author: Oarleton Harris, Chief Justice.

text:
    HICKORY SPRINGS MANUFACTURING COMPANY OF ARKANSAS, INC., and Billy Smith Jr. v. Linda Kaye EMERSON and Carl W. Emerson
    5-5117
    448 S. W. 2d 955
    Opinion delivered January 19, 1970

      Slum, Jones & Shaw, for appellants.
    N, D, Edwards and Ronnie Batchelor, for appellees.
   Oarleton Harris, Chief Justice.

Linda Kaye Emerson and her father, Carl W. Emerson, appellees herein, instituted suit against Hickory Springs Manufacturing Company of Arkansas, Inc., and Billy Smith, Jr., for damages allegedly sustained in a collision between a Volkswagen automobile driven by Linda, and owned by her father, and a 1967 International truck and trailer, which was being leased by Hickory Springs Manufacturing Company, and driven by Smith. The accident occurred about 10:00 P.M. on the night of June 20, 1968. Negligence was asserted against Hickory Springs and Smith, such negligence being the proximate cause of the damages sustained. Appellants denied negligence, and asserted that Linda’s own negligence was the proximate cause of the collision and resulting damages. On trial, the jury returned a verdict for Miss Emerson in the amount of $50,000.00, and for her father in the sum of $600.00. From the judgment so entered, appellants bring this appeal. Appellants list three points for reversal, which we proceed to discuss, though not in the order set out by appellants.

It is asserted that appellants’ motion for a directed verdict should have been granted, the contention being that there is no evidence of negligence by the truck driver. It is contended that the collision was caused by Miss Emerson’s negligence, principally because she (it is contended) ran a stop sign, but it must be remembered that it is not within the province of this court to determine the degree of negligence on the part of the drivers involved; rather, that is a function of the jury. We are only concerned with whether there was any substantial evidence of negligence on the part of Smith, thus creating an issue for jury determination.

According to the evidence, Smith and Tom McBride were co-drivers of the truck for Hickory Springs Manufacturing Company, and were returning from a trip to Tupelo, Mississippi. Smith commenced driving the truck at Brinkley, and the men were returning to the home terminal at Fort Smith when the collision occurred. The location of the accident was the intersection of Highways 71 and 64, within the city limits of Alma. Miss Emerson was traveling east on Highway 64, and was in the process of making a left turn onto Highway 71 north at the time of the collision. The truck was proceeding west on Highway 64 when it struck the Volkswagen. Appellants contend that Miss Emerson ran the stop sign as she entered Highway 71, but appellee stated that she stopped at the sign, started up again, but her car stalled as she entered the intersection. According to her testimony, she was trying to start it when struck by the truck.

We think the evidence was sufficient to go to the jury on the question of appellant’s negligence, particularly as to whether a proper lookout was being maintained; there was also evidence which could indicate to the jury that the truck was traveling too fast at the time of the mishap. Ed Blackard, with the Arkansas State Police for 21 years, testified that he went to the scene of the accident after receiving a call, and arrived there some seven or eight minutes after it occurred. He said that there were 144 feet of solid skid marks extending back east from the debris, left by the truck brakes’ being applied on asphalt, and 50 or 55 feet more on the other side of the debris. He also testified that there were some skip marks (not solid skid marks) before the solid marks commenced, and counting these, he observed total skid marks of approximately 240 or 245 feet. The officer was not positive of the speed limit at the point involved. The City Marshal of Alma stated that the speed limit at the intersection was 35 miles per hour, though the sign had been torn down, but at another point (evidently meaning the approach), was 40 miles per hour.

The testimony of Smith and the co-driver, McBride, was somewhat confusing, and at times, conflicted not only with the testimony of the fellow driver, but even with prior statements of the witness himself. McBride testified that the truck was traveling at 40 to 45 miles per hour as they approached the intersection (according to this witness, the speed limit was 50 miles per hour). He said that when he first saw the Emerson Volkswagen approaching the stop sign, the truck was 150 to 200 feet from the intersection, and traveling about 35 miles per hour. Smith applied the brakes immediately; the truck was empty. When asked for how long a distance it would take to stop the truck when empty at a speed of 35 miles per hour, the witness replied that it would probably take 100 feet. He thereafter stated that the truck traveled about 50 feet after he applied the brakes, and before the collision occurred; that it traveled between 10 and 20 feet after the collision. It will be observed that McBride testified that the brakes were first applied when the truck was from 150 to 200 feet from the intersection, and then stated that it would take about 100 feet for it to stop traveling at the speed he testified to (35 miles per hour). This being true, it would appear that the truck would have stopped 50 feet before it struck the automobile. Of course, this testimony is very much in conflict with that of Blackard, who testified to approximately 200 feet of skid marks before the point was reached where the collision took place.

Smith stated that he first put on his brakes “possibly 200 feet up there,” when he saw that the Emerson car “was not going to stop,” but he subsequently stated that he first saw the Volkswagen about 100 feet from the intersection. The witness said that, at 35 miles per hour, it took about 100 or 150 feet to stop the truck. According to Smith, the Volkswagen was knocked for about 50 feet, and his truck traveled for about 50 feet after the collision. Certainly, under the testimony of the State Policeman, and these two witnesses (even ignoring other testimony on behalf of appellees which is discussed under the next point), the jury would have been justified in finding either that the brakes were not applied as soon as the peril was discovered (from which it could well appear that a proper lookout was not being maintained) or that the truck was traveling at a much greater speed than that given by appellant’s witnesses, and thus could not be stopped within the distance mentioned by the witnesses.

It is asserted that the court erred in permitting Carl Emerson to testify as to alleged skid marks, and to give his opinion as to other facts. "We do not find any “opinion” evidence in the testimony of this witness; Emerson simply testified relative to the length of skid marks which appellees contended were made by the truck after it applied its brakes. The cases cited by appellant are not in point, since they deal with opinions given by experts (State Police) concerning the speed of automobiles at the time of a collision, these opinions being based upon findings at the scene (debris, skid marks, damage to and location of vehicles, etc.) rather than actual observance of the speed of the cars when the accidents occurred. Here, only physical facts were testified to, and there was no attempt to reconstruct the accident. Emerson, assisted by friends, measured the skid marks purportedly made by the truck when it first applied its brakes, and he testified that, counting “solid” skid marks, and “bouncing” skid marks, the total was 419 feet. This testimony was verified by Eddie Beilis, who assisted in making the measurements. The collision occurred on a Thursday night, and these measurements were not made until the following Sunday morning. The testimony was objected to, but the court overruled the objection, telling the jury, however:

“Ladies and Gentlemen of the Jury, you will not give any consideration to the testimony of Mr. Emerson with reference to the skid marks unless there is other evidence indicating to your satisfaction that the skid marks were in fact made by the truck and trailer driven by the defendant at the time of the collision.”

There was other evidence relative to this 400 feet of skid marks. Wayne Broyles, a wrecker operator, who removed the Emerson vehicle from the scene, testified that he observed skid marks. He described some of them as “solid,” and some as “bouncing.” While he took no measurements and did not know the exact distance, he said that they started at the break of the highway where the right lane turned north. Billy Bay Smith, Jr., testified that this “turn-off” was about 400 feet east of the intersection. We think this evidence was sufficient to make the question as to the identity of the skid marks one for jury determination under the court’s instruction.

It is contended that the court erred in instructing the jury, as follows:

“If you find that Linda is entitled to recover in this case then you may take into consideration the following elements of damage; any pain and suffering and mental anguish experienced in the past and reasonably certain to be experienced in the future, any loss of earnings, the nature, extent, duration of any injuries and whether it is temporary or permanent, and any scars or disfigurements and visible results of her injuries, the reasonable expense of any medical care and treatment reasonably certain to be incurred in the future.”

An objection was made, based upon the fact that there was no evidence concerning the loss of future earnings, and appellants are of the opinion that the questioned instruction permits the jury to make such an award, or the instruction is, at the least, ambiguous. We agree that the phraseology used could be improved upon, but we do not agree that error was committed. A careful reading of this instruction makes clear that the jury is not told that Miss Emerson is entitled to recover for loss of future earnings, the language simply stating, “any loss of earnings.” It is true that prior to this language, and subsequent to it, the jury is told that the plaintiff can recover for various elements of damage which are reasonably certain to be incurred in the future, but this is not true with regard to the loss of earnings.

Though not entirely clear, it also appears that the objection to the instruction was not made until after it had been given, and the jury had retired. When this objection was made, the court said:

“Let the record show that the instruction complained of instructed the jury that they may consider any loss of earnings, and there was no testimony to any loss of earnings except during the summer immediately after the injury; and that this instruction was made known to the defendants prior to the giving of it to the jurv; that there was no pointing out that the defendant had any objection to it as possibly permitting the jury to allow for loss of earnings in the future, and the Court does not so construe this instruction.”

The proper time to take exceptions to instructions is before the jury retires. Hall v. Aetna Life Insurance Company, 85 F. 2d 447.

On the whole case, we find no error.

Affirmed.

       There was no contention that the verdict is excessive.

      Smith and McBride testified that the Volkswagen struck the truck.

      McBride said that a loaded truck could be stopped more easily than an empty one; Smith said that an empty truck could be stopped more quickly.

      After making this statement, McBride said that the truck only traveled 20 or 25 feet after the brakes were applied.


source: Caselaw Access Project

author: George Rose Smith, Justice.

license: Public Domain

text:
    EMPIRE LIFE & HOSPITAL INSURANCE CO. v. ARMOREL PLANTING CO., INC.
    5-5066
    449 S. W. 2d 200
    Opinion delivered January 19, 1970

      Oscar Fendler, for appellant.

      Graham Sudbury, for appellee.
   George Rose Smith, Justice.

In 1964 the appellee, Armorel Planting Company, employed Mexican laborers, usually called braceros, who were brought from Mexico to Arkansas for temporary agricultural labor that was to continue from August 12 to October 8, 1964. In the course of that employment one of the laborers, Alfredo Martinez Duran, suffered a back injury which resulted in medical expenses totaling $2,139.40.

Duran, pursuant to the controlling treaty between the United States and Mexican governments, obtained an administrative award, called a Joint Determination, by which Duran recovered 90% of his loss from his employer, Armorel. Upon Armorel’s failure to pay the award Duran brought this action against Armorel and its insurer, the appellant Empire. Eventually Duran obtained a summary judgment against Armorel. Armorel paid that judgment and in turn obtained a summary judgment against Empire, plus the statutory 12% penalty and attorney’s fee. This appeal is from the latter judgment.

In the trial court Empire contended that whatever injuries Duran may have suffered did not occur while he was actually at work for Armorel and were therefore not occupational injuries within the coverage of Empire’s policy of insurance. To prove that contention Empire filed a number of interrogatories directed to Duran and designed to discover the facts surrounding his injuries. The trial court postponed the answering of the interrogatories until it had first decided whether the administrative Joint Determination was binding upon Armorel and Empire — a question that was submitted to the trial court by agreement of all three parties. The court found that the Joint Determination was binding upon all concerned and upon that basis dispensed with the interrogatories and entered the two summary judgments.

On appeal Empire makes essentially the same argument that it made below; that is, that the interrogatories should have been answered, that Armorel should have taken an administrative appeal from the Joint Determination, and that Armorel should have taken an appeal to this court from the first summary judgment. We think that the binding effect of the Joint Determination rebuts all three contentions.

Empire’s policy, which is entitled “Migratory Worker’s Group Life and Blanket Accident and Sickness Policy,” was admittedly issued to comply with Armorel’s duty to provide, in accordance with the treaty between the United States and Mexico, what is really workmen’s compensation insurance for the Mexican workers. Under the treaty a standard form of work contract must be used. That contract requires the employer to provide for the braceros the same guarantees with respect to medical care and compensation for personal injuries and disease “as may be provided in like cases for domestic agricultural workers under the applicable State law.” The contract goes on to require specified scheduled and unscheduled coverages in states which, like Arkansas, do not require workmen’s compensation insurance for agricultural farm labor. Ark. Stat. Ann. § 81-1302 (c, 1) (Repl. 1960).

A treaty, when duly made under the federal Government’s treatv-making power, has the force of law. Missouri v. Holland, 252 U. S. 416 (1920). It is familiar law that when a bond is required by statute, the bond will be construed as if the terms of the statute had been written into the contract. New Amsterdam Cas. Co. v. Detroit Fid. & Sur. Co., 187 Ark. 97, 58 S. W. 2d 418 (1933). In like manner the terms of the Americo-Mexican treaty must be read into Empire’s group insurance policv. In that view the policy is unquestionably one of workmen’s compensation insurance and must be so treated.

Article 30 of the treaty provides that controversies between employers and employees will be decided, after notice to both sides, by a Joint Determination made by the Mexican consul and a representative of the Secretary of Labor. The treaty goes on to declare: “The employer . . . and the Mexican worker shall be bound by any final determination made pursuant to this Article.” There is a provision for an administrative appeal, which was not availed of by Armorel.

Empire insists that even though the Joint Determination may have been binding upon Armorel, it was not binding upon Empire. That contention disregards the essential unity that must .exist between an employer and its workmen’s compensation insurance carrier. The point is clearly stated by Larson, who has this to say:

Under most compensation acts, either by express provision or by court interpretation, the law has undertaken to compel a certain minimum coverage in insurance contracts, regardless of any narrower agreement between insurer and employer. This is one more illustration of the semi-public character of compensation insurance, for if a compensation policy is written at all, the insurer will frequently find that the scope of his liability to employees is taken completely out of the hands of the parties to the insurance contract and dictated by the law of the state. There are obvious reasons for this kind of intervention by the state. One is that insurers, if allowed to select some risks and not others, would naturally pick the best risks and exclude the worst. The principal reason, however, is probably the convenience of being able to assume that, so far as the employee is concerned, the liability of the insurer is completely co-extensive with that of the employer, so that one proceeding can settle the liabilitv of both. Otherwise, the employee might frequently have two cases to litigate — the first to establish the employer’s substantive liability, and the second to show that the insurer’s policy covered that liabilitv. [Larson, Workmen’s Compensation, § 93.10 (1968).]

Larson’s reasoning applies with especial force in the case at bar. The real beneficiaries of Empire’s policy were the braceros. As litigants they could hardly have been subject to a greater disadvantage than the one they faced: the predicament of being untutored aliens temporarily in a country whose laws — indeed, whose language — they did not understand. In those circumstances the treaty quite properly provided a quick administrative procedure for the redress of their grievances. As a matter of hard fact, if Duran had been compelled to litigate first in an administrative proceeding with Armorel and then in a judicial proceeding with Empire, the insurance that was designed for Duran’s protection Avould actually have been almost useless to him.

Under the principles governing workmen’s compensation cases, Armorel and Empire were inseparably united in the case. In fact, Empire was' actually the real party in interest. It certainly could have taken the administrative appeal from the Joint Determination, just as it could have taken the appeal to this court from the summary judgment that was ostensibly against Armorel alone. Hence the treaty provision that the Joint Determination was binding upon the employer meant also that it was binding upon the employer’s insurance carrier. Any other holding would be grossly unfair to the braceros.

What we have said answers the principal questions raised on appeal by Empire. Secondarily, Empire argues that it is not subject to the penalty-and-attorney’s-fee provisions of the Insurance Code, because the precise policy involved in this case does not fall within the types of coverage listed in the statute. Ark. Stat. Ann. § 66-3238 (Repl. 1966). That section, however, refers to casualty insurance, which is defined elsewhere in the Code as including workmen’s compensation insurance. Section 66-2405 (1) (c). Of course the penalty section of the Code does not ordinarily apply to workmen’s compensation cases, but that is only because the compensation statute has its own provision for an attorney’s fee for the successful claimant. Ark. Stat. Ann. § 81-1332. When, as here, that section of the compensation law is not applicable, we think it plain that the definitions in the Code are controlling. See our opinion on rehearing in Liverpool & London & Globe Ins. Co. v. Jones, 207 Ark. 237, 180 S. W. 2d 519 (1944). The appellee is allowed an additional fee of $750 for the services of its attorney in this court.

Affirmed.


author: Lyle Brown, Justice.

text:
    Nudie Mae WELDER v. Christopher C. MERCER, Jr.
    5-5062
    448 S. W. 2d 952
    Opinion delivered January 19, 1970

      William Powell Thompson, Bud Whetstone and Bernard Whetstone, for appellant.

      David Munroe, for appellee.
   Lyle Brown, Justice.

Nudie Mae Welder, appellant here, instituted this suit against her attorney, Christopher C. Mercer, Jr., charging him with neglect of duty with respect to lodging an appeal in this court from an adverse judgment in the White County Probate Court. The trial court, sitting as a jury, absolved Mercer of any liability for damages and Nudie Mae Welder appeals. We shall refer to the parties as they appeared in the trial court.

The purported will of W. F. Caruth bequeathed his entire estate to plaintiff. A contest of the will developed and in that litigation Mr. Mercer represented Miss Welder. The probate court adjudged the will invalid on a finding that Caruth’s signature was not authentic. Plaintiff and defendant entered into an agreement whereby the defendant was employed to perfect and process an appeal to this court. Of the agreed fee of $700, plaintiff paid defendant $400, whereupon defendant filed and served his notice of appeal and ordered the transcript. It is not disputed that the partial payment was more than sufficient to defray those expenses. The transcript was never lodged with this court. Plaintiff sued defendant for $400 and $12,000, the latter being the alleged value of the estate of W. F. Caruth. Additionally, plaintiff prayed for punitive damages. On appeal the prayer for judgment for the value of the Caruth estate is abandoned. That leaves the issues of whether plaintiff is entitled to recover $400 and punitive damages.

The proof in the record before us consists, in addition to the pleadings, of the discovery deposition of the defendant. That deposition was read in evidence at the triai and we perceive it composed the entire evidence in the case; in any event the defendant designated no additional record. From the deposition, and accompanying exhibits, we find this chronology of events:

1. In April and May 1963, defendant receipted plaintiff for a total of $400, each of the two receipts being marked “Expenses on appeal of Estate of W. F. Caruth.” The transcript was ordered.

2. The clerk of the probate court wrote from Searcy to defendant in Little Eock, on May 8, 1963, concerning the status of the transcript: “The transcript is-being prepared and, of course, we will want payment of those costs before the transcript is delivered.”

3. The next letter from the clerk was dated July 18, 1963, and a bill for the cost of the transcript was included. “Enclosed please find a cost bill for $149.55. We are awaiting your instructions on delivery.”

4. The time for lodging the transcript expired July 25, 1963. It never reached the clerk of the supreme court. It is admitted it was never delivered in person, nor was it mailed with the required filing fee.

5. It was almost a year after the time for lodging the transcript had expired that the trial court reporter and the probate clerk were paid by defendant for their services.

Of course the related facts, standing alone, call for these conclusions: Plaintiff and defendant entered into a contract whereby the defendant was to proceed with the appeal; plaintiff made partial payment of a sum satisfactory to- defendant and sufficient to pay the current expenses; defendant gave notice of appeal and ordered the transcript; defendant was notified by the clerk that the cost of the transcript would have to be paid “before the transcript is delivered”; defendant did not pay the required fees and did not obtain the transcript; and defendant did not cause the transcript to be delivered to the clerk of this court.

Defendant did not deny the occurrences which we have recited. In response to the prima facie case established by the documented facts he testified entirely from memory (and three years after the recited incidents) that he relied on the telephoned assurance of the deputy probate clerk that the transcript would be by her mailed to the clerk of our court and also a verbal extension granted him over the telephone by the clerk of our court. More specifically, he related that upon receipt of the probate clerk’s letter of July 18, the defendant called from Little Rock to Searcy and talked to the deputy clerk; that she offered to mail the transcript to the clerk of the supreme court; that on the last day for the appeal to be lodged he again called the deputy clerk, who assured him she would place the transcript in the mail that day; that he immediately called the clerk of our court who informed defendant “it would be all right” if the transcript was placed in the mail that day.

Taking the defendant’s testimony at face value, the deficiencies are at once apparent. Having had written notice from the probate court clerk (not the deputy clerk) that the cost of the transcript would have to be paid before delivery of the record, was it due diligence to rely on the assurance of an office deputy that the transcript would be released before payment? We think not. Surely the defendant must have misunderstood the clerk of this court when he says the clerk waived the rule of our court and granted an extension. Additionally, defendant does not purport to explain just how the record would be filed here unaccompanied by the required filing fee.

The customary procedures taken by an attorney when he is pressed for time include an application to the trial court or to this court for extension, or the filing of a partial record. Admittedly defendant did not resort to any of those approaches.

“Reasonable diligence and skill constitute the measure of an attorney’s engagement with his client.” Pennington’s Ex’rs. v. Yell, 11 Ark. 212. We think the evidence shows gross dereliction of duty which caused plaintiff’s advancement of $400 to go for naught. She is entitled to judgment in that amount. With respect to the claim for exemplary or punitive damages, we find no merit. Punitive damages, if allowable under any circumstances in a case of this nature, would require a shoAving of more than gross negligence, such as the element of intentional wrong or conscious indifference. The evidence does not reach that proportion.

The facts were fully developed and Ave see nothing to be gained by ordering a new trial. We therefore reverse and remand with directions to enter judgment for plaintiff for $400.


author: John A. Fogleman, Justice.

text:
    THE FIRST PYRAMID LIFE INSURANCE COMPANY OF AMERICA v. Ted REED et al
    5-5090
    449 S. W. 2d 178
    [Rehearing denied February 16, 1970.]

      W. B. Brody, for appellant.

      Lightle & Tedder, for appellee.
   John A. Fogleman, Justice.

This appeal comes from a circuit court judgment affirming that part of a county court judgment entered on February 7, 1967, in which it was found that a strip of land 50 feet in width and about 156 feet long in Country Club addition on Eden Island was a previously dedicated public road. In it the county court accepted this tract as a portion of the county road system. The judgment was entered in a proceeding instituted by appellees on October 13,1966, by filing a pleading entitled “Petition to open County Eoad.” On the same date certain of the appellees published notice dated October 6, 1966, stating that the petition would be filed on October 13. In this petition it was alleged that this strip had been used for a time as an access road to Sunset Addition on Eden Island but was later barricaded so that it could not be so used. It was also alleged that there had been an agreement between the developers of Sunset Addition (owned by one of appellees) and Eden Isle Development Corporation (owned by appellant) that an access road in this area would be made available and that no other reasonable means of access was available to the petitioners. Additional statements in the petition asserted that it was necessary and in the public interest that this road be opened and that the court declare this to be a county road. Appellees prayed for an order laying out and dedicating the “access way” described as a county road.

Appellees ask that we dismiss the appeal because appellant failed to file its prayer for appeal, affidavit for appeal and complaint in the circuit court within 10 days following the entry of the county court order or before the expiration of the term of the county court at which it was rendered. This objection to jurisdiction was first raised in this court. It is not necessary that we determine whether this omission was fatal to jurisdiction as we held in Drainage District No. 7 v. Stuart, 104 Ark. 113, 147 S. W. 460, or was waived by appellees’ appearance in the circuit court, taking substantive steps without moving in that court to dismiss the appeal as we ¿eld in J. R. Wulff v. Davis, 108 Ark. 291, 157 S. W. 384. We find that one of appellant’s four points for reversal requires disposition of this case for a jurisdictional defect fatal to the original proceeding. When the court in which the action is filed has no jurisdiction, the appellate court should dismiss the whole case for want of jurisdiction. Pendleton v. Fowler, 6 Ark. 41; Fitzgerald v. Beebe, 7 Ark. 305, 46 Am. Dec. 285; School District No. 11 v. Williams, 38 Ark. 454; Smyrna Baptist Church v. Burbridge, 205 Ark. 108, 167 S. W. 2d 501. The circuit court judgment must be reversed and the proceeding dismissed for want of jurisdiction in the county court, so we only discuss appellant’s point raising the jurisdictional question. This point, raised below, is based upon the fact that only six persons joined in the original petition.

Arkansas Statutes Annotated § 76-902 (Repl. 1957) requires that a petition to open a county road be signed by at least 10 freeholders of the county. This is a proceeding. provided by Ark. Stat. Ann. §§ 76-901 — 915 (Bepl. 1957) (parts of Act 26 of 1871, as amended). The county court can only acquire jurisdiction of a proceeding under these sections when there is strict compliance with the requirements of the act relating to the signing of the petition. Rust v. Kocourek, 130 Ark. 39, 196 S. W. 938; Polk v. Road Improvement District No. 2, 123 Ark. 334, 185 S. W. 453; Howard v. State, 47 Ark. 431, 440, 2 S. W. 331. Since this was not the case here, neither the county court, the circuit court nor this court has jurisdiction to pass upon the merits of the case.

       While the circuit court tried the case de novo, its jurisdiction on appeal was dependent upon county court jurisdiction, and no greater than that of the latter court. Carter Special School District v. Hollis Special School District, 173 Ark. 781, 293 S. W. 722. The circuit court could render only such judgment as the county court could have rendered. Price v. Madison County Bank, 90 Ark. 195, 118 S. W. 706. The jurisdiction of this court is also dependent upon the county court jurisdiction, so our discussion of other points would not be of any consequence and would constitute an advisory opinion merely.

       That this proceeding was brought under these sections is beyond question. In appellant’s "Complaint” filed in the circuit court it was alleged that: notice of the petition was given pursuant to §§ 76-902 and 904; the proposed road was described pursuant to § 76-903; bond was given by appellant pursuant to § 76-902; viewers were appointed by the county court pursuant to § 76-905, by an order pursuant to § 76-907; notice was given pursuant to § 76-908; viewers laid out the road and assessed damages pursuant to §§ 76-907, 909 and 910 and filed their report pursuant to § 76-911; the county court established the road pursuant to §§ 76-912 and 913. These allegations were admitted by appellees. Even in the absence of these admissions, the validity of these allegations is clearly demonstrated by an examination of the record, which discloses that every step prior to the county court order follows these sections explicitly.


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

text:
    Daillie C. EPPERSON v. S. W. SINGLETON et al
    5-5102
    449 S. W. 2d 203
    Opinion delivered January 19, 1970

      Brockman & Brockman, for appellant.

      George N. Holmes, for appellees.
   J. Fred Jones, Justice.

Daillie C. Epperson appeals from an adverse decree of the Jefferson County Chancery Court in a quiet title suit brought against her by S. W. Singleton and Lorenza Singleton involving Lot 1 of Block 9 of Brewster’s Addition to the City of Pine Bluff. Most of the facts must be gleaned from the conflicting testimony, and as so derived, they place considerable strain on the broad powers of equity.

The lot. involved in this litigation is 140 feet long north and south, and 50 feet wide east and west. A house sits on the north end of the lot with the north and south center line of the lot running through the center of the house. The Singletons had rented this property from Mrs. Epperson for $5 per month for about ten years prior to 1945, and the title record reveals that on March 23, 1945, Mrs. Epperson, then living in St. Louis, Missouri, executed a warranty deed to the Singletons to property described as follows:

“The Western one-half of Lot 1, Block 9, of Brewster’s Addition to the City of Pine Bluff, Arkansas, fronting 25 feet on the South Line of 22nd Street by a depth southwardly of 140 feet to an alley bounded on the East by a line 25 feet west of the west line of Louisana [sic] Street.”

On the same date the Singletons executed a deed of trust on the same described property to John A. Davis to secure the payment of the balance of the purchase price in the amount of $400 payable in monthly payments of $17 each. Both the warranty deed and the deed of trust were filed for record on June 20, 1945.

On July 2, 1945, Daillie C. Epperson transferred to Frankie Virginia Epperson by warranty deed property described as follows:

“The Eastern one-half of Lot 1, Block 9 of Brewster’s Addition to the City of Pine Bluff, Arkansas, fronting 25 feet on the South line of 22nd Street by a depth, southwardly of 140 feet to an alley bounded on the East by Louisana [sic] Street.”

On November 16, 1953, a foreclosure decree was entered of record in the Jefferson County Chancery Court wherein a Mr. Chavis, as attorney for Epperson, obtained a judgment for balance on principal of the deed of trust in the amount of $55.05, which together with costs, interest and taxes, amounted to $96.74, or which judgment was granted and the property was ordered sold at the end of 30 days if judgment not paid. The chancellor retained jurisdiction for the enforcement of the decree, but nothing further appears of record except a docket notation as follows:

“This case was settled and all indebtedness paid by Flowers for Singleton, to A. D. Chavis in my presence, but for some reason A. D. Chavis will not satisfy record.”

The Singletons filed their suit from which comes this appeal on May 23, 1966, alleging that they are brother and sister; that they are the owners in possession of Lot 1, Block 9; that they acquired record title by warranty deed from Daillie C. Epperson to the west half of the lot; that it was the intention of the parties that aT of Lot 1 should have been described in the deed. The Singletons claimed title by adverse possession for a period of 21 years.

Mrs. Epperson denied that she intended to convey to the Singletons anything other than the west half of the lot; that the balance decreed under the foreclosure decree has never been paid and that the court’s retention of jurisdiction in the foreclosure decree tolled the statute of limitation on adverse possession.

Mr. Harold Flowers testified that he represented the Singletons as their attorney at the foreclosure suit and Mr. Chavis, now deceased, represented Mrs. Epperson. He says that the entire amount of the judgment on foreclosure was paid by himself as Singletons’ attorney to Mr. Chavis as Mrs. Epperson’s attorney; that Mrs. Epperson would not accept the payment from her attorney but insisted instead that she was entitled to possession of the property.

The Singletons testified that their parents rented the house from Mrs. Epperson for ten years prior to purchasing it in 1945; that their parents actually made the purchase from Mrs. Epperson with the purpose and intent of purchasing all of the lot with the house thereon, and that they had used and been in possession of the entire lot and house ever since it was purchased in 1945.

Wesley Dorn and Jim Wittaker testified that they had observed the Singletons in possession of all of the lot for about thirty-five years.

Mrs. Epperson testified in her own behalf and her testimony is most difficult to follow. The record does not reveal whether Mrs. Epperson is simply unable to comprehend the questions asked her, or whether she consciously evades direct answers. In any event, the chancellor was in a better position to evaluate Mrs. Epperson’s testimony than we are. Mrs. Epperson denies that she ever executed a deed to the Singletons at all, but from a close examination of all of her testimony, it appears that she may have confused the effect of her deed to the Singletons with that of a contract to sell under which she had previously purchased some real property. In any event, it appears that Mrs. Epperson could never understand why she could not sinqTy repossess the property when the Singletons defaulted in payment giving rise to the foreclosure suit filed by Mrs. Epperson through her attorney.

The deed to the Singletons, as well as the deed of trust, was apparently prepared by Mrs. Epperson’s attorney in St. Louis, and the description is very clear as to the area described. If no error was made in the description of the property the parties intended, then the intended sale of half of a house defies logic. As a matter of fact, however, the parties seem to agree that an error was made in describing what was intended to be conveyed. Mrs. Epperson says that there was an error made in the description and indicates that the error was in dividing the lot lengthwise rather than crosswise. The Singletons contend that an error was made in describing half of the lot and house instead of the whole lot and house. The Singletons indicated that they only discovered the error after several years, whereas Mrs. Epperson testified that she discovered the error a month or so after the deed was executed.

‘ ‘ A. Oh, I found it out shortly after the thing was wrote.
Q. You mean, just a year or so?
A. No, I found it out shortly.
Q. A month or so?
A.. That’s right.”

Instead of attempting to correct the deed to conform to her understanding of what was to be conveyed, Mrs. Epperson deeded the east half of the lot to her daughter, Frankie Virginia Epperson, and here the legal record title to the east half lay until reconveyed to Mrs. Epperson by quitclaim deed on February 14, 1969.

The chancellor found that although an error had been made in the description in the deed of conveyance from Epperson to the Singletons, the nature of the error was not clear enough to justify a reformation of the instrument. The chanceFor found, however, that Mrs. Epperson was estopped from claiming title to the property; that the Singletons had held possession of the property adversely for a period of more than twenty years and title was confirmed in the Singletons.

Mrs. Epperson contends for reversal that the chancellor erred in holding that a mistake had been made in the deed when no mistake was alleged and no motion was made to amend the pleadings to conform to the proof. We do not agree. The Singletons alleged in their complaint that it was the intention of the parties at the time of the conveyance to convey all of Lot 1 to them. The chancellor did not decree a reformation of the deed and this case does not turn on the error of description in the deed. Both sides agree that an error was made in describing the property to be conveyed, but they do not agree on what was intended. The Singletons contend that they bought and paid for the entire house and lot, and Mrs. Epperson contends that even though she never did sign a deed, she only agreed to sell the house to the Singletons.

Mrs. Epperson named several competent attorneys who represented her throughout the entire transaction pertaining to this property and she says she learned of the error in description within three months of the execution of the instruments containing the erroneous descriptions. Instead of attempting to correct the error by reformation, Mrs. Epperson compounded the error by transferring title to the east half of the lot to her daughter, who did not testifv and apparently never did question the Singletons’ right of possession in the entire lot.

Mrs. Epperson contends that the chancellor erred in admitting testimony to vary the terms of a written instrument. We do not agree with this contention. No one questioned the terms of the deed or the wording of the description. The west half of the lot was conveyed under the deed. The question was not whether the deed description accurately described the land therein conveyed, the question was whether the deed conveyed by accurate description the property the Singletons intended to purchase and Mrs. Epperson intended to sell. Both the Singletons and Mrs. Epperson say that it did not, but they differ considerably on what was intended.

Mrs. Epperson also questions the preponderance of the evidence as to adverse possession, but we are of the opinion that the chancellor’s decree is not against the preponderance of evidence that the Singletons had established adverse possession. It is true that there is some evidence of record that Mrs. Epperson instituted two actions of some kind against the Singletons in municipal court in which she alleged that the Singletons were trespassers on her property, but the record also indicates, from Mrs. Epperson’s own incredible testimony, that she never did agree, know, or recognize, even in spite of her foreclosure suit, that she had ever execupied both sides of the house; they cutivated a garcuted a deed to the Singletons at all. The Singletons ocden on the south half of the lot; they used and maintained an outhouse on the back of the lot, and the evidence is clear that Mrs. Epperson knew that the Singletons were claiming ownership in both sides of the house and right to immediate possession of the property in-in 1945.

Considerably more could be said here as to the points raised by the appellant, but it is obvious from the record before us that Mrs. Epperson did in 1945 convey one-half of a house and lot to the Singletons, and that the Singletons have been in possession of both sides of the house, as well as the entire lot the house sits on, since the deed was executed. It is obvious from the record that despite her representation by competent counsel, Mrs. Epperson has simply never been able to accept the fact that she has ever divested herself of title and both sides of the lost from the date of their deed volved in this case.

We agree with the chancellor that the foreclosure suit was fully consummated upon entry of a decree for the amount due and the order for sale if not paid in thirty days. No appeal was ever perfected from this decree. The docket entry of record reflects that the amount of the decree was paid within thirty days and that a sale of the property was no longer permissible under the decree. The record is not clear as to what happened to the amount paid under the decree. Attorney Flowers says it was paid to Mrs. Epperson’s attorney and later refused by Mrs. Epperson. The payment in open court is confirmed by deputy circuit clerk Mrs. Evelyn Harris. Mrs. Epperson denies that she refused to accept the payment, but also denies that she ever did receive it, or that it was ever tendered to her. Mrs. Epperson admits that she wanted possession of the property more than she wanted the balance the Singletons owed on it, and she indicates that she still does.

“Q. Well now I’ll ask you today if you were given all the money that you say was owed to you would that satisfy you and would you go on back to St. Louis and live happily?
A. No, I need the house myself because I am unable to work.”

The decree is affirmed.

Harris, C. J., and Byrd, J., not participating.

Fogleman, J., concurs.

John A. Fogleman, Justice,

concurring. I agree with the majority opinion except as to the disposition of appellant’s contention that the trial court erred in holding that it did not have jurisdiction of the action for a foreclosure sale. The majority relies upon payment of the mortgage debt as determined by the foreclosure decree. The chancellor did not make a finding that the decree was satisfied by payment, although he said that a docket notation by the clerk that the amount had been paid to appellant’s attorney was of considerable significance. Payment seems rather doubtful to me because the attorney who purportedly made the payment on behalf of appellees testified that the money paid was returned to him by the attorney for appellant to whom it was paid.

On the other hand, the record clearly sustains the finding of the chancellor that the foreclosure decree was barred by the 10-year statute of limitations. See Ark. Stat. Ann. § 37-212 and § 29-601 (Repl. 1962). Proceedings under such a decree are barred after 10 years. Ford v. Harrison, 69 Ark. 205, 62 S. W. 59, 86 Am. St. R. 192; Hughes, Arkansas Mortgages, § 418. Appellee argues that the statutory bar is inoperative because the chancery court, in its foreclosure decree, retained jurisdiction of the foreclosure proceedings. I do not agree with this contention. In Morehead v. Niven, 222 Ark. 116, 257 S. W. 2d 361, we said that such a retention of jurisdiction meant only that the parties might go into that suit for further relief within apt time. “Apt time” means to me within the period allowed by the applicable statute of limitations, unless laches shall operate as a bar at an earlier date.


text:
    Martha BALDRIDGE, a Minor v. BARCON, INC.
    5-5106
    449 S. W. 2d 185
    Opinion delivered January 19, 1970

      Langston & Langston, for appellant.

      Wright, Lindsey & Jennings, for appellee.
   J. Fred Jones, Justice.

Vernon B. Baldridge filed suit in the Pulaski County Circuit Court against Bar-con, Inc. for $750 in his own behalf for medical expenses and for $25,000 as father and next friend of his 14 year old daughter, Martha, for injuries she sustained while sliding on an amusement device known as “Magic Carpet Slide” belonging to and operated by Barcón. A jury trial resulted in a verdict as follows:

“We, the jury, find for the plaintiff, Vernon B. Baldridge, Jr., and fix his damages as follows: Vernon B. Baldridge, Jr., individually, $298.25; Vernon B. Baldridge, Jr., on behalf of Martha Baldridge, $-.0-.”

The trial court overruled Martha’s motion for a new trial and entered judgment on the verdict. Martha has appealed and relies on the following points for reversal:

“The verdict was contrary to evidence and law.
The award of damages is inadequate, the jury having found for the appellant and fixed her damages at zero. The trial court should have granted a new trial.
The jury refused to follow the court’s instruction No. 22 (AMI 2213) and to assess damages for Martha Baldridge.”

The exact forms of verdict submitted to the jury are not in the record before us but the verdict as above set out is recited in the judgment of the trial court and this appeal actually turns on what the jury meant by this verdict. The appellant states her interpretation of the jury verdict in her brief as follows:

“The jury found for Vernon B. Baldridge, Jr., individually and in his own right and assessed his damages at $298.25.
The jury found for Vernon B. Baldridge, Jr. on behalf of Martha Baldridge and assessed her damages at zero.”
The appellee’s position is stated in its brief as follows :
“The jury indicated that it found in favor of Vernon Baldridge. By not awarding damages to Martha Baldridge, it indicated in the only way it could that it found against her.”

The appellee relies heavily on our holding in Pigage v. Chism, 237 Ark. 873, 377 S. W. 2d 32, and argues that in rendering an inconsistent verdict in the ease at bar, the error lay in awarding damage to the secondary plaintiff, Mr. Baldridge, and not in the denial of damages to the primary plaintiff, Martha; that the appellee defendant is the only one who can be heard to complain of the error in awarding the damages to Mr. Baldridge individually, and that no such complaint has been registered in this case. Appellee’s argument is predicated upon the theory that the jury actually returned inconsistent verdicts on liability in that they found in favor of Mr. Baldridge in his own right and in favor of Barcón and against Mr. Baldridge as father and next friend of Martha. We are unable to find, and we are unwilling to assume, such inconsistency from the wording of the verdict.

Our holding in Pigage is of little assistance here for in that case Mr. and Mrs. Pigage, Sr. sued for damages in their own right because of injuries to Pigage, Jr. and Mr. Pigage, Sr., sued as next friend for the damages sustained by Pigage, Jr. The jury returned three verdicts as follows:

“ ‘We the jury find in favor of the claim of E. J. Pigage, Senior, individually, and assess his recovery in the sum of $2,500.00.
We, the jury, find in favor of the plaintiff, Mary E. Pigage, individually, and assess her recovery in the sum of $500.00.
We, the jury, find in favor of the defendant as to the claim of E. J. (Tad) Pigage, Jr., by and through his next friend, E. J. Pigage, Sr.’ ”

Had the jury rendered such verdict in the case at bar as Avas rendered in Pigage, then our holding in Pig-age would be good authority for the appellee’s argument here. But the verdict in the case at bar is as consistent with a finding for Martha on liability as it is against her, and we are of the opinion that the rule in Pig age should extend only to verdicts that are clearly inconsistent. Perhaps it could be argued that the jury could have found against Martha in no other way than it did under the forms of verdict submitted to the jury. It could be argued just as logically that the jury could have found for Martha on liability and against her on damages in no other way than it did under the forms of verdict submitted. The forms of verdict are not of record but only alluded to in the briefs, but there is no evidence that Martha was any more responsible for the forms of verdict than was Barcón.

The appellee argues that the separate instructions within the formats of AMI 2212 and 2213, when considered together with the forms of verdict, make the verdict clear as against Martha. The court did give AMI 2212 and 2213 as plaintiff’s instructions 21 and 22, as follows:

“If you decide for Vernon B. Baldridge, Jr. against Barcón, Inc. on his claim for damages resulting from injuries to Martha Baldridge, you must then fix the amount of money which will fairly and reasonably compensate him for the following element of damage which you find was proximately caused by the negligence of Barcón, Inc. or its employee:
a. The reasonable expense of any necessary medical care and treatment incurred on behalf of Martha Baldridge, his daughter.
Whether this element of damage has been proved by the evidence is for you to determine.
If you decide for Martha Baldridge on the question of liability, you must then fix the amount of money which will reasonably and fairly compensate her for any of the following elements of damage which you find Avere proximately caused by the negligence of Barcón, Inc. or its employee:
a. The nature, extent, and duration of any injury.
b. Any pain and suffering experienced in the past. Whether any of these elements of damage has been proAmd by the evidence is for you to determine.”

The trial court also gave plaintiff’s instruction No. 5 and defendant’s instruction No. 12, as follows:

“Vernon B. Baldridge, Jr., on behalf of Martha Baldridge, and Vernon B. Baldridge, Jr., individually, claims damages from Barcón, Inc., an Arkansas corporation, and has the burden of proving each of three essential propositions:
First, that they have sustained damages;
Second, that Barcón, Inc., or its employee was negligent ;
And third, that such negligence of Barcón, Inc. or its employee was a proximate cause of the damages of Martha Baldridge and her father, Vernon B. Baldridge.
If you should find that Martha Baldridge was not guilty of negligence which was a proximate cause of the occurrence, then Vernon B. Baldridge is entitled to recover the full amount of any damages sustained by Martha Baldridge and Vernon B. Baldridge, which were proximately caused by any negligence of Barcón, Inc.
If you should find that the occurrence was proximately caused by negligence of both Martha Baldridge and Barcón, Inc., then you must compare the percentages of their negligence. If the negligence of Martha Baldridge was of less degree than the negligence of Barcón, Inc., then Vernon B. Baldridge is entitled to recover any damages sustained by Martha Baldridge and Vernon B. Baldridge as a result of the occurrence after you have reduced them in proportion to the degree of the negligence of Martha Baldridge.
On the other hand, if Barcón, Inc. was not negligent or if the negligence of Martha Baldridge was equal to or greater than the negligence of Barcón, Inc., then Vernon B. Baldridge, Jr. is not entitled to recover any damages sustained by either of them.” '

When all these instructions are considered in the light of the jury’s verdict, and especially in the light of the evidence, we are of the opinion that if the jury intended to find for Mr. Baldridge and against Martha, it must have arrived at such conclusion on the basis of Martha’s own, or contributory, negligence, as compared with that of Barcón. When we examine the record for evidence of Martha’s own negligence, we conclude that a verdict based thereon would be as consistent for Martha as against her.

The record reveals that Barcón, Inc. owned and operated a facility known as “Magic Carpet Slide” especially designed for the amusement of children. The “Magic Carpet Slide” consisted of fifteen fiberglass sliding lanes separated by dividers of the same material four inches in height and three inches wide. One end of the facility was elevated thirty-five feet above the ground and the other end was near the ground. People using the facility would climb steps on either side of the sliding lanes to a platform at the elevated end of the slide. A carpet, consisting of a strip of burlap, was furnished each user who would place the carpet in the sliding lane selected and the user would sit down on the carpet and draw the lower end of the carpet up over the feet and legs before starting down the slide. In some instances the user was started down the slide by a Bar-con employee referred to as a “starter” who either pushed the user from behind or pulled the user forward by the hand or arm. Barcón sold tickets to customers who wished to use the slide and the tickets were taken up on admission to the slide.

Martha, along with some of her young friends, had purchased tickets and Martha had used the slide six or seven times before her injury. On about her eighth trip down the slide Martha became overbalanced, spun around on the slide and her right leg was broken. Martha alleged in her complaint as follows:

“Plaintiff slid down said slideway five (5) times but upon her sixth (6th) time, as she was preparing to slide down the slideway, and was totally unready, the ‘starter’ negligently grabbed plaintiff’s right arm and negligently jerked and slung her down the slideway to begin and speed up her untimely descent. The ‘starter’s’ negligent and violent jerking upon plaintiff’s right arm and slinging and shoving her caused plaintiff to lose her balance and somerset down the slideway, and resulted in the plaintiff hitting her right leg upon the partition between the slides.”

Barcón denied liability and alleged contributory negligence in failing to use ordinary care for her own safety and Martha’s assumption of risk as a defense.

Lana Bowling testified, in part, as follows:

“Q. Now, how do you slide down, tell the jury how you slide down the slide, what happens when you get up to the top of the slide?
A. You lay your mat down, a piece of burlap, and you sit on one end and pull the other end over your feet and hold on to it with both hands.
Q. Did you do that?
A. Yes, sir.
Q. Now, how many times had you done this before Martha here broke her leg?
A. About seven.
# * #
Q. Now, will you tell us just what happened to Martha?
A. We were in sections by each other, we were going to slide down at the same time and her mat was . . . they were both laid on at the same time and we both sit on them and I had got mine pulled over my legs and was holding-on to it and Martha had already been started and she had just sit on her carpet, and had not had the time to hold on to, anything.
Q. You.mean she hadn’t been able to hold on to her burlap bag with her hands?
A. No.
■Q. She hadn’t taken hold of it?
A.- No.
Q. Then what happened?
A. She was already going down and the attendant pulled me down and I saw her swerving from side to side and she screamed and called my name.
Q. She screamed and called your name?
A. Yes.
Q. Then she went right down the slide fast, is that correct?
A. Yes.
Q. What happened after that?
A. I saw her, she kind of turned a summersault and laid over into the next section.
# # #
Q. Now, at the top of the slide, the attendant took her by her right arm, is that what you said?
A. Yes.
Q. And then after he took her by the right arm, what did he do?
A. He pulled her down.
Q. And you state that was before she could get ahold of her burlap bag to hold on?
A. Yes, sir.”

Martha testified that she was not ready to start down the slide but was reaching down with her hands to draw the end of the carpet up over her feet and legs when the young man doing the starting pulled her right arm and started her fast down the slide. She testified that she was off balance all the way down the slide from the time she was started until her foot struck a partition. Martha continued, in part, as follows:

“Q. I don’t know if we pointed it out or not but do you know where you were when you hit the partition on the side of the slide?
A. I was somewhere along here about the third hump.
Q. The third hump, are you talking about this hump right before yon get to the bottom, in other words we see a big drop off, a second drop off and this is the last one before you get to the bottom?
A. Yes.
Q. Do you remember what happened to yonr foot . . . did your foot get off the mat, by the way?
A. (No answer)
Q. Do you remember?
A. No, sir.
Q. What kind of shoes did you have on?
A. Tennis shoes.
Q. Do you remember where you ended up, where you stopped?
A. Yes, sir, there’s a long place where you go on down to the bottom.
Q. Are you talking about the place before you get to the mat at the end?
A. Yes, sir.
Q. Were you on that level place at the bottom when you stopped?
A. Yes, sir.”

Mr. James R. Long, Sr. testified that his oldest son was working at the slide on the day of the accident and that his three younger sons were using the slide. He says that his youngest son was coming down the slide beside Martha and that he was watching them from the ground. He testified, in part, as follows:

(<Q. Did you see the accident happen?
A. Yes, sir, I did.
Q. Where on the slide was Martha when the accident happened?
A. She was on the last slope going down to the lower level.
Q. Could you tell what caused her to stop, what caused her to have trouble there at the bottom?
A. Well, her legs were flopping, seems like she was some what off balance and her foot hit the side of the slide and, in fact, I remarked at the time that it happened that that girl broke her leg, you could hear the bone pop.
Q. Did she stop right where it happened?
A. Yes.
Q. And that was at the bottom?
A. Yes, sir.”

On cross-examination he testified as follows:

“Q. Did you see her when she left the top?
A. No, sir, I did not.
Q. How far down the slide was she when you first saw her?
A. About half way down.
Q. And was it at that point that you noticed her legs flopping?
A. It was just a little lower than that, my youngest [sic] was sliding down in the lane right beside her on this side of her, that would be the south side lane, and that’s what caught my attention, her legs started flopping.”

George Fike, Jr. testified that he. was working at the slide on the day Martha was injured and that three or four young men worked at the top of the slide. He testified that there was a large crowd using the slide and that the employees were in a hurry to get them down the slide, and as to the procedure used, he testified:

“Q. How did they start these young people down these slides?
A. Well, when the young people came up the stairs, they brought a burlap bag with them and we got the bag and laid it down for them and set them on it, they put it over their feet so they couldn’t touch the slide, and we asked them if they wanted a push or a pull, and if they didn’t say anything, we just walked on to somebody else. If they wanted a pull, we pulled them, if they wanted a push, we pushed them down, and did the next person just like that.”

Mr. Fike did not see the accident and didn’t know anything about it at the time it occurred.

Mr. Coney testified that he is part owner of the “Magic Carpet Slide” and had about five or six people working at the top of the slide on the day of the injury. He did not see the accident.

James Reed Long, Jr. testified that he was taking up tickets at the time Martha was injured; that he heard her “squeal” or scream; that he looked up and then went to the bottom of the slide to assist. He testified that the platform was crowded with customers and that both stairs were jammed. He helped take Martha to the hospital following her injury and testified, in part, as follows:

“Q. My question was, did she say anything about what caused the accident or how she fell?
A. No, sir, not that I can recall, except that her tennis shoes struck the side of the slide.
Q. Did she say anything about anyone at the top having caused her to fall?
A. No, sir.”

On cross-examination Mr. Long, Jr. testified as follows:

“Q. How fast do people go down the slide, can you tell the jury?
A. I couldn’t judge the miles per hour, it seems pretty fast going down and sometimes you can clear the air going over the hump, I mean, clear the track, but not very much, just a little bit.
Q. What was the purpose of these employees at the top of the slide in yellow shirts to give them a pull, what was the purpose of that?
A. To get people started down the slide.
Q. To get them started down the slide?
A. Yes, sir.
Q. Would that make them go faster?
A. Well, sometimes, depends on how hard you pull.
Q. Did you pull any faster with a large crowd there ?
A. We just tried to get them down in some kind of succession so it wouldn’t become too crowded up there.
Q. And on this day, you had a crowd up and down each side of the slide and the platform was full?
A. Yes, sir.”

The only evidence of contributory negligence attributable to Martha is extremely vague and circumstantial in nature. Martha was over half way down the slide when her tennis shoe came in contact with the slide or partition, and she told Mr. Long on the way to the hospital that her tennis shoe struck the side of the slide and she did not say anything about anyone at the top causing her to fall. We are unwilling to assume that the jury found against Martha on such vague and weak circumstantial evidence.

Under the evidence in this case, and under the instructions of the trial court, we do not interpret the jury verdict as finding for the appellant, Vernon B. Baldridge, in his own behalf and against Vernon B. Baldridge on behalf of Martha. On the contrary, we interpret the verdict as finding for Vernon B. Baldridge on behalf of himself and Martha with attending failure to award damages for Martha or specifically find that she had none.

The forms of verdict are not of record, neither were they objected to nor are they explained. Neither side ■made any effort to ascertain the intention of the jury before it was discharged, so we conclude that the judgment should he reversed and this case remanded for a new trial.

Reversed and remanded.

Brown and Fogleman, JJ., concur.

John A. Fogleman, Justice,

concurring. I concur in the result reached in this case and substantially with the opinion. Since we do not know what forms of verdict were submitted to the jury, I do not think that we would be justified in assuming that the return of zero damages on Yernon B. Baldridge, Jr.’s action in behalf of his daughter Martha was a finding of no liability. The verdict signed definitely states that the jury found for him on her behalf. This simply means to me that the jury refused to assess damages in her favor. In the case of Pigage v. Chism, 237 Ark. 873, 377 S. W. 2d 32, there was a definite verdict against the principal party, i. e., the minor. At the same time there was a definite verdict in favor of the secondary parties, i. e., the parents of the minor. If we could say that this was the case here, then the rule declared in that case would be applicable.

I do not feel that the evidence as to contributory negligence and assumption of the risk by Martha Baldridge is so vague, weak and circumstantial that a jury verdict against her on the basis of comparative negligence would not be substantially supported or that there would not be a jury question on these defenses. I realize that the majority is not so holding, but is merely saying that it is unwilling to assume that there was a jury verdict against her on the question of liability. The description of the evidence in the majority opinion, however, seems to me to be such that a reader might draw the inference that it was so vague, weak and circumstantal as to justify a directed verdict on those defenses on a retrial. I do not believe that this is so or is intended.

Brown, J., joins in this concurrence.


author: Conley Byrd, Justice.

text:
    Perry N. BURKHART et al v. Billy Don WATSON et ux
    5-5100
    448 S. W. 2d 954
    Opinion delivered January 19, 1970

      Harold G. Rains, Jr., for appellants.

      Robinson & Booth, for appellees.
   Conley Byrd, Justice.

This is a boundary dispute between appellants Perry N. Burkhart, Mary I. Burk-hart, and Donnie S. Burkhart and appellees Billy Don Watson and Peggy Watson, his wife. The boundary involved is the north-south half section line between the NE!4 of the SW% and the NW% of the SEV4 in Sec. 27, T 10 N, R 31 W. Appellants introduced as witnesses Ben Taylor, Jr. a forest ranger and former owner of the property; Jack Carney, a business man and farmer who owns land adjoining appellants’ property on the south; Elmer Kelly, who formerly owned the land in question; Homer Bourland, a former county surveyor; Dominic Leraris, a professional engineer and land surveyor, and appellant Perry N. Burkhart. All of these witnesses located the southwest corner of appellants’ tract at or close to 4 or 5 gum trees, lining up with a drainage ditch on the west side of the Carney property. Appellees on the other hand introduced as witnesses Clovis Satterfield, the Crawford County surveyor, whose survey ran some 30' or 40 feet east of the gum trees; Don Wofford, a prior owner of appellees’ property who testified about the location of an old road; and Edward Kelly, a brother of appellants’ witness Elmer Kelly, who testified that his father dug the drainage ditch so often referred to, and dug it west of the north-south boundary line between the two quarter sections. The learned Chancellor, after hearing the testimony and viewing the premises, wrote a memorandum opinion explaining his understanding of the parties’ contentions, why the controversy arose, and found the facts contrary to appellants’ views and in favor of appellees. On the record here made, we are not in a position to say that the Chancellor’s findings are contrary to a preponderance of the evidence.

Appellants also contend that the Chancellor erred in failing to recognize an old fence as the boundary line by long acquiescence. As we read the testimony of the surveyors both for appellants and appellees, the area involved is not fenced. There is a fence commencing at the center of the section which was described by surveyors Leraris and Satterfield as being on the line for a part of the distance but then veering off to the west. Therefore since the witnesses admit that there is no fence between the boundaries of the two properties involved and since the surveyors recognized that at some point the fence commencing at the center of the section veered off to the west, we are not in a position to say that the trial court erred in failing to recognize the fence line, as it existed, as a boundary.

Appellants also urge that the Satterfield survey is contrary to those made by other surveyors, according to the testimony of the witnesses. The record does not show the other surveys or under what circumstances they were made. It appears to us that the location of the boundary was at most a fact question and on the total evidence we are unwilling to say that the Chancellor’s finding is contrary to the preponderance of the evidence.

Affirmed.


author: Frank Holt, Justice.

text:
    ARKANSAS COMMERCE COMM’N et al v. ST. LOUIS SOUTHWESTERN RAILWAY CO.
    5-5110
    448 S. W. 2d 950
    Opinion delivered January 19, 1970

      Louis Tarloioski, for appellants.

      Moses, McClellmi, Arnold, Owen & McDermott, for appellee.
   Frank Holt, Justice.

Pursuant to Ark. Stat. Ann. § 73-809(b) (Supp. 1967), tbe appellee filed with the Arkansas Commerce Commission a notice of the discontinuance of its agency station at Stamps, Arkansas. A requisite number of the qualified electors of the city signed and filed a petition with the Commission protesting the station closing and asking re-establishment of the station. After two separate hearings the Commission sustained the protestants’ demurrer at the close of appellee’s case. The Commission then made a Report and Order denying appellee the authority to discontinue its agency railroad station. Upon appeal the circuit court reversed the Findings and Order of the Commission and directed the entry of an order authorizing the closing of the station. From that judgment the Arkansas Commerce Commission and the protestants, the residents of Stamps who signed the petition, bring this appeal.

On appeal the appellants contend for reversal that the judgment of the circuit court was erroneous in finding that the Order and Findings of the Commission are contrary to the law and the evidence presented to the Commission; in finding that the Commission acted beyond its discretion in refusing to permit appellee to close its station; and further erred in finding and holding under the law and the evidence that appellee’s petition to close its station should have been granted by the Commission. The appellants ask that the judgment of the circuit court be reversed with directions to deny the petition of the appellee railroad and to reinstate the Order of the Commission which denied appellee the authority to close its Stamps agency station.

We recently considered the extent of appellate review upon appeals from the findings of fact of the Arkansas Commerce Commission. Fisher v. Branscum, 243 Ark. 516, 420 S. W. 2d 882 (1967). There we said that § 73-134 “provides that findings of fact of the circuit court are not binding on this court. On the other hand, it requires that we review all the evidence and make such findings of fact and law as we deem just, proper and equitable,’’ In other words, our review is similar to that which we make in chancery cases.

The appellee sought, according to the requirements of the statute, to discontinue service on the basis that the “agency station had been operating at a financial loss according to standard accounting procedures for not less than one (1) year immediately preceding, or that operating economies would result consistent with public convenience and necessity.” § 73-809(b). In support of these alternate allegations the appellee presented two witnesses. One was its supervisor of stations who was familiar with the operation and procedures followed by the railroad with respect to the handling of freight. He testified as to the amount of carload traffic and the number of customers (for the 12-month period preceding the notice of closing), the distance to the nearest agency station, the ability of the appellee to continue to perform identical service for its customers at Stamps, all of which was to the effect that the closing of the Stamps station would result in operating economies and would be consistent with the public convenience and necessity. The other witness was appellee’s special accountant employed in the cost bureau of its executive department. His testimony related to the volume of business and the operational costs of the Stamps station for the twelve months immediately preceding the filing of the notice. His testimony was based upon the official records of the railroad which, according to him, are kept in accordance with the standard accounting procedures followed by the railroad industry. It was his testimony that the operation of the Stamps station during the pertinent preceding twelve months resulted in a financial loss. We do not deem it necessary to detail the evidence in the case since upon a review of appellee’s uncontradicted evidence we are convinced that the appellee made a prima facie case for the closing of the station. Arkansas Commerce Comm’n v. Kansas City Southern Ry. Co., 244 Ark. 912, 428 S. W. 2d 83 (1968).

However, when we review the evidence de novo, as we do in chancery cases, we find in the case at bar that an inequitable result would be reached by permitting the closing of the station without an opportunity for further proceedings. We perceive from the record that there were witnesses available for the protestants who should have been offered the opportunity to contradict the evidence submitted by the appellee, which evidence, as previously indicated, constituted a prima facie case for closing the station. This right was cut off by improvidently sustaining the demurrer, by protestants’ then attorney, to appellee’s evidence. As we said recently in Fisher v. Branscum, supra, we are required, after reviewing all of the evidence, to make “findings of fact and law as we deem just, proper, and equitable.” We have discretionary power in. equity procedure to remand for further proceedings. Brizzolara v. Powell, 214 Ark. 870, 218 S. W. 2d 728 (1949); General Box Co. v. Scurlock, Comm’n of Revenues, 224 Ark. 266, 272 S. W. 2d 678 (1954). In the state of the record in the case at bar, it is our view that a just, proper, and equitable result requires that we reverse the judgment of the circuit court. The cause is remanded with instructions that the Commission be directed to overrule the demurrer and permit the appellant protestants to offer proof, if they desire, in contradiction of the evidence presented by the appellee. In the event the protestants cannot or do not elect to do so, then the judgment of the circuit court is affirmed.

Reversed and remanded with directions to enter a judgment not inconsistent with this opinion.


author: Carleton Harris, Chief Justice.

text:
    Burniss Shaw WILSON et al v. J. F. McDANIEL et al
    5-5126
    449 S. W. 2d 954
    Opinion delivered January 26, 1970

      Tomphins, McKenzie & McRae, for appellants.

      W. D. McKay, for appellees.
   Carleton Harris, Chief Justice.

The land in issue in this litigation is a 40-acre tract situated in Columbia County., Appellants are three great grandchildren of H. U. Hancock, who died intestate in 1905, seized of this property. Hancock’s wife, Eunice (or E. E.), held a life estate, but, it is asserted by appellants, was given a deed from all of the Hancock children, J. H. Hancock, W. J. Hancock, Katie Tye and Carrie M. Frazier, conveying their interest, the deed being joined in by Henry Scott and B. C. Scott, grandchildren, being two of five sons of Palestine Scott, a deceased daughter of H. U. and Eunice. This deed was dated November 18, 1905, and purportedly conveyed a 22/25 interest in the lands, but the deed was not recorded until 1930. Eunice Hancock thereafter died sometime prior to June 23, 1908, leaving a will which was admitted to probate on the date last mentioned. Under the terms of this will, she devised all of her real estate to her son, J. H. Hancock, for his lifetime, and at his death to her granddaughters, Myrtle Hancock and Bertha Bethany, share and share alike, and at their deaths to their children, or to the children of either, should one or the other die without issue. Bertha, 73 years of age, is still living, and has no issue. Myrtle (Shaw) died in 1965, leaving three children, Burniss Shaw Wilson, Beatrice Shaw Haley, and Byford Shaw. These, together with Mary Shaw, wife of Byford, are the appellants herein. An exchange of instruments in 1913 between J. H. Hancock and his daughters, Bertha and Myrtle, resulted in Bertha’s receiving the life interest of her father and Myrtle to the 40 acres here involved. Thereafter, during the same year, Bertha conveyed her interest in this land to A. S. Frazier. During the latter part of the year, Frazier and his wife (a daughter of H. U. and Eunice Hancock) purported to convey the land to J. R. McDaniel. J. F. McDaniel, who claimed ownership at the time of the institution of this suit, was a son of J. R. McDaniel, and had been given a deed by his brothers and sisters, these grantors and grantee being all of the heirs of J. R. McDaniel. Subsequently, Bertha Bethany quitclaimed her interest in the land to J. F. McDaniel. McDaniel’s predecessors entered into possession of the lands in 1913, and appellees and predecessors have held possession and paid all taxes since that time. Appellants instituted suit, contending that they are the owners of an undivided 22/50 interest in the involved acreage; that McDaniel only had an undivided 3/25 interest, and an estate for the life of Bertha Bethany in an undivided 22/50, appellants holding the remainder. Appellees contend that they are the owners of the land by adverse possession. Both sides moved for summary judgment, supporting their respective positions by affidavits, exhibits, and depositions. The court granted a summary judgment to appellees, holding that the “McDaniel” title ripened prior to 1930 (when the deed from the Hancock children to Mrs. Eunice Hancock was recorded); that the recordation was the first notice the McDaniels had of any remainder claim to the property created by the will of Eunice Hancock, since that will did not specifically describe the lands left to the son, J. H. Hancock, but simply devised to him “all ot my real estate.” Title was quieted and confirmed in McDaniel as against any claim of appellants, and their complaint was dismissed for want of equity. From the decree so entered, appellants bring this appeal. For reversal, it is simply asserted that the claim of appellants is not barred by limitations, and they are entitled to partition.

Let it be remembered that this is a summary judgment. We have said many times that a summary judgment is proper only where there is no genuine issue as to any material fact, and the moving party is entitled to judgment as a matter of law. Weathers v. City of Springdale, 239 Ark. 535, 390 S. W. 2d 125. Accordingly, in determining whether this judgment should be affirmed, we are interested simply in ascertaining whether there is any genuine issue as to any material fact. Very quickly, we hold that there is a disputed material fact question not answered by the pleadings, affidavits, exhibits, or depositions. This question is whether the November, 1905, deed to Eunice Hancock from her children and two grandchildren, was delivered to her during her lifetime. Of course, a deed is inoperative unless there has been delivery to the grantee. Van Huss v. Wooten, 208 Ark. 332, 186 S. W. 2d 174. A number of eases are discussed in this opinion, including Thomas v. Langley, 200 Ark. 220, 138 S. W. 2d 380, wherein this court said that the proof showed that Langley in 1919 executed a deed conveying his land to his mother. From the opinion:

“It was not shown that the deed was ever actually delivered to the grantee, but after Langley’s death the deed was found among his papers. Langley’s mother lived with him on the land until her death in 1928, and shortly afterwards Langley married. There was testimony tending to show that the land was bought with money belonging to Langley’s mother, that Langley had stated that he had used his mother’s money in buying the land and that he had deeded the property to her. We held in that case that the evidence was insufficient to establish delivery of the deed.”

Further, quoting from the earlier case of Taylor v. Calaway, 186 Ark. 947, 57 S. W. 2d 410, it was stated:

“In order to constitute delivery of a deed, it must be the intention of the grantor to pass the title immediately, and that the grantor shall lose dominion over the deed.”

It is admitted by appellants that appellees and those under whom they claim took possession of the lands in 1913, and have continued in possession and paid the taxes since that time. As previously stated, appellees claim title on the basis of adverse possession, but appellants contend that they (appellants) had no right of entry on the property, nor any cause of action, until the death of their mother, Myrtle Shaw (also known as Myrtle Hooper) in 1965, this occurrence giving them an undivided 22/50 in fee. They also claim an additional undivided 22/50, subject to appellees’ rights during the lifetime of Bertha. It is thus seen that appellants’ contention for reversal, as well as their own claim to the property, is predicated on our cases which hold that a right of action in one who owns a remainder interest does not accrue until the death of the person holding a life estate. A number of cases are cited in support of this contention, including Smith v. Maberry, 148 Ark. 216, 229 S. W. 718, LeSieur v. Spikes, 117 Ark. 366, 175 S W. 413, and Hayden v. Hill, 128 Ark. 342, 194 S. W. 19. In this last case, the court pointed out that a remainder-man has a right to attribute the possession of the premises involved by some third party, to some sort of contract with the life tenant. It then added:

“* * * Until the death of the life tenant, no duty in law is imposed on a remainderman to inquire from the party in possession whether he is a disseisor. During the life tenancy he has a right to treat the occupant of the land as a licensee.”

This is a consistent holding in this state, though the next sentence after the above quotation in Hayden is:

“In the instant case, it is conceded that appellees did not know the appellant was in possession of the real estate. ’’

We agree that under the present record in this case, appellants’ argument is sound, and the Chancellor erred in granting the summary judgment; however, this holding does not necessarily mean that appellants should prevail; that question is not settled for the reason that J. H. Hancock’s and Myrtle Hancock’s life estates in this property were dependent upon the validity of the deed to their mother and grandmother, respectively, Eunice Hancock.

Appellants insist that they should prevail on the strength of the Eunice Hancock deed. Normally, we do not pass upon an order denying a summary judgment, since we have held that such an order, being interlocutory, is not appealable. Widmer v. Fort Smith Vehicle and Machinery Corporation, 244 Ark. 971, 429 S. W. 2d 63. However, as pointed out in Widmer, certain interlocutory orders are reviewable in conjunction with a final judgment; an order granting a summary judgment is a final order, and therefore appealable, and in determining the litigation now before us, it is necessary to discuss •appellants’ alleged grounds for summary judgment in order to show that there are unresolved material issues, which can only be disposed of after a trial.

The Hancock deed, of course, to have been valid, must have been delivered to Eunice Hancock during her lifetime. To establish this fact, appellants rely upon the statement appearing in Smith v. Scarbrough, 61 Ark 104, 32 S. W. 382, where this court, quoting the case of Scobey v. Walker, 15 N. E. 674, said:

‘1 The rule is well established that, where a document purporting to be a duly acknowledged deed, with regular evidence of its execution upon its face, is found in the hands of the grantee, or if such deed is found upon the proper records, a presumption arises that it was delivered at the time it bears date, or at some time prior to the date of its acknowledgment.”

In other words, as of now, appellants rely upon the fact that the deed to Eunice Hancock was recorded. On the other hand, appellees contend that no presumption arises, since the deed was not recorded until 22 years after the grantee’s death. Of course, the evidence presented at the hearing for summary judgment is liberally construed in favor of the party opposing the motion, and he is given the benefit of all favorable inferences, which might reasonably be drawn from the evidence. Ramsourer v. Midland Valley R. Co., C. C. A. 8th, 1943, 135 F. 2d 101. The recording of the deed would at the most, simply create a presumption, and there are inferences in some of the exhibits and affidavits, which are contrary to the contention that the deed was delivered.

For instance, in September, 1914, all of the Scott children, including the two who had purportedly conveyed their interest to Eunice Hancock, instituted suit against J. H. Hancock, Myrtle Hancock, and Bertha Bethany and her husband, in which they alleged that Eunice Hancock owned no interest in certain lands (including the 40 acres in issue), except a dower and homestead interest, or a life estate, which expired at her death. The complaint asserted that the defendants were trying to deny the plaintiffs ’ title to their interest in the land. The defendants answered, admitting that three of the Scott children held a 3/5 of a 1/5 interest, but that B. C. Scott, and H. F. Scott (apparently Henry) held no interest. The execution of the deed by the Hancock heirs, including the two Scott children, is then asserted. In a substituted complaint, it was again alleged that Mrs. Eunice Hancock did not own any interest in the land further than a life estate, and therefore could not have conveyed same by her will. In a decree dated February 19,1916, the Columbia Circuit Court held with the plaintiffs, and declared all five Scott children as owners of a 1/5 undivided interest in the lands. The basis of the rendition of this judgment is not set out in the judgment, but it is at once evident that the court did not, at least as far as B. C. and H. F. Scott were concerned, consider the deed to Eunice Hancock to be valid. Another inference can also be drawn from the deed itself. One of the grantors mentioned in the deed is W. A. Scott —but W. A. Scott did not sign the instrument. The acknowledgments also show that some signed on one date, and others on a subsequent date. These circumstances, together with the fact that the deed was not recorded until 22 years after the death of Eunice, somewhat raise an inference that the deed was not delivered during the lifetime of Eunice Hancock; that is, these circumstances raise the possibility that the children and grandchildren of Eunice, individually agreed to convey their interest to her, but such agreement was conditioned upon the premise that everyone would join in executing the deed; since this did not happen the deed was never delivered. It has been held that a delivery is incomplete where made by only some of the parties to a deed which shows on its face that it was intended to be jointly executed so that all should be bound bv its covenants. Consolidation Coal Co. v. Yonts (C. C. A. Ky.) 25 F. 2nd 404.

In the deposition of Byford Shaw, one of the appellants herein, he stated that he believed his mother (Myrtle Hancock Shaw) got the deed from her father (J. H. Hancock). On the one hand, this could mean that the deed had remained in the possession of one of the grantors. On the other hand, J. W. Hancock was the devisee of his mother’s will, and his possession of the deed might have no significance,since he was given a life estate in his mother’s property under her will.

We think enough circumstances have Deen pointed out to clearly show that pertinent and material issues are unresolved, and the case should proceed to trial.

Reversed and remanded.

       J. F. McDaniel died and the cause was revived in the name of his widow, Rozena McDaniel, his sole devisee.

      See also the Florida case of Commercial Building Company v. Parslow et al, 112 So. 378, where the Supreme Court of Florida held that laches or limitations may run against a remainderman who knows of a life tenant’s repudiation of that status. As to the statement in Hayden, appellants say, in effect, that it is dictum: “The fact that in Hayden the court mentions that appellees were not aware of appellant’s possession is actually immaterial. Had they known of it, they would have been under no duty to inquire and under no duty to take any action until the termination of the life estate.”

      If one moves for a summary judgment, and the court denies the motion, such an order, standing alone, is not appealable, and the appellant can only assert error by appeal when the case has been finally adjudicated.

      The will itself does not name an executor, and the order admitting the will to probate, in the record before us, does not show that an administrator was named.


text:
    ST. LOUIS SOUTHWESTERN RAILWAY COMPANY v. ARKANSAS COMMERCE COMM’N
    5-5095
    449 S. W. 2d 198
    Opinion delivered January 26, 1970

      Moses, McClellan, Arnold, Owens & McDermott, for appellant.
    No brief filed for appellees.
   George Rose Smith, Justice.

This is an application by the appellant, commonly called the Cotton Belt, for authority to close the railroad freight station at Fair Oaks, Arkansas. For many years the Cotton Belt and the Missouri Pacific Railroad Company jointly operated the Fair Oaks station, under an agreement made in 1912. In November, 1967, the Missouri Pacific elected to terminate the joint agreement, effective December 1, 1968. The Cotton Belt, foreseeing that the maintenance of the station would become solely its burden, gave notice of its intention to close the station. More than twenty-five electors of Fair Oaks filed a protest. After a hearing at which only one witness testified, the Cotton Belt’s request was denied by the Commerce Commission. This appeal is from a circuit court judgment sustaining the Commission’s decision.

Under the statute a station may be closed upon a showing either that it has been operated at a financial loss for the immediately preceding year or that the closing will result in operating economies consistent with public convenience and necessity. Ark. Stat. Ann. § 73-809 (Supp. 1967); Chicago, R. I. & P. R. R. v. Arkansas Commerce Comm’n, 243 Ark. 661, 420 S. W. 2d 917 (1967). Here the Cotton Belt made no effort to show that the Fair Oaks station had been operated at a loss during the preceding year. “Quite the contrary,” counsel state, “the Cotton Belt has been making a profit out of the station operation.”

Instead, the applicant assumed the burden of showing that operating economies consistent with the public convenience will attend the closing of the station. To that end the railway’s proof was directed largely toward showing that the shipping public will not be seriously inconvenienced if the station is shut down. 'The company proposes to serve Fair Oaks through its Brinkley station, thirty-three miles to the south, rather than through the present one-man facility at Fair Oaks. Some public inconvenience will admittedly result, becaiise shippers will have to communicate with the Brinkley office by mail and by telephone instead of transacting their business over the counter at Fair Oaks.

To offset that inconvenience the applicant attempted to show that its entire system is being computerized, with the result that freight cars, anywhere in the country can be located and assigned as needed within a matter of moments. That argument, however, is not wholly convincing; for there is nothing to indicate that the advantages of computerization would not be equally available to Fair Oaks shippers if their little station remained open.

We need not explore the niceties of public convenience, because that point was not the basis for the Commission’s rejection of the Cotton Belt request. Under the statute the carrier had to show that the closing of the station would result in operating economies offsetting’ any added public inconvenience. On that score the applicant made no showing whatever except to introduce an exhibit detailing the cost of maintaining the Fair Oaks agency, which amounted to $4,906 in 1967.

The Commission found that evidence to be insufficient to meet the applicant’s burden of proof. We quote the pertinent part of the Commission’s decision:

Mr. Puckett [the Cotton Belt’s sole witness] also identified Exhibit No. 2, being a statement of station expenses at Fair Oaks, Arkansas, for the year 1967 ... It is difficult to understand the purpose of this exhibit since the Applicant furnished no evidence whatever with reference to the income from the operation of the Fair Oaks station during the period of time reflected on said exhibit. In short, there is nothing before this Commission from which it can make any determination one way or the other as to operating economies. . . . There is absolutely nothing is this record to show that the Applicant has been operating at a financial loss according to standard accounting procedures for not less than one year preceding the filing of the application or that operating economies would result from the closing of the agency station. As we stated in our previous order, there is no other standard of comparison permitted. The Applicant has shown that it has not met the standard defined by the Act; as a consequence, the Commission finds [that the application must be denied.]

We are not prepared to say that the Commission was wrong in reaching the decision it did reach. There is some indication in the language we have quoted that the Commission took the view that no operating economies could possibly result from the closing of the Fair Oaks station if its operation had shown a profit. We do not regard that view of the matter as being necessarily and invariably correct, for it might be true that the closing of a barely profitable station could result in even greater profits to the system as a whole without any offsetting inconvenience to the public. That possibility, however, is not established by the record before us.

In any event, whether the closing of the Fair Oaks station will lead to operating economies must evidently depend upon a comparison of the cost of maintaining that station with the cost of supplying the same services through the Brinkley station. Obviously some expense will be involved in having the Brinkley office do the same work that is now being done at Fair Oaks. It may be that the members of the Commission, with their expertise and experience, could have balanced those comparative costs without direct proof. We, however, cannot do so. The record tells us absolutely nothing about the cost of performing the required services from the Brinkley station. Hence, for want of proof, we are unable to say that the Commission’s decision is against the clear weight of the evidence.

Affirmed.


text:
    Ernest L. BAILEY et al v. Ernest BRADFORD, Parent and Next Friend of Carol Bradford, a Minor
    5-5129
    449 S. W. 2d 180
    Opinion delivered January 26, 1970

      House, Holmes & Jewell, for appellants.

      Martin, Dodds, Kidd, Hendricks & Ryan, for appellee.
   George Rose Smith, Justice.

On November 29, 1964, in the city of Cabot, a car in which ten-year-old Carol Bradford was riding was struck violently from the rear by a truck owned by the appellant Bailey and being driven by his agent, the appellant Davis. Carol suffered a back injury, for which her father as her next friend brought this action in tort. The case was tried more than four years after the date of the collision and resulted in a $10,000 verdict for the plaintiff. The only contention here is that the verdict is excessive.

We find no error, but we need not detail the testimony at length, for we have often said that the facts in such litigation differ so greatly, from one case to the next, that the decisions are of scant; value as precedents.

Carol testified that on the morning after the accident her back hurt so much that she could hardly get out of bed. During the ensuing four years she was treated or examined by several doctors, but when the cas.e was finally tried Carol was still suffering pain. As a result of the injury she could no longer jump on a trampoline, serve as a cheerleader, tumble in physical education class, bend over, or help her mother in activities requiring that she bend over. At least twice she had taken doctors’ excuses to school to exempt her from excessive physical exertion. Carol testified that at the time of the trial her back trouble still existed and was getting worse. Her parents and her grandmother gave corroborating testimony.

Dr. Logue, an orthopedist, found an area of hypersensitivity in the injured region of the child’s back. This was in addition to a condition referred to in the testimony as epiphysitis, which is a roughening in the growing part of a bony structure. Whether the epiphysitis was the result, of the accident is not known with any degree of certainty, but Dr. Logue did attribute to the accidental injury a ten percent permanent disability to the child’s body as a whole. There was, of course, other medical proof contrary to that which we have reviewed, but the jury were warranted in finding the facts to be as we have stated them.

When we consider the pain that Carol suffered intermittently for more than four years before the trial, the additional discomfort to be expected in the future, and the permanency of the injury, we cannot say that the amount of the verdict is so great as to indicate prejudice on the part of the jury or to shock the conscience of the court. That being true, the verdict must be allowed to stand.

Affirmed.