text:
    Anderson v. The West Bend Co.
    5-3831
    400 S. W. 2d 495
    Opinion delivered March 21, 1966

      Shaver, Tackett & Jones, Larey & Larey, for appellant.

      Wright, Lindsey & Jennings, for appellee.
   Osro Cobb, Justice.

Appellee is a manufacturer of Teflon coated aluminum skillets, a product generally advertised as a greaseless cooker.

Appellants are residents of Arkadelphia who purchased one of the skillets and attempted to use same.

The second time appellants used the skillet a fire occurred, enveloping the skillet and its contents, spreading to the house proper, and resulting in stipulated damages in excess of $8,000.

Appellants brought this action to recover their damages, their claim being based upon the contention that some unknown latent defect existed in the skillet and that the defective skillet was the proximate cause of the fire and their damages. Appellants further alleged that they purchased and used the skillet in reliance upon the implied warranty of the manufacturer, appellee, that the utensil was free of defects in manufacture and safe for the uses for which it was intended. Appellees interposed a general denial, significantly omitting any plea as to lack of privity between the parties.

Jury trial was waived.

Appellants’ testimony included the following:

(a) That the Teflon coated skillet was purchased new.

(b) That the first attempted use of the skillet was to cook an egg without the use of grease and that the egg stuck to the skillet.

(c) That the second use of the skillet was in frying sliced potatoes immersed in cooking oil, the skillet being placed on an electric stove which had been trouble-free and the heat turned on to low or medium low.

(d) That some three to five minutes later, Mrs. Anderson, one of the appellants, noted flame and smoke around the skillet which she could not control.

(e) That after the fire, subject skillet was found to have most of its bottom melted away.

(f) That there had been no change in the condi- . tion of the skillet from the time it was purchased until said fire.

(g) That Mrs. Anderson was experienced in cooking and was following usual and customary practices in the use of the skillet at the time of said fire.

At the conclusion of appellants’ evidence, appellee moved the court for judgment, which motion was denied. Appellee thereafter declined to offer any evidence and rested its case. Appellee then renewed its motion for judgment, which motion was again denied by the court. The court took the case under advisement and some two months later entered a judgment for appellee. From this adverse judgment appellants are here on appeal. The sold point urged by appellants for reversal of the judgment of the trial court is as follows:

“THE COURT ERRED IN ITS DETERMINATION THAT PLAINTIFFS HAD FAILED TO ESTABLISH A PRIMA FACIE CASE.”

We have concluded that appellants did make a prima facie case and that same was fully recognized by the trial court. The action of the trial court in denying appellee’s separate motions for judgment can not be interpreted here as other than a finding, by the court that a prima facie case had been made. Thereafter, the court took the case as the trier of the facts and in that capacity found that the evidence introduced on behalf of appellants was speculative and conjectural and inadequate to support a recovery.

The proof on behalf of appellants was circumstantial in nature and clearly susceptible of more than one factual conclusion as to the proximate cause of the fire and the resulting damage. The court, as the trier of the facts, in weighing the evidence obviously refused to accept appellants ’ theory that the skillet was defective and that such defect had proximately caused the fire. Thedispositive fact question was determined adversely to appellants and we are bound thereby. Milner v. Marshall, 238 Ark. 914, 385 S. W. 2d 800 (1965). Milwaukee Insurance Co. v. Wade, 238 Ark. 565, 383 S. W. 2d 105 (1964).

Appellants had the right, under provisions of Ark. Stat. Ann. § 27-1744 (Repl. 1962), to request special findings of the trial court as to conclusions of fact found by the court, but made no such request, thus waiving same. Doup v. Almand, 212 Ark. 687, 207 S. W. 2d 601 (1948). Kane v. CarlLee, 169 Ark. 887, 277 S. W. 55 (1925). Dunaway v. Ragsdale, 177 Ark. 718, 9 S. W. 2d 6 (1928).

The judgment of the trial court is affirmed.

Affirmed.


source: Caselaw Access Project

author: Carleton Harris, Chief Justice. Ed. F. McFaddin, Justice,

license: Public Domain

text:
    Hayes Brothers Flooring Co. v. Carter, Adm’x
    5-3819
    401 S. W. 2d 6
    Opinion delivered March 28 1966
    [Rehearing denied April 25, 1966]

      Thomas B. Tiwnon; Rose, Meek, House, Barron, Nash & Williamson, for appellant.

      W. E. Billingsley, H. B. Stubblefield, for appellee.
   Carleton Harris, Chief Justice.

This is a wrongful death action. Allen Carter was killed in a motor vehicle collision in Izard County on January 25, 1963. The vehicle driven by Carter was involved in a collision with a tractor and trailer operated by Fred DePriest. Carder’s widow instituted suit, both as administratrix and in her individual capacity, against Fred DePriest, Wayne DePriest and Hayes Brothers Flooring Company, an Arkansas corporation with its office and principal place of business in Calico Bock, Arkansas. The complaint alleged that Fred DePriest was a regular employee of both Wayne DePriest (owner of the tractor and trailer) and Hayes Brothers Flooring Company, Inc., and was engaged in carrying on the business of Wayne DePriest and Hayes Brothers Flooring Company at the time of the collision. Acts of negligence on the part of Fred DePriest were enumerated in the complaint, and judgment was sought in the amount of $115,-000.00. Subsequently, the complaint was amended to include Hayes Oak, Inc., a Missouri corporation, as a defendant, the amendment asserting- that Hayes Oak, Inc.,, had leased the tractor and trailer driven by DePriest, and that at all material times Fred DePriest was employed by the three named defendants, and was engaged in the business of these defendants at the time of the mishap. The DePriests answered, denying liability, and Wayne DePriest counter claimed for damage to his tractor and trailer. Both Hayes Brothers Flooring Company, and Hayes Oak answered, denying that Fred DePriest was an agent, servant, or employee, and further alleging that the collision was the fault of Carter. On trial, the jury returned a verdict in favor of appellee against all of the defendants in the amount of $65,000.00. From the judgment so entered, Hayes Brothers Flooring Company and Hayes Oak Company bring this appeal. Neither of the DePriests has appealed from the judgment.

Though several points are listed, the issue is whether there was substantial evidence to establish that Fred', DePriest was an agent of appellant companies, and acting within the scope of his authority at the time of the collision.

Fred DePriest testified that he had hauled a load of' rough lumber from Missouri to Calico Bock on January 25, 1963, and had delivered the load to the Hayes Lumber Company yard, located about half a mile from Hayes Brothers Flooring Company. He said that Wayne DePriest owned the tractor and trailer, and had employed him as a driver; that Wayne DePriest gave him directions of “where and when” to go, and Wayne DePriest paid him. According to his testimony, he was returning to his home in Mammoth Spring, after delivering the load of lumber, when the collision occurred. When asked if he was hauling the lumber for one of the appellants, he replied, “I guess the lumber was owned by Hayes Brothers.” Upon being interrogated as to whether this meant “Hayes Flooring,” he answered, “or Hayes Oak.” DePriest further testified that when he hauled flooring, he was paid by Hayes Brothers Flooring Company, but when he hauled rough lumber, he was paid by Wayne DePriest. The witness reiterated that he had hauled rough lumber, rather than flooring, on the day of the collision.

Wayne DePriest testified that he was the owner of the tractor and trailer involved in the collision; that he hired and fired his own drivers, paid them, told them when to work and when not to work, and gave all directions relative to the trips that were to be made. This was all of the substantive evidence offered that relates to the . issue here involved, viz, whether Fred DePriest was an agent of either appellant, or an employee of either' appellant, engaged in the business of his employer at the time of the collision.

It is, we think, evident that this case must be reversed. The testimony by Fred DePriest, “I guess the lumber was owned by Hayes Brothers,” does not, of course, constitute substantial evidence. In the first place, judgments cannot be predicated on guesswork, and in the next place, the mere fact that the lumber was owned by either Hayes Flooring Company or Hayes Oak Company would not, in itself, impose any liability. The establishment of agency, or that an employee was acting-in the course of his employment, is essential to a judgment against, respectively, a principal, or an employer.

During examination of Fred DePriest, the witness was interrogated relative to a statement that he had made at the taking of his discovery deposition. It was established that DePriest, at that time, when asked who was paying him on January 25,1963, responded, “Hayes Brothers Flooring Company.” At the trial, he endeavored to explain this statement by saying, “When I hauled hardwood flooring, they paid me.” Of course, the evidence of what DePriest had said at the time of the taking of the deposition, was only admissible as hearing on the credibility of the witness. Certainly, this statement, under the circumstances, was not substantive evidence.

Appellant asks that we reverse and dismiss, hut, after due consideration, we think it is possible that the case has not been fully developed. In fact, our ordinary procedure in reversing judgments in law cases is to remand for another trial, rather than dismiss the cause of action. It is only where it clearly appears that there can be no recovery that we consider it proper to dismiss the cause. Pennington v. Underwood, 56 Ark. 53, 19 S. W. 108, and Arkansas Natural Gas Company v. Gallagher, 111 Ark. 247, 163 S. W. 791. In Reynolds Metals Company v. Ball, 217 Ark. 579, 232 S. W. 2d 441, this court said:

“We are forced to conclude that the record does not contain substantial evidence that Reynolds discharged' from its plant into the creek deleterious or poisonous substances which caused the damage of which plaintiff complains. The judgment based upon the jury’s verdict in the Circuit Court must therefore be reversed.

“The evidence might well have been much more completely developed than it was. This Court has held that, even where a judgment based on a jury verdict is reversed for insufficiency of the evidence to support it, there may he circumstances which justify remanding the case for new trial, rather than outright dismissal.”

In a more recent case, Milum v. Clark, 225 Ark. 1040, 287 S. W. 2d 460, we said:

“It is also argued that the case should be dismissed for want of any substantial evidence of Milum’s negligence. We need not analyze the sufficiency of the testimony, for it is evident that the plaintiffs were surprised by Eoff’s failure to testify to facts that may be susceptible of proof by other witnesses. In these circumstances we are unwilling to say that the case has been fully developed.”

Here, though the record does not contain substantial evidence of liability on the part of appellants, it appears that the evidence might well be more completely developed, particularly when inconsistent statements (which could have some bearing on possible liability) were made by a principal witness.

Beversed and remanded.

McFaddin, J., dissents.

Ed. F. McFaddin, Justice,

dissenting. I dissent as to the remand. I agree that this cause should be reversed-; but I think it should be dismissed as to the appellants, Hayes Brothers Flooring Company, Inc. and Hayes Oak, Inc. The appellee introduced all the evidence she desired to introduce against the said appellants, and she is not now entitled to ‘ ‘ two bites at the came cherry. ’ ’ The case was fully developed as regards the asserted liability of the appellants; and since we find that they are not liable, they are entitled to be dismissed.

The judgment in the Lower Court was against Fred DePriest, Wayne DePriest, Hayes Brothers Flooring Company, Inc., and Hayes Oak, Inc. Neither Fred DePriest nor Wayne DePriest has appealed. How, now, can the case be retried as to them? And, without them, how can Hayes Brothers Flooring Company, Inc. and Hayes Oak, Inc. be subjected to a second trial?

■ .■ Therefore I believe that the cause should be dismissed as to the present appellants.


author: Ed. F. McFaddin, Justice.

text:
    Chiles v. Mann & Mann
    5-3791
    400 S. W. 2d 667
    Opinion delivered March 28, 1966

      N. M. Norton, for appellant.

      Mitchell D. Moore, for appellee.
   Ed. F. McFaddin, Justice.

Appellee sued appellant on a promissory note. The answer was a general denial.’ The original note was introduced in evidence and appellant admitted his signature, but sought to show that he signed as president of a corporation. The Trial Court refused to allow the appellant to present such evidence under the general denial and instructed a verdict for the appellee. From judgment on the verdict, appellant prosecutes this appeal, and urges two points:

“I. The Trial Court erred in holding appellant to be personally liable on this note.
“II. If an amendment to the answer was necessary to permit the introduction of the evidence offered by appellant and rejected by the Trial Court, it was error not to permit the amendment.”

I.

The original note sued on was introduced in evidence, and the germane portion reads:

“Osceola, Ark. February 22, 1964
“December 15th, 1964, after date, I promise to pay to the order of Mann & Mann, Inc., Osceola, Arkansas Sixty-Five Hundred FortyrSeven & 62/100 Dollars with interest thereon at the rate of 6 per cent from Date. Value Received, Negotiable at Osceola, Arkansas
“Chiles Planting Company, By: E. B. Chiles, Jr.”

Appellee offered evidence that the note was for value received, was signed by the appellant, was past due, and had not been paid;-and then appellee rested. Appellant admitted that he signed his name, “E. B. Chiles, Jr.”, on the note, but sought to. show that Chiles Planting Company was the name of a corporation of which he was president and majority stockholder; and that he signed the note in such capacity. The Trial Court held that since a general denial was the only pleading filed by the defendant, he could not offer testimony as to the corporation and as to his intentions in signing the note.

There are several reasons why the Court was correct in this ruling. The first relates to the rules of pleading: i.e., under a general denial testimony of confession and avoidance cannot be heard such as here: the defendant confesses his act of signing the note but seeks to avoid the effect by claiming he signed as an officer of a corporation. Some of our cases showing the limited evidence that may be offered under a general denial are: Grier v. Yutterman, 102 Ark. 433, 145 S. W. 194; and Shirk v. Williamson, 50 Ark. 562, 9 S. W. 562. Our cases are in accord with the general rules as regards pleadings. In 41 Am. Jur. 396, “Pleadings” § 149, the text reads: “Like the general issue, the general denial operates as a denial of every material allegation of the complaint as fully as if it had been specifically and separately denied.....It covers defenses which go to destroy the plaintiff’s cause of action, but not those which are grounded on new matter or matters in avoidance or other defense that must be specially pleaded.” (Emphasis supplied.) And in § 155 of the same text the general holdings are summarized: ‘ ‘ Since the plaintiff must apprise the defendant in the beginning as to what he relies upon for a recovery, it is only right that the defendant should be required also to inform the plaintiff of any special or affirmative defenses he expects to make by pleading the facts constituting such defenses.....”

An enlightening case on both of the points in this appeal is that of Bluff City Lbr. Co. v. Hilson, 85 Ark. 39, 107 S. W. 161. Hilson sued Bluff City Lumber Company for the claimed balance due on a purchase contract which was for “all the lumber of said firm, mill run .... at the price of $10.50 per thousand feet.” The defendant denied any such contract. After the plaintiff had concluded his evidence, the defendant offered the witness Ritchie to testify as to the grades of the lumber shipped. The Trial Court refused to allow such evidence as being outside the issue tendered by the defendant’s answer. In affirming the ruling of the Trial Court on this point, we said:

“Error of the court is also assigned in its refusal to permit witness Ritchie to testify concerning* the grades of the lumber shipped. Under the issues presented by the pleadings, it was not proper to admit evidence on this subject. The defendant’s answer tendered no issue as to the grade, quality or quantity of the lumber alleged to have been sold and delivered. The answer denied that defendant had purchased any lumber from plaintiff, and alleged that the lumber had been shipped without authority, and was accepted by defendant only on written agreement that it should sell the lumber for the best price it could obtain and account to J. & H. Hilson for the proceeds. The defendant failed to sustain that defense, but attempted to introduce proof tending to sustain a wholly different one, not raised by the pleadings. The court was correct in excluding it.”

A second reason showing the correctness of the ruling of the Trial Court is found in our own holdings. In First National Bank v. J. H. Snyder Manufacturing Company, 175 Ark. 1134, 1 S. W. 2d 817, the note was signed, “J. H. Snyder Mfg. Co., W. H. Snyder.” When sued on the note W. H. Snyder sought to show: that J. H. Snyder Manufacturing Company was a corporation ; that W. II. Snyder was its president and manager; that W. H. Snyder signed the note as an officer of the corporation and did not intend to become personally liable. This Court, in an Opinion by Chief Justice Hart, held that such testimony by W. H. Snyder was not to be heard as it was an attempt to vary by parol evidence the terms of the written note. He said:

“The signatures are ‘J. H. Snyder Mfg. Co., W. H. Snyder.’ The signatures do not indicate whether J. H. Snyder Mfg. Co. was a trade name, partnership, or corporation. There is no designation by W. H. Snyder that he signed as an officer or agent by any word. We are of the opinion that there was no ambiguity in the note, and that the circuit court erred in admitting parol evidence to show that W.- H. Snyder signed the note as attesting officer of J. H. Snyder Manufacturing Company, a corporation, of which he was president, and that there was an understanding between him and the hank that the corporation alone was to he liable on the note.”

Here, the appellant, E. B. Chiles, Jr., did not show on the note that he was signing in any capacity as officer of anything. The only signature—‘ ‘ Chiles Planting Company by E. B. Chiles, Jr.”—meant that Chiles Planting Company was the trade name of E. B. Chiles, Jr., and he could not offer parol testimony to vary that meaning.

Appellant insists that, even if the Arkansas cases are as above stated, nevertheless such cases have been changed by the adoption of the Uniform Commercial Code, which is Act No. 185 of 1961; and appellant particularly refers us to Ark. Stat. Ann. § 85-3-403 (Add. 1961), the germane portion of which reads:

“(2) An authorized representative who signs his own name to an instrument: (a) is personally obligated if the instrument neither names the person represented nor shows that the representative signed in a representative capacity; (b) except as otherwise established between the immediate parties is personally obligated if the instrument names the person represented but does not show that the- representative signed in a representative capacity, J ?

Particularly, the appellant insists on this language: “An authorized representative who signs his own name to an instrument: * * * (b) except as otherwise established between the immediate parties is personally obligated if the instrument names' the person represented but does not show that the representative signed in a representative capacity, * * *” (Emphasis supplied.) Appellant insists that under the expression, 11 except as otherwise established between the immediate parties,” he had the right to show that the plaintiff knew that he had signed the note only as president of the corporation.

If the appellant had entered a plea to such effect instead of merely a plea of general denial, then the point that he raises now might be important. But when he made only a general denial, he could not thereafter claim that he signed the note in a representative capacity. So, even conceding without deciding that the language, ‘ except as otherwise established between the immediate parties,” has the effect that the appellant says, nevertheless the appellant’s failure to plead anything but a general denial foreclosed any claimed right that he might have to show the status under which he signed the note.

II.

The appellant’s second point is that he should have been allowed to amend his answer so as to plead more than a general denial. When E. B. Chiles, Jr. attempted to testify that Chiles Planting Company was a corporation and that he signed the note as president of the corporation, the Court held such evidence to be improper, saying :

“THE COURT: .... I think the matter before the Court is whether or not he executed the note. I do not think the corporation has anything to do with it. It was not so pleaded in the answer.....The pleading said he did not execute the note.

“MR. NORTON: Not for himself.

“THE COURT: You did not plead he was acting as a corporation; you made a general denial. The Court will have to hold you to that.

“MR. NORTON: May we amend now?

“THE COURT: I believe it is too late.”

The appellant insists that the Trial Court abused its discretion in refusing to permit an amendment to the answer so that the proffered testimony as to corporate existence and signature intention could be presented to the jury. The appellant relies on Ark. Stat. Ann. § 27-1160 (Kepi. 1962), which reads in part:

“The Court may, at any time, in furtherance of justice, and on such terms as may be proper, amend any pleading. . .”

The complaint in the case at bar had been filed on December 30, 1964; the answer had been filed on January 30, 1965; and the cause was tried on May 27, 1965. The cause was tried to a jury. The plaintiff had offered its evidence and rested; and while the defendant was on the witness stand he moved to be allowed to amend the pleadings. The Court refused. Did the Court abuse its discretion? "We have repeatedly held that the Trial Court has wide discretion in such a situation. We revert to Bluff City Lbr. Co. v. Hilson, 85 Ark. 39, 107 S. W. 161, previously mentioned under Point I supra. In that case, after the Court had refused to allow the proffered evidence because it was outside the issues tendered by the answer, the defendant prayed that it be allowed to amend its answer; the Trial Court refused to allow an amendment at such a late date; and, in affirming the ruling of the Trial Court, we said:

“The statute provides that a trial court ‘may, at any time, in furtherance of justice, and on such terms as may be proper, amend any pleading or proceeding * * * by inserting other allegation material to the case; or, when the amendment does not change substantially the claim or defense, by conforming the pleading or proceeding to the facts proved.’ Kirby’s Digest, § 6145. The statute does not, however, require the court at all stages of the proceeding to permit the introduction of new issues in the case. That is, to some extent, a matter of discretion with the trial court when the amendment, ‘does not change substantially the claim or defense,’ and this court will not disturb a ruling of the trial court in the exercise of that discretion, when it clearly appears to have been observed. Beal & Doyle Company v. Barton, 80 Ark. 326; Mooney v. Taylor, 68 Ark. 314. No abuse of that discretion is shown here. The amendment was offered at the conclusion of the trial, and the suit had been pending for more than eight months, and up to time it was offered the answer tendered a different issue, and the amendment may have caused a postponement of the trial.”

In Union Motor Co. v. Tait, 224 Ark. 807, 276 S. W. 2d 690, Chief Justice Griffin Smith used this language:

“First—Court’s Refusal to Permit Answer to be Amended.—Instances are relatively few where an appellate court has predicated reversible error upon a refusal by the trial court to permit pleadings to be amended after trial has begun over objections of the adverse party. The discretion to overrule such motions must of necessity rest with the tribunal of first address, and this determination is not interfered with unless an abuse of authority is clearly shown in circumstances where the ends of justice would be defeated. Bridgman v. Drilling, 218 Ark. 772, 238 S. W. 2d 645.”

So, in the case at bar, we cannot say that the Trial Court abused its discretion in refusing tc allow an amendment which would have presented an entirely new defense while the ease was in progress and after the plaintiff had rested.

Affirmed.

      In 82 A.L.R. 2d 424, there is an annotation: “Personal liability of one who signs or endorses without qualification commercial paper of a corporation.”

      The defendant’s answer was: “The defendant, E. B. Chiles, Jr., for answer to the complaint of the plaintiff, Mann & Mann, Inc., denies each and every allegation thereof.”


author: Ed. P. McFaddin, Justice.

text:
    Pacific Insurance Co. of New York v. Droddy
    5-3824
    400 S. W. 2d 673
    Opinion delivered March 28, 1966

      Grumpier & O’Connor, Richard II. Mays, for appellant.

      Brown, Compton & Prewett, for appellee.
   Ed. P. McFaddin, Justice.

The question here posed is that of venue for an action by a sub-contractor against the surety on a contractor’s performance bond for public-works. See Act No. 351 of 1953, as amended by Act No. 209 of 1957 Ark. Stat. Ann. § 51-632 et seq. [Supp. 1965]). See Sweetser Const. Co. v. Newman Bros., 236 Ark. 939, 371 S. W. 2d 515.

In February 1964 it. L. Brewer Construction Company of Camden, in Ouachita County, obtained the contract for water and sewer improvements in the City of Waldo, in Columbia County; and executed a bond for $68,000.00, under the provisions of Act No. 351 of 1953. Pacific Insurance Company of New York (appellant) was the surety on the bond, which was duly recorded in Columbia County. The Construction Company subcontracted a portion of the work to J. Elmer Droddy of El Dorado, in Union County.

In December 1964 appellee Droddy filed the present action in the Union Circuit Court against the Pacific Insurance Company, alleging that the City of Waldo had made full payment to R. L. Brewer Construction Company of the contract price, and that R. L. Brewer Construction Company had failed to pay Droddy the full amount due him. The Pacific Insurance Company unsuccessfully objected to the venue of the Union Circuit Court; and that issue of venue is the point now before us.

Thus, we must decide where is the proper venue for the action on a performance bond executed under Act No. 351 of 1953; that is, as between (a) the county wherein the bond was filed—Columbia County in this case; or (b) the county of the residence of the principal contractor—Ouachita County, in this case; or (c) the county of the residence of the plaintiff beneficiary of the bond —Union County, in this case. Unfortunately, the Act No. 351 contains no provision as to venue; and the general rule regarding venue of actions on public work bonds, as stated in 43 Am. Jur. 951, “Public Works and Contracts” § 206, is: “In the absence of any special statutory provision the jurisdiction of an action on the bond of a surety of the public contractor is determined by-rules governing’ the jurisdiction of ordinary civil actions for damages.” See also 92 C.J.S. p. 704, “Venue” § 16.'

Our problem, here, is very much like that which confronted us in Concrete, Inc. v. Arkhola Sand & Gravel Co., 228 Ark. 1016, 311 S. W. 2d 770. That case was an. action under the “Unfair Practices Act” (Ark. Stat. Ann. § 70-301 et seq. [Repl. 1957]), which contained no provision for venne; and we were forced to apply the general statute for venue in actions against corporations. In the case at bar, the action is against a foreign insurance company; but the appellant contends that this is not an action on an insurance policy, as such, but an action against a surety on a bond.

The question of venue has given us much concern; and it is hoped that the Legislature will see fit to definitely fix venue in actions by beneficiaries (as is the appellee) on performance bonds under the Act No. 351. Certainly the Legislature, in enacting- the Act No. 351, intended for venue to be somewhere. It was possibly thought at that time that venue would be determined by our holding in American Fidelity & Casualty Co. v. McKee, 198 Ark. 601, 130 S. W. 2d 12, to be either in the county of the residence of the plaintiff, or the county in which the bond was filed. But, after the Act No. 351 of 1953 was adopted, the Legislature adopted Act No. 148 of 1959, which repealed a vast number of statutes and changed the statute relied on as a venue statute in American Fidelity & Casualty Co. v. McKee (supra).

As best we can find, the Act No. 148 of 1959 contains only one section regarding venue in actions against insurance companies, and that is found in Ark. Stat. Ann. § 66-3234 (Repl. 1966), the germane portion of which reads: “An action brought in this State by or in behalf of the insured or beneficiary against an insurer as to a loss occurring or benefits or rights provided under an insurance policy .... shall be brought in either (a) the county in which the loss occurred. . . .or (b) the county of the insured’s residence at the time of the loss.” In order to make the quoted language determinative of venue in Union County in the case at bar, we would have to hold that this was an action on an insurance policy and that Droddy was both the insured and the beneficiary under the policy.

If the foregoing section on venue should not govern an action like this one, then the provisions of Ark. Stat. Ann. § 27-608 (Repl. 1962) would have to govern, because the defendant is a foreign corporation and that section says: “An action.....against a non-resident of this State or a foreign corporation may be brought in any county in which there may be property of or debts owing to the defendant.”

We cannot say that the Trial Court was in error in holding that the venue on the bond in this ease was in Union County.

Affirmed.

      The Union Circuit Court denied the plea of venue; the cause was tried to a jury; and a verdict was rendered for Droddy for $1500.00 plus penalty, interest, and attorney fees; but the appellant preserved its objections to venue, and that is the Question here before us.


author: George Bose Smith, Justice.

text:
    Akridge v. Park Bowling Center, Inc.
    5-3832
    401 S. W. 2d 204
    Opinion delivered March 28, 1966

      Garner & Parher, for appellant.

      .Harper, Harper, Young & Durden, for appéllée.
   George Bose Smith, Justice.

This is an appeal from a summary judgment entered against the plaintiff in her action for personal injuries sustained when she slipped and fell to the floor in the defendant’s howling alley in Fort Smith. The complaint alleged that the defendant negligently permitted “foreign material, objects, matter, debris, or other extraneous material” to fall and remain upon the floor. The plaintiff, in answering interrogatories propounded by the defendant, was unable to identify the exact object or substance that caused her to fall. The trial court regarded this uncertainty as a fatal defect in the plaintiff’s case and accordingly granted the defendant’s motion for summary judgment.

In her complaint the plaintiff asserted that the defendant allowed children and adults “to drink soda pop, malts, and other beverages, and eat hot dogs, hamburgers, sandwiches, candy, potato chips, corn chips,” and various other foods in the bowling alley, with knowledge that such children and adults would drop food and spill drinks upon the floor. The complaint further asserted that the presence of foreign matter upon the floor of a bowling lane is highly dangerous and that the plaintiff fell upon “some foreign object unknown to her” as she began to bowl.

In asking for a summary judgment the defendant submitted no testimony except the plaintiff’s answers to four interrogatories. In those answers the plaintiff pretty well repeated the allegations of her complaint. She stated that the identity of the object that caused her fall “was unknown to plaintiff, but well known to defendants, or could have been known to them with the exercise of ordinary care.” The names and addresses of three other eyewitnesses to the accident were furnished, but there is no indication of what their testimony would be.

The pivotal question is whether the plaintiff’s inability to say exactly what caused her to trip and fall is such as insurmountable flaw in her proof that in no event could she have made a case for the jury. We have concluded that the weakness in the plaintiff’s account of her injury is not so great as to require a summary dismissal of her complaint.

A motion for a summary judgment is like a motion for a directed verdict in that presumptions and inferences arising from the evidence are to be resolved against the movant. Russell v. City of Rogers, 236 Ark. 713, 368 S. W. 2d 89 (1963). Nevertheless there are undoubtedly instances in which the defendant’s motion should be granted simply because the accompanying proof shows conclusively that some fact essential to the plaintiff’s cause of action is wanting. A commonplace example is the situation in which the only fault chargeable to the defendant is the negligence of its asserted agent. If the defendant proves beyond question that no agency existed, and the plaintiff is unable to offer substantial evidence to the contrary, a summary judgment is proper. Barron & Holtzoff, Federal Practice & Procedure, § 1232.1 (Wright ed. 1958); Robin Const. Co. v. United States, 345 F. 2d 610 (3d Cir. 1965).

The present controversy does not fall in that category. In many cases of this kind the plaintiff can make a prima facie showing without proving just what caused his fall. The offending object may have been hidden by trash. It may have been snatched away by the defendant before it could be examined. The premises may have been dark, as a theater. The fall may have jolted the plaintiff into insensibility. The defendant may have been negligent in permitting litter to accumulate in a place where it created a hazardous condition.

This complaint affirmatively states that the plaintiff does not know what caused her fall. In view of the other allegations of negligence we do not think the complaint either demurrable or subject to a motion to make more definite. The evidence accompanying the motion for summary judgment discloses no new infirmity in the plaintiff’s case. To the contrary, that evidence merely confirms what the plaintiff already admits. In the circumstances the motion stands no better than a demurrer to the complaint and should he overruled.

Reversed.


author: George Rose Smith, Justice.

text:
    Goodin v. Goodin
    5-3944
    400 S. W. 2d 665
    Opinion delivered March 28, 1966

      Shaver, Tackett & Jones, for appellant.

      George E. Steel, for appellee.
   George Rose Smith, Justice.

Last month the Sevier chancery court granted the appellee a divorce and ordered her husband, the appellant, to make monthly payments for the support of the appellee and the couple’u two minor children. The appellant, after filing his notice, of appeal, presented a supersedeas bond to the clerk of the trial court and obtained from him a writ of supersedeas.

Upon the appellant’s failure to make the first monthly payment as provided by the decree the appellee instituted contempt proceedings. The appellant resisted the charge of contempt on the theory that the monetary provisions in the decree of divorce had been superseded. The chancellor was doubtful if such an order is subject to being superseded, but he directed that the contempt proceeding be held in abeyance to permit the husband to apply to this court for a stay of the support order pending the appeal. That application for a stay is now before us for decision.

We agree with the chancellor’s belief that a writ of supersedeas does not issue as a matter of right in a case like this one. The controlling statute begins with these words: “Whenever an appellant entitled thereto desires a stay on appeal, he may present to the court for its approval a supersedeas bond which shall have such surety or sureties as the court requires.” Ark. Stat. Ann. § 27-2121.1 (Repl. 1962). The legislature has not attempted to say exactly when an appellant is “entitled” to a stay on appeal.

Ordinarily a writ of supersedeas is obtainable as a matter of course with respect to a judgment for damages in a contract or tort action. In that situation the appellee is adequately protected by a supersedeas bond guaranteeing that his judgment, if it is affirmed, will be paid in full, with interest and court costs. But other considerations must be taken into account with respect to a decree for alimony or child support. Despite the dissolution of the marriage the husband may still be responsible for the support of his former wife and his children. Those dependents are not to be left penniless during the pendency of an appeal.

We have issued a number of per curiam orders sustaining the chancery court’s continuing power to enforce its decrees for support or child custody despite the pendency of an appeal. See Stevenson, Supreme Court Procedure, p. 117 (1956). In a recent case, Crowder v. Butt, our per curiam order of September 7, 1959, read in part: “The trial court had discretion and power to fix custody pending our decision. There is no absolute right of supersedeas in child custody cases.” We adhere to that view and have thought it best to issue an opinion in this instance, for the convenience of the bench and bar.

The application for a stay is denied.


author: Paul Ward, Justice.

text:
    5-3833
    Runyan v. Clark County
    400 S. W. 2d 651
    5-3833
    Opinion delivered March 28, 1966

      Sam L. Anderson, for appellant.

      William H. Arnold, for appellee.
   Paul Ward, Justice.

In this litigation Mr. and Mrs. Carl D. Runyan seek to be recompensed for the taking of a right-of-way over their forty acres of land.

On November 9, 1963 Mr. Runyan agreed in writing to give Clark County, free of charge, the right to improve Highway No. 84 which crossed the said land. Pursuant thereto the Arkansas State Highway Commission, cooperating with the county judge, proceeded to enter upon said land and began working.

On November 12,1963 Mrs. Runyan wrote the county judge and the Commission, notifying them she had an interest in the land, and that she was demanding remuneration. One week later the county court, by proper order, condemned a right-of-way across the land along the existing road, and the construction work continued.

On April 8, 1965 Mr. and Mrs. Runyan (appellants herein) for the first time filed a claim in the county court asking for damages. The claim was promptly disallowed by an order of the county court. One month later an appeal from said order was perfected to the circuit court.

On May 15, 1965 Clark County filed, in the circuit court, a Petition to dismiss the appeal taken by appellees. The trial court, treating the Petition as a Motion, granted the same, holding appellants’ claim was barred by the Statute of Limitations. Prom such holding comes this appeal.

The issue for decision here is well stated by appellants in their brief where this statement appears:

“Due to the fact that there is no testimony that has been taken in the matter before the Court and the entire proceedings are based on the question of law, the only point to be determined by the Supreme Court is whether or not the lower Court erred in granting a Motion to Dismiss . . . . ”

In our opinion th trial court was correct in dismissing the appeal. It was well established that, in a case of this kind, a landowner has the right to file a duly verified claim with the county court, but it must be done within twelve months after the order of condemnation is made. See: Ark. Stat. Ann. § 76-917 (Repl. 1957), Act 422 of 1911, Act 611 of 1923, and Hot Spring County v. Fowler, 229 Ark. 1050, 320 S. W. 2d 269. Here the county court order was made some sixteen months before the verified claim was filed by appellants. It is not disputed by appellants, and the record affirmatively shows, that they knew their land was being taken for highway purposes more than twelve months before the claim was filed.

Affirmed.


author: Jim Johnson, Justice. Ed. F. McF addin, Justice,

text:
    Republican Party of Ark. v. State, ex rel. Hall
    5-3804
    400 S. W. 2d 600
    Opinion delivered March 28, 1966

      G. Thomas Eisele, for appellant.

      Bruce Bennett, Attorney General; Fletcher Jackson, Asst. Attorney General, for appellee.
   Jim Johnson, Justice.

This is a petition for writ of mandamus to require the Treasurer of Arkansas to make public certain of the internal or working records of the Treasurer’s office, in particular, bank deposit records.

On March 4,1965, appellant Dr. Wayne Babbitt, vice chairman of the Republican Party of Arkansas, appeared at the office of appellee Nancy Hall, Treasurer of the State of Arkansas. Appellant gave appellee a letter written on Republican party stationery requesting the Treasurer to provide the party with “a detailed listing of where the public funds of Arkansas are on deposit and the current total of said funds in each hank.” Appellant offered to return the following week for appellee’s reply. Appellee forthwith sent appellant’s letter to the Attorney General with the following request: “Will you please advise this office if the records of the hank deposits in the various state and national banks over the state are public records. Also, please advise if this office is permitted to give the complete list to anyone requesting the information.” The opinion of the attorney general pointed out certain state records, “amongst other things, . . . [records of] State Penitentiary inmates, state hospital patients, students in our institutions of higher learning, children in our children’s colony” are not by their nature “public” records. The opinion went on to say that, “There is no constitutional or statutory authority for the State Treasurer to furnish information which she deems inappropriate in the public interest,” and advised appellee that, “In view of’the foregoing, I think you are soundly justified in refusing Mr. Babbitt’s request.” Following the directions of the Attorney General, Mrs. Hall declined to exhibit the requested records.

On June 4, 1965, appellant individually and as vice chairman of the Republican Party of Arkansas filed a complaint in Pulaski Chancery Court against appellee for a writ of mandamus to require appellee to make the records on bank deposits and withdrawals of state funds (since appellee took office on January 1, 1963) available for inspection and copying at reasonable times. On behalf of appellee the Attorney General filed an answer on June 15,1965, denying that the records are public per se or that the records should be made public for political purposes, praying dismissal of the complaint for want of equity, that no lawful purpose would be served by such complaint, and because “mandamus will not lie to compel the performance of a purely discretionary duty of appellee.”

(At this time the General Assembly, in extraordinary session, passed the state treasury management law [Ark. Stat. Ann. ■§§ 13-421 - 13-431 (Supp. 1965).] This act, best known for requiring interest on bank deposits of state funds, also requires the Treasurer to prepare a daily and cumulative summary of transactions of each of the state funds, a report copy of which is to be available for public inspection. The act was approved June 7, 1965, and became effective September 6, 1965.)

After trial on June 22, 1965, the court dismissed the complaint on July 6,1965, from which comes this appeal.

In this suit appellant asks us to declare that he, an Arkansas citizen-taxpayer, has the right to examine and copy the day-to-day working records of the State Treasurer’s office which reflect the location and amount of bank deposits and Avithdrawals of State funds, and to further declare that the Republican Party of Arkansas, of AArhich he is a member, as a class have the right to examine these same records and if it so desires to publish in the party neAVspaper information gleaned from this examination. We are startled that we need be asked. In a brilliant opinion on the same point (State v. Kelly, W. Va. 1965, 143 S. E. 2d 136) the West Virginia Supreme Court said recently:

“ It is indeed difficult to envision a greater interest in public records which reflect the handling of public funds than that of a citizen and taxpayer whose own contribution to the public funds is directly involved. His is a real interest. It is such that, in the absence of some compelling reason to the contrary, he should be entitled to inspect the records pertaining thereto.”

This right, of course, is tempered by reasonable regulation in the interests of safekeeping of the records and avoiding disruption of the work of this public office. These records which are kept in the ordinary course of the business of the State Treasurer are not personal to the Treasurer but are a part of the public transactions of the office.

It is obvious that exposure to public view of certain types of state records would be detrimental to individual citizens, such as adoption records and state hospital case histories; and, just as obviously, exposure to public view of other types of state records would be detrimental to the public pocketbook, such as highway department records of location of proposed highways. These types of records are not under consideration here.

Suffice it to say, our holding in Gaspard v. Whorton, 239 Ark. 849, 394 S. W. 2d 621 (on ballot applications), is equally apropos here: “The denial to the public of reasonable access to public records by public officials is not conducive to the perpetuation of our form of government. ’ ’

The Attorney General argues relative to the requested records that, ‘ ‘ They were just records of deposits in banks.” . . . “There was no right under statute, common law, nor any other law to inspect these records of bank deposits.” In answer to the argument that there is no common law right to inspect these records, we adopt as our own a rule earlier promulgated by the Michigan Supreme Court (Nowack v. Fuller, 243 Mich. 200, 219 N. W. 749, 60 A.L.R. 1351), that if there be any rule of the English common law that denies the public the right of access to public records, it is repugnant to the spirit of our democratic institutions. Regnat Populus—The People Rule—is the motto of Arkansas. It should ever remain inviolate.

The decree of the trial court is accordingly reversed and remanded with direction that the writ of mandamus issue.

McF addin, J., dissents.

Ed. F. McF addin, Justice,

dissenting. There are two reasons for my dissent: (1) the Majority Opinion is too broad in its holding; and (2) the entire case is moot.

I.

The Majority has ordered the Trial Court to issue a writ of mandamus. For what? Here is a part of what the appellants alleged, and prayed, in the complaint:

“Plaintiff Dr. Wayne Babbitt is a citizen, resident and taxpayer of North Little Rock, Pulaski County, Arkansas; said plaintiff is also the Vice-Chairman of the Republican Party of the State of Arkansas and is authorized to represent said Party in this proceeding. The defendant Nancy Hall is the Treasurer of the State of Arkansas and she is a citizen and resident of Pulaski County, Arkansas.
“The defendant Nancy Hall, as Treasurer of the State of Arkansas, has in her possession and custody and keeps, maintains and controls, fiscal and financial records of the State of Arkansas. In such capacity the said defendant Nancy Hall has custody and control of records and documents which will reveal the names and addresses of the banks in which funds of the State of Arkansas, special and general and trust, are deposited from time to time. Said records have been made, maintained, changed and kept current by, or under the direction and supervision of, the defendant Nancy Hall since the date she first took office as Treasurer of the State of Arkansas, on January 1, 1963. Such records show all deposits and all withdrawals of such state funds from the date the said Nancy Hall took office until the present date and are public records and should be available at •reasonable times for inspection and copying by any citizen and taxpayer of the State of Arkansas.
“Plaintiffs are entitled, without any special interest, to examine the records and documents referred to in the last paragraph, as a matter of absolute right. In addition, plaintiffs have separate and special interests in obtaining the information referred to in Paragraph 2 above. The Republican Party of the State of Arkansas desires to obtain and publish in the ‘Outlook’, a statewide newspaper, the list of all banks which, at any time from January 1,1963, until the present date, have had, and have, state funds, regardless of classification, on deposit. It also wishes to publish, and reveal to all the citizens of the State of Arkansas, the important fluctuations and variations in said accounts over said period of time. In this connection it desires to publish the names and addresses of those who own, or control, said banks and to make whatever comment upon said facts which it deems appropriate. The Republican Party of the State of Arkansas believes that all the citizens of the State of Arkansas are entitled to this information and further believes that it is wrong and unlaivful for any public official to deny to the citizens of Arkansas the opportunity to know such facts, •regardless of the political consequences. The incumbent administration is controlled by the Democratic Party of the State of Arkansas and all State office holders, including the defendant Nancy Hall, are members of that political party. The Republican Party of Arkansas has no independent access to the .information here sought. . . .
“Wherefore, plaintiffs pray . . . that a mandatory order be issued compelling the defendant to make available all fiscal and accounting records which are maintained and controlled directly or indirectly by her and are in her custody as Treasurer of the State of Arkansas and, more specifically, the records providing the information referred to above,'for inspection, copying or photocopying by the plaintiffs or any other interested citizens at reasonable times during her regular office hours; for their costs and all other proper relief.”

Under the Majority Opinion the Trial Court will issue a writ of mandamus in accordance with the above allegations and prayer; and I dissent from such broad holding. My views are those expressed in the text of American Jurisprudence, and the cases that I now cite:

In 45 Am. Jur. p. 427 et seq., “Records and Recording Laws” § 17 et seq., in discussing the persons entitled to. inspect public records, the holdings are summarized in this language:

“Every person is entitled to the inspection, either personally or by his agent, of public records, including legislative, executive, and judicial records, provided he has an interest therein which is such as would enable him to maintain or defend an action for which the document or record sought can furnish evidence or necessary information. This rule, it is said, is not so much a denial of the right of every citizen to inspect the public records and documents as a declaration of the interest which a private individual must have to avail himself of the extraordinary writ of mandamus to enforce his right. In theory the right is absolute, yet in practice it is so limited by the remedy necessary for its enforcement that it can be denominated only a ‘qualified right.’ The existence of a suit is not, however, a sine qua non for the exercise of the right.
“In this country, the person ashing inspection must have an interest in the record or paper of which inspection is sought and the inspection must be for a legitimate purpose, but interest as a citizen and taxpayer is sufficient in some instances. An attorney at law employed by a person having the right to an inspection has an interest which entitles him to an inspection. No one has a right to examine or obtain .copies of public records, it is asserted, from mere curiosity, or for the purpose of creating public scandal, or from motives merely speculative.....
“It has been held that there is no general right of inspection of records of executive departments of the government which are not intended as notice, but are kept merely as evidence of the transactions in the departments. In accordance with a general rule of statutory construction, a statute providing for the inspection of certain specifically enumerated public records is construed as excluding from its effect all records not expressly mentioned. Common-law principles as to the public character of records are to be applied m respect of cases not included in the statute.” (Emphasis my own.)

I agree with what the Supreme Court of Rhode Island said In Re Caswell's Request, 18 R. I. 835, 49 A.S.R. 814, 27 L.R.A. 82: “. ... no one has a right to examine or obtain copies of public records from mere curiosity, or for the purpose of creating public scandal.”

In Brewer v. Watson, 71 Ala. 299, 46 American Reports 318, the Supreme Court of Alabama used this language :

‘ ‘ The individual demanding access to and inspection of public writings must not only have an interest in the matters to which they relate, a direct, tangible interest, but the inspection must be sought for some specific and legitimate purpose. The gratification of mere curiosity or motives merely speculative will not entitle him to demand an examination of such writings. 1 Whart. Ev., § 745; King v. Merchant Tailors’ Co., 2 Barn & Ad. 115; King v. Justices Staffordshire, 6 Ad. & Ell. 84; Ex parte Briggs, 1 Ell. & Ell. 881 (102 Com. Law, 879); People v. Walker, 9 Mich. 328.”

The appellants in this case allege that they want to see all the records that have been kept in the office of the State Treasurer since Mrs. Nancy Hall became State Treasurer in 1963.1 think that such is a curiosity search. No good reason is shown why all these records of the past years should be made available; and I find no evidence in this record that shows any good reason for wanting all his information, back to 1963. The witness Babbitt was asked ;

“Q. What other purposes did you have in seeking the information?
“A. I was interested in seeing how this money was handled and until we get the facts I made no allegation that they were improperly handled. But until we arrive at the facts how they are handled, who is to say whether they are properly or improperly handled?
“Q. Did you wish to determine whether political favoritism had been used in the placing of these funds ?
“A. Here again I will go back to the fact that if it is indicated that the State funds have been manipulated for any individual’s benefit, then certainly we shall charge this.”

These answers of the witness, Babbitt, show clearly that he was on a “fishing expedition” for curiosity; and, under the cases I have cited, such mere curiosity does not justify the issuance of a writ of mandamus.

II.

Furthermore, I think appellants’ suit is moot because of Act No. 12 of the First Special Session of 1965 of the Arkansas Legislature. That Act was approved on June 7, 1965. It is entitled: “An Act to Institute a Comprehensive State Treasury Management Law; and for Related Purposes.” Section 5 of the Act requires that the several funds shall be separately listed in the records of the State Treasurer; and Section 5 (B) of the Act provides:

“A daily and a monthly report copy of the record of such summary financial transactions shall be prepared by the State Treasurer and filed with the Chief Fiscal Officer of the State,' and such report copy, and the record of the summary financial transactions from which it was prepared, shall be open to public inspection during normal business hours.”

Then Section 8 (J) of the Act provides :

“On or before the tenth day next following the end of each calendar quarter-year, the State Treasurer shall prepare, and maintain for public inspection at the Treasurer’s office, a list of all depository banks and the amounts of State Treasury funds on time deposit and on demand deposit in each such depository on the last day of business of such quarter-year. ’ ’

Now, these sections, as quoted, are the publicity sections of the Act, and they state exactly what records shall be open to the public; and these sections of the Act give the appellants all the information that the Legislature, has seen fit to give. In the quotation from American Jurisprudence, heretofore copied, it is said: “. . . . a, statute providing for the inspection of certain specifically enumerated public records is construed as excluding from its effect all records not expressly mentioned.” This is an application of the maxim, “ expressio wnius est exclusio alterius.,'> So I think that Act No. 12 of the Acts of the 1965 Special Session lists the records that the appellants have the right to inspect; and that such. Act makes this suit to be moot.

      attention is also called to the following: Annotation in 10 L.R.A. 212, “Inspection of Public Records”; annotation in 27 L.R.A. 82, “Right to Inspect Public Records”; and annotation in 169 A.L.R. 653, “Enforceability by Mandamus of Right to Inspect Public Records.”

      This Act may be found on Page 2434 of the printed Acts of 1965.


author: Frank Holt, Justice.

text:
    Austin v. Stricklin
    5-3813
    400 S. W. 2d 671
    Opinion delivered March 28, 166

      Howard A. Mayes, for appellant.

      Kirsch, Cathey & Brown, for appellee.
   Frank Holt, Justice.

This action relates to our guest statute. The appellant was injured when the automobile in which he was a passenger collided with an oncoming vehicle. The appellant brought his action against three parties: Appellee Lucius, driver of the car in which appellant was riding, appellee Stricklin, owner of the car, and W. L. Ross, driver of the other vehicle involved in the collision. The jury, upon interrogatories, found the issue in favor of the appellees. On appeal appellant seeks reversal only from that part of the judgment absolving the appellees, Stricklin and Lucius, from any liability to him.

Ark. Stat. Ann. §§ 75-913, -14, -15 (Repl. 1957) precludes recovery from the owner or operator of an automobile for personal injuries received by a guest except for willful and wanton misconduct. The term “guest” as used in the statute means a self-invited guest or a guest at sufferance. The appellant predicated his cause of action upon ordinary negligence and not the willful and wanton misconduct of appellees.

For reversal appellant first contends that the court erred in submitting to the jury by Instruction No. 7, or by interrogatory, the question of his status as a guest in the car owned by appellee Stricklin and driven by appellee Lucius. He argues that the court should have ruled, as a matter of law, that he was not a guest. We cannot agree with appellant’s contention. A friend of his, Clyde Stricklin, was injured while operating a tractor. Clyde’s grandfather, appellee Stricklin who was the owner of the car in question, requested appellee Lucius to drive Clyde to the hospital. Several people, including appellant, were present rendering assistance at the scene of the accident. Clyde was placed in the car with the aid of appellant. The appellant testified that ‘ ‘ someone” directed him to accompany Clyde and in response he got in the front seat with him and Lucius who was driving the car when it collided with the Ross vehicle. Appellant offered other evidence tending to indicate that his presence in the automobile resulted from the -express or implied direction of the grandfather who did not accompany them. Both appellees testified that they did not. request appellant to make the trip and that appellant was, in effect, a self-invited guest.

"Whether a passenger is or is not a guest ordinarily is a question of fact for the jury. Hoffman v. Davis, 239 Ark. 99, 387 S. W. 2d 338; Whittecar v. Cheatham, 226 Ark. 31, 287 S. W. 2d 578; Simms v. Tingle, 232 Ark. 239, 335 S. W. 2d 449 and Buffington v. Wright, 239 Ark. 138, 388 S. W. 2d 100. See, also, Harkrider v. Cox, 230 Ark. 155, 321 S. W. 2d 226. In the case at bar, when we review the evidence in the light most favorable to the appellees as we must do on appeal, we are of the view that the dispute in the evidence constituted a submissible issue to the jury as to whether appellant was a guest within the meaning of our guest statute. Certainly it cannot be said as a matter of law that appellant was not a guest.

Appellant’s counsel, who did not represent appellant in the trial of the case, candidly and correctly concedes that if appellant’s status as a guest is a submissible issue to the jury, then appellees are correct in their position that appellant’s Points 2 and 3 for reversal are without merit. These points relate to a general objection to a portion of Instruction No. 7. Suffice it to say that upon our consideration of these points we agree there is no merit in either of them.

Affirmed.


author: Carleton Harris, Chief Justice.

text:
    Savings, Inc. v. City of Blytheville
    5-3803
    401 S. W. 2d 26
    Opinion delivered April 4, 1966

      Wade II. Lagrone, Tnpelo, Miss., Marcus Evrard, Grab am Sudbury, for appellant.

      Everett Edsel Harber, for appellee.
   Carleton Harris, Chief Justice.

Mary E. Hester and C. R. Hester, her husband, were the owners of Lot 4, Block 1, of Wilson’s Second Addition to the City of Blytheville, and also owned Lot 10, Block 1, of Wilson’s Third Addition to the City of Blytheville. Lot 4 is located on the west side of Highway No. 61, and Lot 10 is located on the east side, almost directly across the highway. On October 4, 1952, the Hesters leased the east 80 feet of Lot 4 to Savings, Inc., appellant herein, for a period of five years, with three options for additional terms of five years each. The property was to be used for the operation of a service station by the lessee, and a monthly rental of $200.00 per month was to be paid by appellant. On December 11, 1953, the Hesters, as lessors, and Savings, Inc., as lessee, executed an instrument entitled “Amendment to Lease Contract.” This amendment referred to the original lease agreement, heretofore mentioned, and amended that agreement as follows:

Paragraph 3 was amended to provide that the rent should be $300.00 per month, beginning January 1, 1954; further, an additional rental of 1 cent per gallon should be paid on all gasoline sold in excess of 60,000 gallons per month; if the margin between cost and sale price fell below 4 cents per gallon, then the 1 cent per gallon additional rental should be suspended until the margin returned to at least 4 cents per gallon.

Paragraph 8 was amended to provide that the right of ingress and egress, retained by the Hesters, should be exercised only across the south 22 feet of the property, and appellant and its employees were not to park cars or trucks on that particular 22 feet (except trucks unloading gas).

A new paragraph, No. 9, was added to the original lease

“The Lessors hereby agree that neither of them will engage in the service station business in the City of Blytheville, or within a distance of two miles from the City limits, during the original or any renewal term of this lease. The Lessors further agree that if they should sell the property which they own immediately across the street from the leased property, they will provide in the deed a covenant that the property shall not be used for service station purposes during the original, or any renewal term, of this lease.

“In all other respects, said lease remains in full force and effect as originally written.”

Pursuant to the amendments, the rent was raised to $300.00, and appellant has continued in possession of the property until the present time.

Subsequently, Mr. and Mrs. Hester executed a warranty deed to Hester Mobile Home Manufacturing, Inc., conveying Lot 4 without any reservation or limitation relative to that portion of the property leased to appellant. On December 22, 1960, the corporation executed its warranty deed to the City of Blytheville conveying the same property, and again with no reservation or limitation as to that part of the property leased and occupied by Savings, Inc. The City of Blytheville, immediately upon receiving the deed from the corporation, entered into a lease agreement with Hester Mobile Home Manufacturing, Inc., leasing the property to that corporation for a particular term and for certain rentals, the property to be reconveyed to the corporation at the end of the specified term.

On July 23, 1962, the Hesters conveyed by warranty deed Lot 10 in Block 1, mentioned at the outset of this opinion, to Joe Whisenhunt and wife, the deed however containing no restrictions or limitations, nor any covenant “that the property shall not be used for service station purposes” during the term of the Hester-Savings, Inc., lease. The Whisenhunts deeded the west 125 feet of this property to Curt’s Oil Company, Inc. (no covenant in deed). Thereafter, Curt’s Oil Company erected a gasoline service station and has operated same up until the present time.

Hester Mobile Home Manufacturing, Inc., was adjudged a bankrupt in Federal Court, and that court held the deed (from Hester Mobile Corporation to Blythe-ville) to be an equitable mortgage. Appellee filed a suit against the trustee in bankruptcy to foreclose this mortgage, and Savings, Inc., was made a party to the litigation. Appellant answered, setting up the amendment, asserting that its rent should be reduced from $300.00 to $200.00 per month, because of the Hesters’ violation of Section 9 of the lease in deeding Lot 10 without the covenant that no part of Lot 10 should he used for service station purposes during the term of appellant’s lease of a part of Lot 4. Subsequently, the trustee in bankruptcy executed a quitclaim deed to Lot 4 to the City of Blytheville. On trial of the issues between Saving's, Inc., and the city, the court held:

“The covenant by the Hesters set forth above was a personal covenant with Savings, Inc., and as such is not binding upon the grantees of Mary E. and Charles B. Hester and subsequent grantees of the lot.”

The court found that the City of Blytheville was not subject to the provisions of said lease as to the conditions imposed upon the conveyance of other property owned by the Hesters, and accordingly held that Savings, Inc., was not entitled to a reduction of the monthly rental from $300.00 to $200.00. From the decree so entered, appellant brings this appeal.

We agree with the Chancellor that the covenant by the Hesters was a personal covenant with appellant, and was accordingly not binding upon the grantees of the Hesters or subsequent grantees. The property involved in this litigation is Lot 4—not Lot 10. The fact that this type of covenant is personal was recognized many years ago. The situation here is somewhat similar to that in Hebert v. Dupaty (La.), 7 So. 580. There, Dupaty operated a livery stable in the town of Napoleonville. He sold his horses, harnesses and vehicles to Hebert and Demare, and in the same instrument, leased the premises on which the stable was located for a term of five years, with privilege of renewal. A clause was inserted in the lease wherein Dupaty agreed that he would not keep a public livery stable during the term of the lease within a radius of six miles of Napoleonville. Dupaty then sold to Dugas (another defendant) certain property in the town which included the livery stable that Dupaty had leased to-Hebert and Demare. Dugas sold the property to Phelps. Phelps thereupon erected a livery stable, and operated it directly in front of the stable of Hebert and Demare. Suit was instituted to recover damages, the complaint alleging that Dugas and Phelps had full knowledge and due notice of all the stipulations in the lease ,(and admittedly the defendants did possess such knowledge), and that the obligation of Dupaty to refrain from engaging in the livery stable business extended to the subsequent grantees. Dupaty himself had not broken his covenant to not operate within six miles of the town. In rejecting the complaint, the court said:

“The contention of plaintiffs that Dugas and Phelps, by purchasing from Dupaty, became bound as Dupaty was, not to keep a public livery stable within a radius of six miles of the town of Napoleonville, cannot be maintained. We do not see in what manner any process of reasoning can arrive at the legal responsibility of defendants as contended for by plaintiff. On this point in the ease the opinion of the judge a quo is exhaustive. In his opinion he says: ‘Dupaty did not stipulate that no livery stable should be kept on the balance of the property during plaintiffs’ lease, but that he would not keep a livery stable himself, directly or indirectly, during that term. It was not a burden that he placed upon the property itself, but an obligation that he impressed upon himself.’ ”

Another early case on the point involved is Norcross and others v. James and others (Mass.), 2 N. E. 946. There, Kibbe conveyed to Flynt a valuable quarry of six acres, bounded by other land belonging to Kibbe, with covenants as follows:

“And I do, for myself, my heirs, executors, and administrators, covenant with the said Flynt, his heirs and assigns, that I am lawfully seized in fee of the aforegranted premises: that they are free of all incumbrances ; that I will not open or work, or allow any person or persons to open or work, any quarry or ‘quarries on my farm or premises in said Long Meadow.”

By mesne conveyances the plaintiffs became possessed of the quarry conveyed to Flynt, and the defendants became possessed of the surrounding premises referred to in the quoted covenant. The defendants proceeded to engage in quarrying stone like that quarried by the plaintiffs, and the latter sought an injunction. Oliver Wendell Holmes, Jr., at that time a Justice of the Massachusetts Supreme Court, wrote the opinion for the court, holding that the plaintiffs were not entitled to an injunction, i.e., the court held that the covenant to not “work, or allow any person or persons to open or work, any quarry or quarries on my farm or premises” was not binding upon subsequent owners of the land. In commenting on the covenant, Justice Holmes said:

“* * * In what way does it extend to the support of the plaintiff’s quarry! It does not make the use of occupation of it more convenient. It does not in any way affect the use or occupation; it simply tends indirectly to increase its value, by excluding a competitor from the market for its products.”

Here, the Hesters entered into a personal agreement that neither of them would engage in the service station business in the city of Blytheville or within a distance of two miles from the city limits during the term of the lease, and further agreed that, if they sold the property across the street (Lot 10), they would provide in the deed a covenant that the property should not be used for service station purposes during the term of the lease. The very wording of the instrument emphasizes its personal character, and the City of Blytheville certainly is in no position to enforce Hester’s personal covenant with the Curt Oil Company. There was nothing in this agreement that affected Lot 4 whatsoever. As stated by Mr. Justice Holmes:

“** * It does not in any way affect the use or occupation; it simply tends indirectly to increase its value, by excluding a competitor from the market for its products.”

Appellant complains that it agreed to pay the extra $100.00 per month solely on the basis of the provision that Hesters would covenant with any purchaser of Lot 30 that no service station would be placed there. However, it must be remembered that several other provisions were included in the amended lease, all of which, as far as the record shows, have been complied with. There were at least four other changes made at the time of the supplemental agreement. First, there was to be an additional rental of 1 cent per gallon on all gasoline sold in excess of 60,000 gallons per month. Second, if the margin between cost and sale price dropped below 4 cents per gallon, the 1 cent per gallon rental would be suspended. Third, the right of ingress and egress, retained by the Hesters, was to be exercised only across the south 22 feet of the property. Fourth, appellant company and its employees were not to park cars and trucks on that 22 feet (unless unloading gas). Fifth, the Hesters agreed that neither they, nor either of them, would engage in the service station business in Blythe-ville or within a distance of two miles from the city limits, and sixth, the agreement contained the provision here under discussion. It appears, from reading the instrument, that all of these matters were a part of the consideration for the increase in rent, and as far as the record discloses, five of the conditions have not been violated.

As stated, the covenant was a personal covenant, and the proper parties from whom to seek relief are the Hesters. The record discloses, from the testimony of Henry C. Dodge, Vice President of Savings, Inc., that construction was commenced on the Curt Oil Station, across the street, in October of 1962, but there is no explanation of why appellant did not seek appropriate relief from these persons at that time. At any rate, appellant’s suit for violation of the covenant is not properly maintainable against the City of Blytheville.

Affirmed.

      The deed had been g’iven to the city to secure the payment of $68,000.00, derived from the sale of bonds under Amendment 49 to the Constitution of the State of Arkansas. ■


text:
    Ark. State Highway Comm. v. Rhodes
    5-3815
    401 S. W. 2d 558
    Opinion delivered April 4, 1966
    [Rehearing denied May 9, 1966.]

      Mark E. Woolsey and Don Langston, for appellant.

      Clark, Clark & Clark, Howell, Price & Worsham, for appellee.
   Ed. F. McFaddin, Justice.

This is another eminent domain proceeding brought by the appellant, Arkansas State Highway Commission, to obtain right of way for Interstate 40 from Little Rock to Conway. The land here condemned was 86/100ths of an acre out of a four-acre tract owned by the appellees; but the land taken was through the center of the Cold Creek Landing on Lake Conway, where was situated a boat dock and accompanying facilities. The appellant valued the property taken and the accompanying damage at $19,000.00. The landowners claimed a much greater amount. Trial to a jury resulted in a verdict and judgment for the landowners for $45,000.00; and .appellant prosecutes this appeal, urging a number of points for reversal.

I.

The appellees introduced a model about 4 feet by 6 feet in size, seeking to depict the location of the Gold Creek Landing on Lake Conway, the present highway, the landowners’ facilities, and the effect of the proposed taking on the landowners’ facilities. On the model the vertical items, such as trees, buildings, fences, and telephone poles, were not on the same scale as the horizontal items. The appellant unsuccessfully objected to the introduction of this model. We see no merit to this objection. The witness who prepared the model carefully explained the scale matters. There was nothing misleading. Besides, there were a number of enlarged aerial photographs introduced, and these, along with the model, were designed and apparently did give the jury a thorough understanding of the situation. Furthermore, at the conclusion, of all the evidence the jury viewed the locality; so certainly the model did not mislead anyone.

II.

The appellant has several points aimed at the testimony of the landowners’ witness, Russell McLean, who testified that he was a real estate appraiser of 25 years experience, and that he had carefully examined and appraised the Gold Creek Landing of the appellees. He gave as his opinion that the fair market value of the property as of the date of the taking was $85,000.00; and that the value of the property after the talcing was $12,000.00. In showing his familiarity with the property and its value the witness discussed the sale of another boat landing, known as Sport Haven, which had sold in 1954 for $60,000.00, and in 1958 for $85,000.00; and then the witness stated that the Sport Haven Landing property was not as valuable as the Gold Creek Landing property and so was of little benefit in aiding him in arriving at values. The appellant objected to the comparison with the Sport Haven property because of dissimilarity.

Then the witness McLean testified as to the previous sales of the Gold Creek Landing property. He showed that in 1959 Gold Creek Landing sold for $57,500.00; in 1960 for $75,000.00; and that Mr. Rhodes, the present owner, bought the property in 1960 for $82,000.00. The appellant conceded that previous sales of the same property would be admissible if the sales were recent in point of time; but contends that these sales were not proper to take into consideration because they were not for cash and in some instances another tract of property was conveyed as a part of the purchase price. Appellant cites us, inter alia, to the Ohio case of Tenn. Gas Trans. v. Matteri, 144 N. E. 2d 123; the federal case of U. S. v. Leewell, 286 F. 2d 398; and the Pennsylvania case of Goodman v. Bethlehem, 185 A. 719; each as holding that where property was purchased, not for cash, but was traded for other real estate, such sale is inadmissible because it would involve investigation into the value of the traded property.

For the reasons now stated, we are not impressed by appellant’s argument. When a parcel of land is taken by eminent domain, the price which the owner paid for it when he recently acquired it is one of the important bits of evidence to determine the value of the property. Ark. State Hwy. Comm. v. Snowden, 233 Ark. 565, 345 S. W. 2d 917. The witness carefully explained to the jury that in the 1959 sale for $57,500.00, the purchase price had been $10,000.00 cash and a mortgage for $47,500.00. This certainly made the 1959 sale in all respects admissible. In each of the subsequent sales there was the assumption of the said mortgage and also the conveyance of other property. This was all explained by the witness ; so if we start with the 1959 sale of $57,500.00 and deduct from that value the witness’ testimony of the $12,500.00 as the present value of the property, we find the jury verdict was almost in accordance with this testimony. The witness McLean carefully explained to the jury that he had not examined the traded property, so the jury could not have been misled.

Furthermore, one of the witnesses called by the appellee was the witness Sawyer; and on cross examination appellant’s counsel developed all the evidence regarding these sales of the Gold Creek Landing and Sports Haven Landing. When the appellant brought out such testimony on cross examination, any ruling regarding the McLean testimony was rendered harmless. Under the circumstances in this case, we see no harmful error to have been committed.

III.

The appellant urges that the Trial Court refused to permit appellant’s witness, Bryan McArthur, to testify as to sales of similar property in the area. This would give us most serious concern, except for the condition of the record. The witness, Bryan McArthur, called by the Highway Commission, testified that he had made a careful inspection of the Gold Creek Landing and that before the taking the property was worth $46,-000.00, and after the taking the property was worth $27,500.00. He testified that in considering the value of the property he compared its value with the sale price of another landing, known as the Rogers Landing, which had been sold in 1958. The witness was asked any number of questions and made any number of answers regarding the similarity between the Rogers Landing property and the Gold Creek Landing property, and after several pages of testimony, this occurred:

“Q. In your opinion, are the properties sufficiently similar to give a basis for the valuation of Gold Creek Landing?
“A. It is similar to the point, like I say, to use to give a basic rule to go by.
“MR. WORSHAM: Again we are going to renew our objection. Because there are two houses; one might sell for $5,000.00 and another $100,-000.00. The only similarity there is, that they are houses. Here, the only similarity is that they are boat docks.
“THE COURT: I think yon are correct, Mr. Worsham. I don’t believe I would pursue that any further. I don’t think it’s competent.
“BY MR. GILLESPIE:
“Q. Did you consider other land in the sale— other sales in the area?
“A. I considered Stanton to Holmes.
“Q. Did you consider sales of other lands?
“A. Yes, sir.
“Q. Did you consider all available sales of other lands ?
“A. Yes, sir.
“Q. Did you consider all available sales of commercial locations on Lake Conway?
“A. Yes, sir.
‘ ‘MR. GILLESPIE : That’s all.
£ £ MR. WORSHAM: No questions. ’ ’

After the Court stated to the counsel for the appellant that he would suggest the matter not be pursued further, the counsel for the appellant apparently accepted the ruling of the Court and went on to other matters. The testimony that the witness McArthur had given was never excluded; and there was no offer as to any further testimony that the witness McArthur would give. Under these circumstances, and with the record in the condition it is, we cannot say that the appellant has properly preserved the point.

IV.

One of the witnesses called by the landowners was Ráymond E. Block, whom the appellant admitted was a qualified real estate appraiser. Mr. Block testified that, in his opinion, before the taking the Gold Creek Landing was worth somewhere between $80,000.00 and $90,000.00; and that after the taking the property was worth only $15,000.00 or $20,000.00. Then the witness was taken by the appellant on cross examination and asked this question: “Now, has the accessibility of this property from Highway 65 been changed in any manner?” The witness then stated that, whereas the accessibility from Highway 65 had not been changed, still people going on Interstate 40 would have great difficulty in reaching the property, and that such difficulty tended to reduce the value of the landing. Because of this statement as to accessibility, the appellant moved that the testimony of the witness, Block, be stricken concerning the value of the property after the taking. The appellant says, accessibility is not a proper factor to use in valuation.

The appellant practically concedes that if we adhere to our holding in Ark. State Hwy. Comm. v. Russell, 240 Ark. 21, 398 S. W. 2d 201, then this point will be without merit. But the appellant spends a great portion of its reply brief insisting that we were wrong in our holding in Ark. State Hwy. Comm. v. Russell; and we are asked to overrule that case. We adhere to what we held in Ark. State Hwy. Comm. v. Russell. The point was carefully considered; and we have no intention of receding from that holding. Here, the appellant conceded that the witness was a qualified appraiser; and then, on cross examination, sought to develop some fact which might be used to exclude a portion of the testimony. The holding in Ark. State Hwy. Comm. v. Russell is a. complete answer to the point now urged by the appellant, and we adhere to that holding.

V.

The appellant urges other points which we need not discuss in detail. One of these is that the verdict is excessive. We have stated enough testimony of the witnesses to show that the verdict was not excessive. It is not a question of what the Highway witnesses believe values to be, or what this Court might believe the values to be; it is a question of whether the verdict is within the range of the testimony; and it is.

Affirmed.


author: George Rose Smith, Justice. Carleton Harris, Chief Justice,

text:
    Clemons v. Bearden Lumber Co.
    5-3822
    401 S. W. 2d 16
    Opinion delivered April 4, 1966

      McMath, Leatherman, Woods & Youngdahl and Silas H. Brewer, Jr., for appellant.

      Mahony & Yocum, for appellee.
   George Rose Smith, Justice.

This is a claim for death benefits under the workmen’s compensation law. The principal question remaining in the case is the extent to which the employer and its insurance carrier are liable for interest upon installments that accrued, but remained unpaid, while the merits of the claim were in litigation. The Commission held that the claimants were not entitled to interest prior to the date of the first decision in their favor. That holding was affirmed by the circuit court.

Barney Clemons, the employee, was killed more than five years ago, on March 21, 1961. Almost a year later, on March 16, 1962, the referee, Robert E. Diles, denied the claim on the ground that the decedent had been an independent contractor. Diles’s decision was upheld by the Commission and by the circuit court, but we found no substantial evidence to sustain that view and remanded the case for further proceedings. Clemons v. Bearden Lbr. Co., 236 Ark. 636, 370 S. W. 2d 47 (1963). Thereafter, on February 10, 1964, a second referee, J. R. Calhoun, allowed the claim for death benefits. The question now is whether interest is allowable from the date of the first referee’s decision or, as the Commission held, from the date of the second referee’s decision.

As a preliminary matter the appellees contend that the appellants failed to raise the question at issue in a timely manner. On June 24, 1964, the full Commission upheld Referee Calhoun’s finding that ■Clemons’s death was compensable. The insurance carrier then decided to admit liability and, more than a month later, on July 25, tendered checks for what it asserts to have been the full amounts that were owed to the claimants and their attorneys. Counsel for the claimants, on August 17, notified the Commission that the carrier’s computations of interest and attorney’s fees were objected to. The Commission heard the objections upon their merits and denied the claim for additional interest and attorney’s fees.

The appellees now insist that the demand for additional interest should have been made within thirty-days after June 24, 1964—the date on which the full Commission affirmed the referee’s decision. It is contended that the Commission’s decision became final when the claimants failed to appeal to the circuit court within thirty days. Ark. Stat. Ann. § 81-1325 (b) (Repl. 1960).

This argument is without merit. The Commission’s opinion of June 24 made no reference whatever to interest, for its allowability was not then in issue. The claimants could not have appealed to the circuit court for a review of a question not yet decided. It was not until more than thirty days later, after the time for appeal had expired, that the claimants learned from the insurer’s tender of payment that what they regarded as the full amount of interest was not being offered. A timely protest was made. It was decided on its merits by the Commission. That body is not bound by technical or formal rules of procedure. Ark. Stat. Ann. § 81-1327. We are unwilling to say that the claimants’ right of review was lost before their grievance even came into existence.

Upon the principal question the appellants rely upon a number of decisions holding that interest is payable upon installments of compensation from the date upon which each installment should have been paid, even though a delay in payment resulted from an erroneous denial of the claim by an administrative or judicial tribunal. Parker v. Brinson Const. Co., 78 So. 2d 873 (Fla. 1955); Wilson v. Doehler-Jarvis Division of Nat. Lead Co., 358 Mich. 510, 100 N. W. 2d 226 (1960), overruling an earlier decision to the contrary; Bourdeaux v. Gilbert Motor Co., 220 Minn. 538, 20 N. W. 2d 393 (1945); Goodnite v. Farm Equipment Co., 234 Miss. 342, 106 So. 2d 383 (1958). We need not discuss these decisions in detail. Their holding is demonstrably fair, undeniably just, in that the workman or his dependents would have received compensation promptly if their claims had been recognized in the first instance. The rule is not unfair to the insurance carrier, for otherwise it would receive an undeserved profit by having the continued use of money that should rightfully have been paid to the workman or his dependents.

The cases cited are not precisely in point, for they all involved compensation acts that were silent with respect to the allowance of interest. The original Arkansas law, Act 319 of 1939, was similarly silent. Under that act our Commission, without the benefit of the later cases cited above, refused to allow interest npon controverted claims. Streepey’s Digest of the Decisions of the Ark. W. C. C., Vol. 2, p. 257. The question never reached this court.

Our first provision for an allowance of interest was contained in § 19 of Initiated Measure No. 4 of 1948, which extensively amended the compensation law. Ark. Acts of 1949, p. 1420. That amendment provided that compensation should not bear interest until a judgment therefor had been obtained in the circuit court. Even this restricted allowance was a liberalization of the Commission’s decisions.

The law was again broadened in 1959, when Act 167 amended § 19 (g) of the compensation law to read as it does now: “Compensation shall bear interest at the legal rate from the day an award is made by either a Referee or the full Workmen’s Compensation Commission, on all accrued and unpaid compensation.” Ark. Stat. Ann. § 81-1319 (g). The decisive issne is that of determining what is meant by the statutory reference to “an award.’’

The appellees insist that the legislature used “an award” to mean a decision favorable to the claimant, affirmatively granting benefits under the act. We fully appreciate the force of this contention, buttressed as it is by the fact that when an insurer contests a claim it is not in default in making payment until it is ordered to do so by someone—a referee, or the Commission, or a court.

On the other hand, the appellees’ construction of the 1959 amendment leaves certain omissions in the statute that could be filled only by judicial interpretation. When, for example, would interest begin to run if the claim were allowed by the referee, denied by the Commission, and allowed by the courts ? What would be the situation if the referee approved the claim only in part and a hig’her tribunal then increased the award? The statute, as interpreted by the appellees, provides no clue to the solution of such problems.

The appellants insist that the legislature intended for “an award” to be any deicision by a referee or the Commission, whether favorable to the claimant or not. There is much authority for this view. Leading law dictionaries limit the definition of “award” to a decision or determination by arbitrators or commissioners. Black’s Law Dictionary (4th ed. 1951); Bouvier’s Law Dictionary (8th ed. 1914). The word is so used at times in our compensation act. For instance, the statute provides that the “award” of a referee or single commissioner shall be filed with the record, that a copy of the “award” shall be sent to the parties, and that an application for a review by the full Commission must be made within thirty days from receipt of the “award.” § 81-1323 (b). All these references unquestionably mean the referee’s decision, whatever it may be. We, too, have called a decision denying compensation an “award.” Birchett v. Tuf-Nut Garment Mfg. Co., 205 Ark. 483, 169 S. W. 2d 574 (1943).

Thus we have a situation—not an uncommon one— in which a statute is open to conflicting interpretations, doubtless because its draftsman did not foresee the questions that would have to be answered.

In this instance our task is lightened by our familiar rule, repeated too often to need citation of authority, that the compensation act is to be construed liberally in favor of the workman. We therefore hold that interest upon accrued and unpaid installments of compensation is to be computed from the dates when they should have been paid, beginning, however, not earlier than the date on which a referee or the full Commission first enters an award allowing or denying the claim. This rule has the merit of simplicity, fixing the rights of all concerned with certainty. It has the far more important merit of fairness, providing the claimant with some measure of redress for the fact that the payment of his just claim has been delayed, through no fault of his, for months or even, as in the case at bar, for years. Morever, this construction of the statute treats delinquent payments with the same justice that applies to advance payments, which must be discounted to their present value. § 81-1319 (k).

Two other matters should be mentioned. First, the appellees contend that in no event should interest upon compensation be taken into account in the determination of attorney’s fees. Under the statute such fees may be allowed by the Commission up to certain specified percentages of the compensation controverted and awarded. § 81-1332. We have held that an allowance of attorney’s fees may be based upon amounts paid for medical and hospital expense. Ragon v. Great American Ind. Co., 224 Ark. 387, 273 S. W. 2d 524 (1954). There is no reason why a recovery of interest should not be governed by the same rule. Indeed, upon the present appeal the amount of interest is the only matter in dispute. Since the Commission’s order in this case allowed “maximum attorney’s fees,” the basis for the computation should include the interest.

Secondly, this case has been in litigation for more than five years. Delays have been numerous. For example, the transcript in the present phase of the case was filed in the circuit court in December, 1964, but that court’s decision, based only upon a simple record, -was not announced until the following July.

The statute provides that compensation appeals to the circuit court or to this court ‘ ‘ shall have precedence over all other civil cases except election contests.” § 81-1325 (b). This directive is a valuable safeguard to the rights of the injured workman and his family. It must not be disregarded. Needless to say, there are equally strong reasons for promptness of action in the procedure followed by the Commission and its referees.

Reversed.

Harris, C. J., dissents.

Carleton Harris, Chief Justice,

dissenting. I agree with the majority that the word, “award,” does not necessarily mean a decision allowing compensation, but that the term can also refer simply to a finding or order of the commission. However, I think the meaning of “award,” in a particular instance, must be construed in accordance with the way it is used, we must consider its relationship to the subject matter of the entire paragraph or section.

Sub-sections (e), .(f) and (g) of Ark. Stat. Ann. § 81-1319 (Repl. I960) all deal with the payment of compensation. Subsection (e) deals with payment of compensation without an “award,” and the opening sentence reads as follows:

“If any instalment payable without an award [my emphasis] is not paid within fifteen (15) days***.”

It is clearly obvious that this section is talking about the payment of money as compensation, and the phrase, “without an award,” to me, clearly means where money is being paid without an order of the referee or commission first having been made. Subsection (f) reads as follows:

“If any instalment, payable under the terms of an award, is not paid within fifteen (15) days after it becomes due there shall be added to such unpaid instalment an amount equal to twenty (20) per centum thereof, which shall be paid, at the same time as, but in addition to, such instalment unless review of the compensation order making such award is had as provided in section 25 [§ 81-1325].”

This sub-section really requires no comment for it is obvious that the term, “award,” as here used, refers to an order granting compensation.

Sub-section (g) is the sub-section mentioned in the majority opinion, and provides:

“Compensation shall bear interest at the legal rate from the day an award is made by either a Beferee or the full Workmen’s Compensation Commission, on all accrued and unpaid compensation.”

These three sub-sections are successive paragraphs, and when read together, together with Sub-section (h), I think, make it clear that the word, “award,” refers to the granting of compensation benefits.

Though having no quarrel with the result reached, I am of the view that this is a xnatter requiring legislative action.

For the reasons enumerated, I respectfully dissent.

      Sub-section (h) provides that the employer shall, within thirty days after the final payment of compensation, send the commission a notice, including the information that such final payment has been made, the amount paid, the name of the person receiving compensation, the date of invoice, and the date to which compensation has been paid. Penalty is provided for failure of the employer to so notify the commission.