in favor of plaintiff for $6,000.00 and then added 12 per cent penalty and $1,500.00 attorneys fee. We find no error in the Court’s action in directing a verdict. There was no issue to submit to the jury. Burcher v. Casey, 190 Ark. 1055, 83 S. W. 2d 73. We find no error calling for a reversal; the judgment is therefore affirmed.

The appellee has filed in this Court a motion for an additional attorneys fee in connection with the appeal. The motion is granted. An additional fee of $500.00 is allowed, to be taxed as cost in this Court.

Affirmed.


author: Jim Johnson, Associate Justice.

text:
    Loftis v. Edwards.
    5-2737
    356 S. W. 2d 742
    Opinion delivered May 7, 1962.

      Fulk, Lofton, Wood, Lovett S Parham, by Warren E. Wood, for appellant.

      James B. Howard, for appellee.
   Jim Johnson, Associate Justice.

This case involves the foreclosure of a laborer’s and materialman’s lien.

Between the dates of March 20 and April 21, 1959, appellants sold materials to and performed labor for the appellees in the amount of $1,032.54. The materials and labor were utilized in the construction of improvements on property described as Lot Twelve, Block One, Fairground Addition to the City of Little Bock. Appellants received a payment of $100.00 and gave appellees credit therefor, leaving a balance due of $932.54.

Appellants followed the statutory requirements in perfecting a Laborer’s and Materialman’s Lien. When the indebtedness was not paid, appellants filed suit against appellees in Chancery Court, Pulaski County, and service was obtained. The complaint prayed for judgment against appellees and that same be declared a first lien on the property and “if said judgment be not paid, that the property be sold to satisfy said lien for costs and all other just and proper relief.”

Appellees did not elect to file a responsive pleading and on August 8, 1960, a default judgment was entered against appellees for the sum of $932.54, together with their cost. A lien was impressed upon the lot and building which were ordered to be sold if the judgment was not paid within ten days. The judgment did not name a Commissioner to sell the property and fix the time, place and terms of the sale.

After the expiration of that term of court (Sec. 1 and 2, Act 342 of 1923), on May 22, 1961, appellants filed a motion in the Pulaski Chancery Court stating that the judgment indebtedness had not been paid and requestéd the Court to enter an order naming the Chancery Clerk as Commissioner to sell the property and to fix the time, place and terms of the sale.

Appellees filed a demurrer to the motion on June 27, 1961, and on August 16, 1961, the demurrer was sustained by the Court.

Appellants attempted an appeal from the order sustaining appellees’ demurrer. The appeal was dismissed for the lack of a final and appealable judgment thereby leaving the cause pending in the trial court. Loftis v. Edwards, 234 Ark. 632, 353 S. W. 2d 535. A final order of dismissal was entered by the trial court on February 15, 1962, and from that order comes this appeal.

Appellees contended as grounds for their demurrer and contend here that the court had no authority to amend the decree after the lapse of the term. To the contrary appellants urge that the court had control of its own judgment and possessed inherent power to enforce it.

At first blush this most interesting problem appeared to be a technical exception to the sacred maxim that “Equity will not suffer a wrong to be without a remedy”, however, upon further research we find that the matter presented for our consideration was settled by the Civil Code of 1869, §§ 405 and 406. These sections are brought forward as Ark. Stats. § 51-1105 and § 51-1108. Section 51-1105, Ark. Stats., is as follows:

“Interlocutory order unnecessary — Judgment in First Instance. — It shall not be necessary, in any action upon a mortgage or lien, to enter an interlocutory judgment or give time for the payment of money, or for doing any other act; hut final judgment may in such cases be given in the first instance.”

This section of our statutes is permissive; certainly it is not prohibitive to the entry of an interlocutory order as was the nature of the order in the case at bar. Had the judgment been paid within the ten days allotted there would have been no necessity for a final decree. Section 51-1108, Ark. Stats., is as follows:

“Sale of property always ordered. — In the foreclosure of a mortgage, a sale of the mortgaged property shall in all .cases be ordered.”

This section of our statutes- is mandatory. Therefore, since an interlocutory judgment in the foreclosure of a lien is permissible and the sale of the property in foreclosure proceedings shall in all cases be ordered, we are impelled to the conclusion that the trial court here failed to comply with the statutes by refusing to complete the decree even at a subsequent term. See 59 CJS, p. 1265, and also 19 Am. Jur. Equity, § 418. Accordingly, the trial court’s order sustaining the demurrer and dismissing the action is reversed and the cause is remanded with directions to enter a final decree naming a Commissioner to sell the property upon which a lien was impressed and fix the time, place and terms of the sale.

Reversed and remanded with directions.


author: Neill Bohlinger, Associate Justice.

text:
    Garver v. Utyesonich.
    5-2619
    356 S. W. 2d 744
    Opinion delivered May 7, 1962

      Shaver, Tackett & Jones, for appellant.

      M. C. Lewis, Jr., and Earl J. Lane, for appellee.
   Neill Bohlinger, Associate Justice.

On the night of April 2, 1960, the appellant, Elizabeth Garver, was in the City of Hot Springs. At that time she met socially the appellant, Harry A. Curtis, and at approximately 10 o’clock on the morning of April 3rd, she loaned to Harry A. Curtis her Buick automobile. It appears to have been the understanding at that time that appellant, Curtis, was to return Mrs. Garver’s automobile later that afternoon at which time the appellants planned to have dinner. The matter of agency between appellants is not raised.

While driving Mrs. Garver’s car, the appellant, Curtis, about six o’clock in the afternoon, at the intersection of Central Avenue and Olive Street, attempted to make a sharp left turn into Olive Street at which time the automobile he was driving collided with a motor scooter being operated by Joseph A. Utyesonich, the appellee herein, the accident causing both property damage and physical injury to the appellee.

As a result of this accident, the appellee filed a complaint in the Garland Circuit Court against the appellants herein and alleged that while he was exercising due care and caution the appellant, Curtis, negligently and carelessly crossed the center line on Central Avenue into the lane in which appellee was driving and attempted to make a sharp left turn into Olive Street; that he failed to yield the right-of-way and that the damages suffered by appellee were serious, painful, and permanent; for all of which he prayed damages.

The appellants, Elizabeth Carver and Harry A. Curtis, filed their separate answers in that cause through the Honorable Boyd Tackett who appears as attorney for both the parties, appellants.

The cause proceeded to trial on June 26, 1961, at which time the attorney for the appellee, Joseph A. Utyesonich, filed a motion in which he requested the court to appoint a guardian ad litem for the defendant, Curtis, who, he stated, appeared to he mentally incompetent. To that motion was attached a letter from S. I. Feurst, M. D., on the stationery of Martin Memorial Clinic, Vicksburg, Mississippi, in which Dr. Feurst stated that appellant, Curtis, was mentally ill, the diagnosis being schizophrenic reaction, paranoid type. By this is meant that Mr. Curtis displayed autistic unrealistic thinking and obviously believed that there was some kind of plot against him; that he was very tense, highly suspicious axid hostile and refused to take medication, which the doctor stated was a common reaction in certain stages in paranoid schizophrenia; that Mr. Curtis was incapable of giving testimony and that it was debatable as to whether he would know what he was saying. The length of the mental incompetency could not be determined and Dr. Feurst did not believe that without necessary treatment Mr. Curtis would improve at any time in the near future.

Responsive to that motion, the court, on June 26, 1961, entered its order and appointed the Honorable Boyd Tackett, the attorney for both parties, appellants, guardian ad litem for Harry A. Curtis.

Thereafter, Mr. Tackett filed axx amended and substituted answer for Harry A. Curtis and entered his appearance as guardian ad litem. Mr. Tackett further filed a separate amended and substituted answer for Elizabeth Garver. The appellants, Elizabeth Garver and Harry A. Curtis, by their attorney, Boyd Tackett, filed a motion for a continuance in order that the mental condition of appellant, Curtis, might be determined and the possibility of his attendance at the court ascertained. The appellant, Elizabeth Garver, set out in that motion that without the testimony of the appellant, Harry A. Curtis, she would be greatly prejudiced and that the appellees’ cause of action would not be jeopardized by a reasonable continuance and that there was no other person, other than appellant Curtis, who could testify in defense of this action.

On February 10, 1961, Louise Childers, as mother, next friend, and guardian of Daniel Edward Sampson, filed a complaint against these appellants alleging injuries to Daniel Edward Sampson who had been a companion of the appellee, Joseph A. Utyesonich, at the time of the accident.

The two actions were joined for trial and the case proceeded to trial and the jury returned a verdict of $1,000.00 against both the appellants herein in favor of Louise Childers, mother, next friend and guardian of Daniel Edward Sampson, a minor, and also found against the appellants in the sum of $31,000.00 in favor of Joseph A. Utyesonich. Judgment was entered accordingly and to reverse that finding and judgment the appellants present this cause here.

The appellants present eight points relied on for reversal but we need look no further than the second point on which this case must be reversed. That point is as follows:

“The trial court erred in appointing the attorney for defendants guardian ad litem for the absent defendant, Harry A. Curtis.”

Mr. Tackett, who was appointed guardian ad litem, was the attorney for both the appellants and therefore was not eligible for appointment as guardian for the appellant, Curtis, who was alleged to be of unsound mind. The statute on this point is clear and unambiguous.

“ * * * The appointment can not be made until after the service of the summons in the action. No party or attorney in an action can be appointed guardian to defend therein for an infant or person of unsound mind.” §27-826 Ark. Stats.

The question of the mental condition of appellant, Harry A. Curtis, was timely and forcefully presented. A doctor testified that he was mentally ill, would not know what he was saying if he tried to testify, and that the chances of his recovery were somewhat remote.

It is true that the probate courts, by the constitution, are given original jurisdiction in matters of persons of unsound minds and their estates, but this does not exclude the jurisdiction of other courts to hear and determine suits by and for insane persons whether under guardianship or not and whether they have been judged insane by the probate court nor not.

In the case of Peters v. Townsend, 93 Ark. 103, 124 S. W. 255, we said:

“ <*** p|. wag regarded as error to proceed against him without such guardian. If the insanity of a defendant in a pending suit was suggested, but had not been judicially ascertained, the court gave opportunity for an inquisition to be held, or took the necessary steps to determine the question for itself; and, having ascertained that the defendant was mentally incapable of making his defense, it appointed a guardian ad litem for him, and thereafter imposed upon him the restraints of infancy.’ ”

We cannot say that the appointment of Mr. Tackett was improvident or that the cause of the allegedly insane appellant was in any way jeopardized, but the Legislature has said in no uncertain terms that no attorney in any action can be appointed guardian ad litem to defend therein. The appointment of an attorney for the parties herein as guardian ad litem was error.

The record reflects that the appellees introduced the deputy clerk of the Hot Springs Municipal Court as a witness and such deputy clerk identified the docket sheet and testified therefrom that appellant, Harry A. Curtis, was on the docket sheet and as to his case number and the fact that he was represented by an attorney who entered a plea of guilty to a charge of failure to yield the right-of-way.

This witness did not testify that she was present in court and heard the plea entered and her testimony from the docket sheet on the various details of the case just as effectively introduced a record of conviction in the municipal court for a violation of the statute as if the docket sheet had been made an exhibit to her testimony.

This cannot be done. The statute provides [Ark. Stats. 75-1011]:

‘‘ Record of conviction inadmissible in a civil action. —No record of the conviction of any person for any violation of this act shall be admissible as evidence in any court in any civil action.”

The act referred to applies to traffic violation and the language of the Legislature makes clear its intent that the record of the municipal court cannot be introduced in actions of this kind. As further evidence of Legislative intent, Act 216 of the Acts of 1961 provides that no record of the forfeiture of a bond or of any conviction of any person for any violation of this Act [traffic violation] shall be admissible in any court in any civil action. Under these enactments, the evidence of the traffic violation was not admissible.

While an admission against interest in the course of conversation might be admissible, those admissions cannot be fortified and given weight by reason that a court of law has taken action on them. As far as the record of the municipal court in a traffic violation is concerned, it is a closed chapter in a trial of a civil suit in any other court.

For the reasons herein stated this cause is reversed and remanded for further proceedings not inconsistent with this opinion.


author: Carleton Harris, Chief Justice.

text:
    Dritt v. Morris.
    5-2669
    357 S. W. 2d 13
    Opinion delivered May 14, 1962.

      Dickson, Putman, Millwee & Davis, for appellant.

      Rex W. Perkins and Pearson & Pearson, for appellee.
   Carleton Harris, Chief Justice.

On June 14, 1958, Mrs. Jessie P. Dritt, age 70, appellant herein, entered a Fayetteville grocery store, known as Campbell’s Super Market, operated by A. D. Morris and Alfred D. Morris, appellees herein, for the purpose of purchasing groceries. As she left the store, and started down the concrete incline leading from the premises, Mrs. Dritt slipped and fell, breaking her hip and sustaining other injuries. Suit was instituted by appellant against appellees, alleging that she was a customer and invitee of appellees, and that appellees had placed or caused to be placed on the floor of the store and on the surface immediately outside and inside the entrance, a ‘ ‘ slippery, greasy substance known as floor sweep”; that the floor and surface were thereby made dangerous and unsafe; that her fall was occasioned by slipping upon the floor sweep, and such injuries were due to the negligence of appellees in placing and allowing to remain upon the floor and surface such slippery and greasy substance. The Morrises answered, denying the allegations, and further asserting that if Mrs. Dritt was injured, it was due to her own negligence and without negligence on their part. On trial, the jury returned a verdict for appellees, and from the judgment entered accordingly, appellant brings this appeal. Four points are relied upon for reversal, which we proceed to discuss, though not in the order listed in appellant’s brief.

I.

“The Lower Court Erred in Ruling as a Matter of Law That the Conduct of Appellees or Their Employees in Placing Floor Sweep on the Floor Inside Their Grocery Store Did Not Proximately Cause Appellant’s Injuries. A Question of Fact Was Presented on This Issue, and It Should Have Been Submitted to the Jury for its Determination.”

In its instruction No. 6, the court told the jury:

“You are further instructed that any allegation of negligence of floor sweep being on the defendants’ floor inside of the building at the time and place of the fall complained of by the plaintiff as the proximate cause of the injury is not to be considered.”

Appellant objected and saved exceptions to the giving of this instruction. After the giving of instructions (15 in number), the court asked: “Are there other instructions? I believe a juror had a question?” One of the jurors then stated:

“I didn’t understand what you said about the floor sweep inside the building.
THE COURT: I will reread that.
MR. PUTMAN: We renew our objection to it if you reread it.
THE COURT: In other words, I will say this: There were two allegations of negligence; one in the complaint was that the floor sweep inside of the building was an act of negligence and the other allegation was that there was floor sweep outside of the building that she fell on which was an act of negligence. Now, I am telling you that it has been admitted in evidence that there was floor sweep inside of the building, but as far as an allegation of negligence on the part of the plaintiff, it is not to be considered. The allegation of negligence that floor sweep on the inside of the building at the time and place of the fall complained of was the proximate cause of the injury, that the evidence on proximate cause was not sufficient.
MR. PUTMAN: We object to the Court so instructing. ’ ’

We are definitely of the opinion that the court erred in so instructing the jury. Mrs. Dritt testified that the floor on the north side of the establishment had floor sweep on it, distributed for sweeping; that she walked down this north side in making her shopping rounds, and had to walk through the floor sweep in order to find the items she desired to purchase. Mrs. Josephine Jennings, daughter of Mrs. Dritt, testified that when she took her mother’s clothing home from the hospital, two days after the fall, floor sweep was still on Mrs. Dritt’s shoes. Mr. Alfred Morris stated that customers did walk on and through the floor sweep in going about the store. Morris identified a sample of “Certain Sweep” which was the brand used on the occasion of Mrs. Drift’s injury. Mr. Loren Heiple, head of the Civil Engineering Department, University of Arkansas, testified that a part of his training consisted of making analyses of compounds, and learning the effect of friction. He testified that he made an analysis of ‘ ‘ Certain Sweep” (which had been purchased by appellant’s attorneys from the same dealer supplying the appellees), and found it to consist of sand, oil, sawdust, and dye. The witness testified that he had performed tests with leather material and ‘ ‘ Certain Sweep ” on a concrete surface substantially the same as where appellant slipped and fell. Mr. Heiple stated that he walked through the floor sweep, on concrete, wearing leather soles and heels, and slipped. It was his opinion that the floor sweep on concrete made it at least twice as slippery. From his testimony:

‘ ‘ Two items would cause this slipperiness, one would he the roller-like effect of the sand particles, the other would be the oil base of the floor sweep compound which would tend to act as a lubricant. * * *
“The sand would serve as an intermediate surface apparently spherical in size, which would tend to act as a roller, that can act as a roller between two hard surfaces.
Q. Would that he lubricated by the oil?
A. It would be lubricated by the oil.”

The witness also stated that he had used several different individuals in making tests.

Appellees insist that the court’s ruling was correct, pointing out that the floor sweep used in conducting the experiments was not the same floor sweep, or out of the same container, as that on the floor at the time of Mrs. Drift’s fall. It is true that this was not a part of the same “hatch” that had been used on June 14, 1958, hut in answering interrogatories subsequent to the occurrence, appellee Alfred D. Morris stated that none of that particular sweep remained in his possession. Of course, under those circumstances, it was impossible to conduct the experiments with- sweep; that had been on the floor on the occasion of the injury complained of. As herein stated, the same brand was used, and purchased from appellees’ supplier — in fact, the above named appellee identified a sample of “Certain Sweep” which he had purchased from the supplier on the morning of the trial as “the same floor sweep” (referring to the brand), and stated, “It’s the same thing we have always used.”

Appellees also assert that Heiple’s evidence was inadmissible because the experiments were not conducted under circumstances similar to those existing at the time of appellant’s fall. It is not necessary that conditions be identical to those existing at the time of the occurrence in order to render experiments admissible; it is sufficient if there is a substantial similarity. Minor variations in the essential condition go to weight, rather than to the admissibility, of the evidence, and of course, much depends upon the purpose for which such evidence is introduced. See 20 Am. Jur., § 756, p. 628. It is there also stated: ‘‘Speaking generally, however, the measure of permissible variation of the conditions of the experiments from those of the occurrence is measured by whether such variation is liable to confuse or mislead the jury.” We find nothing in the proffered evidence that could have tended to mislead or confuse the jury. We think the evidence was sufficient to present a question for jury determination on the issue raised by this point. It follows that the court’s instruction was error, and such error calls for a reversal of the judgment. However, other alleged errors have been asserted, and in view of the fact that all questions presented may again arise upon a second trial, we briefly discuss each alleged error.

II.

“The Trial Court Erred in Refusing to Order Appellee Alfred D. Morris to Answer More Fully Certain Interrogatories Propounded to Him."

Subsequent to tbe filing of the complaint, appellant propounded twenty-two consecutively numbered interrogatories to Alfred D. Morris, to be answered by him pursuant to the requirements of Act 335 of 1953, known as the Discovery Act (Chapter 3, Depositions and Discovery, Title 28). Interrogatory No. 14 and the answer to same, are as follows:

“State whether or not any of your employees reported to you or your attorneys that they saw or knew or heard that the plaintiff fell as aforesaid. If yes, state the name and present address of said employee and state what said employee reported to you or your attorneys.
(Answer) (14) No report made to me. Have no information as to reports, if any, made to my attorneys.” Interrogatory No. 15 and the answer thereto are as follows:
“State whether or not any other person reported to you or your attorneys that they saw or knew or heard that the plaintiff fell as aforesaid. If yes, state the name and present address of said employee and state what said person or persons reported to you or your attorneys.
(Answer) (15) Several days after June 14, 1958, Alton Dewey Morris, 411 South School Street, Fayetteville, Arkansas, advised me that the daughter and son-in-law of plaintiff reported to him three days after June 14, 1958, that plaintiff had fallen. Have no information as to reports, if any, made to my attorneys.”

Appellant moved to require Morris to answer these interrogatories more fully. The court found that no further answer was required, and the order reflects the following:

“For the sake of the record, the Court states that it finds that the purpose of said interrogatories is to lead to the discovery of eye witnesses to the fall of plaintiff, and that the information sought is a part of the at.torney’s work product, and that the knowledge of the attorney of the defendant is not imputed to the defendant. ’ ’

We are of the opinion that the first portion of these interrogatories should have been answered, i.e., appellant was entitled to the names and addresses of any employees who might have witnessed the fall, and the names and addresses of any other persons who witnessed same. The answer, “Have no information as to reports, if any, made to my attorneys”, is insufficient. Though perhaps not true in this instance, to permit such an answer might well enable a litigant to intentionally evade questions propounded to him. As was stated in Hickman v. Taylor, 329 U. S. 495, “A party clearly cannot refuse to answer interrogatories on the ground that the information sought is solely within the knowledge of his attorney.” This is not to say that we will unequivocally follow the reasoning of the Hickman case in every respect, as several questions were presented in that litigation which have not, as yet, reached this Court, hut we thoroughly approve the quoted statement. Practically the same identical point was before the Supreme Court of Delaware in the case of Bullock v. Maag, 94 A. 2d 382. The opinion reflects that the following interrogatory was propounded:

‘ ‘ Give the names and addresses of persons who have been interviewed or from whom statements have been procured, by you or on your behalf, in regard to the facts alleged in the complaint.”

It was answered as follows:

“I have not interviewed any persons nor have I procured statements from any persons in regard to the facts alleged in the complaint. I have no knowledge nor information as to the names and addresses of persons who may have been interviewed or from whom statements have been procured on my behalf by my attorneys. ’ ’

Likewise, a similar interrogatory:'

“Give the names and addresses of the persons who have knowledge of the facts alleged in the complaint.” This was answered:
“The defendant, Harry Maag, Ann Marie Bullock, my former wife; and other persons whose names and addresses are known to my attorneys but not to me.” The propounding party moved the court to require the answering party to answer more fully, and the latter contended that he should not be required to furnish any of the desired information which was in the possession of his attorneys. The court rejected the contention with the following language:
“If the (answering party’s) Contention were accepted, the cloak of privilege would be spread widely enough to smother Rule 33. These interrogatories are within the scope of Rule 33 and the subject matter is not privileged. If the (answering party) does not have the information requested in Interrogatories Nos. 1 and 2, he will be obliged to obtain the date from his attorneys and to furnish it to the (propounding party). Obviously, a party may not be permitted to avoid answering interrogatories, otherwise unobjectionable, merely because the information sought is in the possession of his attorney. ’ ’

Of course, there was nothing to prevent Morris from obtaining names and addresses of witnesses (if any) from his attorneys, and we hold that this portion of the interrogatories should have been more fully answered.

However, we take a different view when we reach that part, “State what said employee reported to you or your attorneys”, and “State what said person or persons reported to you or your attorneys.” This request had the same effect as asking for statements made by witnesses, and cannot be granted without a showing of necessity. See Hickman v. Taylor, supra. Of course, a situation may well arise where a party can show necessity, i. e., a witness cannot be found, or the expense of obtaining the statement or deposition of a witness, perhaps hundreds of miles away, is prohibitive. Numerous other valid reasons might well be advanced. However, in the case before us, there is no showing at all of necessity.

We have never had occasion to discuss this subject before, and we take this opportunity to make some general observations, since the question will arise before trial courts many times in the future. We think it would be vastly unfair to require an attorney, who perhaps has worked diligently in interviewing witnesses and obtaining statements, to turn his file of statements, his “work product”, over to his adversary, who is then able to obtain the same amount of information with but a minimum of effort. Such a requirement could well have the effect of rewarding slothfulness, and would certainly tend to discourage initiative and promptness in preparing one’s case. Counsel for each side might (as) well procrastinate while the other obtained statements. After all, in the average case, once counsel has obtained the names and addresses of possible witnesses (information to which he is entitled), there is nothing to prevent him from interviewing and taking the statements himself.

III.

“The Trial Court Erred in Permitting Evidence of the Absence of Floor Sweep on Occasions Other Than the One in Issue.”

Alfred Morris testified that he had seen floor sweep on the premises outside the store only once or twice, in 1952 or 1953, and that he had placed it there himself and swept it up. Harold Brannon, a former employee, testified he had never seen any floor sweep on the outside during the three or four months that he worked for appellees. This testimony was objected to by appellant. Appellees contend that the testimony was admissible as habit evidence, but the evidence in question went beyond merely showing the daily habit, routine, or method of cleaning. Appellees were entitled to present testimony as to the daily manner in which the floor was cleaned, and the compound disposed of, but the testimony that no floor sweep had been observed on other occasions was immaterial to the question of whether there was sweep' on the outside on this particular occasion. The fact that no floor sweep had been observed at prior times certainly did not establish that none was there on this occasion. Likewise, the evidence of these witnesses covered a long period of time, and we have held that evidence of conditions on remote occasions is not admissible to show conditions on the date in question. See Little Rock & Ft. Smith Rwy. Co. v. Eubanks, 48 Ark. 460, 3 S. W. 808. It follows that the court erred in admitting the testimony in question.

IV.

“The Trial Court Erred in Permitting Appellees’ Witness to Testify that He had Never Slipped and Fallen on Floor Sweep at Campbell’s Super Market.”

Brannon testified that he worked for appellees for several months during the summer of 1958, and his duties included sweeping the premises of the super market. He testified that in sweeping, he used and distributed floor sweeping compound, and he was asked if he had ever slipped and fallen on floor sweep. Over appellant’s objections, the witness was permitted to testify that he had never slipped, nor fallen. We think the factual situation in this case precludes this evidence. Mrs. Dritt’s complaint was predicated upon two different theories (or a combination of both). One was that her fall was caused by a pile of floor sweep outside the exit to the building; the other, was that in walking in the store, floor sweep accumulated on the heels and soles of her shoes, and upon walking down the incline (just outside the exit), the accident occurred because of the contact between the soles of her shoes (covered with the compound) and the concrete, creating the slipperiness mentioned by the expert, Heiple. If Mrs. Dritt had fallen Inside the store, Brannon’s evidence would have been admissible, but she fell outside, and Brannon did not testify that he had walked on to the concrete incline after walking through the floor sweep. This, under the evidence, would seem to make a vast difference in the factual situation, for appellees’ proof was directed to the fact that the combination of floor sweep and the concrete incline caused the fall.

In accordance with the reasoning herein set out, the judgment is reversed, and the cause remanded.

       The discussion under this point relates to Sections 28-355 and 28-356, Ark. Stats.

       This was evidently a typographical error and should read “person”.

       For that matter, the evidence does not reflect the kind of shoes worn by Brannon while walking through the floor sweep, i.e., whether they had leather soles.


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

text:
    McGehee v. Mid South Gas Co.
    5-2644
    357 S. W. 2d 282
    Opinion delivered May 14, 1962.
    [Rehearing denied June 4, 1962]

      Arnold & Hamilton by William S. Arnold, for appellant.

      Mehaffy, Smith & Williams, by William J. Smith and Frank Warden, Jr., for appellee.
   Ed. F. McFaddin, Associate Justice.

This suit is an effort by appellant, a minority stockholder, to prevent Mid South Gas Company from transferring its assets to Arkansas Louisiana Gas Company. Appellees —defendants below — are the Mid South Gas Company and its officers and directors. On motion of appellees, the Chancery Court dismissed the appellant’s complaint without affording him a trial on the merits; and this appeal resulted. The background facts need to be given in some detail for a full understanding of the matter.

Mid South Gas Company (hereinafter called “Mid South”) and Arkansas Louisiana Gas Company (hereinafter called “Arkla”) were public utility corporations engaged in transmitting and selling natural gas in this State. On May 19, 1961, Mid South and Arkla entered into an “Agreement and Plan of Reorganization”, by the terms of which Arkla would issue 336,000 shares of its common stock to Mid South and would assume the debts and obligations of Mid South, all in exchange for the properties and assets of Mid South as a going concern; and with the further provision that Mid South would thereafter dissolve and distribute said stock pro rata to the holders of its common stock on the basis of one share of Arkla stock for two shares of Mid South stock. Since both Mid South and Arkla were public utility corporations, the entire Agreement and Plan of Reorganization was subject to the approval of the Arkansas Public Service Commission; and on June 8, 1961, Mid South and Arkla filed their joint application for approval of such plan and the Public Service Commission set the matter for a hearing date of June 26, 1961.

Appellant, Wiley A. McGehee, was a stockholder in Mid South; and on June 21, 1961, he filed the present case in the Pulaski Chancery Court against Mid South and its officers and directors. The complaint alleged that it was a class suit on behalf of the plaintiff and others similarly situated; that the plaintiff was a minority stockholder in Mid South; that on May 19, 1961, without notice to the stockholders, the officers and directors of Mid South entered into the aforementioned agreement with Arkla; that no valid notice of a stockholders ’ meeting was given; that the stockholders ’ meeting of. Mid South held on June 8, 1961 for the purpose of voting on the said Agreement and Plan of Reorganization with Arkla was illegal and void; that the proposed plan of stock distribution was illegal and inequitable; that Ark. Stats. §§ 64-701 et seq. (under which appellant says the merger agreement was proposed) are unconstitutional and void; that the entire agreement and plan of reorganization with Arkla is void; and that Ark. Stats. §§ 64-110 et seq. are violative of Art. 7, §§ 1 and 15 of the Arkansas Constitution. The prayer of the petition was that Mid South and its officers and directors be enjoined and restrained from further proceeding in the agreement with Arkla. There was thus pending: (a) the suit in the Chancery Court, which involves the present appeal; and (b) the petition of Mid South and Arkla before the Public Service Commission, which latter proceeding came to us in Case No. 2699 in this Court, subsequently to be mentioned.

On thé same day that the appellant filed his suit in the Chancery Court (i.e., June 21,1961), he likewise filed before the Public Service Commission his motion for continuance, informing the Public Service Commission of the Chancery suit and praying that the Public Service Commission delay any action in regard to the contemplated Agreement and Plan of Reorganization between Mid South and Arkla until the Chancery case could be heard and decided. The appellant also filed before the Commission his response and objections to any proceedings, and presented the same questions that he had posed in the Chancery case. The Arkansas Public Service Commission proceeded to a hearing in the matter on July 5, 1961, overruled the motion for continuance, denied the objections and response of appellant, and approved in every respect the Agreement and Plan of Reorganization. The final result of the Public Service Commission proceeding will subsequently be stated.

On July 7, 1961, the appellees herein, being Mid South and its officers and directors, filed in the Chancery Court their motion to dismiss the complaint of McGehee, alleging: that McGehee had entered his appearance before the Public Service Commission in the Arkla-Mid South matter; that he had filed a response; that he had participated in the hearing; that the same questions raised in the Chancery ease were likewise presented in the hearing before the Public Service Commission; that the Public Service Commission had ruled adversely to McGehee; that he could appeal that ruling; and that his remedy at law by appeal was adequate and complete. The motion was supported by copies of the pleadings filed by McGehee before the Public Service Commission, the order of the Commission, and-excerpts from the record of testimony before the Public Service Commission. To the motion to dismiss Appellant McGehee filed a response, claiming that the Public Service Commission was without jurisdiction to hear the matter; that his rights of appeal from the Public Service Commission were not adequate and complete; and that the Public Service Commission was merely an administrative tribunal and had no authority to adjudicate the questions raised in the Chancery case. On September 25, 1961, the Chancery Court sustained the motion to dismiss and McGehee duly prosecutes the appeal to this Court.

So much for the background - facts. In sustaining the motion to dismiss the petition, the Chancery Court found “that the plaintiff has an adequate remedy at law by way of appeal from the Order of the Public Service Commission as provided by law . . .” We recognize that equity has jurisdiction in a case of this kind if there is no adequate remedy at law; and that the mere existence of a remedy at law does not deprive equity of jurisdiction unless such remedy is ‘ ‘ clear, adequate and complete.” Ex Parte Conway, 4 Ark. 302; Chapman & Dewey v. Osceola District, 127 Ark. 318, 191 S. W. 220; Bassett v. Mutual Benefit Assn., 178 Ark. 906, 12 S. W. 2d 893; Little Red River Dist. v. Thomas, 154 Ark. 328, 242 S. W. 552; Meriwether v. State, 181 Ark. 216, 26 S. W. 2d 57; and Consumers Co-op. v. Hill, 233 Ark. 59, 342 S. W. 2d 657. See also 19 Am. Jur. 118, “Equity” § 114; and 30 C. J. S. 347, “Equity §§ 25 et seq. Therefore, in order to sustain the ruling of the Chancery Court, we must determine (a) that the Public Service Commission had jurisdiction; and (b) that McGehee’s remedy, before the Public Service Commission and by appeal from its order, afforded him full, adequate, complete, and expeditious relief.

That the Public Service Commission had jurisdiction to inquire into the contract between Mid South and Arkla must be conceded, since each is ■ a public utility and since § 73-253 Ark. Stats, provides that only with the consent and approval of the Public Service Commission may two or more utilities consolidate or one utility acquire the stock of another utility. The same section prescribes the procedure under which public utilities may obtain such consent and approval of the Public Service Commission; so this statute establishes that the Public Service Commission had jurisdiction. The next and more serious question is whether the jurisdiction of the Public Service Commission afforded MeGehee a full, adequate, complete, and expeditious remedy: i.e., could every objection that he listed in the Chancery case be likewise presented and decided before the Public Service Commission or by appeal from its order to the Circuit Court and to this Court. In 30 C. J. S. 345, “Equity” § 23, cases are cited from many jurisdictions to sustain this statement:

“When jurisdiction has become concurrent through statutory enlargement of the legal remedy, a court of equity, although recognizing the existence of its jurisdiction, will generally decline to exercise it where the remedy at law is complete and adequate, and no special circumstances exist demanding the interference of equity.”

As heretofore stated, MeGehee alleged: that there was no valid meeting of the stockholders of Mid South; that the proposed plan between Mid South and Arkla was illegal and inequitable; that § 64-701 et seq. Ark. Stats, were unconstitutional and void; that the entire agreement between Mid South and Arkla was void; and that §§ 64-110 et seq. Ark. Stats, were violative of Art. 7, §§ 1 and 15 of the Arkansas Constitution. Did MeGehee have a full, adequate, complete, and expeditious remedy.to present each of these attacks before the Public Service Commission and, on appeal, to the Circuit Court and to this Court? We unhesitatingly answer this question in the affirmative. We have a series of cases which show the extent of issues that may be presented in a hearing before the Public Service Commission and on áppeal'therefrom. Some of these cases are’: Southwest ern Gas & Elec. Co. v. City of Hatfield, 219 Ark. 515, 243 S. W. 2d 378; City of Ft. Smith v. Southwestern Bell Telephone Co., 220 Ark. 70, 247 S. W. 2d 474; Arkansas Power & Light Co. v. Arkansas Public Service Commission, 226 Ark. 225, 289 S. W. 2d 668; and Town of Emerson v. Arkansas Public Service Commission, 227 Ark. 20, 295 S. W. 2d 778.

In Southwestern Gas v. Hatfield, supra, one of the questions presented was whether the Town Council of Hatfield had validly approved the sale of the electric distribution system from Southwestern to Rich Mountain Co-op.; and we held that the Commission had full power to determine whether the Town Council of Hatfield had validly approved the sale, saying:

“The Commission’s determination of the question is subject to review by the courts. 'Orderly procedure and administrative efficiency demand that the regulatory body be vested with authority to make preliminary determination of legal questions which are incidental and necessary to the final legislative act. Otherwise endless confusion would result because different phases of the same case might be pending before the Commission and the courts at one time. St. Clair Borough v. Tamaqua & Pottsville Elec. Ry. Co., 259 Pa. 462, 103 A. 287, 5 A. L. R. 20; State ex rel Cirese, et al. v. Ridge, Presiding Judge, 345 Mo. 1096, 138 S. W. 2d 1012. It is our conclusion that the Commission had jurisdiction to determine whether the town council of Hatfield approved the sale in question and that the trial court erred in holding otherwise.”

In City of Fort Smith v. Southwestern Bell Telephone Co., supra, there was involved the question of telephone rates fixed by the Public Service Commission, and we said:

“As regards the review sought by Southwestern, we do examine, and have so examined, to see that the order of the Commission does not amount to a confiscation of the property of the Utility, and that no rights under the United States or State Constitutions have been invaded.”

In Arkansas Power & Light Co. v. Arkansas Public Service Commission, supra, the correctness of rates fixed by the Public Service Commission was involved and we said:

“When an appeal is taken to the circuit court, that court, as well as this court on appeal from the circuit court, shall not extend the review of the Commission’s findings and actions ‘further than to determine whether the Department (Commission) has regularly pursued its authority, including a determination of whether the order, or decision under review violated any right of the complainant under the Constitution of the United States or of the State of Arkansas. (Sec. 73-233 (d) Ark. Stats.)” (Italics our own.)

In Town of Emerson v. Arkansas Public Service Commission, supra, there was a contest before the Public Service Commission as to which of two utilities should provide telephone service in a given area and it was there recognized that, on review, the courts examine to see ivhether the Commission has regularly pursued its authority, “including a determination of whether the order under review violated any right of the complainant under the U. S. or State Constitutions.”

In these four cases — and others could be cited to the same effect — we have held that the Commission in the first instance and the courts on appeal could consider such matters as each of the five points of attack made by McGehee in the case at bar. It thus follows that McGehee’s remedy through the proceedings before the Commission and on appeal, was full, adequate and complete in that he could urge every point that he alleged in the Chancery Court. That his remedy through the Commission’s proceedings was expeditious is shown by the fact that the Commission’s Order was made on July 5, 1961, affirmed by the Circuit Court on September 25, 1961, and an appeal to this Court was dismissed on February 19,1962, because McGehee had not pursued his appeal expeditiously and within the time prescribed by law. The fact that McGehee lost his appeal to this court— questioning the Public Service Commission’s Order — by failing to prosecute it in due time, does not reinstate equity jurisdiction, because where a legal remedy has been lost, through failure to seek it at the proper time, equity will not for that fault entertain jurisdiction. 30 C. J. S. 346, “Equity” § 24.

We therefore affirm the decree dismissing this Chancery case, since the remedy at law was full, adequate, complete, and expeditious.

Ward, J., dissents.

Paul Ward, Associate Justice,

(Dissenting). In brief, my reasons for dissenting are set out below.

If McGehee can substantiate the allegations of his complaint in chancery court, it means money in his pockets. I assume that no one questions his right to try to prove his case against Mid South in a court of competent jurisdiction. The majority opinion denies Mc-Gehee this right unless the Arkansas Public Service Commission is in fact such a court.

To my mind, to state the above issue is to answer it. I have never heard it contended or even intimated that the Arkansas Public Service Commission was a court, in law or equity, to resolve legal differences between individuals or corporations.

It cannot be disputed that the Public Service Commission has only such powers as are given it by the legislature. Ark. Stats. § 73-115 contains that grant of powers which is “all matters pertaining to the regulation and operation of — ” (naming the several utilities). Nowhere is the commission invested with the general powers of a court. Yet, the effect of the majority opinion is to invest the commission with the general jurisdiction of a duly constituted court.

The majority attempt to justify the result reached on the ground that McGehee had' the right of appeal to the circuit court. The fallacy of that position is clearly revealed by an examination of the law governing trials before the commission and appeals therefrom. First, however, it is pertinent to point out that if McGehee is permitted to exercise Ms constitutional right of trial by a court, the introduction of all evidence would be in accordance with rules developed by thousands of decisions over a long period of time. Yet, in a trial before the commission a radically different situation would obtain. Ark. Stats. § 73-127 provides that the commission “shall not be bound by the strict technical rules of pleading and evidence . . . ’J but it may use its own discretion. Can the effect of such a trial before the commission be erased or cured by an appeal to the circuit court? Definitely and clearly it cannot. Section 73-133 (Ark. Stats.) governs appeals from the commission to the circuit court of Pulaski County. After providing that such appeals are automatically allowed and that the secretary of the commission shall make a transcript of all proceedings and all evidence, the section then states: ‘ ‘ The said circuit court shall thereupon review said order upon the record presented . . .” (Emphasis added.)

In Southwestern Gas and Electric Company v. City of Hatfield, 219 Ark. 515, 243 S. W. 2d 378, and Woodruff Electric Cooperative v. Arkansas Public Service Commission, 234 Ark. 118, 351 S. W. 2d 136, we recognized that the commission can exercise quasi judicial functions in matters incidental to the administration of the act. Those holdings, however, have no application here because McGehee’s grievance with Mid South was real and in no way incidental to the merger.

For the reasons above noted I respectfully dissent.

       We copy the order of the Public Service Commission in the said case since it appears as an exhibit in the transcript in the case now before us.

        “ORDER

      “On June 8,1961, a joint application was filed by Arkansas Louisiana Gas Company “Ark La” and the MidSóuth Gas Company “Mid-South” seeking approval of their Agreement and Plan of Reorganization entered into on May 19,1961. Pursuant to an order issued by this Commission the matter was set for hearing on June 26, 1961.
      “On June 21, 1961, Wiley A. McGehee of McGehee, a stockholder of MidSouth, filed a Motion for Continuance of the hearing pending final adjudication of a suit filed by him in the Chancery Court of Pulaski County, Arkansas, seeking an injunction against the consummation of said Agreement and Plan of Reorganization and also a Response and Objection to the application. One June 26, 1961, the date of the hearing previously set by this Commission, the Motion for Continuance was presented and argued by counsel. The Commission inquired whether the issues propounded to the Chancery Court were raised in the Response and Objection to the Application. Counsel for the minority stockholder affirmed that this situation obtained and the Commission made the following conclusions of law:
      “1. That this Commission has primary jurisdiction over the acquisition by Ark La, a gas utility operating in the State of Arkansas, of the utility property and proposed service areas within the State of Arkansas of Mid South, as contemplated by said Agreement and Plan of Reorganization, and also has primary jurisdiction with regard to the sale of public utility assets within the State of Arkansas insofar as the public interest is concerned, as contemplated by said Agreement and Plan.
      “2. That this Commission also has jurisdiction over utility reorganization within the State of Arkansas and specifically the reorganization of Ark La and Mid South, with respect to the rights of the holders of their stock, bonds, and other securities, secured and unsecured, as contemplated by said Agreement and Plan of Reorganization.
      “3. That this Commission is the proper forum for hearing this application, together with the matters presented in opposition thereto.
      “4. That the general corporation statutes of the State of Arkansas applicable to the Agreement and Plan of Reorganization submitted for approval are constitutional.
      “5. That all rights of stockholders of both parties are adequately protected by right of appeal to the courts from any order issued by this Commission.
      “6. That no legal reason was presented for the continuance sought herein.
      “Based upon the above conclusions of law, the Commission denied the Motion for Continuance and proceeded with the hearing on the merits on June 26,1961, in the hearing room of the Commission, Justice Building, Little Rock, Arkansas, as set by previous order.
      “From oral testimony and documentary evidence submitted at the hearing and from briefs filed by opposing counsel, the Commission makes the following findings:
      “1. That this Commission has jurisdiction of the matters presented in the application and the response and objection to the application.
      “2. That Arkansas Louisiana Gas Company and Mid South Gas Company have entered into a certain Agreement and Plan of Reorganization dated May 19,1961, a copy of which was attached to the application herein and submitted in evidence in the hearing of the application, and which has now been duly approved by Ark La and Mid South in the manner required by the statutes of the State of Delaware and the State of Arkansas, under the laws of which Ark La and Mid South are incorporated respectively. By the terms of such Agreement and Plan of Reorganization, Ark La will issue 336,000 shares of its Common Stock to Mid South and will assume the debts and obligations of Mid South, all in exchange for the properties and assets of Mid South as a going concern; and that Mid South will thereafter dissolve and distribute said stock pro rata to the holders of the present Common Stock of Mid South with one (1) share of stock in Ark La being distributed for each two (2) shares of stock in Mid South. The details of the conditions and the mode of carrying into effect the provisions of the agreement are as set forth specifically in said Agreement.
      “3. That the holders of the secured indebtedness and other creditors of Arkansas Louisiana Gas Company and the Mid South Gas Company will not be adversely affected.
      “4. That the value of said Ark La stock, plus the debts and liabilities of Mid South to be assumed by Ark La, is equal to the fair value of the property of Mid South to be exchanged for said stock.
      “5. From testimony offered at the hearing, the Commission finds that the rates and service to the customers now being served by both companies will not be adversely affected by the said Agreement and Plan of Reorganization, which is in the public interest and should have the consent and approval of the Commission.
      “6. That Ark La’s ability to make gas available for industrial development in the areas served by Mid South exceeds the ability of Mid South in this connection.
      “IT IS, THEREFORE, ORDERED THAT:
      “The application of Arkansas Louisiana Gas Company and Mid South Gas Company in the above entitled and numbered proceeding be, and the same is hereby, granted; and accordingly the Commission hereby grants its approval and consent to the consummation of the Agreement and Plan of Reorganization between Arkansas Louisiana Gas Company and Mid South Gas Company in the manner contemplated by the said Agreement and Plan of Reorganization between those two corporations dated May 19, 1961, and approved by proper corporate action of each company, and authorized Ark La and Mid South to consummate and carry out said Agreement and Plan of Reorganization, and in that connection, upon the consummation thereof for Mid South to dissolve and distribute 336,000 shares of Ark La Common Stock pro rata to the holders of the present Common Stock of Mid South, and as well to do any and all things necessary and proper to consummate said-Agreement and Plan of Reorganization.
      “This order shall be in full force and effect immediately upon its issuance.
      “BY ORDER OF THE COMMISSION
      “This 5th day of July, 1961.”


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    Haney v. Haney.
    5-2710
    357 S. W. 2d 19
    Opinion delivered May 14, 1962.

      John Harris Jones, for appellant.

      Reinberger & Eilbott and Don H. Smith, for appellee.
   George Rose Smith, J.

This is an application by the appellee, Dorothea C. Haney, for an increase in the amount awarded her for the support of the parties’ two minor sons. The children’s father has appealed from an order increasing the allowance from $200 to $275 a month.

The appellee obtained a divorce on January 13,1960, and was given the custody of the children. The decree recited that the parties had agreed to a settlement of their property rights, that the defendant should pay $200 a month for the support of the children, and that the defendant should pay alimony at the rate of $300 a month for twenty-four months, beginning as of July 15, 1959, and continuing through June 15, 1961. It is conceded that the appellant has made all the required payments.

This petition for an increase in the allowance for child support was filed within a month after the appellee received her last installment of alimony. It is quite apparent from her testimony that the present request was motivated in part by the fact that without the monthly alimony the appellee has experienced difficulty in maintaining her household upon her own earnings of about $160 a month and the original award of $200 a month for the children. Alimony, however, is not in issue, and any increase in the allowance for the support of the children must be based upon a- showing that conditions have changed since the entry of the decree. Lively v. Lively, 222 Ark. 501, 261 S. W. 2d 409.

The proof is insufficient to support an increase of $75 a month. One change in conditions is that the appellant’s monthly net earnings are $26.50 more than they were when the divorce was granted. The appellee testified that the expenses of her older son are greater now that he is in the eleventh grade than they were when he was in the ninth grade, but she made no attempt to express the additional expense in dollars and cents. She indicated a desire to put the younger child in a private day school, hut the added expense of $20 a month would apparently be largely offset by the fact that a maid may no longer be needed to look after the child while the appellee is at work.

It is with reluctance that we differ with the chancellor in a case of this kind, but we are unable to find in the record sufficient proof of changed conditions to support the increase that was granted. The figures that the appellee gave concerning her monthly expenses indicate that the original allowance was nearly enough to provide for the two boys. Her statement that she needs an increase of more than $50 a month evidently refers in part to the matter of replacing the lost alimony.

We have concluded that an increased allowance of $25 a month is the most liberal award that can be justified by the appellee’s proof of changed conditions. The chancellor’s order will accordingly be modified to fix the monthly allowance at $225, with the appellant to pay the costs.


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    Williams v. Williams.
    5-2693
    357 S. W. 2d 25
    Opinion delivered May 14, 1962.

      O. W. Pete Wiggins, for appellant.

      Howell, Price & Worsham, for appellee.
   Paul Ward, Associate Justice.

The parties to this action were divorced in 1952. The decree awarded the two minor children to the mother (appellant) and ordered appellee to pay $50 per month to the mother for support of the minors. The present litigation stems from the failure of appellee to make the monthly payments.

Since we have reached the conclusion that the cause must he remanded for further development of pertinent facts, we deem it unnecessary to discuss in detail all the testimony or all the numerous pleadings set forth in the record.

After the divorce decree in 1952 the record is silent until August 21, 1958 when the court cited appellee to show cause why he should not take care of the delinquent payments and increase the monthly payments. About one month later appellee was ordered to pay $3,300 and to quit poisoning the minds of the children against the mother. A little later the above order was set aside for lack of notice. On April 20, 1961 appellee (after being again cited to show cause) was ordered to pay $100 per month ($25 per week) for support, but no order was made about the delinquent payments. About four months later appellee was cited to show cause why he had not made the $100 payments, and why he should not pay the $3,000 past due.

Climaxing the above series of proceedings the trial court, on September 19, 1961, (a) refused to order appellee to discharge in full all delinquent payments; (b) ordered appellee to pay $600 for support of the minors; and, (c) reduced the monthly payments from $100 to $50 per month.

A careful review of the record (as abstracted by both sides) sheds very little light on the phases of this case about which we are most concerned, viz: (a) the financial needs of the two minor children; (b) the financial ability of appellee to supply such needs; and, (c) the justification for relieving appellee from paying all the past due monthly installments. We feel that justice would be better served by remanding the cause for further development along the lines indicated.

Accordingly, the decree of the trial court is reversed and the cause is remanded.


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    McClain v. Alexander.
    5-2678
    357 S. W. 2d 1
    Opinion delivered May 14, 1962.
    [Rehearing denied June 4, 1962]

      Thorp Thomas, for appellant.

      J. B. Milham, for appellee.
   Sam Robinson, Associate Justice.

This is a suit by appellees, Robert M. Alexander and his wife, to cancel a contract for the sale of real estate to appellants, S. C. McClain and his wife. The trial court ordered the contract cancelled and possession of the property delivered to the Alexanders. The McClains have appealed.

In 1954 the Alexanders purchased the property involved from L. T. and Annie Miller for the sum of $2,500.00. In November, 1957, the Alexanders contracted to sell the property to the McClains. The consideration was the assumption by the McClains of the balance of $1,558.17 owed to the Millers, payable in monthly installments of $35.00, and payments to the Alexanders of the additional sum of $500.00, payable $25.00 monthly.

In February, 1961, apparently, the McClains had paid in full the $500.00 owed to the Alexanders, but owed not exceeding $381.00 on the indebtedness to the Millers. At that time the Alexanders contended that the McClains had breached the contract of purchase in several respects, and thereby declared as due the entire balance owed to the Millers. The Alexanders then proceeded to pay off the Miller indebtedness and on February 13, 1961, obtained a Warranty Deed to the property from Annie Miller (widow of L. T. Miller).

Under the terms of the contract with the McClains the Alexanders were obligated to furnish an abstract of title upon the payment of the purchase price. On February 16, 1961, Mr. Thorp Thomas, attorney for the Mc-Clains, wrote to Mr. Alexander as follows: “Please be advised that I am the attorney for Mrs. Ruby McClain and in such capacity she brought me a contract entered into by you and your wife and she and her husband, wherein you agreed to convey certain piece of property in Saline County, where Mr. and Mrs. McClain now live. She further tells me that you have demanded that she pay the full purchase price at this time. Therefore, pursuant to the contract, we ask that you deliver a warranty deed to Mr. and Mrs. McClain and an abstract to Mr. Ben McCray, and he will in turn examine the abstract and will pay you the balance due you under the contract. ’ ’ Instead of delivering the abstract and deed as requested, the Alexanders, two days later, filed this suit to cancel the contract.

True, the contract provides that time is of the essence, but when the seller elected to accelerate the payments, the buyer did not protest or refuse payment; he merely asked that the deed and abstract be delivered to a lawyer’s office where the abstract could be examined and payment would be made. This was a reasonable request and in no way violated any provision of the contract. The object and function of an abstract of title is to enable the purchaser to ascertain the condition of the title and to facilitate a further examination of the records if desired. 1 CJS 381

Here, the sellers agreed to deliver to the buyers a deed covenanting that they had not in any manner encumbered the property, and that they would warrant and defend the title against all claims whatever done by them. Certainly the buyer should have a reasonable time to examine the abstract to determine if he was getting the kind of title he was entitled to receive. Drury v. Mickelberry, (Mo.) 129 S. W. 237. In 52 A. L. R. 1482, it is said: “The general rule is that the abstract should be furnished for examination within a reasonable time before the date fixed for performance of the contract by the vendee, in order to give him an opportunity to examine it before performing the contract.” See also 55 Am. Jur. 732.

As heretofore pointed out, when the seller accelerated the payments owed under the terms of the contract, the buyer merely requested that the abstract be delivered to a lawyer’s office so that it could be examined to determine the condition of the title, and payment would be made. In these circumstances the trial court erred in ordering that the contract be cancelled.

Reversed with directions to enter a decree consistent herewith.


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    Duckworth v. Peoples Indemnity Ins. Co.
    5-2663
    357 S. W. 2d 26
    Opinion delivered May 14, 1962.

      Rhine & Rhine, for appellant.

      Frierson, Walker & Snellgrove, for appellee.
   Jim Johnson, Associate Justice.

This case involves a coverage exception clause in a fire insurance policy.

The material facts as between the appellants; Mr. and Mrs. Duckworth, and the appellee, Peoples Indemnity Insurance Company, are undisputed. The appellee issued a policy of fire insurance covering a farm dwelling owned by the appellants, Mr. and Mrs. Duck-worth, which was subject to a mortgage in favor of the Federal Land Bank of St. Louis. The insurance policy bore a mortgage clause which provided for payment of loss to the Federal Land Bank of St. Louis and further provided that the interest of the mortgagee should not be invalidated by the occupation of the premises for purposes more hazardous than are permitted by the policy but that, in the event the company should be required to pay to the mortgagee any sum for loss or damage under the policy as to which no liability existed in favor of the mortgagor, the company should be legally subrogated to all rights of the mortgagee under its security. The principal policy provided that the company should not be liable for any loss or damage occurring while the hazard is increased by any means within the control or knowledge of the insured or while a described building, whether intended for occupancy by owner or tenant, is vacant or unoccupied beyond a period of ten days without written endorsement attached to the policy.

On or about July 7, 1960, the insured dwelling was destroyed by fire. The appellee company refused to pay the claim to the mortgagors, the appellants, Mr. and Mrs. Duckworth, contending that the house was unoccupied but paid the Federal Land Bank of St. Louis and demanded subrogation. The right of subrogation was acknowledged by a subrogation agreement executed by the Federal Land Bank of St. Louis and it is admitted by appellants that the right exists provided the building was, in fact, unoccupied at the time of the fire within the meaning of the policy.

The trial court found for appellee and in so finding recited the general rules relative to “vacant or unoccupied” as follows:

“In 29A Am. Jur., Page 112, § 907, it states:
“Although sometimes used interchangeably, the terms ‘vacant’ and ‘unoccupied’ are not generally regarded as synonymous terms in the law of insurance. ‘Vacant’ means without inanimate objects; ‘Unoccupied’ means without animate occupants . . . and the terms . . . ‘Vacant or unoccupied’, imply a situation in which the insured building . . . are without an occupant of the kind, and during the time, contemplated by the intention of the parties, as indicated by the terms and descriptions of the policy. A dwelling is ‘occupied’ when it is in actual use by human beings, who are living in it as a place‘of habitation, and is ‘unoccupied’ when it has ceased to be a customary place of habitation or abode, and no one is living or residing in it.”
“In 29A Am. Jnr., Page 115., § 910, it further states:
‘ ‘ If, however, a dwelling is left without an occupant for an unreasonable length of time, it should be deemed unoccupied irrespective of the intention of the occupant.
‘ ‘ On page 116, in § 911 of the same volume it states:
“Of course, if the policy expressly provided that it shall be void if the insured building, ‘whether intended for occupancy by owner or tenant, be or become vacant or unoccupied and so remain’ for a specific number of days, that provision controls . . .”

The sole issue presented for our consideration on this appeal is whether the property was, in fact, vacant or unoccupied at the time of the fire or whether the hazard was increased by a means within the knowledge or control of the insured appellants. It is undisputed that the last tenant of the property moved out about May 30, 1960, and that no one else occupied the property from that date until the fire on July 7, 1960, so that there is no question that as far as time is concerned it was unoccupied for at least the time prohibited by the policy.

Appellants each admitted that they were aware that their tenant, a Mr. Droke, moved out of the house about May 30, 1960, and were so advised by a letter received by them from Droke and that neither ever informed the company or its agents that the property was no longer occupied. Nobody was living in the house at the time of the fire.

The record is clear that appellants never actually resided in the house. They merely stored their furniture in two unused rooms while Droke was living in the house and left for a three months ’ visit in Arizona. They were last in the house about April 5 or 6, 1960. Appellants did, however, refer in their testimony to the fact that the- house was their home. We can from the record only conclude that they merely intended to make it their home upon their return. Appellants admitted that they never actually lived in the house themselves, never spent the night there and at the time of the fire nobody was eating or sleeping in the house or occupying it at all nor had there been any occupancy for approximately six weeks prior to the fire.

Applying these facts from the record to the correct general rules recited by the learned Chancellor as set forth above, we cannot say that the trial court’s findings are against the weight of the evidence. Certainly the language of the policy is unambiguous; this being true the courts have no choice but to construe the insurance contract according to the plain import of its language. Southern Surety Company v. Penzel, 164 Ark. 365, 261 S. W. 920. It follows, therefore, that even the most liberal construction we could give in favor of the insured under the facts here presented justifies no conclusion except that the decree must be affirmed.

Robinson, J., dissents.