text:
    Henslee v. Boyd.
    5-2645
    360 S. W. 2d 505
    Opinion delivered September 17, 1962.
    [Rehearing denied October 22, 1962.]

      J ay W. Lickey and Gerland P. Patten, for appellant.

      Gregory & Glaycomb, for appellee.
   George Rose Smith, J.

This suit is the outcome of an nnsnccessfnl venture in which the appellant F. Brooks Henslee and the appellee H. Eugene Boyd attempted to engage as partners in the wholesale and retail lumber business. The enterprise was heavily indebted from the outset and lasted for only about three months. Thereafter Boyd brought this suit for a rescission of the partnership contract, asserting fraud in its inducement and a subsequent failure of consideration. The chancellor set aside the contract on the second ground and in effect directed Henslee to repay everything that Boyd had invested in the venture. The basic question is whether the decree is supported by a preponderance of the evidence.

The partnership was formed on June 2,1960. Before that time' Henslee had been engaged in the same business by himself, near Pine Bluff. His assets included a sawmill, a planing mill, a dry kiln, rolling stock, and miscellaneous equipment. The outstanding indebtedness consisted of a $25,000 mortgage on the sawmill and other property, payable to the Benton State Bank, a $17,000 mortgage on the dry kiln and rolling stock, and about $10,000 owed on various open accounts.

Some years earlier Eugene Boyd, the appellee, had been connected with the sawmill business in Alabama, but in May of 1960 he and his wife had a gift shop in New Mexico. In the latter part of that month Eugene and his brother Barney were in Arkansas seeking to buy timber for a sawmill that Barney owned in Alabama. They heard the Henslee mill in operation near the highway and stopped to ask about the availability of standing timber in the vicinity.

4. Henslee told them that he had both timber and a mill for sale, as he was not a sawmill man and would like to sell out. It was at first thought that the Boyds would buy the entire business, and a gross value of $70,000 was eventually agreed upon. Barney, however, decided not to enter the transaction when Henslee was unwilling for him to have a weekly drawing account of more than $75 while the purchase price was being paid. After further discussion it was agreed that Henslee would sell a half interest to Eugene Boyd and go into partnership with him. The Boyds returned to Alabama so that Eugene could raise the money for his down payment.

On June 2 Henslee and Eugene Boyd met at the office of a Pine Bluff attorney, where a contract of sale and a contract of partnership were prepared and signed. The two instruments were executed together, in the course of the same transaction, and should be considered as a single contract not only in the matter of interpretation, Gowen v. Sullins, 212 Ark. 824, 208 S. W. 2d 450, but also, we think, in the determination of whether rescission is proper.

By the first contract Henslee sold Boyd a half interest in the assets of the business. The agreement recited the valuation of $70,000 and provided that the partnership would assume the $17,000 mortgage and $5,000 of the open accounts, leaving a net worth of $48,000. For his half interest Boyd was to pay a total of $12,000 in cash within sixty days and execute six notes, due semiannually, for the other $12,000. Boyd duly made the cash payments and executed the notes.

The partnership agreement declared that the parties would engage in the lumber business as equal partners, devoting such time and attention to it as should be necessary. Paragraph 7, after referring to an inventory of 80,000 board feet of finished lumber that was owned by Henslee individually, provided that the partnership might sell this lumber to raise operating capital, but the lumber so sold would be replaced within two years.

Paragraph 8 recited that the $25,000 mortgage debt to the Benton State Bank was to be Henslee’s personal obligation and would be paid by him “within such reasonable time as is practicable.” It was further stated that Henslee would use all the purchase price in excess of the first $5,000, and also any available profits, toward the satisfaction of the bank mortgage. The proof shows that Henslee did not in fact apply Boyd’s cash payments immediately to the mortgage debt. Henslee treated the money as his own and at once used $2,500 of it to buy a tract of timber for the partnership. The rest he applied partly to debts and expenses of the partnership and partly to his own personal debts. On September 16,1960 — eleven days after the partnership ceased to be active — Henslee made a payment of $19,000 upon the bank mortgage, reducing its balance to $6,000. This suit was filed a month later, on October 19.

Boyd and his brother testified that in the course of the oral negotiations Henslee said that he would use the cash payments made by Boyd to reduce the bank mortgage and that he would also discount Boyd’s purchase-money notes and use the proceeds for the same purpose. The Boyds state that Henslee represented that in this way the bank would be paid in full and the sawmill could be mortgaged by the partners to raise operating capital. Boyd attributes the failure of the undertaking to a shortage of operating capital with which to purchase saw logs for the mill.

• The chancellor held the Boyd brothers ’ testimony to be admissible, despite the parol evidence rule. In granting a rescission of both contracts the trial court relied solely upon the fact that Henslee did not promptly apply the purchase money (in excess of the first $5,000) to the payment of the bank mortgage. The chancellor thought this breach of contract to be so material as to amount to a failure of consideration, entitling Boyd to complete restitution.

We lay aside the admissibility of the Boyds’ testimony, for we have concluded that even if this proof is considered to be admissible no failure of consideration has been shown. Failure of consideration' does not mean, of course, that the agreement was invalid in its inception for lack of consideration. Instead, the phrase means that after the formation of the contract one party so materially defaults in the performance of his promise that the other party is excused from the duty to perform and may, in a proper case, obtain rescission. Corbin on Contracts (1950 Ed.), § 133. Failure of consideration may result not only from complete default but also from a protracted delay in performance. Best., Contracts, §§ 273 (2) and 276. In chancery the amount of delay that will be condoned varies with the equities of the case. Williston on Contracts (Bev. Ed.), § 852.

We are not convinced that Henslee’s delay in making his $19,000 payment to the bank was a material factor leading to the collapse of the venture. By the letter of the contract Henslee was required to apply $7,000 of the cash payments toward satisfaction of a $25,000 mortgage. There is no suggestion that such a small payment would have brought about a release of the lien. And if Henslee had carried out his alleged oral promise to discount the notes as 'well, he could not have raised as much as an additional $12,000, leaving a substantial balance still owing to the bank. Henslee actually made from his own funds a payment of $19,000 in September. The record does not support the conclusion that the firm’s insolvency would havé been avoidéd if this payment had been made earlier— even at the. inception of the partnership.

With, many circumstances to be' considered we cannot say with assurance that one partner rather than the other was primarily responsible for this business failure. Neither man professed to be a skilled sawmill operator when the partnership was formed. From the beginning the concern was heavily indebted and suffered continually from a lack of sufficient funds to meet its day-to-day expenses. Boyd neglected the business to some extent, being gone for about 37 days in the course of making two extended trips to New Mexico upon personal missions and about five trips to Alabama in search of some one to buy Henslee’s remaining half interest. The last straw was apparently a decline in the local demand for lumber, which left the struggling young firm without a dependable market for its production. All in all, the weight of the, evidence does not persuade us that Henslee was so exclusively at fault that he should bear the entire loss.

The chancellor made no finding upon the charge of fraud, but Boyd relies upon this issue as an alternative basis for rescission of the contracts. This contention is without merit.

The partnership agreement recited that Henslee would sell to the partnership, as needed, timber growing upon lands owned by him and his wife, at prevailing-market prices. The Boyds testified that Henslee orally represented to them that he owned from three to five million feet of standing timber, when in fact a subsequent cruise disclosed his ownership to.be only about half a million feet. It is insisted that the venture would not have failed if Henslee had owned all the timber he claimed and had been willing to sell it to the partnership.

The record does not support the assertion that Hens-lee violated his obligation to sell timber to the firm. It is true that he declined to sell, but the reason was that the concern was unable to pay for the timber. There was no duty on Henslee’s part to make a credit sale, and, as we have already indicated, we do not consider Henslee to have been culpably responsible for the partnership’s lack of ready cash. Since the firm was never in a position to buy even a substantial part of the timber that Henslee did own, the fact that he did not own a great deal more is immaterial. As a matter of fact, the shortage of saw logs was not nearly so acute as the appellees would now have us believe; for Eugene Boyd in substance admitted on cross examination that the tracts of timber purchased by Henslee for the partnership pretty well kept the sawmill busy from June 2 until the latter part of August. There are other minor charges of fraud, but we do not find them to be well founded.

The appellees’ complaint for rescission contains an alternative prayer asking the court to dissolve the partnership and wind up the business. A similar request is made in the appellants’ answer. In our view this is the proper action to be taken, and the cause will be remanded for that purpose.

Reversed.


source: Caselaw Access Project

author: Paul Ward, Associate Justice.

license: Public Domain

text:
    Campbell v. Waggoner, Judge.
    5-2712
    360 S. W. 2d 124
    Opinion delivered September 17, 1962.

      House, Holmes, Butler & Jewell, for appellant.

      J. B. Reed, for appellee.
   Paul Ward, Associate Justice.

The essential facts in this case are brief and undisputed.

Ed Campbell, d/b/a Campbell Rides, is an employer who has complied with all the provisions of the Arkansas Workmen’s Compensation law. One of his employees, Larry Benafield (a minor), was injured while in the petitioner’s employment because of the negligence of a fellow employee. Suit was filed in circuit court by Charles Benafield in his own right and for his son, Larry, against petitioner to recover damages for said injuries in the amount of $2,600.

The complaint alleged that said fellow employee was a third person within the meaning of Workmen’s Compensation law. All the above facts were contained in the pleading or admitted before the trial court.

Petitioner presented to the trial court a motion for summary judgment and a dismissal of the complaint, based on the contentions that, as a matter of law, the Compensation Commission had exclusive jurisdiction of any claim arising out of the injury, and that the circuit court had no jurisdiction to try the alleged cause of action.

The trial court denied the motion and refused to dismiss the complaint, and Campbell has petitioned for a writ prohibiting the respondent from trying the case.

1. Under the admitted facts in this case the circuit court had no jurisdiction to try Benafield’s claim against petitioner for injuries caused while working as his employee. The exclusive jurisdiction to entertain such claim rests in the Workmen’s Compensation Commission. Section 81-1304 of Ark. Stats, reads as follows: “The rights and remedies herein granted to the employee . . . on account of injury . . . shall be exclusive of all other rights and remedies of such employee. ...” The above statute has been consistently construed by this Court to mean just what it says. See: Young, Administrator v. G. L. Tarlton, Contractor, Inc., 204 Ark. 283, 162 S. W. 2d 477; Odom v. Arkansas Pipe and Scrap Material Co., 208 Ark. 678, 187 S. W. 2d 320; Hagger, Administratrix v. Wortz Biscuit Co., 210 Ark. 318, 196 S. W. 2d 1; Barth v. Liberty Mut. Ins. Co., 212 Ark. 942, 208 S. W. 2d 455. In none of these decisions or in any other has this Court made an exception where the injury was caused by the negligence of a fellow employee. In the Odom case, at page 681 of the Ark. Reports, the following statement is found:

“By adoption of Amendment Number 26 to the constitution the people of this state authorised the Legislature to enact the Workmen’s Compensation Law. Young v. G. L. Tarlton, 204 Ark. 283, 162 S. W. 2d 477. The law is plain and unambiguous. Its purpose and effect was to substitute, as to employment embraced within its terms, the liability created by it for any and all liability of the master arising from the death or injury'of his servant. ‘The remedies provided by Act No. 319 of 1939 (Workmen’s Compensation Law) are, unless the employer fails to secure the payment of compensation as required by the Act, exclusive.-’ ”

It necessarily follows tha,t the circuit court had no jurisdiction to try the cause of action alleged in the complaint and it should have been dismissed.

2. The respondent does not question the remedy pursued here by the petitioner, and rightly so. In the Young case, supra, we said the complaint in circuit court should have been dismissed, and so ordered. Where the trial court has no jurisdiction to try a cause of action and attempts to do so, prohibition is the proper remedy. See: Norton v. Hutchins, Chancellor, 196 Ark. 856, 120 S. W. 2d 358; Pacific Mutual Life Insurance Company v. Toler, (Judge) 187 Ark. 1073, 63 S. W. 2d 839. Since there were no questions of fact.to be passed on by the trial judge (the respondent here) and no matters calling for the exercise of his discretion, he should have granted petitioner’s motion and should have dismissed the complaint.

Nothing we have said herein is to be construed to prevent Benafield from maintaining an action in circuit court against a negligent fellow employee. See: King v. Cardin, 229 Ark. 929, 319 S. W. 2d 214.

The petition is granted.


author: Sam Robinson, Associate Justice.

text:
    Duncan v. Manes.
    5-2739
    360 S. W. 2d 128
    Opinion delivered September 17, 1962.

      George D. Hester, for appellant.

      Marion 8. Gill, for appellée.
   Sam Robinson, Associate Justice.

The issue is whether the traveling public'has acquired by prescription, an easement over a strip of land about one fourth-mile long used by the public as, a road. The one fourth mile road in question runs over land belonging to appellants, Rosie Duncan and Oscar Edwards.

Appellees, Kizzie Manes and Mack Grover Robinson, filed this action alleging that the public had used the strip of ground in question as a road for over 60 years; that plaintiffs "have used said road openly, continuously, adversely, notoriously, and under a claim of right for more than seven years”. It is further alleged that defendants plowed up the ground, and plaintiffs asked that an injunction be issued enjoining defendants from obstructing the road.

Upon a trial on the merits, the Court granted the injunction and the owners of the fee have appealed.

The preponderance of the evidence sustains the Chancellor’s finding that the public had established an easement over the strip of ground by prescription. It is shown that the road has been used by the public for 50 years. At one time there were fences on each side of the road, but they were removed many years ago and the adjoining land has been in cultivation for about 30 years. The first time any owner of the fee objected to anyone using the road was in October, 1961.

It is necessary for appellees to use the road to get to their property. At certain times of the year they can reach their land by no other road. It was shown that appellee Robinson, and other members of the travelling public, have worked and maintained the road for many years. They built culverts, filled holes, opened ditches, and placed some gravel on the road. In fact, it appears that they did some work on the road along with Edwards, one of the appellants.

In Bullioun v. Constantine, 186 Ark. 625, 54 S. W. 2d 986, it was pointed out that an easement may be established by prescription, but where it is across uninelosed property it will be deemed to be by permission of the owner and not adverse.to his title. The Court also pointed out that “those using a private way over uninclosed lands may, by their conduct, openly and notoriously pursued, apprise the owner that they are claiming the way as of right, and thus make their possession adverse.”

The evidence shows that the appellees did use the road in such manner as to give notice to the owners that they were claiming the way as a matter of right. As heretofore mentioned, in addition to the public use of the road for about 50 years, the appellees worked the road, hauled dirt and gravel, provided drainage, filled holes, and installed culverts for a period of more than seven years. The nature of the use of the road was sufficient to give appellants notice of the asserted right and to establish the easement by adverse possession. Ayres v. Stuckey, 212 Ark. 847, 208 S. W. 2d 166.

Affirmed.


author: Jim Johnson, Associate Justice. Ed F. McFaddin, Associate Justice

text:
    Porter v. Hesselbein.
    5-2724
    360 S. W. 2d 499
    Opinion delivered September 17, 1962.
    [Rehearing denied October 22, 1962.]

      Phillip H. Loh and U. A. Gentry, for appellant.

      Pelver A. Rowell, Jr. and Gordon ds Gordon, for appellee.
   Dissenting opinion attached.

Jim Johnson, Associate Justice.

This case involves an election contest. Appellant Porter, Appellee Hesselbein and Homer Gray were candidates for the nomination of alderman of the Third Ward in the City of Morrilton in the Democratic preferential primary on July 25, 1961. There were 605 votes cast, Hesselbein received 327 votes, Porter received 178 and Gray 100 votes. Hesselbein was thereafter certified by the county central committee as the Democratic nominee.

Porter filed suit against Hesselbein contesting the certification of vote and certification of nomination, relying upon the following portion of Initiated Measure of 1916, No. 1, § 12 [Ark. Stats. § 3:245]:

“A right of action is hereby conferred on any candidate to contest the certification of nomination or thé certification of vote as made by the county central committee. . . . The complaint shall be verified by the affidavit of the contestant to the effect that he believes the statement thereof to be true, and shall be filed within 20 days of the certification complained of. ”

The complaint, was filed within 20 days of the. certification and verified, as provided in the statute, supra. The allegations of the complaint contest both the certification of the vote and the certification of nomination. (The complaint was filed within the 20 days, but on the day following the date for the general primary, which by statute is to be held 14 days after the preferential primary.)

On November 21,1961, the contestee filed a motion to dismiss the complaint on the ground that the contestee had been elected alderman of the Third Ward in the general election and, by reason thereof, the court had lost any and all jurisdiction to award plaintiff any of the relief sought in his complaint. The motion was granted, from which comes this appeal.

For reversal, appellant contends that: (1) The court erred in holding that a candidate in a preferential primary (who does not allege that he received a sufficient number of votes to entitle him to a certificate of nomination) cannot contest the election, and in dismissing the complaint; and (2) The court erred in holding that the cause had become moot after the general election and in dismissing the complaint.

First we will consider the second point urged for reversal. Appellee cites two Arkansas cases in support of his contention that the cause is now moot. They are Kays v. Boyd, 145 Ark. 303 at 305, 224 S. W. 617, and Cecil v. Cline, opinion delivered March 5, 1962. The Kays case is a suit to reinstate a student suspended from the State Agricultural School for conduct unbecoming a gentleman. The trial court granted the prayer of the petitioner and ordered the Board of Trustees to restore the student to full scholarship, which was done. The Board of trustees appealed to this court, and the school term lapsed while the appeal was pending. The court therefore found that a decision of the case could have no practical application to the controversy between the litigants, and dismissed the appeal of the Board of Trustees.

Cecil v. Cline, supra, is an election contest case. The appeal was dismissed as moot because the record clearly showed that the term of office over which the controversy arose had expired.

From the record in the case at bar,,the term of office in controversy commenced January 1, 1962, and will not expire until December 31, 1963. With the state of the record being thus, i.e., the term of office having not yet expired, we find that the cited cases have no bearing on the question here presented for our consideration. However we do find two sections of the Arkansas Statutes which have a great deal of bearing on the question. They are as follows:

“No person shall be declared the nominee of any political party for . . . municipal office unless such person shall have complied with every requirement of all laws applicable to primary and other elections and has received a majority of all votes cast at such primary election for all candidates for such office.” Acts 1943, Ark. Stat. 3-201. (Emphasis ours).
“Should a proceeding (contest) . . . be not determined finally until after the election, and the defendant in such proceeding is elected to the office as the nominee of the party, and it is determined that he was not entitled to the nomination, . . . then such judgment shall operate as an ouster from office, and the vacancy in it shall be filled as provided by law for filling vacancies in such office in case of death or resignation.” Init. Measure of 1916, Ark. Stat. 3-253. (Insert ours).

From these sections of our statutes, we find that the people by an Initiated Measure have provided that a nominee for a municipal office must have received a majority of all votes cast at the primary election and further provided that in the event it is judicially determined even after success in the general election that such person was not entitled to nomination, such judgment shall operate as an ouster from office. This being true, we have no choice but to conclude that the cause is not moot.

See generally, Higgins v. Barnhill, 218 Ark. 466, 236 S. W. 2d 1011.

The remaining point urged for reversal presents a case of first impression in this jurisdiction. As stated above, appellant contends that the trial court erred in holding that a candidate in a preferential primary (who does not allege that he received sufficient votes to entitle him to a certificate of nomination) cannot contest the election. It is true that the case of Hill v. Williams, 165 Ark. 421, 264 S. W. 964, and Story v. Looney, 165 Ark. 455, 265 S. W. 51, and the line of cases following them are authority for the rule that Initiated Measure of 1916, No. 1, § 12 [Ark. Stat. 3-245] supra . . confines the right of contest to a candidate at the primary election, . . . who claims to be the rightful nominee.” If for no other reason than to avoid a multitude of suits and lend some stability to our election laws, we agree that this is a salutary interpretation of the 1916 Initiated Measure and should under proper circumstances be followed. If the question presented for our consideration merely involved an application of this established rule, our task would be simple indeed. Unfortunately this is not the case. In 1943 the Legislature amended our election laws and provided as follows:

“Whenever any political party in this State shall, by primary election, select party nominees as candidates at any general (regular or special) election, for any . . . municipal office, said party shall hold a preferential primary election on the day two (2) weeks prior to said general primary election, which preferential primary shall be conducted according to the law prescribed for conducting the general primary election in this State.” Acts 1943, Ark. Stat. 3-210.

With the enactment of this law providing for a preferential primary it is engrafted upon our existing election laws, such as they are, and becomes a part thereof. Now for the first time since the adoption of the 1943 Act, this court is presented with the question of whether a duly qualified candidate for a municipal office can properly contest an election while, under the'facts, he cannot honestly allege that he received a sufficient number of votes to entitle him to a certificate of nomination, but instead does allege inter alia that when the election returns are purged of the enumerated illegal votes it would be shown that such candidate should be certified as a candidate in the run-off or general primary election. Certainly the right of a candidate to be in a run-off or general primary for nomination to public office is a valuable right. While such right may not be as valuable as the right to be certified as the nominee, it is nonetheless a valuable right and in our view should not be denied. If the allegations of appellant’s complaint are judicially found to be true, appellee is presently holding office without having received a majority of the votes cast in the primary election, contrary to the prohibitions of the statute providing that no person shall be declared to be the nominee unless such person has received a majority of all votes east. Ark. Stat. 3-201, supra. It would necessarily follow, in such an event, that the provisions of Ark. Stat. 3-253, supra, would operate as an ouster from office. As in all election contest cases in which the contestant prevails subsequent to the general election and after the contestee has been sworn into the office in question, success in the contest may not personally benefit the contestant, but to deny a contestant, because of this, the right, in a proper case, to contest an election would be a denial of a right which in most cases is precious to the contestant and of inestimable value to the general public in the maintenance of the democratic processes. Therefore it is our view that the Legislature by the enactment of Act 238 of 1943, supra, providing for a preferential primary election has given a candidate in such preferential primary, as a matter of public policy, the right to contest such election upon the proper allegations of entitlement to be certified as a candidate in the run-off or general primary election. To hold otherwise would effectively prohibit election contests in preferential primaries regardless of the skulduggery which might be employed in the conduct of an election. Accordingly, the order of dismissal is reversed and the cause is remanded for further proceedings consistent with this opinion.

Harris, C. J., and McFaddin and Robinson, JJ., dissent.

Ed F. McFaddin, Associate Justice

(Dissenting). I respectfully dissent from the reversal. The learned Trial Judge delivered a written opinion which is in the transcript, and to which I subscribe. I therefore use as my dissent the applicable portion of .¿the written opinion of the Honorable Paul X. Williams, who was the Trial Judge in the case. It is as follows:

“CL- L. Hesselbein, Fred Porter, and Homer Gray were candidates for the Democratic nomination for the office of Alderman of the Third Ward of Morrilton, Arkansas, in the preferential primary election held by the Democratic party on July 25, 1961. Each of the individuals was and is a member of the Democratic Party, was a qualified candidate for the nomination sought and voluntarily sought the nomination of the Party.
‘ ‘ Since there were more than two candidates for the nomination it was necessary that they submit themselves to the preferential primary.
“Asa result of the said preferential primary held on July 25th Hesselbein was certified to have been the reciplent of 327 votes, Porter 178 votes, and Gray 1Ó0 votes, and since 327 was more than a majority of all votes, the Democratic Party Officials, by virtue of the provisions of Act 238 of 1943 (The Preferential Primary Law) certified Hesselbein to be the Democratic nominee.
“Neither of the losing candidates applied for a recount or for an order to place either of their names on the Democratic ballot in the general primary election which was held on August 8th.
“On August 14, 1961, Porter- filed in the Conway Circuit Court an instrument designated ‘complaint’ in which he named himself as plaintiff and C. L. Hesselbein as defendant. The prayer of that instrument is as follows :
“ ‘Wherefore, plaintiff prays that he be adjudged and declared one of the duly elected nominees of the Democratic Party for the run-off or elimination primary for Alderman of the 3d ward of the city of Morrilton, Arkansas and that the court enter an order herein directing the county Democratic Central Committee to certify him as such nominee; for his costs herein, and for all other proper and legal relief to which he may be entitled. ’
“At the time the complaint was filed the Primary election had already been held on August 8th and there was no other primary election to which Porter could have been certified as a candidate.
“Subsequently, the General Election has been held and Hesselbein, the Democratic nominee, was elected to the position and office of Alderman. Hesselbein is now holding that office. Any delay in presenting plaintiff’s complaint has not been the fault of Hesselbein and there has been no fraud . . . Hesselbein now files a Motion to Dismiss, which is the matter under consideration.
“The Preferential Primary Law under which the July 25th preferential primary election was held is Act 238 of 1943. In the discussion concerning this ‘motion to dismiss’ it will be borne in mind that when Arkansas adopted the Primary Election Law in 1916 it did not completely divest the political parties of all supervision and control of the manner in which the party would select its nominees for elective positions; and that prior to the 1916 law, the party procedure both for elections and election contests were matters in which the party itself was all powerful. Walls v. Brundidge, 109 Ark. 250. The contest provisions of the statute were construed by the Arkansas Supreme Court not to extend to contests for delegates and committeemen. Tuck v. Gotten, 175 Ark. 409. The law has been amended to include those specific offices, but that holding of the court is here referred to in order to emphasize that the primary election law did not usurp the functions of the political party unless the function was specifically dealt with. In Williamson v. Montgomery, 185 Ark. 1129, the Court said :
“ ‘Where a political party makes a rule governing its procedure and in good faith interprets that rule, the court has no authority to substitute its interpretation for that of the officers of the party.’. ,,

It goes without argument that the nomination of a candidate is actually a Political Party Function.

“In the case at bar, the plaintiff, Mr. Porter, docs not claim to be the nominee of the party. He does not claim the right to the office itself. His prayer is that he be declared ‘one of the nominees of the Democratic Party for the Bun-Off Primary.’ The true situation can be better stated when it is said that Mr. Porter, at a time when it is impossible to do so, asks this court to declare him eligible to participate in a primary election that can never be held. Not only has the time for the general primary passed, but the general election has been held and the office itself has been filled. . . . Mr. Porter has not been a candidate in such a primary and he does not allege or claim that he is honestly the democratic nominee. He merely alleges that he should have been permitted to appear on the ballot in the general primary election. Ho did not formally make this contention until the filing of the complaint in this cause and that was after the general primary had been held. Furthermore, he took no steps to have the Democratic Party officials put his name on the ballot. The usual election procedure had been followed and the party, in its usual way, had awarded the nomination to the one who had the majority of the votes.
“In the case of Higgins v. Barnhill (1951), 218 Ark. 466, where a candidate thought his name should go on the general primary ballot after having lost in the preferential primary, an application was made to the chancery court for a writ of mandamus. The application was refused and an appeal followed. The Arkansas Court, at page 467, said:
“ ‘. . . As to the jurisdiction of the chancery court, Ark. Stats. 33-101 provides: “The Circuit and Chancery Courts shall have power to hear and determine petitions for the writ of mandamus and prohibition and to issue such writs to all inferior courts, tribunals and officers in their respective jurisdictions.”
“ ‘If appellant was entitled to have his name placed on the ballot, and the chairman and Secretary of the county democratic central committee refused to have his name printed thereon, then the chairman and secretary would be refusing to perform a ministerial duty and could be compelled by mandamus from the chancery court to carry out such duty . . . The question presented here is not moot because, if we fail to pass on the issue for the reason that at this late date the decisions of this court could avail the appellant nothing, it is possible that, by reason of the time element involved between the two primary elections and the time necessary to perfect an appeal to this court, the point involved could never be decided before becoming moot . . .’
‘ ‘ The Court finds that the laws of Arkansas regarding ‘ Contest ’ of a primary election are the only statutory enactments depriving the political party of the right to administer its own selection of nominees that can possibly be available to Mr. Porter as a basis to maintain the suit he has filed. And that brings us squarely to the question: ‘Is this action a contest for a party nomination?’ The evident answer is that it is not. At most, this is a belated attempt to assert that Porter should have been permitted to be a candidate in tbe general primary election which has already been held. Mr. Porter does not attempt to say that he honestly won the democratic nomination. In the case of Bohlinger v. Christian (1934), 189 Ark. 839, the court used the following language:
“ ‘At the threshold of the case, however, appellant is met with the proposition that, before he' can- contest appellee’s nomination, he must allege and'show that he, himself, was entitled to that nomination . . .’

and at page 841 of the same case:

“ ‘. . . In Storey v. Looney, 165 Ark. 455, this court said: ‘ ‘ The question necessarily presents itself in the be^ ginning whether or not appellant is in an attitude to contest the certificate of nomination awarded to appellee ... In order to make a contest for nomination, appellant must show that he is entitled to the nomination, himself,, which he fails to do ...” ’
‘ ‘ The. object of the election laws is to permit a political party to nominate its candidate in an orderly way so. that the party nominee may hold the office if he is elected in the general election. The enactment of the primary law did not completely usurp all the functions of the political party. The candidates in democratic primary elections are voluntarily seeking the party endorsement and nomination. They submit themselves to the machinery of the party in every way that has not been taken over by a specific statutory enactment. It is reasonable to suppose that the Legislature considered the party and the existing court procedure sufficient to take care of the problems that arise in the preferential primary. At least, we can safely say that the Legislature, with full knowledge of the possibility of just such a situation as the case at bar, saw fit to NOT provide statutory direction to insure that a disgruntled losing candidate could contest a preferential primary election when he does not claim to have honestly won the primary nomination.
“The object of the preferential primary.election is not to select ‘Nominees’ to be candidates in the general primary election. Its object is to insure that the candidate getting the nomination has received a majority of the votes cast rather than a plurality. Where there are three candidates, as in the case at bar, the political party is interested in selecting from the three the one who gets the majority of the votes. The preferential law was and is designed to get away from the old system by which a nomination could be won by a mere plurality.
“CONCLUSION. Since Mr. Porter does not allege that he was and is entitled to the political party nomination; since there is no allegation of the loss of a property right; since there is no practical remedy at this date; and since this is not a contest of a Democratic Party Nomination, the Complaint of the plaintiff. should be and is dismissed at cost of the plaintiff.
“Paul X. Williams.”


author: Neill Bohlinger, Associate Justice.

text:
    Beaty v. Griffin.
    5-2750
    360 S. W. 2d 126
    Opinion delivered September 17, 1962.

      Ecldy & Eddy, for appellant.

      Johnston & Rowell, for appellee.
   Neill Bohlinger, Associate Justice.

This case arises from the proposed sale of a house in Morrilton which was owned by the appellant, Clib Beaty. After negotiations covering some time, the appellee, Barney Griffin, agreed to pay the appellant the sum of $12,000.00 in cash for the house.

In order to carry through this trade, the appellee contends that it was agreed between the parties that the appellee would transfer title to a car which he owned to the appellant as a credit of $1,895.00 on the down payment, pay the difference between the $1,895.00 and $3,500.00 in cash and obtain a loan from the Morrilton Building and Loan Association for the balance of $8,500.00.

In bringing that matter to a conclusion, as they thought, the parties hereto met at the appellee’s house in Morrilton. Appellee gave to the appellant the title papers and possession of the car, which appellee and his wife state was given to the appellant upon the appellant’s assurance that he would take the car and have it washed and polished, and if the trade failed to go through he would return the car. This testimony is denied by the appellant. The appellee contends, and the chancellor found, that there were assurances by the appellant that the appellee could borrow whatever amount was needed to pay the balance due on the house from the Building and Loan Association, which amount, after the credit of $3,-500.00, would have been $8,500.00.

Some time after appellant left with the car, the appellee called the manager of the Building and Loan Association who told him that the maximum amount which he could borrow on the house was $8,000.00. The appellee phoned the appellant immediately and told him that contrary to what had been reported to him, he could not borrow a sufficient amount of money to enable him to close the trade and demanded the return of his car. Appellant advised appellee that it was too late for him to call the manager of the Building and Loan Association that night but if he saw him the next day he would talk to him and that there was something wrong because the Building and Loan man had told appellant that he would lend him more than $8,000.00.

In conversation with the Building and Loan man the next day the appellant was advised that $8,000.00 was the most the Building and Loan Association would loan on the house and although the deal failed to go through for that reason appellant did not account to the appellee for the car.

The chancellor found that there was a mutual mistake of a material fact and we think that finding is supported hy a preponderance of the evidence. Griffin’s resources consisted of a car valued at $1,895.00 and $1,605.00 in cash which would enable him to make a $3,500.00 down payment and an $8,500.00 loan from the Building and Loan Association would make the $12,000.00. We are convinced, as was the chancellor, that Griffin was led to believe that no difficulty existed in securing a loan of $8,-500.00 on the place. In fact, the appellant testified that the house had been approved by FHA for a loan value of $9,800.00 but the appellant fails to bring in any testimony from the Building and Loan Association or FHA that either .agency would lend $8,500.00 to Griffin to enable him to complete the trade. Had the loan from the Building and Loan not been a factor in negotiations, we incline toward the belief that when Griffin phoned the appellant the night he found that $8,000.00 was the maximum loan value the appellant would have then and there advised the appellee that the loan from the association was none of his concern. But instead he said he didn’t understand it and would see the manager of the Building and Loan Association.

If the appellant knew that Griffin was dependent on a $8,500.00 loan and knew that $8,000.00 was the most he could borrow and failed to advise appellant of that fact, then the appellant would be guilty of a fraud by his silence. But we do not think the testimony supports that theory for the appellant testifies that the FHA had a loan value of $9,800.00 on the house.

We conclude that the chancellor was correct in saying that the appellee was entitled to rescind the trade and recover his car or its value by reason of a mutual mistake of a material fact. The case falls squarely within our finding in the case of Blythe v. Coney, 228 Ark. 824, 310 S. W. 2d 485, wherein there was a mutual mistake by the contracting parties as to the availability of a water supply to a house. That case cites and affirms First National Bank of Wynne v. Coffin, 184 Ark. 396, 42 S. W. 2d 402:

“A contract can be cancelled or rescinded for a mutual mistake of a material fact. ”

We think in this case that both parties knew of the materiality of the appellee’s loan and that when the car was delivered to the appellant each party fairly believed that a loan of $8,500.00 could be secured. It was at best a mutual mistake of a material fact. The chancellor so found and. we affirm the decree.


author: Carleton Harris, Chief Justice. Carleton Harris, Chief Justice.

text:
    Bost v. Masters.
    5-2756
    361 S. W. 2d 272
    Opinion delivered September 24, 1962.
    [Rehearing denied November 12, 1962.]

      Hardin, Hardin $ Barton, for appellant.

      Sexton & Morgan, by Sam Sexton, Jr., for appellee.
   Carleton Harris, Chief Justice.

Texana D. Masters, beneficiary of H. J. Alexander, instituted suit to collect certain benefits under a program provided by the United Furniture Workers Insurance Fund for members of the United Furniture Workers Union. United Furniture Workers of America, AFL-CIO, is an unincorporated labor organization, and local union No. 270 is located at Fort Smith. H. J. Alexander was a member of this union, and was entitled to benefits under a program provided and administered by the United Furniture Workers Insurance Fund. A death benefit in the amount of $1500 was provided, and an additional $1500 benefit was payable if the covered member sustained loss of life by external, accidental, and violent means. However, this last benefit was subject to the following condition:

“The foregoing benefits shall, however, not be paid where loss of life, limb and/or sight is directly or indirectly, wholly or partly connected with or related to the commission of a crime or an offense by the covered member or by any other person. ’ ’

Alexander died as a result of injuries sustained in an automobile collision on October 31,1959. The $1500 death benefit was paid, but payment of the additional $1500 accidental death benefit was refused, because it was contended that Alexander was operating his vehicle under the influence of intoxicating liquor, and was in the process of violating several traffic laws at the time of the collision. Suit was instituted by appellee against appellants, Elmer Bost, president, Margaret Howard, secretary of local union No. 270, Louis Campbell, Trustee, United Furniture Workers of America, and the United Furniture Workers Insurance Fund, and summons issued. The sheriff’s return reads as follows:

“I have this 30 day of November, A.D., 1960, duly served the within by delivering a copy of the same to each of the within named: Elmer Bost in person. Louis Campbell in person. Margaret Howard by serving a true copy to Louis Campbell, Trustee, United Workers of America, AFL-CIO.”

Appellants appeared specially, filing a motion to quash and dismiss, asserting:

“That the plaintiff has attempted to procure service of process upon the United Furniture Workers Insurance Fund, a Trust, organized and existing under and by virtue of the laws of the State of New York, with its office and principal place of business located at 700 Broadway, in New York City, N.Y., by serving a purported process upon these named defendants; That the United Furniture Workers Insurance Fund has not and does not at any time herein material, maintain an office or place of business in Fort Smith, or the State of Arkansas; that it has not filed with the Secretary of State or the Insurance Commissioner of the State of Arkansas, application for authority to do business in this State; that the United Furniture Workers Insurance Fund, as a Trustee, has no corporate rights and that the purported service of process herein constitutes no service upon said United Furniture Workers Insurance Fund; that these defendants, as officers of Local Union No. 270 of United Furnituré Workers of America, AFL-CIO, have no control whatever over the United Furniture Workers Insurance Fund and have no authority to administer or regulate the Fund and, as such, are not officers or trustees of the United Furniture- Workers Insurance Fund, and have not been and are not authorized to accept service of process.”

The motion was overruled by the court, and appellants, without waiving their special appearance and specifically reserving their rights thereto, filed an answer, and subsequently,. two amendments thereto, setting up that the Fund was not liable because Alexander met his death as a result of violating the law. In each amendment, appellants reserved their rights under the original motion to quash service. On trial, the jury found that Alexander’s death was not directly or indirectly, wholly or partly, connected with or related to the commission of a crime or an offense. The court held that the defendants constituted an insurance company under the laws of this state, and accordingly entered judgment for $1500 plus the statutory penalty of 12%, and an attorney’s fee of $750, together with interest from date until paid. From the judgment" so entered, appellants bring this appeal. Several points are urged by appellants in seeking a reversal. Point No. 1 is: “The court erred in overruling defendants’ motion to quash the service of summons.” Since we find, as hereinafter set' out, that this point is well taken, other alleged grounds for reversal, relating to the evidence and rulings during the trial, -will not be discussed; i. e., since we are of the opinion that the court did not, under the service obtained, acquire jurisdiction over the United Furniture Workers Benefit Fund, there is no occasion, nor would it be proper, to discuss the actual proceedings, and evidence, at the trial.

It is apparent from the Sheriff’s return that the United Furniture Workers Insurance Fund was never served. It is equally apparent that Margaret Howard was not properly served. However, this last is immaterial. This action was brought as a class or representative action, but we agree with appellants that the service was ineffective, for the reason that the union members, as a class, are in no way responsible to appellee. The individual appellants who were served with summons, and the local union, did not insure anyone, and did not agree to provide death benefits for Alexander. It appears from the exhibits introduced, that in May, 1944, the “United Furniture Workers Insurance Fund” was created. The Agreement and Declaration of Trust creating such fund reflects that the fund is operated by a Board of Trustees, composed of eleven members, with its office at 700 Broadway, New York City. The trust was created and accepted in the state of New York, and the trustees, in their collective capacity, are known as United Furniture Workers Insurance Fund, and are authorized to conduct all business of the trust and execute all instruments in that name. The manner of obtaining the monies to make up the fund is explained in the opening resolution of the Declaration of Trust, as follows:

“WHEREAS, the United Furniture Workers of America (herein called the ‘Union’) has executed through its affiliated locals or will through its affiliated locals from time to time hereafter execute collective bargaining agreements or supplements to collective bargaining agreements with manufacturers of furniture, bedding and kindred products as described in Article III, titled ‘Jurisdiction’ of the Union’s Constitution (said manufacturers herein called the ‘Employers’) which, among other things, provide for the payment by such Employers to the United Furniture Workers Insurance Fund (herein called the ‘Fund’) periodically a sum of money equal to a stated percentage of the wages paid during the preceding month to those of its employees who are covered and entitled t,o; t]ae benefits of the collective bargaining agreement between the Employer and the Union; and
WHEREAS,; the sums payable to the Fund as aforesaid (herein called the ‘employer contributions’) are for the purpose of providing social insurance to the members of the Union employed in the furniture industry:
NOW, THEREFORE, in consideration of the premises, the Trustees declare that they will receive and hold the employer contributions and other money or property which may come into their hands as Trustees hereunder (all such employer contributions, money and property being herein called the ‘Trust Estate’) with the following powers and duties and for the following uses, purposes and trusts and none other, to-wit:”

The subsequent paragraphs set out the various duties of the trustees, which include, inter alia, depositing the money, investing and reinvesting same, employing administrative, legal, accounting, clerical, and other assistance, purchasing or leasing real estate, establishing and accumulating reserve funds, etc. It does not appear that the local union, or any of its officers, have anything to do with the collection of funds, or any part in handling such funds. Upon becoming eligible for benefits, a worker receives a hospital identification card from the New York office. In this particular instance, the Fund did not have complete information on Alexander, and a form was sent out from New York City, signed by Abraham Zide (Director of the Fund), for the additional information. When a claim for benefits is made, the completed claim forms are sent to the fund office in New York.

For that matter, it does not appear that mere membership in a furniture workers ’ union entitles a member to benefits. Á booklet distributed by the New York office states:

“Eligible members shall be covered for benefits only so long as contributions are received from employers under the terms of their collective bargaining agreements.
ELIGIBILITY
Benefits provided by the Program are for members in this area employed by contributing employers. New fulltime employees become eligible for the Program’s benefits after completion of 30 working days for which their employers have contributed to the United Furniture Workers Insurance Fund. Employees working for a non-contributing employer become eligible for benefits under the Program on the effective date that such an employer becomes a contributing employer under the terms of the collective bargaining agreement with a Local Union. ’ ’

No payments are made by the individual members of the union, the trust fund, as herein pointed out, being derived solely from the contributions of employers. Since the union, and its individual members, are not responsible to appellee, it follows that the service obtained was totally inadequate and ineffective, and the court acquired no jurisdiction over the United Furniture Workers Insurance Fund by virtue of the service obtained on the officers of local union No. 270.

The trial court held that “the defendants do constitute ‘an insurance company’ within the meaning of the laws and statutes within the State of Arkansas applicable to this cause. ” It is apparent, from the reasoning heretofore set out, that we disagree with the holding that the union, or its officers, constitute an insurance company; however, we do agree that the United Furniture Workers Insurance Fund comes within the definition of an insurance company. Act 148 of the General Assembly of 1959 (Sections 66-2001 through 66-4920, Ark. Supp., 1961) is known as the Arkansas Insurance Code. Section 2 of said Act (§ 66-2002) defines “insurance” as follows: “Insurance is a contract whereby one undertakes to indemnify another or pay a specified amount or provide a designated benefit upon determinable contingencies.” This definition certainly applies in the instant case. United Furniture Workers Insurance Fund undertook to pay a specified amount to Alexander’s beneficiary upon events which were determinable. Of course, in some respects, the Fund differs from the ordinary conception of an insurance company, in that it does not sell to the general public, nor does the member pay any part of the premium. However, the contributions from the employers, in effect, serve the same purpose as premiums from the individual members, and the program of benefits is essentially the same as that provided in many general insurance contracts. At any rate, we are of the opinion and hold, that service against thé United Furniture Workers Insurance Fund can properly be obtained under the “Unauthorized Insurers Process Act”, found in Sections 66-2903 through 66-2907, Supp., 1961 (§ 183 through 187 of Act 148 of 1959). Section 66-2904 provides that:

“Delivery, effectuation, or solicitation of any insurance contract, by mail or otherwise, within this State by an authorised insurer, or the performance within this State of any other service or transaction connected with such insurance by or on behalf of' such insurer, shall be deemed to constitute an appointment by such insurer of the Commissioner and his successors in office as its attorney, upon whom may be served all lawful process issued within this State in any action or proceeding against such insurer arising out of any such contract of transaction; and shall be deemed to signify'the insurer’s agreement that any such service of process shall have' the same legal effect and validity as personal service'of process upon it in this State.”

Section 66-2905 sets forth the manner ■ of obtaining service.

Because, as heretofore set out, service was not properly obtained, the judgment of the Circuit Court is reversed and set aside. It is so ordered.

Opinion delivered November 12, 1962.

Supplemental Opinion on Rehearing.

Carleton Harris, Chief Justice.

In her petition for rehearing, appellee points out that this court overlooked the fact that Louis Campbell of Fort Smith is a trustee of the United Furniture Workers’ Insurance Fund, and, since service was had upon Campbell, the Fund was properly served under the provisions of Sub-section (2) of Section 66-2905, 1961 Supp. Exhibit 1, which appears in the transcript, reflects that one “Louie Campbell” is a trustee of the fund, and apparently, from appellee’s petition, Louis and Louie is one and the same.

Appellee’s petition is without merit for three reasons. In the first place, appellee did not argue in her original brief that service was obtained upon a trustee of the insurance fund, though appellants devoted considerable space in their brief to the argument that service on the fund was not obtained. Appellee’s sole argument, relating to service, was to the effect that this action was brought as a class action. The heading of appellee’s Point II in the original brief reads,

“The appropriate procedure for bringing an action against an unincorporated association is by a class or representative action and the trial court correctly overruled appellants ’ motion to quash service of summons.”

In her discussion under this point, appellee stated,

“This Court has held many times that the appropriate manner for obtaining service upon an unincorporated association in this state is by a class or representative action. Indeed, this is the only manner in which service can be had.”

In other words, appellee never made the contention, now advanced, in her original brief. We have said on numerous occasions that we do not consider matters, in civil actions, which are not argued in the brief, and any point not argued is deemed waived. Connell v. Robinson, 217 Ark. 1, 228 S. W. 2d 475, Johnson v. Gammill, 231 Ark. 1, 328 S. W. 2d 127.

In the next place, as admitted in appellee’s petition for rehearing, Exhibit 1, along with another exhibit which appellee contends to be pertinent, were not abstracted by either appellant or appellee in the original briefs. Appellee called attention to the fact that appellants had not properly abstracted these exhibits, but made no effort to supply the deficiency herself. In appellants’ reply brief, Exhibit 1 was partially abstracted, but the portion showing Louie Campbell to be a trustee of United Furniture Workers’ Insurance Fund, was omitted. Rule 9, Sub-section (e) of the procedural rules of this court provides,

“If the appellee considers the appellant’s abstract to be defective he may, at his option, submit with his brief a supplemental abstract. When the case is considered on its merits the court may impose or withhold costs to compensate either party for the other party’s noncompliance with this rule. ’ ’

In Anderson v. Stallings, 234 Ark. 680, 354 S. W. 2d 21, we said,

“We have repeatedly pointed out that it is not practical for the seven members of this Court to examine the one record filed here, and that under Rule 9 the burden is on the appellant to furnish such an abstract as will give the various members of the Court an understanding of all questions presented. Farmers Union Mutual Insurance Co. v. Watt, et ux, 229 Ark. 622, 317 S. W. 2d 285. Porter v. Time Stores, Inc., 227 Ark. 286, 298 S. W. 2d 51: * * * We have often said that we will not explore the record; * # #

Further, Rule 20, Sub-section (h), which relates to “Petitions for Rehearing,” provides,

“In no case will such petition be granted when based on any fact thought to have been overlooked by the Court, unless reference has been clearly made to same in the abstract of record prescribed by Rules 9 and 11.”

Finally, even though the matter had been argued in appellee’s original brief, and the exhibits properly abstracted, it would still appear that the petition is without merit, for the reason that the provisions of Sub-section (c) of Sub-section (2), § 66-2905, have not been complied with.

The petition for rehearing is denied.

       The program provides as follows:
      “DEATH BENEFITS FOR MEMBERS — $1,500 paid in the event of death from any cause. See page 7.
      ACCIDENTAL DEATH AND DISMEMBERMENT BENEFITS FOR MEMBERS — Up to $1,500 paid in the event of accidental death or loss of hands, feet or eyesight through accidental means. See page 8.
      WEEKLY ACCIDENT AND SICKNESS BENEFITS FOR MEMBERS — Up to $25 a week paid for a maximum of 26 weeks in any one benefit year for an off-the-job accident or illness. See page 9.
      WEEKLY MATERNITY BENEFITS FOR WOMEN MEMBERS — Up to $25 a week paid for a maximum of six weeks for any one pregnancy. See page 10.
      MEDICAL BENEFITS FOR MEMBERS — Up to $2 paid for office visits and up to $3 for home and hospital calls for a maximum of $150 during any one continuous period of disability. See page 11.
      SURGICAL BENEFITS FOR MEMBERS AND DEPENDENTS —Up to $160 paid for operations performed on members and up to $160 for operations performed on dependents. See page 12.
      HOSPITALIZATION BENEFITS FOR MEMBERS AND DEPENDENTS — Up to $8 per day for 31 days plus $80 for miscellaneous charges. See page 21.”

         The word “authorized” appearing in the Supplement is a printer’s error. In the printed Acts of the General Assembly of 1959, the word appears as “unauthorized,” and the bill, signed into law by the Governor, shows the word to be “unauthorized.” The title itself is indicative of the fact that the word properly is “unauthorized.”


author: Ed. F. McFaddin, Associate Justice.

text:
    Wilder v. Garner.
    5-2757
    360 S. W. 2d 192
    Opinion delivered September 24, 1962.

      Featherston & Featherston, for appellant.

      Lindell Hile, for appellee.
   Ed. F. McFaddin, Associate Justice.

On this appeal a decree of the Chancery Court is consolidated with a judgment of the Probate Court, since the question common to both cases is whether, under the facts here presented, limitations and/or laches released the father from paying anything for the support of his minor children.

In 1945 the Pike Chancery Court awarded Mrs. Irene Garner (now Irene Wilder, one of the appellants) a divorce from Carnell Garner, the appellee; and the decree also awarded the mother the care and custody of the two minor children, a boy named Jesse, then three years of age, and a girl named Nellie, then fifteen months of age. At the time of the divorce, Carnell Garner was incarcerated in the Federal Penitentiary at Leavenworth, Kansas, for conviction of a felony, and the divorce decree contained no provision requiring the father to support the minor children. After completing the penitentiary sentence, Carnell Garner returned to Pike County, and in 1953 was adjudicated insane and committed to the State Hospital, where he still remains. Mrs. Garner, now Mrs. Irene Wilder, has all the time, since the divorce decree of 1945, had the care and custody of the two children, who are still minors.

In 1961 some Garner ancestral lands were sold in a partition proceeding in Pike County, and the sum of $1,357.70 was the portion due to Carnell Garner. To partially repay herself for the support of the minor children, Mrs. Irene Wilder undertook to obtain this money: (a) by filing in the original divorce proceeding a petition asking the Chancery Court to award her money for support of the children; (b) by intervening in the partition proceeding and impounding the Carnell Garner money; and (c) by having the Pike Probate Court appoint a guardian for Carnell Garner and then filing in that proceeding petition for future support money for the two minor children. The Chancery and Probate cases were tried at the same time, and both Courts held that all the claims against Carnell Garner were barred by limitation and laches.

We conclude that the Chancery Decree should be reversed. We have a number of cases which bear on some of the facets of the points here under consideration. A few of these cases are: Holt v. Holt, 42 Ark. 495; Daily v. Daily, 175 Ark. 161, 298 S. W. 1012; McCall v. McCall, 205 Ark. 1123, 172 S. W. 2d 677; Worthington v. Worthington, 207 Ark. 185, 179 S. W. 2d 648; Dalrymple v. Dalrymple, 221 Ark. 260, 252 S. W. 2d 823; Payton v. Payton, 230 Ark. 348, 322 S. W. 2d 588; and Wilson v. Wilson, 231 Ark. 416, 329 S. W. 2d 557. Ever since Holt v. Holt, supra, decided in 1883, the general rule in Arkansas has been that, if a divorce decree grants the custody of a minor child to the mother but makes no provision for the child’s support, and the mother thereafter supports the child or supplies it with necessaries, the father, if financially able, should repay the mother for the reasonable value of the support or necessaries thus furnished. In Holt v. Holt, supra, as here, the original divorce decree was silent as to support, and the mother, who had supported the children, was allowed to file in the original divorce proceeding a petition for amounts expended for child support, and also to obtain an order for future support payments.

In the case at bar, the appellee pleaded laches; but we find nothing to support such a plea. The mother proceeded when the father had financial ability to support the children. The case of McCall v. McCall, supra, points to such a course. The appellee also pleaded limitations; but as long as the children are minors the obligation is a continuing one on the father to support the children, and during such period of minority limitations could not bar all amounts. The present case is different from the case of Brun v. Rembert, 227 Ark. 241, 297 S. W. 2d 940, and also different from the case of Payton v. Payton, 230 Ark. 348, 322 S. W. 2d 588, in each of which the effort to recover for support was made long after the child became of ag’e. Here, both of the children are still minors.

The question that gives us most serious concern is the period of time for which the mother may recover for the reasonable and definite amounts she has expended for the support of the children. As heretofore stated, she filed this proceeding on March 10, 1961; and the question is whether she can recover for the three years preceding such filing, or for the five years preceding such filing. In cases where the parties had a written contract for support, and in cases wherein the original divorce decree contained language requiring support, we have held that the mother may recover the reasonable and necessary amounts expended by her for child support within the 5-year period. Such holdings were because the contract sued on was a written instrument (§ 37-209 Ark. Stats.), or because the decree was an ‘ ‘ action not otherwise provided for.” (See § 37-213 Ark. Stats.) But in the present case there was no provision in the original divorce decree for support, and the obligation on the father is one “express or implied not in writing” (§ 37-206 Ark. Stats.) ; and would, therefore, come within the 3-year statute. See Davis, Admr. v. Herrington, 53 Ark. 5, 13 S. W. 215.

There is one other possible limitation on the period of time for which Mrs. Wilder may recover from the impounded fund. A chancery court will order a father to contribute to the support of his children when he is financially able to do so. Before Mr. Garner became vested with an interest in the ancestral lands he was not able to contribute to the support of his children. But from the date he became vested with an interest in the ancestral lands, he became able to contribute to such support; and a court of equity would at that time have ordered him to make such contribution if such jurisdiction had been invoked. If such time of vesting be more recent than the three-year period prior to March 10,1961, then the date of such vesting will be the beginning from which Mrs. Wilder may recover. If the date of such vesting be prior to the said three-year period, then the three-year period is the beginning date from which Mrs. Wilder may recover. The date of such vesting is not shown in the present record, but may be shown on remand.

Mrs. "Wilder is entitled to recover from the $1,357.70 impounded whatever reasonable and definite amounts she may establish that she has expended for the care and support of the minor children within the said time limitations herein mentioned. Furthermore, if any part of the said $1,357.70 should remain after payment of the above items, then the Court will make a proper order for the reasonable support payments during the minority of each child, and such payments will have priority over any other claims because these funds have been impounded.

The Chancery Decree and Probate Judgment here appealed are both reversed, and each case is remanded to the appropriate Court for further proceedings not inconsistent with this opinion; and all costs of all Courts are to be paid from the impounded funds.

       The learned Chancellor wrote a memorandum opinion which is in the transcript; and we copy the germane portions of it:
      “In the ease of Brun v. Rembert, 227 Ark. 241, it was held that past due child support payments are not a judgment on a decree but a right to a judgment, hut in the case at bar no judgment was prayed, only custody of children was awarded plaintiff. This divorce decree was in 1945 and under above ruling this case is barred by statute of limitations, Sec. 37-213 of the Ark. Stats.
      “In Payton v. Payton, 230 Ark. 348, it was held the mother was not entitled to reimbursement where she took no action to collect judgment for eleven years (in this case a judgment for child support was rendered). In the case at bar she not only did not have a judgment but she has made no attempt to collect child support for fifteen years. Under the ruling in this case she is barred by laches and limitations. Also, proof shows that Carnell Garner is an incompetent and is now an inmate of the Arkansas State Hospital for Nervous Diseases as an insane since 1953.
      “In the recent case of Wilson v. Wilson, 231 Ark. 416, the Supreme Court held that a similar claim was barred by the statute of limitations and reaffirmed the case of Payton v. Payton, 230 Ark. 348.
      “Under the testimony in this case and the rulings of the Supreme Court it is my opinion that the plaintiff is not entitled to recover for the reasons given and her complaint should be dismissed for want of equity . . .”

       There is an annotation in 69 A.L.R. 2d 203 entitled, “Father’s liability for support of child furnished after entry of decree of absolute divorce not providing for support”; and cases from many jurisdictions are cited as agreeing with the Arkansas holding. To the same effect see C.J.S. Vol. 27B, p. 597 and p. 622; and see also Am. Jur. Vol. 17A, p. 47 and p. 55.


author: George Rose Smith, J.

text:
    Farrelly Lake Co. v. Redden.
    5-2718
    360 S. W. 2d 187
    Opinion delivered September 24, 1962.

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

      Botts & Botts, for appellee.
   George Rose Smith, J.

This is a death claim under the workmen’s compensation law, filed by the appellee as the widow of George Redden. The decedent strained the muscles of his left side on August 15, 1956, while helping fellow employees lift a heavy timber. He died less than two months later, on October 10, from cancer of the left lung and other organs. The commission denied the claim, finding that there was no connection between the accidental injury and the cause of death. The circuit court reversed the decision, holding that it was not supported by substantial evidence.

On the day of his accident Redden consulted Dr. Whitehead, who treated him for muscular strain by taping his side and giving sedatives. On that day, or the next day, Redden coughed up blood from his lungs for the first time in his life. He returned to work on August 21 and was able to perform light tasks until August 28, which was his last day at work. He was in the care of physicians at Stuttgart until September 21, when he was sent to the Veterans Hospital at Little Rock. No positive diagnosis seems to have been made by any doctor during Redden’s lifetime. An autopsy disclosed a primary cancer of the left lung, which had metastasized to the lymph nodes, spleen, liver, kidney, adrenalin gland, and bone marrow.

There is no contention that the cancer was caused by the decedent’s work. The medical witnesses were pretty well in agreement that the disease had already spread over Redden’s body when he strained his side on August 15 and that he was then so afflicted as to have no chance for recovery. The only fact question was whether the accidental injury aggravated his condition and thereby hastened his death.

On this issue the testimony is in direct conflict. For the claimant several physicians testified that in their opinion the injury did hasten Redden’s death or at least might have done so. For the respondents Dr. Hipp and Dr. Graham, specialists in the field of cancer, testified positively and unequivocally, after having reviewed the entire record, that the injury had no connection whatever with the decedent’s death and did not cause it to occur any sooner than would otherwise have been the case. Dr. Hipp explained that even if the accident caused the bleeding within the lung that would not have affected the spreading of the disease, because metastasis is due to the entry of cancer cells into the blood stream rather than into the bronchus.

The testimony adduced by the respondents is unquestionably of a substantial nature; so it is our duty to uphold the commission’s decision. H. G. Price Construction Co. v. Southern, 216 Ark. 113, 224 S. W. 2d 358. Nor does the record support the appellee’s contention that the commission considered only the medical evidence, to the exclusion of the other proof. All the facts were reviewed in the referee’s opinion, which was referred to with apparent approval by the full commission. There is no indication that the commissioners thought themselves bound to reach a decision upon the medical evidence alone.

The appellee’s motion to affirm the judgment for noncompliance with Buie 9 must be denied. While the appellants ’ abstract might well have contained more numerous references to the pages of the record, it is by no means fatally defective.

Beversed.


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    Aerial Crop Care, Inc. v. Landry.
    5-2759
    360 S. W. 2d 185
    Opinion delivered September 24, 1962.

      Cecil C. Matthews, for appellant.

      Wm. M. Moorhead and Riddick Riffel, for appellee.
   Paul Ward, Associate Justice.

We are asked on this appeal to determine who is (or may he) an employee under the provisions of Ark. Stats. § 81-1302 which is a section of the Workmen’s Compensation Law. Subsection (c) (1) of the above section, in effect, places under the terms of the law every employer who has five or more employees regularly employed. We are also asked to determine the meaning of the words “regularly employed”.

The employer in this instance is a corporation owned and controlled by three people: Crandall Hagan, the President; Ernest Boone, the Vice-president; and George Tiefenback, the Secretary-Treasurer. The corporation, under the name of Aerial Crop Care, Inc., has been engaged for several years in agricultural flying in fertilizing and dusting crops. All three of the incorporators are active pilots and all are paid equally except that each may receive additional remuneration depending on the number of flights made. The Corporation (appellant) did not have workmen’s compensation insurance, believing, perhaps, it did not have five regular employees.

In the early part of November 1958 the corporation, having at that time only two other employees who did manual labor, began the construction of a hangar near Stuttgart. On or about November 20, 1958, the corporation hired appellee, Jack J. Landry, to assist the other laborers in the construction work. While in the course of his employment appellee was injured. Appellee filed a claim for compensation under the Workmen’s Compensation Act. The claim was allowed by the Referee, the full Commission, and the Circuit Court.

Appellant prosecutes this appeal contending, first, that the Commission had no jurisdiction because (a) Appellant did not have five or more employees and (b) Appellee was not “regularly employed”. It was also contended by appellant that there is no substantial evidence to support the findings of the Commission.

One. (a) Were the Officers of Appellant Employees¶ It is conceded that appellant did not have five employees at the time of the injury unless, as held by the Commission and the trial court, the three incorporators are considered to be employees. Said Section 81-1302, for the purpose of this opinion, defines an “employee” as any person in the service of an employer under any contract of hire, expressed or implied. This Court, in the case of Brooks v. Claywell, 215 Ark. 913, 224 S. W. 2d 37, held that an officer of a corporation was, under the facts of that case, an employee under the provisions of the Workmen’s Compensation Law. This case, on this point, has not been overruled, and we do not see fit to overrule it at this time, although appellant vigorously urges us to do so. In so doing appellant relies on the reasoning in the dissenting opinion in the Brooks case and also says that decision has been greatly undermined by the decision in the case of Brinkley Heavy Hauling Co. v. Youngman, 223 Ark. 74, 264 S. W. 2d 409. We do not agree with appellant as to the effect of this decision. There, this Court held that Youngman could not be considered as an employee of the Brinkley Heavy Hauling Company which was a partnership of which Youngman was the only active, working member. The essence of the reason for this opinion appears to be that a person could not be an employee of himself because he would have control over himself. Speaking of this, the Court said: “In this situation his status was the antithesis of that of an employee, as far as Brinkley [the partnership] is concerned.” The decision did not hold that a partner could not under any circumstances be an employee of a partnership of which he was a member. It may be noted that there was a vigorous dissent by three judges pointing out that Youngman should be considered an employee. It may also be noted that the judge who wrote the dissent in the Brooks case also wrote the majority opinion in the Brinkley case, and that in both instances great stress was laid on the matter of control over the employee. In the Brinkley case we said: “. . .we have repeatedly emphasized the matter of control as the most vital factor in the determination of the employer-employee relationship”. It is readily apparent that a corporation (being a separate legal entity) could more logically control the activities of one of its officers than a partnership, which is not a separate legal entity, could control one of its members.

The only remaining question to be considered in this connection is whether each of the three officers actually performed work for the corporation in this case. The Commission found that they did, and in our opinion the record supports such a finding. It reveals that each of them flew a plane which happens to be the principal work of the corporation. It is significant also that each officer’s pay depended to some extent on the amount of flying done. It further appears that the officers took an active part in the construction of the hangar.

(b) It is argued by appellant that “Claimant was a casual employee not engaged in the regular business of Respondent”. We see no merit in this argument in view of the facts in this case. Not only had claimant worked for appellant previously helping load seed or fertilizer in season, but it is undisputed that, at the time of his injury, he was helping erect the hangar which was to be used in the corporation’s regular business. Although claimant had been working on this particular job for only about five days when injured, we find (as did the Commission) nothing in the record to show claimant was hired on a temporary basis. This Court, in the case of Wallace v. Wells, 221 Ark. 750, 255 S. W. 2d 970, construed the meaning of the words “regularly employed” as used in § 81-1302 (c) (1), quoting, with approval, the following:

‘ ‘ The word ‘ regularly ’ is not synonymous with ‘ constancy’. There are businesses of importance which employ numbers of men regularly, who employ none of them continuously. And a number of businesses, as this, will require a large number of employees, nearly all or a large number of whom are employed only periodically, for the reason that the needs of the business require their services only at intervals or periods, whenever the business is in active operation.”

In that same case we approved this statement: “ ‘. . . an employer cannot be allowed to oscillate between coverage and exemption as his labor force exceeds or falls below the minimum from day to day. ’ ’ ’ This Court likewise in the case of Buxton v. Dean, 218 Ark. 645, 238 S. W. 2d 487, considered the meaning of the word “casual” as used in § 81-1302 (b), stating: “ It is noted that before an employment is excepted from the operation of the act, it must be both casual and not in the usual course of the employer’s trade or business.” (Emphasis added).

In our opinion the record fully justified the Commission in finding Claimant was “regularly employed” and was not a “casual” employee.

Tivo. Considering what we have heretofore said it would serve no useful purpose to discuss at length appellant’s final contention that there was no sufficient competent evidence to support the Commission’s findings. "We have said it so often that it is unnecessary to cite decisions to establish the fact that the findings of the Commission have the same force and effect as the findings of a jury, and that substantial evidence is sufficient to support the findings in either case. The judgment of the trial court is therefore affirmed.

Affirmed.


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    Fine Nest Trailer Colony v. Reep.
    5-2743
    360 S. W. 2d 189
    Opinion delivered September 24, 1962.

      Riddick Riff el, for appellant.

      Cooper Jacoway, for appellee.
   Sam Robinson, Associate Justice.

This is a workmen’s compensation case; the issue is whether the death of the employee, Charles A. Reep, arose out of and in the course of his employment as secretary, manager, and salesman for the Fine Nest Trailer Colony, Inc. He was burned to death in a house trailer. The "Workmen’s Compensation Commission denied compensation, holding that Reep’s death did not grow out of and in the course of his employment. The claimant appealed to the Pulaski Circuit Court, Second Division, and there the order of the Commission denying compensation was reversed. The employer has appealed to this Court.

At about 3 o’clock p.m. on the first day of March, 1958, George W. Tucker went to the Fine Nest place of business in North Little Rock with the intention of buying a house trailer if he could find one that suited him. He had known Reep for a long time and had bought a house trailer from him on another occasion.

Reep showed Tucker the trailers Fine Nest had on its lot in North Little Rock, but was unable to sell him one of those. At about 4:30 p.m. they got into a company truck and went to Reep’s home where Reep talked to his wife for a few minutes. Reep and Tucker then returned to the Fine Nest place of business where Tucker got his car. Reep continued to drive the company truck and they went to Jack and Jill’s trailer place on the old Benton Highway. Reep knew of a trailer for sale there that might suit Tucker, but after looking over the trailer at Jack and Jill’s, Tucker decided it was not what he wanted.

Reep owned a tract of land west of Little Rock where he had a few head of cattle. At this location he had a trailer belonging to the Fine Nest that he and his wife had been using two or three times a week for about eleven months. He had the trailer with the knowledge and consent of his employer and had shown it to prospective buyers on other occasions. Reep asked Tucker to go out and look at the trailer at the Reep place. Tucker did not want to go. He did not want to put Reep to the trouble of going out there, but finally consented when told by Reep that he ivas going out there to feed his cattle regardless of whether Tucker went along.

On the way out to the place where the trailer was located, Reep stopped at a store and bought a steak.

The first thing they did when they got to the Reep place was to enter the house trailer and light a fire in a kerosene heating stove. Reep put kerosene into the stove from a five-gallon can he kept under the house trailer. They then went to look at Reep’s minnow ponds, walked across the road to look at a small piece of land that Reep was thinking about buying, fed the cattle, and returned to the house trailer. The weather ivas cold, but it was then warm in the trailer.

Tucker had been familiar with house trailers for 25 years; he took his time and looked the trailer over carefully. Reep agreed to put in a new commode and paint the trailer on the outside. Tucker offered $2,200.00 for it, Reep accepted the offer, and the sale was made on that basis. Tucker ivas to pay part in cash and the balance in monthly installments. They were to meet the next day at 11 a.m. at the Fine Nest place of business and attend to the details of the sale. The sale was made about 8:20 or 8:30 and Eeep wanted Tucker to stay and eat, but Tucker declined and returned to the city.

A little over an hour later, some of Eeep’s neighbors noticed that the house trailer was on fire. The trailer was destroyed and Eeep burned to death. The remains of his body were found near the center of the trailer, about where the butane cook stove was located.

This is not a case of one side introducing evidence to prove one set of facts and the other side bringing-evidence to prove the opposite. The only point at issue is the inference to be drawn from the undisputed evidence. If a reasonable inference is deducible from the evidence that Eeep’s death did not grow out of and in the course of his employment, the decision of the Commission denying compensation must be affirmed. On the other hand, if the only reasonable inference to be drawn from the evidence is that the death grew out of and in the course of the employment, then the judgment of the Circuit Court must be affirmed.

In Frank Lyon Co. v. Oats, 225 Ark. 682, 284 S. W. 2d 637, this Court quoted with approval, as follows, from Snyder on Workmen’s Compensation, Permanent Edition, Vol. 7, P. 1665: “Where the trip or attendance is one which the employer ordered or directed, or is for the sole benefit of the employer, or is to the mutual advantage of both the employer and his employee, compensation may be recovered.” (Our italics.)

To sustain the contention that Eeep was not acting-in due course of his employment at the time of his death, the appellant employer cites Marks Dependents v. Gray, 251 N. Y. 90, 167 N. E. 181. We think, however, that this case really sustains the position of the appellee in the case at bar. There, Mr. Justice Cardozo said: “To establish liability, the inference must be permissible that the trip would have been made though the private errand had been cancelled . . . The test in brief is this: If the work of the employee creates a necessity for travel, he is in the course of his employment, though he is serving at the same time some purpose of his own.”

Beep had been working with Tucker since three o’clock in the afternoon in an effort to sell him a trailer. Not only had he shown Tucker all the trailers on the Fine Nest lot, but had taken him to the Jack and Jill place to show him a trailer. Tucker did not want to go to the country to look at the trailer out there, but Beep prevailed on him to do so. There is no reason whatever to believe that Beep would not have done the same thing even if there had been no cattle there to be fed. The work of the employee created a necessity for the travel. He could not show Tucker the trailer without going out there.

The least that can be said is that the trip was for the mutual benefit of the employer and employee. There is no evidence in the record going to show that Beep did not intend to return to the city that night. Mr. and Mrs. Beep had intended to go to the house trailer that day, but the weather was bad and Mrs. Beep had a cold. Without objection, Mrs. Beep testified: “He (Mr. Beep) came by the house with Mr. Tucker to take him out, and I said I couldn’t go, and he said he would come on back.”

There is only one reasonable inference to be drawn from the evidence, and that is that after making the sale of the trailer, Beep stayed at the trailer to cook and eat the steak he had bought. It will be recalled that he invited Tucker to stay and eat with him, but Tucker declined. Moreover, it will be recalled that Beep and Tucker were to meet at the Fine Nest place of business the next day at 11 a.m. and attend to the necessary details of the sale. Of course the trailer would have to be brought in to the place of business in order that the repairs agreed upon could be made. Beep was driving a company truck equipped to tow house trailers. This truck was not furnished him for his personal business. Mr. Baney, a long time employee of Fine Nest, testified that he had never known of Beep driving the truck home at night.

Certainly if, at the time of the mishap, Beep was disconnecting the gas and butane stoves and making the trailer ready so he could tow it to the city, he was acting within the course of his employment; and if he was cooking his steak he was still within the course of his employment. The undisputed evidence is that the salesmen were expected by Fine Nest to stay with a customer and not let a mealtime interfere. In order to carry out this policy, the company had cooking facilities at the place of business where the salesmen could prepare their meals when they were not with a customer. On the day in question, as late as 8:30 p.m., Beep had not eaten his evening meal.

Beep’s duties as a salesman required him to travel over the State of Arkansas, and even into other states. One of his purposes in travelling to the house trailer was to sell it, and he did sell it. The case of Johnson Auto Co. v. Kelley, 228 Ark. 364, 307 S. W. 2d 867, involved the death of an automobile salesman. The issue was whether the death grew out of and in the course of his employment. There the Court said: “Kelley’s course of employment for the purpose of workmen’s compensation, like that of the ordinary travelling salesman, covered both the time and place of travelling, as well as the selling of the goods.” We think the same principle applies in the case at bar.

Affirmed.


author: Jim Johnson, Associate Justice.

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    Standard Accident Ins. Co. v. Christy.
    5-2745
    360 S. W. 2d 195
    Opinion delivered September 24, 1962.

      Lester E. Dole, Jr., for appellant.

      Walter II. Laney, for appellee.
   Jim Johnson, Associate Justice.

This is au appeal from a jury verdict in favor of a policyholder, Ernest Christy, appellee, against his insurer, Standard Accident Ins. Co., appellant. The suit involves the fire insurance, provisions of an automobile insurance policy and exceptions and exclusions against coverage contained therein. .

In July 1960, appellee was driving his 1959 DeSoto automobile from Sparkman to Camden, when he noticed smoke coming up from behind his car. He slowed down and as soon as he could find a wide place in the road, he stopped. By the time he stopped, the radiator hose and air conditioner hose had burned off and the water from the radiator had extinguished the fire. He had the automobile towed to Camden and notified the appellant, his insurance carrier, of the fire.

Appellant instructed the garage to repair the automobile. The vehicle did not leave the shop of the repairman until repairs were finally completed at a cost of $763.62. When the automobile was repaired, appellant offered to pay $160.47 for repair of the wiring, rubber hose connections and other obvious fire-damage repairs, but refused to pay for damage to pistons and cylinder walls, contending that this was mechanical failure, not fire damage, and was therefore excluded from the policy coverage.

Appellee filed suit under the policy provisions for $569.13 and amended the suit to the sum of $763.62. Appellant offered to pay the sum of $160.47 which appellant considered as actual fire damages to appellee’s automobile under the policy provisions. The jury after hearing the evidence found for appellee in the sum of $763.62, the amount sued for. Statutory penalty and attorney’s fee were assessed, making the judgment for appellee the sum of $1,005.25, from which comes this appeal.

Appellant conceded that appellee owned an automobile which was insured against fire loss under the terms of appellant’s policy No. AF870166. It is undisputed that this automobile caught on fire while being driven from Sparkman to Camden. Appellee’s burden of proving the insurance policy and the loss having been met, the burden was then on appellant to show that the case fell within an exclusion to the contract by which appellant had indemnified appellee against such an injury. Life and Casualty Ins. Co. of Tenn. v. Barefield, 187 Ark. 676, at 679, 61 S. W. 2d 698. The policy exclusion is as follows:

“Exclusions. This policy does not apply under Part III: ... (e) to damage which is due and confined to wear and tear, freezing, mechanical or electrical breakdown or failure, unless such damage results from a theft covered by this policy. ’ ’

The material points relied on by appellant question whether there was any substantial evidence to support the jury verdict.

After the repairs to the automobile had been made, appellant adopted the position that a portion of the damages to the automobile was occasioned by a mechanical failure. In this connection, appellant introduced the testimony of an expert witness, Mr. John L. Peterson. His testimony included a discussion of how the fire probably originated and how various items of damage were occasioned. According to this witness, he found damage to the cylinders and cylinder walls. This damage, he testified, could only be caused in one of two ways:

‘ ‘ One is operating the engine at a fairly moderate to high rate of speed without sufficient water in the cooling system, which would cause an extreme overheating condition ...”

Appellee testified that “the car was running perfectly” and that he was traveling at approximately sixty miles per hour when he noticed that the automobile was on fire. Thereafter, he proceeded until he found a wide place in the highway and then he stopped. At this point he found the radiator hose and the air conditioner hose had been burned off and that the escaping water had extinguished the fire. This is precisely the factual situation described by Mr. Peterson as one of the possible explanations for interior damages to the pistons and cylinder walls. The jury could certainly fairly conclude from Peterson’s testimony that a fire originated on top of the automobile engine — either from a leaky fuel pump, leaky carburetor, broken gas line, or some other cause; that this fire proceeded to burn off the rubber hose connections to the radiator and air conditioner allowing the water to escape from the cooling system; that wiring, battery, etc., were burned; that certain damage resulted to the interior of the motor as a result of the escaping water from the cooling system; and that, in short, the fire was the direct, proximate and sole cause of all the damage to this automobile.

After carefully reviewing the record, we cannot escape the conclusion that there was substantial evidence to support the jury verdict. This being true, the judgment must be affirmed. Lloyd v. James, 198 Ark. 255, 128 S. W. 2d 1019.