text:
    Southern Farmers Assn., Inc. v. Wyatt.
    5-2548
    353 S. W. 2d 531
    Opinion delivered February 12, 1962.

      Edgar B. Thompson, for appellant.

      W. M. Thompson, for appellee.
   Jim Johnson, Associate Justice.

This is an appeal from an order of the White County Circuit Court dismissing an action for debt filed by appellant. Appellant’s suit was on an open account arising out of an alleged sale of chickens to appellees. The trial court dismissed appellant’s complaint upon a finding that appellant had elected to proceed upon the same cause of action in the Chancery Court of Independence County and that having received the benefits of its action in Chancery Court appellant was estopped from prosecuting the instant case. The court further found that the so-called "election” of appellant resulted from an order of the Independence Chancery Court directing appellant to dismiss a previous action for the same debt in the White County Circuit Court or to dismiss the action in the Independence Chancery Court. Thus it is seen that the determination of the issues in this case necessarily involves a consideration of three separate cases wherein some of the parties were the same.

Appellant prosecutes this appeal and states only one point upon which he relies for reversal, i.e., "No Election of Remedies Was Ever Granted.” Under this point appellant argues that it never made an election between inconsistent remedies, and that its prosecution of the suit in the Independence Chancery Court did not operate as a bar to the maintenance of the present action.

In order to understand the issue presented to the Court here, it is necessary to know something of the history of the litigation which preceded this suit. In chronological order, the appellant first filed suit on the cause of action in the White County Circuit Court on June 12, 1958. On December 31, 1958, in an action for accounting against a creditor of the defendant, Wayne Wyatt, Wyatt was made a party defendant on a claim by the appellant for the same debt upon which suit was brought in the case at bar. Subsequently, Wyatt moved in the Chancery Court of Independence County to require appellant to elect as to whether he would pursue the action filed in the White County Circuit Court in June 1958, or whether he would dismiss that action and proceed in the Independence Chancery Court. The record is somewhat ambiguous as to whether the Independence Chancery Court granted the motion or whether appellant acted without an order of the court. The order appealed from shows that appellant was ordered to make such election by the Independence Chancery Court, while the pleadings on behalf of the appellee, which gave rise to the order complained of, would indicate that the action of appellant was voluntary. However, as we view the problem, this is a matter of little consequence since the appellant did dismiss the first suit in the White County Circuit Court. On December 1, 1959, the Chancery Court of Independence County entered a decree dismissing appellant’s complaint against appellee for the same debt sued upon in the case now under consideration. This Chancery Court order was predicated upon a Motion for Dismissal filed by appellees, but such motion does not appear in the record before us on appeal. This decree leaves much to be desired by way of clarity as to the actual ruling of the court and the reasons and grounds therefor. The last. two paragraphs of the decree read as follows:

‘ ‘ That the motion heretofore . filed and not passed upon the Court, and filed on behalf of the Respondents to dismiss Plaintiffs complaint, should be and is hereby granted; and Plaintiffs cause of action is dismissed on the grounds set out in said Motion, and said Action is dismissed at the costs of the Plaintiffs, so far as the Respondents are concerned.
“The Court further finds that since the cause of action of the Plaintiff’s must be dismissed for want of equity, it is not necessary that the Court shall pass upon the motion of the Respondents to make Quaker Oats Company Incorporated, a Third Party Defendant nor to pass on the motion of Quaker Oaits Company, Incorporated to quash Service of Summons upon them.”

On December 1, 1959, the same day that its action was dismissed by the Independence Chancery Court, the appellant commenced the present action in the White County Circuit Court seeking judgment for the same claim asserted in the first case in the White Circuit Court and subsequently asserted in the Independence Chancery Court. The record is not clear as to whether the instant action was commenced after the Chancery Court action was dismissed or whether it was commenced prior to the order of dismissal. There are assertions on behalf of the appellee that the present case was commenced after the order of dismissal. However, the order of dismissal makes no finding as to the precise time that the last case was filed. Subsequently, on March 18, 1960, appellee filed the Motion to Dismiss which resulted in the Order of Dismissal from whence comes this appeal.

With the foregoing facts in mind, it is our opinion that this case must be reversed and. remanded for the following reasons:

1. The Motion to Dismiss is not the proper remedy for interposing the defenses of: (A) An irrevocable election of remedies and (B) res judicata.

2. There is no evidence in the record to sustain the finding of the trial court.

3. Where the record is abbreviated with consent or without objection, there is no presumption that any deleted material would sustain the finding of the trial court.

This Court has consistently held that pleading res judicata is available only by way of answer and is not properly raised by a Motion to Dismiss. Bolton v. Missouri-Pacific Railway Co., 148 Ark. 319, 229 S. W. 1025; Adams v. Billingsley, 107 Ark. 38, 153 S. W. 1105. In this we are in accord with the majority rule set out in 50 C. J. S. “Judgments”, § 824, wherein it is said:

“On the other hand, if the facts and nature of the former adjudication are not disclosed by the face of plaintiff’s pleading, the defense of res judicata usually must be pleaded affirmatively, and cannot be raised by demurrer, or by a motion directed to the sufficiency of the complaint, such as a motion to strike or to dismiss. . . .”

It is premature to attempt to move to dismiss a case on either the ground of irrevocable election of remedies or res judicata. Under our system of pleading the only proper way to raise such matters is by way of plea in the answer. The plea corresponds to the common law plea of confession and avoidance. It is an affirmative plea in nature and, as we will later discuss, the burden of proof is upon the party asserting the defense. While the parties have made free use of the term “election of remedies”, and there is a reference thereto in the order appealed from, a thorough analysis of the Motion to Dismiss and the order appealed from shows that the Motion was granted upon the theory of res judicata. Since res judicata is not available by way of a Motion to Dismiss, the action of the trial court in attempting to separate this one issue and dispose of the case upon its merits upon this one issue without consideration of the other issues of fact is manifestly erroneous.

The record on this appeal shows that the trial court decided this issue upon the pleadings and the argument of counsel without benefit of evidence. The recital of the matters upon which the Motion to Dismiss was submitted makes this fact abundantly clear. There is no reference whatever to any testimony or evidence having been received by the court in the consideration of the Motion to Dismiss. Rather, there is an affirmative showing that the court decided the matter upon the pleadings, the exhibits thereto, the argument of counsel and memorandum briefs of the parties. It would appear that the trial court felt that it could dispose of the Motion upon the pleadings without hearing evidence.

This is an erroneous concept. We pointed out in Denton v. Young, 145 Ark. 147, 223 S. W. 380, that a judgment relied upon as a bar to an action could not be considered unless introduced into evidence. We said in part: “The judgment relied upon in support of this contention was not introduced into evidence in the instant case and was not and could not have been brought into this record by a Bill of Exceptions.” In Running v. Southwest Freight Lines, Inc., 227 Ark. 839, 303 S. W. 2d 578, in discussing the necessity for evidence on a Motion to Dismiss, we said in part: “Since the record in this case contains ... no testimony on which we can say whether the trial court abused its discretion, it becomes necessary to determine which party had the duty of producing such testimony. ... In the ordinary Motion to Dismiss, where testimony is required, the burden is always on the moving party to produce evidence to sustain the allegations of his motion and we know of no good reason why the same rule should not apply here.” It is asserted by appellees that the exhibits attached to the pleadings were actually introduced into evidence in the determination of the Motion. However, the record does not show that these exhibits were introduced as evidence. In fact, the record on appeal in the instant case is absolutely devoid of any transcript of any evidence which the court might have received upon the matter of the Motion to Dismiss.

Appellees contend that exhibits to pleadings are evidence and should be treated as such and in support of their contention cite McMillen v. Morgan, 90 Ark. 190, 118 S. W. 407; and Cummings Bros. v. Subiaco Coal Co., 150 Ark. 187, 233 S. W. 1075. These cases are not authority for this contention. Both of the cited cases actually hold that exhibits to pleadings are part of the record in Chancery cases. In law cases the rule is different, Bouldin v. Jennings, 92 Ark. 299, 122 S. W. 639; Foster v. Elledge, 106 Ark. 342, 153 S. W. 819, and this is a law case. Exhibits must be introduced in evidence in order to be considered. Taylor v. Robinson, 94 Ark. 560, 127 S. W. 972. An exhibit is merely a part of the pleading and has no greater dignity than the pleading to which it is attached.

The only mention in the record here of any matter which could possibly sustain the trial court in granting the motion to dismiss is the decree of the Independence Chancery Court dismissing a proceeding wherein appellant was plaintiff and appellees were defendants. This is one of the exhibits which appellee contends should be considered as evidence. However, there is no pleading admitting the authenticity of this exhibit nor the rendition of such Order of Dismissal and therefore there is no evidence of the rendition of the Order of Dismissal in the Chancery Court of Independence County.

In this connection, it cannot be said that the Circuit Court of White County, Arkansas, had a right to take judicial notice of the record and proceedings of the Chancery Court of Independence County, Arkansas.

In Bolton v. Missouri Pacific Railway Company, 148 Ark. 319, 229 S. W. 1025, we said:

“We do not take judicial notice of the decrees and orders of other courts. In 7 Enc. of Evidence, page 1003, it is said: ‘The general rule is that a court will not take judicial notice of its own records or proceedings in another independent case or proceeding unless required to do so by statute.’ We do not have a statute requiring us to take judicial notice of the proceedings of other courts; and in the case of Murphy v. Citizens Bank of Junction City, 82 Ark. 131, 112 R. A. (N. S.) 616, this court held that ‘courts can not take judicial notice of their own records in other causes pending therein, even between the same parties. Gibson v. Buckner, 65 Ark. 84; Watkins v. Martin, 69 Ark. 311; Hall v. Cole, 71 Ark. 601; 16 Cyc. p. 918, and cases cited.’ See also Fry v. Chicot County, 37 Ark. 117, Adams v. Billingsley, 107 Ark. 38.”

Even though there is no evidence in the record to sustain the trial court in its ruling, we are aware of the fact that there is a iine of cases which holds that where the record is not complete, it is presumed that the omitted matter would sustain the ruling of the trial court. However, this concept and line of cases was nullified by the adoption of Act 555 of 1953, which provides in part in Section 12 (Ark; Stats. § 27-2127.6), “Where the record has been abbreviated by agreement or without objection from opposing parties, no presumption shall be indulged that the findings of the trial court are supported by any matter omitted from the record.” We have applied this rule in Griffin v. Young, 225 Ark. 813, 286 S. W. 2d 486; Manila School District No. 15 v. Sanders, 226 Ark. 270, 289 S. W. 2d 529; and Kemmery v. Shockley, 226 Ark. 437, 290 S. W. 2d 442. In the last two cited cases it was vigorously contended that evidence had actually been introduced which would sustain the findings of the trial court, but had been omitted in the record on appeal. These eases can be summed up by stating that an appellee who does not object to the filing of an abbreviated record acts, or fails to act, at his peril and if the record omits something vital to appellee’s position, he must fail. There are some assertions in the brief of the appellee herein to the effect that some evidence was heard by the trial court, but in view of the statute and the cases cited, we cannot indulge any presumption that the alleged omitted material would sustain the Circuit Judge.

Reversed and remanded.


source: Caselaw Access Project

author: Neill Bohlinger, Associate Justice.

license: Public Domain

text:
    Gorman v. Newton.
    5-2579
    353 S. W. 2d 538
    Opinion delivered February 12, 1962.

      Kenneth Goffelt, for appellant.

      Robert W. Henry, for appellee.
   Neill Bohlinger, Associate Justice.

This is an action brought to recover a commission paid to the appellee in connection with the. sale of some property in Conway, Arkansas, which is known as the Bachelor Hotel property.

It appears from the record before us that on July 25, 1959, the appellant entered into an agreement with the appellee whereby appellee was to sell the property of the appellant, which is known locally as the Bachelor Hotel, for the sum of $85,000.00 in cash. The facts in regard to the negotiations, the procurement of the purchaser, and other matters are well set forth in the case of Carrick v. Gorman, 232 Ark. 729, 340 S. W. 2d 377. From the facts therein set forth and the record in this case, it appears that the appellee procured a purchaser for the property who inspected the property, agreed to buy it, and deposited $8,500.00 on the purchase price.

The appellant granted the prospective purchaser additional time to complete financial arrangements and when the balance of the purchase price was not forthcoming, the appellant brought .his suit against the purchaser [Carrick, by name] procured by the appellee upon the note which Carrick had executed for the balance of the purchase price. During the trial of that action it developed that appellant Gorman’s title was defective in that a part of the wall of his building was on property belonging to the United States. In the Carrick v. Gorman case, supra, this court cancelled the agreement between Gorman and Carrick, voided the note Carrick had given for part of the purchase price, and restored to Carrick the down payment of $8,500.00 which appellant appears to have repaid.

The appellant brings this suit contending that the sale between him and Carrick was never completed and that the appellee failed to find a buyer for the property ready, willing and able to pay because the offer and acceptance contract between the buyer and the appellant which the appellee negotiated provided for a cash transaction and cash, was never forthcoming. Further, that in the absence of fraud or misrepresentation or concealment, equity would demand that the real estate agent, as well as the seller, be on an equal footing, as far as the payment of the purchase money, where the sale is not completed.

We do not agree. In this case the appellee undertook to present a purchaser for appellant’s property ready, willing and able to buy said property at appellant’s price, or at any other price and terms acceptable to appellant. That the appellant deemed the purchaser procured by the appellee to be within the terms of the agreement is shown by the fact that the appellant brought, suit against the purchaser not to foreclose a lien on the property, but upon the note which the purchaser had given as part of the purchase price. Thus the appellant is in the position of acknowledging that the sale had been completed. The result of that suit did not disclose that the purchaser was not ready, willing and able to complete the transaction but that the appellant, the vendor, did not in fact have the title to the property which he had held himself out as possessing.

We think this case is well covered by our holding in Orlicek v. Dockins and Spikes, 224 Ark. 593, 275 S. W. 2d 630:

“Should doubt exist that the Orliceks and Spikes had in mind the procurement of a purchaser ready, willing, and able to buy upon acceptable terms, that doubt is dissipated by the suit for specific performance. After mentioning the offer made March 5th and accepted the following day, appellants refer to their warranty deed deposited with the abstract company, the participation of their wives in the sale, and assert that insofar as they are concerned all things necessary had been done, and that Dockins was equally bound with them. Since Spikes was their agent with authority to make the sale, and since they expressly affirmed that as the result of his negotiations a purchaser was found who should be required to specifically perform, it can hardly be said that appellants did not treat the transaction as a consummated sale.”

See also Hartzog v. Dean, 216 Ark. 17, 223 S. W. 2d 820; Scott v. Patterson & Parker, 53 Ark. 49, 13 S. W. 419; Stiewel v. Daily, 89 Ark. 195, 115 S. W. 1134; Hodges v. Bayley, 102 Ark. 200, 143 S. W. 92; and Barton v. Jordan, 215 Ark. 504, 221 S. W. 2d 21.

In the present case the listing agreement which appellant signed with appellee had the following provisions:

“(c) I agree to pay you forthwith as commission 5% of the selling price, when a purchaser is procured through you or your representative at the stated price and terms, or at any other price and terms acceptable to me.” [Emphasis added]

We find nothing that the appellee was required to do which he had not done. He had through his exertions procured a purchaser and the failure of the sale is chargeable not to appellee, but to the failure of appellant’s title.

We hold that the finding of the chancellor is correct and this finding is here and now affirmed.


author: Carlton Harris, Chief Justice.

text:
    Mason v. Morel.
    5-2586
    354 S. W. 2d 19
    Opinion, delivered February 19, 1962.

      Jabe Hoggard and Crumpler & O’Connor, for appellant.

      T. O. Abbott and Spencer <Ss Spencer, for appellee.
   Carlton Harris, Chief Justice.

This suit was instituted by appellee as an action in ejectment, and involves the ownership of a strip of land, slightly more than fourteen feet in width, lying between the homes of appellee and appellant, i. e., the issue is the determination of the location of the line between the two properties. The case was tried before the Court, sitting as a jury, and at the conclusion of the evidence, the Court held appellee had acquired title to the tract in question by “open, continuous, and adverse possession for more than the past seven years.” This finding had the effect of placing appellee’s property line to within eighteen inches of appellant’s house. From the judgment so entered, appellant brings this appeal. For reversal, two points are relied upon, as follows:

“L
The Court erred in admitting into evidence Exhibits 1, 2, and 3 to the direct examination of Mrs. Morel, which are photographs purporting to show portions of the premises in dispute, as a proper foundation for their admission was not laid.
II.
The Appellee has not been in such possession of the disputed lands as to ripen into title by adverse possession as contemplated by Arkansas Statutes, Section 37-101.”

III.

The photographs, 3 1/4" by 3 1/4", purport to show appellee’s rose garden, though no flowers are discernible ; in fact, the only plant life that appears is a catalpa tree (which, according to Mrs. Morel, “come up volunteer”, though she had since tended it), and some hedge; a China tree is shown in' two of the photographs. These exhibits were offered in support of appellee’s claim of adverse possession. Appellant objected to the introduction thereof, and we are definitely of the opinion that they should not have been admitted into evidnce. It is true that as a general rule, the admission of photographs as evidence is a matter that lies within the discretion of the trial judge. See McGeorge Contracting Co. v. Mizell, 216 Ark. 509, 226 S. W. 2d 566. However, because of the particular issue involved in this case, we think the trial court erred in admitting these exhibits, for no proper foundation had been laid. Let it be borne in mind that the matter at issue was whether appellee had exercised such acts of control over the strip in question as to establish her right to same by adverse possession. The photographs (introduced through the testimony of Mrs. Morel) show a young girl standing in the area that appellee characterized as the rose garden. Mrs. Morel did not know by whom the pictures were taken, stating only that “the children took the pictures.” These children are not identified other than the young girl shown in the photograph; the witness stated that the latter was her granddaughter, 12 years of age at the time the photographs were taken. She did not give the present age of the granddaughter, and testified that she did not know when the pictures were taken. Two of the three photographs do have a notation on the back, “Mary-1954,” but Mrs. Morel did not place this notation on the photographs, and did not know who had done so. Furthermore, there is no evidence as to the angle or position from which the pictures were made, though it is obvious that each was taken from a different position. In other words, the witness was only vaguely familiar with the photographs (which are rather dim and actually, poor reproductions), and could not say by whom they were made — when they were made — or from what angle they were made. To hold these photographs admissible under this proof would ignore standards heretofore established for the admissibility of photographic evidence. The last two references to background for admissibility are particularly important, and the question of when the photographs were made is especially pertinent to the question of adverse possession. Mrs. Morel testified she purchased the property in 1944. The suit was filed in August, 1959, and evidentiary value of the photographs depends, in large measue, upon when they were taken. The general principle is well stated in Hooks v. General Storage & Transfer Co., 187 Ark. 887, 63 S. W. 2d 527, as follows: “It is a well established rule of law that when the situation and surrounding circumstances are subject to change, photographs, to be admissible as evidence, must have been taken at the time of the transaction or before the situation and circumstances have undergone a change.” Certainly, between 1944 and 1959, the condition of the premises was subject to change, and in determining whether these asserted acts of ownership occurred during a period when title by adverse possession was ripening, the time element is an essential question. Of course, there is a presumption that when the Court sits as a jury, it only considers competent testimony. Johnson v. Spangler, 176 Ark. 328, 2 S. W. 2d 1089. But this is only a presumption, and the record reflects that the Court, in the case before us, apparently gave, at least some, consideration to the photographs. The transcript reflects the following:

‘ ‘ Counsel for appellee:
Q. Do you know what this is (indicating on picture) ?
A. That is a catalpa tree.
The Court: What property is that catalpa tree on!
Witness: On my property.”

II.

Since the judgment is being reversed, we do not discuss, nor pass upon, the question of whether the Court’s finding that appellee had acquired title by adverse possession, is supported by substantial evidence.

In accordance with our discussion under point one, the judgment is reversed, and the cause remanded. On re-trial, all parties shall be permitted to produce any further proof desired relating to the issue of ownership.

Robinson, J., would reverse and dismiss.

       One cannot tell definitely, from these photographs whether the hedge runs continuously for a distance, or is only a “clump” serving as a “screen” in front of a window of the Mason house.


author: Ed. F. McFaddin, Associate Justice.

text:
    Noble v. Brown.
    5-2589
    354 S. W. 2d 10
    Opinion delivered February 19, 1962.

      George E. Pike and Botts & Botts, for appellant.

      Macon £ Moorehead, for appellee.
   Ed. F. McFaddin, Associate Justice.

This is a suit to reform a deed, brought by a mother against her daughter and son-in-law. The appellee, Mrs. Nora E. Brown, was plaintiff below and the grantor in the deed. The appellants, Myrtle Noble and Albert Noble, were defendants below, and Mrs. Noble was grantee in the deed. The Trial Court awarded the prayed reformation, and this appeal ensued.

The family situation is important. Por a number of years, Mrs. Brown owned 160 acres, which had been given to her by her father. Mrs. Brown and her husband lived on the land and cultivated 49 acres, and the remainder was in timber. Mr. and Mrs. Brown had two children, being a boy, Lem, and a daughter, Myrtle (the defendant, Myrtle Noble). Mr. Brown died in 1938; and the son, Lem, with his wife and three children, continued to live with Mrs. Brown and cultivate the 49 acres. Lem Brown died in 1948, and his wife and her one remaining unmarried son lived with Mrs. Brown a few more months and then moved to Little Rock, leaving Mrs. Brown alone. She moved to DeWitt and boarded at various places and rented the farm, first to Mr. Harbert and later to Albert Noble (defendant) and his brother for the years 1952,1953, and 1954. Mrs. Brown’s sole source of income was the rent from the farm. Albert Noble owned some land near the Brown land, and in 1951, Mrs. Brown conveyed three acres of her land to Noble so that he conld have a water well drilled for rice farming. He also cleared some of Mrs. Brown’s land and pnt it in rice, beginning in 1952. Noble was in need of money, and in February 1955 Mrs. Brown joined with him and his wife in a mortgage of both the Brown and the Noble lands for $12,500, with the promise from the Nobles that the mortgage would be paid as soon as possible.

All of the foregoing matters are undisputed. On December 15, 1956, Mrs. Brown executed to her daughter, Myrtle, a quitclaim deed to the 160 acres originally owned by Mrs. Brown; and this quitclaim deed is the instrument that is here in dispute. The evidence is directed to the facts, circumstances, and consideration surrounding this deed. Mrs. Brown filed this suit on December 10, 1960, claiming that the deed was supposed to convey only an undivided one-half interest in the land. Her complaint alleged, inter alia:

‘ ‘ Said quitclaim deed was represented by Myrtle M. Noble to the plaintiff as being a conveyance by the plaintiff to Myrtle M. Noble of an undivided one-half (1/2) interest in and to the described lands, and the plaintiff relying upon her daughter, Myrtle M. Noble, in whom she reposed trust and confidence, did execute said deed without reading same; the consideration for said conveyance of said undivided one-half (1/2) interest was the agreement by the defendants, Albert R. Noble and Myrtle 1V1. Noble, that they would support and care for the plaintiff, Nora E. Brown, for her life and that they would rent from Nora E. Brown the other undivided one-half (1/2) of the said NW1/4 of Section 36. The rental to be one-fifth (l/5th) of all rice and one-fourth (l/4th) of all dry crops raised thereon. The defendants have failed and refused to pay to the plaintiff the rent on the undivided one-half of said Quarter Section for the years following the above described quitclaim deed, stating upon demand being made that they did not have the money.”

The prayer of the complaint was, “. . . that the defendant Myrtle M. Noble be compelled to surrender for cancellation the deed to the above described land in return for a deed from the plaintiff to an undivided one-half (1/2) interest in said land; . . . defendants Albert R. Noble and Mrtle M. Noble be required to account for and pay over to Nora E. Brown the rents for the years 1956 through 1960 in accordance with said contract set out above; . . .”

Mrs. Brown admitted (both in the pleadings and in her testimony) that she executed a deed, but claimed that the deed should have been for only one-half interest instead of her total interest. In such an effort to reform a deed as here, the person seeking reformation has the burden of presenting proof that is clear, unequivocal, and convincing. Hicks v. Rankin, 214 Ark. 77, 214 S. W. 2d 490; Hopkins v. Williams, 215 Ark. 151, 219 S. W. 2d 620; Stallcup v. Stevens, 231 Ark. 317, 329 S. W. 2d 184. When tested by the rule stated in the foregoing cases, we reach the conclusion that the evidence for Mrs. Brown fails to satisfy the requirements. Mrs. Brown was the only witness who testified to support her case; and her testimony showed that advanced years cause one to become forgetful. Certainly, her testimony does not satisfy the quantum of proof necessary to entitle her to the relief. She admitted that she knew in 1956 what the deed recited, and she offered no good explanation for her delay in seeking reformation. We are thus driven to the conclusion that she changed her mind in the intervening years.

On the other hand, witnesses — other than the appellants — testified that Mrs. Myrtle Noble was not with her mother when the deed was prepared, and executed by Mrs. Brown; and, therefore, Mrs. Noble could not have made any representations to Mrs. Brown about the contents of the deed. It was shown that the deed was prepared by one attorney and then taken by Mrs. Brown on her own initiative to another attorney who carefully explained to her the fact that the deed conveyed all of her interest in the property. The testimony of the appellants, along with that of other witnesses, convinces us that the decree must be reversed.

However, there is another angle of the case that we desire to discuss; and that relates to continued support and maintenance. It is agreed by both sides that the consideration of the deed was the agreement by the grantee, Mrs. Myrtle Noble, that she would care for and support Mrs. Brown as long as the grantor might live. Mrs. Noble pays $165.00 per month for Mrs. Brown’s care in a nursing home, and, in addition, provides her with vitamins and other extras and also pays her hospital and medical bills. As far as the record before us discloses, Mrs. Noble has been faithful to her obligation; and we emphasize that this obligation continues for the life of Mrs. Brown. The fact that Mrs. Brown is not successful in the present litigation cannot prejudice her rights to continued support and maintenance for her entire lifetime. The land stands charged with that obligation' even if Mrs. Brown should outlive her daughter. Failure to provide the proper care, maintenance, and support for Mrs. Brown would result in a failure of consideration for the deed. See Fisher v. Sellers, 214 Ark. 635, 217 S. W. 2d 331. Inasmuch as this is an equity case, and we have discretion as to taxing of Court costs, we tax all the costs against the appellants, even though we reverse the decree and remand the cause for the entry of a decree in accordance with this opinion.

       The quitclaim deed, omitting only the acknowledgment, is as follows:
      “KNOW ALL MEN BY THESE PRESENTS:
      “That I, Nora E. Brown, GRANTOR, for and in consideration of the sum of One and No/100 Dollars ($1.00), and other valuable consideratoins in hand paid by Myrtle Noble, GRANTEE, the receipt of which is hereby acknowledged, do hereby grant, convey, sell and quitclaim unto the said GRANTEE, and unto her heirs, and assigns forever all my right, title, interest and claim in and to the following lands lying in Arkansas County, Arkansas:
      “The Northwest Quarter of Section Thirty-Six (36), Township
      Pour (4) South, Range Two (2) West.
      “This conveyance is made subject to a Mortgage given by Nora E. Brown, et. al to the Mutual Benefit Life Insurance Company of Newark, New Jersey, the said Mortgage appearing of record in the Office of the Recorder of Deeds for the Southern District of Arkansas County, Arkansas in Record Book P- 7, Page 429.
      “To have and to hold the same unto the said GRANTEE, and unto her heirs and assigns forever, with all appurtenances thereunto belonging.
      “WITNESS my hand and seal on this 15th day of December, 1956.
      /s/Nora E. Brown.”


author: George Rose Smith, J. Ed. F. McFaddin, Associate Justice,

text:
    Universal CIT Credit Corp. v. Hudgens.
    5-2603
    356 S. W. 2d 658
    Opinion delivered February 19, 1962.
    [Supplemental opinion on rehearing April 30, 1962, 234 Ark. 1127.]

      Norton & Norton, for appellant.

      Giles Bearing, for appellee.
   George Rose Smith, J.

On May 21, 1959, the appellees, Anson Hudgens and his daughter, bought a used Ford car from E. W. Mack, doing business as West Memphis Auto Sales. The conditional sales contract executed by the purchasers was transferred by Mack to the appellant finance company the next day. None of the monthly payments were made by the purchasers, who insist that they were defrauded. The appellant brought this action in replevin to recover the car. The case was transferred to equity, where the chancellor canceled the contract for fraud in its procurement and for usury. We do not reach the issue of usury, for we have concluded that the decree must in any event be affirmed upon the finding of fraud.

It should be stated at. the outset that the appellant does not and cannot invoke the protection afforded to the holder of a negotiable instrument. No promissory note is involved, and the conditional sales contract is not negotiable, as it does not contain an unconditional promise payble to order or bearer. Gale & Co. v. Wallace, 210 Ark. 161, 194 S. W. 2d 881. Hence, as we held in the case cited, the appellant holds the contract subject to defenses available against the original seller.

If the execution of the contract was induced by fraud it was properly canceled. Gentry v. Little Rock Road Mach. Co., 232 Ark. 580, 339 S. W. 2d 101. Here, as in the Gentry case, the purchasers testified that the seller represented the vehicle to be in good condition, when in fact it needed extensive repairs. Mack’s salesman gave the appellees a signed memorandum stating that the seller had given a 30-day guarantee on the motor, transmission, and rear end; but when the dissatisfied purchasers brought the car back within a few days Mack refused to repair it unless the buyers would bear half the expense.

A more serious charge of fraud is the appellees’ assertion that Mack’s salesman, Harris, induced them to sign the contract in blank and then filled it in for $300 more than the agreed purchase price of $1,095. As a witness for the appellant Harris admitted that the contract was signed in blank and was left with him for completion, but he insisted that the figure which he inserted as the purchase price, $1,395, was in accordance with the parties’ agreement.

No useful purpose would be served by a detailed discussion of the conflicting testimony. Hudgens, his daughter, and his son were all present when the car was bought, and all three testified to facts amply supporting the charge of fraud. Their version of the matter is contradicted only by the salesman, Harris. After studying the record we cannot say that the evidence adduced by one side is essentially more credible than that adduced by the other. The chancellor had the great advantage of observing the witnesses as they testified. His findings do not appear to us to be against the weight of the evidence.

Affirmed.

McFaddin, J., concurs.

Ed. F. McFaddin, Associate Justice,

concurring. My study of this case convinced me that the transaction was clearly usurious, and I rest my affirmance on that ground. As to the fraud matter, I express no opinion.


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

text:
    Natl. Life & Accident Ins. Co. v. Baker.
    5-2608
    354 S. W. 2d 1
    Opinion delivered February 19, 1962.

      House, Holmes, Butler $ Jewell, for appellant.

      Alonso D. Camp, for appellee.
   Paul Ward, Associate Justice.

Appellee, Erma Jean Baker, as the named beneficiary in an application for insurance applied for by Mrs. Lueva Carroll (now deceased), brought suit against appellant, The National Life and Accident Insurance Company, to recover $750 together with attorney’s fee and the statutory penalty. The cause was submitted to the trial court on the complaint, answer, and stipulated facts. From a judgment in favor of appellee this appeal is prosecuted, seeking a reversal.

Essential Facts. On July 13, 1960 appellant issued and delivered to Mrs. Carroll the following “Conditional Receipt for Premium Deposit”;

Name of Proposed Insured Plan Amount of Deposit
Lueva Carroll PM S $1.96
“$1.96 received of Same (Name of person making payment) as premium deposits on policies of insurance described above for which application is this day made to The National Life and Accident Insurance Co.
“If any policy is issued, the premium deposit for said policy will be applied toward the payment of premiums thereon. If the application for any policy is declined, or if any policy is issued other than as applied for and is not accepted, the premium deposit for that policy will be refunded.
“If both the following conditions are satisfied:
“ (1) the amount of the premium deposit for a policy is at least equal to (a) two weekly premiums on said policy if premiums thereon are payable weekly, or (b) the premium for one full month on said policy if premium thereon are payable monthly or less frequently ; and (2) the proposed Insured is, on the date of said deposit and on the date of any required medical examination, insurable and acceptable in the opinion of the Company’s authorized officers in Nashville, Tennessee under the Company’s rules and practices for the plan, amount of insurance, and premium applied for; then upon the death or bodily injury of the Proposed Insured prior to the Date of Issue of said policy and within thirty-one days of the date of said deposit, the Company will pay the benefit, if any, which would have been payable under the provisions of said policy had its Date of Issue been the date of said deposit.

No benefits shall be payable under the Conditional Receipt for disability from sickness.

No Field Representative of the Company has authority to waive, alter or modify any term of this Receipt, or to bind the company in any way other than as specifically provided in this Conditional Receipt.

This Conditional Receipt is not valid if its date differs from the date of the application, or if any check tendered as a deposit is not honored upon presentation for payment.

THE NATIONAL LIFE AND ACCIDENT COMPANY
(signed) J. S. Cruickshanks
(signature of Licensed Resident
Representative)
Date: 7/13/60 LR 11
DISTRICT DEBIT”

On the back of the receipt was the following “Notice to Holder of Conditional Receipt”:

“This Receipt is valuable. Do not destroy or lose.
“If you do not, within 31 days from the date of the deposit, receive either a policy or the return of your deposit, present this receipt for redemption at the District Office, or the Home Office in Nashville, Tennessee.
THE NATIONAL LIFE AND ACCIDENT INSURANCE COMPANY
“If the Company declines to issue insurance, or if the Proposed Insured or his representative declines to accept a policy issued otherwise than as applied for, the amount deposited must be returned to the person who paid it. Such person will receipt for return of deposit below.
“I acknowledge the return to me of my deposit of $.................. made to The National Life and Accident Insurance Company on an application for insurance for which I did not receive a policy.
Date:.................................
Debit No.........................
Proposed Insured, or Person who made deposit, if other than Proposed Insured. District. ’ ’

On the same date, July 13, 1960, Mrs. Carroll paid to appellant’s agent the sum of $1.96 which was sufficient to pay two weekly premiums on the policy when and if issued, and she also signed an application for a $750 life insurance policy to be issued by appellant on certain conditions later discussed. She answered all questions in the application relative to her physical condition, but was not required to be examined by a doctor. All these transactions were between her and appellant’s duly authorized local agent, J. S. Cruickshanks. Appellee was named as beneficiary in the application.

The application for insurance was declined and rejected by appellant at its Home Office in Nashville, Tennessee, prior to July 27, 1960 because Mrs. Carroll was found to be “uninsurable and unacceptable” under its rules and practices. Notice of the rejection of the application reached the local office in Little Bock on Thursday July 28, 1960. On July 30, 1960 Mrs. Carroll died of natural causes. On Monday, August 1, 1960 when the local agent went to the home of Mrs. Carroll to return to her the $1.96 he learned of her death. Thereupon he tendered the money to her daughter, appellee, but she refused to accept it, saying “they” would wait. The money was thereafter deposited in court.

Based on the above facts and the applicable law we have concluded the trial court was in error in rendering judgment in favor of appellee.

To sustain the judgment of the trial court appellee relies almost exclusively on our decision in the case of Union Life Ins. Co. v. Rhinehart, 229 Ark. 388, 315 S. W. 2d 920. However, a casual reading of that case reveals a clear and vital distinction between it and the present case in respect to the facts. A short excerpt from the opinion in the cited ease will suffice to point out the basis on which it was decided:

“The binding receipt specifically sets out the terms and conditions upon which the receipt can be considered void, and that was by a return of the premium. The binding receipt put the insurance into effect as of the date of the receipt . . . provided the applicant was a risk acceptable to the company, and if the applicant was not an acceptable risk the premium was to be returned. The premium was not returned. True, the insurance company had sixty days in which to decide whether to issue a policy, but in the meantime the temporary insurance was in force unless the company voided that risk by returning the premium. This was not done. ’ ’

In other words, according to the receipt in the cited case, the insurance was in effect from the date of issuance and was to remain in effect unless voided by subsequent action on the part of the company.

In the case before us the above mentioned situation was just the reverse. There was to be no insurance until the company took subsequent action, viz: determine Mrs. Carroll to be “insurable and acceptable”. This meaning of the receipt is supported by and is in conformity with other words and clauses contained therein, viz.: It is designated a “conditional” receipt; “if the policy is issued”; “if the application” is declined . . . “the premium will be returned”. If the above language does not make it clear that Mrs. Carroll was to have no protection until the appellant accepted her as insurable, then we are at a loss to know what language would make it clear. Any other interpretation of the English language would cast a cloud of uncertainty on any written contract. After all, insurance applications and policies are to be interpreted like other contracts, particularly where there is no ambiguity in the language. This was forcefully stated in Eyring et al v. Kansas City Life Ins. Co., 234 Mo. App. 328, 129 S. W. 2d 1086, where it said:

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

A situation analogous to the case under consideration in principle and similar as to facts was before this Court in the case of Cooksey v. Mutual Life Insurance Company, 73 Ark. 117, 83 S. W. 317 where Cooksey had signed an application for insurance containing this language:

“I have paid $........................to the subscribing soliciting agent, who has furnished me with a binding receipt therefor, signed by the secretary of the company, making the insurance in force from this date, provided this application shall be approved, and the policy duly signed by the secretary at the head office of the company and issued. ’ ’

The solicitor gave Cooksey a receipt, dated November 27, 1900 which showed $45.96 paid on premium to be returned if the company declined to issue the policy. Cooksey was examined the same day by a physician who recommended acceptance of the application. The application was received by the general agent in Little Bock December 3, 1900 and forwarded to the home office in New York where it was received December 7 and approved again by the physician there in charge. The application was then referred to the inspector of risks who, on December 10, 1960, wrote the Little Bock agent for further information concerning Cooksey’s occupation. Before the investigation was completed and final action was taken by tbe company, Cooksey , died on December 14. Cooksey’s administrator filed suit against tbe company, contending there existed temporary insurance pending the processing period. The trial court directed a verdict in favor of the company. This court, in affirming the trial court, said:

“It is not an unfamiliar custom among life insurance companies in the operation of the business, upon receipt of an application for insurance, to enter into a contract with the applicant in the shape of a so-called ‘binding receipt’ for temporary insurance pending the consideration of the application, to last until the policy be issued or the application rejected, and such contracts are upheld and enforced when the applicant dies before the issuance of a policy or final rejection of the application. It is held, too, that such contracts may rest in parol. Counsel for appellant insists that such a preliminary contract for temporary insurance was entered into in this instance, but we do not think so. On the contrary, the clause in the application and the receipt given by the solicitor, which are to be read together, stipulate expressly that the insurance shall become effective only when the ‘application shall be approved and the policy duly signed by the secretary at the head office of the company and issued’. It constituted no agreement at all for the preliminary or temporary insurance.”

In our opinion the reasoning applied in the above case is controlling here, and calls for a reversal of the trial court.

The Cooksey case has never been overruled but has been cited with approval several times by this and other courts. See: Mutual Life Ins. Co. v. Jordan, Guardian, 111 Ark. 324, 163 S. W. 799; National Union Fire Ins. Co. v. School District No. 55, 122 Ark. 179, 182 S. W. 547; Aetna Ins. Co. v. Short, 124 Ark. 505, 187 S. W. 657; American Ins. Co. v. School District No. 23, 182 Ark. 158, 30 S. W. 2d 217; and, Bellak v. United Home Life Ins. Co., 6 Cir., 211 F. 2d 280. There are numerous cases from other jurisdictions on fact situations very similar to those here, holding that no interim insurance obtains pending acceptance of the applicant as a risk or pending the issuance of a policy of insurance. See: Gonsoulin v. Equitable Life Assur. Soc’y, 152 La. 865, 94 So. 424; Reynolds v. Northwestern Mutual Life Ins. Co., 189 Iowa 76, 176 N. W. 207; The National Life and Accident Ins. Co. v. Fox, 165 Tenn. 264, 54 S. W. 2d 951; Olson v. American Central Life Ins. Co., 172 Minn. 511, 216 N. W. 225; Kronjaeger v. Travelers Ins. Co., 124 W. Va. 730, 22 S. E. 2d 689; Leube v. Prudential Ins. Co. of America, 147 Ohio 450, 72 N. E. 2d 76; and Brancato v. National Reserve Life Ins. Co., 8 Cir., 35 F. 2d 612.

We are aware of the numerous decisions, many of which are cited in 2 A. L. R. 2d at pages 943 et seq., which hold, as this Court holds in the Rhinehart case, supra, that an application and a receipt do create interim insurance; but, generally speaking, these decisions are based on the peculiar wording of such instruments not present in this case. In any event our Court has already chosen the course it desires to pursue and we think it is sound and reasonable.

It follows therefore from what we have said heretofore that the judgment of the trial court should be, and it is hereby, reversed and the cause of action against appellant is dismissed.

Reversed and dismissed.

McFaddin and Johnson, JJ., dissent.

Ed. F. McFaddin, Associate Justice,

dissenting. I dissent because it is my firm conclusion that the Majority, in reversing the judgment of the Trial Court, is doing substantial violence to our long-established rule that any ambiguity in an insurance contract is to be construed most strongly against the company and most liberally in favor of the insured or beneficiary. Some cases so holding are: Life & Cas. Ins. Co. v. Kinney, 206 Ark. 804, 177 S. W. 2d 768; and Halley v. Mutual Benefit Assn., 215 Ark. 907, 223 S. W. 2d 759. I maintain that an application of this rule would result in an. affirmance of the judgment; and I will now undertake to point out the ambiguities that exist in the document issued by the Insurance Company. The material stipulated facts are:

(a) That on July 13, 1960 the Insurance Company received from Lueva Carroll $1.96, which was sufficient “to pay, in advance, two (2) weekly premiums” on the policy applied for;

(b) That the duly authorized agent of the Insurance Company issued to Lueva Carroll an instrument entitled “Conditional Receipt for Premium Deposit” (this instrument will be further discussed when I point out the ambiguities in it);

(c) That Lueva Carroll’s application was forwarded to the Home Office of the Insurance Company, and “prior to July 27, 1960” the Company decided that she was not “insurable” and directed the agent to return the $1.96 to her; and

(d) That Lueva Carroll died on July 30, 1960, before the agent ever returned the $1.96 to her.

Now let us consider the ambiguities in the “Conditional Receipt for Premium Deposit.” It is copied in full in the Majority Opinion, and there are two ambiguities — the first of which is not as obvious as is the second.

(1) The receipt was for two weekly premiums on the policy; it provided that if Lueva Carroll was " on the date of said deposit . . . insurable and acceptable in the opinion of the Company’s authorized officers in Nashville, Tennessee . . .,” then upon her death “prior to the date of issue of said policy and within 31 days of the date of said deposit” the Company would pay the amount of the policy. There is no testimony in this ease concerning whether the applicant was uninsurable ‘ ‘ on the date of said deposit ’ ’; and that is the first ambiguity. No physical examination was required of Lueva Carroll, and evidently the agent who wrote the application and issued the premium receipt must have thought that she was insurable on that date. The only stipulation directed to uninsurability relates to some decision in the Company Office “prior to July 27, 1960.”

(2) But the more serious ambiguity is contained in the language on the back of the conditional receipt. It says: “If the Company declines to issue insurance . . . the amount of the deposit must be returned to the person who paid it.” That language means that the burden was on the Insurance Company to make the return of the deposit to Lueva Carroll in her lifetime, and not to tender a return of the deposit to the beneficiary after the death of Lueva Carroll. The Insurance Company absolutely failed to tender the return of the deposit to Lueva Carroll in person, and that is what the Insurance Company said it had to do. This language is clear and unequivocal; but, if — when construed with the other language of the receipt — there is any ambiguity, then that ambiguity must be resolved against the Insurance Company, just as the Trial Court did. I maintain that the case at bar falls clearly within the rule of Union Life Ins. Co. v. Rhinehart, 229 Ark. 388, 315 S. W. 2d 920, and does not come within any exception as in Cooksey v. Mutual Life Ins. Co., 73 Ark. 117, 83 S. W. 317.

There is a splendid Annotation in 2 A. L. R. 2d 943, entitled, “Temporary life, accident, or health insurance pending approval of application or issuance of policy.” In the opening section of that Annotation there is pointed out the history of the “binding receipts”; and from that paragraph we see that a binding receipt (or a “Conditional Receipt for Premium Deposit” as it is designated in this case) is an attempt by the Insurance Company to “both have its cake and eat it.” The Insurance Company wants to bind the applicant to take the policy when issued; so it takes the premium in advance with the understanding that when the policy is issued it will date back to the date of the application. But, in order to try to avoid liability from date of receipt of the money, the insurance companies have resorted to all sorts of language. When the Insurance Company in this case chose its language and stated that it had to pay the money back to Lueva Carroll in person, the Insurance Company bound itself that if she died before the return of the money, then the Insurance Compnay would pay the policy benefits. I do not see how the Majority can evade such a clear application of the law; and I therefore respectfully dissent.


author: Sam Robinson, Associate Justice. Ed. F. MoFaddin, Associate Justice,

text:
    Anderson v. Stallings.
    5-2610
    354 S. W. 2d 21
    Opinion delivered February 19, 1962.

      Lee Ward and Frank Lady, for appellant.

      Barrett, Wheatley, Smith $ Deacon, for appellee.
   Sam Robinson, Associate Justice.

The complaint in this case alleges that the appellee, George H. Stallings, while driving an automobile in Marked Tree, Arkansas, negligently ran over and killed Arthur L. Anderson, a child four years of age. There was a trial to a jury and a verdict for the defendant, who is now the appellee.

For reversal, appellant argues six points, but has failed to abstract the record. The first point is that the trial court erred in failing to instruct the jury that the defendant admitted negligence which was the proximate cause of the death of the little boy.

We can reach no decision as to the sufficiency of the evidence without an abstract of the testimony as provided by Rule 9 of this Court. The rule, so far as it is applicable here, provides:

“The appellant’s abstract or abridgment of the record should consist of an impartial condensation, without comment or emphasis, of only such material parts of the pleadings, proceedings, facts, documents, and other matters in the record as are necessary to an understanding of all questions presented to this Court for decision.”

There are 130 pages in the record in this case. Some of the evidence is mentioned in appellant’s argument, but it cannot be readily determined that which is in the record as evidence and that which is argument. Neither is the abstract of the record sufficient for the Court to make a determination of the other assignments of error. We have repeatedly pointed out that it is not practical for the seven members of this Court to examine the one record filed here, and that under Rule 9 the burden is on the appellant to furnish such an abstract as will give the various members of the Court an understanding of all questions presented. Farmers Union Mutual Insurance Co. v. Watt, et ux, 229 Ark. 622, 317 S. W. 2d 285. Porter v. Time Store, Inc., 227 Ark. 286, 298 S. W. 2d 51.

In the ease at bar the appellee has not supplemented the abstract, but has stood on the abstract furnished by appellant and relies on the fact that appellant has not complied with Rule 9 and argues therefore the Court cannot make a decision on the merits of the controversy. We have often said that we will not explore the record; appellee relies on that rule; hence, he did not answer the various points argued by appellant.

Affirmed.

McFaddin, J., concurs.

Ed. F. MoFaddin, Associate Justice,

concurring.

I have considered each of appellant’s points, and have reached the conclusion that the Circuit Court judgment should be affirmed on the merits. So tbe claimed failure to abstract did not influence my conclusion.


author: Jim Johnson, Associate Justice.

text:
    International Harvester Co. v. Land.
    5-2581
    354 S. W. 2d 13
    Opinion delivered February 19, 1962

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

      McMath, Leatherman, Woods £ Toungdahl, for appellee.
   Jim Johnson, Associate Justice.

This is an action in tort. On April 22, 1960, Mack Farlin Land drove an International Harvester truck, the property of his father, Cyril Land, to the International Harvester Company shop at 190 East 6th Street in Little Bock for the purpose of having certain additional equipment installed.

John C. Bergman, assistant shop Manager for International Harvester Company, was advised by Mack Farlin Land that the gear shift lever on the truck was difficult to operate. After inspecting and manipulating the gear shift lever, Mr. Bergman raised the cab of the truck in order to make an additional check.

On this particular model truck, the cab is elevated by means of two pistons that are powered by the use of hydraulic pressure. A hydraulic pump, or jack, is located on the frame of the truck, and the truck is equipped with a handle which is inserted into the proper slot for elevating the cab. There is a valve located at, or near, the pump to control the flow of hydraulic fluid. Pictures of the cab as elevated aids an understanding.

The truck is equipped with a plate that may be used to hold the cab in the proper elevated position after it is elevated. The mechanism is designed with two slots in the shell of the cylinder so that the plate may be inserted in either of the slots and, depending upon which slot is used, the cab is held in either a fully elevated or partially elevated position.

As John C. Bergman was elevating the cab by use of the jack, he observed that it operated slowly, and he advised Mack Farlin Land that the mechanism needed additional hydraulic fluid. After being told by Land. that there was a leak in a hydraulic line, Bergman was having the leak repaired. After Bergman had elevated the cab as high as it would go with the reduced hydraulic pressure, the plate was inserted in a slot in the cylinder shell. There is a dispute in the evidence as to whether the plate was inserted by Bergman or Land. One of the International Harvester mechanics, W. J. Gartrell, proceeded with the repair of the fitting that was permitting the leakage of hydraulic fluid. Additional fluid escaped during the course of the repairs. After the repairs were completed, Gartrell secured additional hydraulic fluid to add to the system and proceeded toward the truck, accompanied by Mack Farlin Land and one, Glynn Land, a cousin of Mack Farlin Land. Gartrell detoured to his workbench to open the can of hydraulic fluid, and Mack and Glynn Land proceeded directly to the truck. Mack Farlin Land was in a position with his head under the upraised cab of the truck, when the truck cab fell and pinned his head against the frame of the truck, causing his death almost instantly. Suit was filed by appellee, administrator of the estate of Mack Farlin Land, deceased, on behalf of himself, his wife, and the estate, in the Circuit Court of Faulkner County, against John C. Bergman and appellant, International Harvester Company. Evidence was presented at the trial of the deep grief endured by the parents of Mack Farlin as a result of his tragic death. Evidence was also presented that during his lifetime he consistently contributed money to the support of his parents, that he did most of the work on their small farm, that both parents were in bad health and that they anticipated that he would continue to assist them financially, if he had lived. A verdict was rendered against International Harvester Company in the sum of $30,000. A verdict was rendered in favor of John C. Bergman, International Shop Foreman, who was supervising the work on the truck at the time of the fatality.

When the verdict of the jury was first returned into court, the trial judge, upon examination, ascertained that the jury had only filled in the amount of $30,000 in the blank providing for the amount to be recovered on behalf of the estate. The'other blanks were not filled in. The only damage sustained or claimed by the estate was $1,523, the amount of the funeral bill, as there was no indication of conscious pain and suffering. The trial judge did not accept this verdict but called counsel into chambers and without revealing the verdict discussed the matter fully with them. Counsel for the appellees suggested that the jury be sent back for further deliberation but counsel for the appellant made the following suggestion:

“I have no objection — I don’t think I would have any grounds for objection — but I will state to the court that I have no objection to the Court attempting to ascertain what their intention was, and then aiding the jury in rendering a verdict that conforms to their intention. ’ ’

After a discussion, this suggestion was adopted by the court, counsel for the appellees having assented. The trial judge returned to the court room and carefully questioned the jury to ascertain the intentions. The true verdict of the jury was determined, whereupon, the trial court entered judgment of $1,523 on behalf of the estate and $14,238.50 each for the use and benefit of Mr. and Mrs. Land against International Harvester Company. Judgment was entered for the defendant John C. Bergman. The International Harvester Company has appealed from the judgment entered against it.

As one of its points relied on for reversal, appellant strenuously urges that the trial court erred in its determination of the jury verdict and contends that the court should have declared a mistrial, or in the alternative the judgment should have been limited to the $1,523 funeral expenses claimed by the estate. From the record it is clear that the trial court handled the determination competently and fairly and that the verdict fairly rendered reflected the true intention of the jury. Particularly is this true in view of the above quoted suggestion made by appellant’s counsel which was followed by the court. See Trailmobile v. Robinson, 227 Ark. 915, 302 S. W. 2d 786.

For reversal appellant further urges that “in view of the judgment in favor of John C. Bergman, the evidence will not support a judgment against appellant” and that the judgment rendered is excessive. The appellees predicated their cause of action against International on two theories. One theory sought to charge International with the alleged negligence of its employee J. C. Bergman, a co-defendant below. The jury, however, found in favor of Bergman, and in so doing relieved International of responsibility on respondeat superior. Appellees, however, in the alternative, alleged that International was responsible in tort for the death of Mack Land on a “products liability” theory, that is, for defective design or manufacture of the truck and the plate designed for holding the cab in the elevated position. The principal question in this case, therefore, is whether there is substantial evidence of such defective manufacture to sustain the verdict of the jury against International. We hold that such evidence has been presented by the appellees.

It is undisputed that the truck was so manufactured that when the cab was elevated by its hydraulic jack, the floor of the cab would catch and hang precariously on the road ranger bracket, a maneuverable device attached to the gear shift lever by the manufacturer. In other words, the opening in the floor of the cab was fashioned so narrowly that it would not accommodate the free passage of the floor past the road ranger bracket. When this happened, as it frequently did on this model truck, the plate or safety mechanism, provided to keep the cab from falling on those in the vicinity of the truck, was rendered completely nugatory. This device consisted of a steel plate, inserted in a slot cut into the piston housing of the hydraulic jack. The base of the piston was supposed to rest flush against the metal plate and, if the piston was in this position, the plate was sufficient to hold the eab in its raised position. However, since the floor of the cab, because of the narrow width of the opening, could not pass free of the road ranger bracket and instead caught and hung on it, as it frequently did and as the jury could have found it did on this occasion, the piston was suspended several inches from the steel plate. A drop of the cab from its precarious position on the road ranger bracket developed great force, sufficient to shear through the safety plate and allow the cab to fall unimpeded. In the absence of a showing that the road ranger bracket had been adjusted in a manner or position contrary to that for which it was manufactured, there was ample evidence presented from which the jury could have found here that the cab hung for a time on the road ranger bracket, slipped from this position, the piston sheared through the safety plate, the cab fell completely down and crushed the unsuspecting victim, Mack Land, who was standing by the side of the truck and leaning over so that his head was crushed by the cab.

The “products liability” doctrine is now common in our courts. The development of this type of litigation was inhibited for almost a century by the old English case of Winterbottom, v. Wright, 10 Mees. & W. 109, 152 Eng. Rep. 402, decided in 1842 and requiring privity of contract as a basis for such a suit. The repudiation of Winterbottom in the famous case of McPherson v. Buick Motor Co., 217 N. Y. 382, 111 N. E. n050, and the virtually unanimous acceptance of Judge Cardozo’s reasoning by the American authorities has brought a large number of “products liability” cases to the courts. See, for example, Chapman Chemical Co. v. Taylor, 215 Ark. 630, 222 S. W. 2d 820, discussed in great detail in Harper & James, The Law of Torts, Vol. 2, Sec. 28.77, pp 1592-3. See also Ford Motor Co. v. Fish, 106 L. Rep. 743, 335 S. W. 2d 713, 2d appeal, 108 L. Rep. 47, 346 S. W. 2d 469, and Judge Miller’s discussion of the Arkansas cases in Green v. Equitable Powder Mfg. Co., 94 F. Supp. 126, 95 F. Supp. 127. Also see article on “products liability” in 28 Fordham Law Review, p. 776, which is reviewed in Law Review Digest No. 10, page 72. In Chapter XXVIII of Harper and James, The Law of Torts, Vol. 2, pp 1534-69, entitled “Liability of Suppliers of Chattels” there is an excellent discussion of the duties owed by a manufacturer in the area of tort liability. These authorities point out on p. 1545 that “the existing law of negligence demands this duty of care where others are threatened by want of a feasible safety device wherever the foreseeable danger to them is unreasonable.” On p. 1541 of the same chapter it is said:

“The maker of an article for sale or use by others must use reasonable care and skill in designing it and providing specifications for it so that it is reasonably safe for the purposes for which it is intended, and for other uses which are forseeably probably. And a person who undertakes such manufacturing will be held to the skill of expert in that business and to an expert’s knowledge of the arts, materials, and processes. Thus he must keep reasonably abreast of scientific knowledge and discoveries touching his product and of techniques and devices used by practical men in his trade. He may also be required to make tests to determine the propensities and dangers of his product.”

With regard to proving negligence in these cases, Harper and James state in the same Chapter on p. 1564:

“Where design or specifications are involved it usually appears or is admitted that the condition which proved injurious was created intentionally. If, then, the condition is also shown to be unreasonably dangerous, ap inference of negligence is usually warranted.”

Prosser states in the blacktype summary heading to Chapter 17 of his well known text, The Law of Torts, 2d Ed. p. 497:

“It is now generally agreed that a seller, or other supplier of chattels for a consideration, may be liable for harm to the person or property of a third person who may be expected to be in the vicinity of the chattel’s probably use, if he has failed to exercise reasonable care to make the chattel safe for the nse for which it is supplied. ’ ’

Under our decisions it was in the province of the jury in this case to determine whether the propensity of the floor of the truck cab to hang on the road ranger bracket, and thus render the safety plate ineffective, created an unreasonable danger to others, which might have been prevented by the exercise of ordinary care. Ford Motor Co. v. Fish, supra. A recent California ease, Brooks v. Allis Chalmers Mfg. Co., 163 Cal. App. 2d 410, 329 p. 2d 575 is factually similar to the case at bar. The plaintiff’s decedent was killed when a boom on a crane fell. The plaintiff contended that the crane and boom were so constructed that the boom brake handle “would become stuck and when in such position the brake handle could not be depressed to increase the brake pressure.” The crane and boom contained a safety device called a “boom dog” which was supposed to keep the boom from falling. “There was evidence that if the brake was not working properly, and the dog was on the point of the tooth, the boom could come down by jarring.” The California Court held that the question of the manufacturer’s negligence was for the jury. Other cases involving the failure of safety devices are Edison v. Lewis Mfg. Co., 168 Cal. App. 2d 429, 336 P. 2d 286; Stupp v. Fred J. Swaine Mfg. Co., Missouri 229 S. W. 2d 681; and Carpini v. Pittsburg and Weirton Bus Co., et al, 216 F. 2d 404. These cases hold that it is for the jury to decide whether the manufacturer took the proper precautions to protect the users of his chattels from harm or whether, by his design and manufacture, he subjected such users to an unreasonable risk of harm. The evidence of the plaintiff detailed above, which on appeal must be viewed in its strongest light, was sufficient to take this case to the jury. As to the amount of the verdict for the death of this son, we do not find it so shocking as to require a remittitur or reversal. It follows, therefore, that the judgment in all respects is- affirmed


text:
    Bostic v. State.
    5024
    355 S. W. 2d 165
    Opinion delivered February 19, 1962.
    [Rehearing denied April 19, 1962.]

      8am Montgomery and Brown •& Compton, for appellant.

      Frank Holt, Attorney General, by Jack Holt, Jr., Chief Asst. Attorney General, for appellee.
   Neill Bohlinger, Associate Justice.

The appellant, George W. liostic, was charged with the crime of false pretense by felony information filed in the Union Circuit Court on September 8, 1960.

The gist of the information charges the appellant with unlawfully, wilfully and feloniously obtaining from Ivon Skinner a sum of money by falsely representing that he, the appellant, was an agent of the Southern Trust Life Insurance Company and had authority to accept applications and collect premiums for said company.

The case was tried on March 21, 1961 and the jury returned a verdict of guilty and the appellant was sentenced to one year in the penitentiary.

It appears from the record before us that the appellant had been the duly licensed agent of the Southern Trust Life Insurance Company and that he had, from time to time, taken applications, collected premiums, and had various transactions with the insurance company as its agent. Under the contract between the appellant and the insurance company, the appellant was entitled to a certain part of the premiums which he collected.

There appears no doubt in the record that the appellant solicited Ivon Skinner for an application for insurance and that upon representations and showings by the appellant, Ivon Skinner signed the application and gave to the appellant $164.52 as the premium on the insurance policy which was to be issued. The appellant issued to Ivon Skinner his receipt and cashed the check which Skinner had given him.

Skinner testified that notwithstanding his application and payment of his premium, he did not receive his policy of insurance. It is the contention of the State that while the appellant had been an agent of the insurance company, his contract of agency had been cancelled and that on July 19, 1960, the company had mailed to appellant a notice of that cancellation. It is apparent from the record that the affairs between the appellant and the insurance company were not in a condition that was satisfactory to either party; appellant, Bostic, maintaining that the company owed him money on insurance applications he had written and the company maintaining that Bostic had failed to remit the amounts with which he was charged. On July 29, 1960 the appellant, through his attorney, paid the insurance company $200.00 and was given a receipt which is as follows:

“It is agreed that upon receipt of this two hundred dollars that the license of George W. Bostic with Southern Trust Life Insurance Company will be immediately reinstated.

The application from Skinner was obtained on August 19, 1960 and the money paid to appellant at that time.

The question is not as to the company owing Bostic money, or Bostic owing the company money, but did Bostic believe that he was a duly authorized agent, authorized to take applications and collect money. Whether or not the proof of the appellant was sufficient to show that Bostic believed he was still the agent of the company, we do not say but there is the written receipt of the company dated July 29, 1960, advising Bostic that his status as agent would be renewed immediately and there is testimony that the company furnished him additional supplies and upon another occasion we find testimony that Bostic turned in applications between the date of the supposed cancellation of the contract and the date of the Skinner application which applications the company received and issued policies.

If the testimony in this case furnished any basis for a belief that the action of the company lulled Bostic into a false sense of security that he was still the agent and had the authority to do what he did, it is a matter which the appellant was entitled to have considered by the jury, and the instruction requested by the appellant should have been given in order that the jury might consider whether or not the company has issued contracts of insurance to other persons on applications sent in by the appellant under like circumstances.

This was an item of defense which the appellant was entitled to have considered by the jury under his requested instructions and failure of the court to so instruct the jury was error. Specifically the court should have given Instruction No. 13 as requested by appellant; and because of the nature of this prosecution, the court should not have stricken the words “beyond a reasonable doubt” from Instruction No. 7 and No. 9.

The cause is accordingly reversed and remanded.

Robinson and Johnson, JJ., would reverse and dismiss.


author: Carleton Harris, Chief Justice.

text:
    Hot Springs Street Ry. Co. v. Jones.
    5-2582
    354 S. W. 2d 278
    Opinion delivered February 26, 1962.

      House, Holmes, Butler db Jewell, by Charles J. Lincoln, for appellant.

      B. W. Thomas and B,ichard W. Hobbs, for appellee.
   Carleton Harris, Chief Justice.

This appeal is the result of a judgment entered by the Garland County Circuit Court wherein Mrs. Charlotte Jones, appellee, was awarded the sum of $12,500 for injuries allegedly sustained through the negligence of the bus operator of appellant company. According to appellee’s proof, Mrs. Jones, a widow, 91 years of age, attempted to board one of appellant’s buses on September 21, 1959. As she started onto tbe bus, placing her right foot on the step, and her hand on the rod, the bus started up, and the door closed, catching her by the wrist. When the door was opened, she fell to the street, and sustained painful injuries. The driver testified that he did not see appellee, that the bus did not move while she was attempting to get on, and that he did not know anyone had fallen until one of the passengers called out that appellee had fallen. In reaching a determination in this litigation, it is unnecessary to set out the evidence introduced in support of either side, other than to say that such evidence presented a question of fact, relative to appellant’s liability, for the jury to determine. For reversal, appellant relies upon three points, which we proceed to discuss, though not in the order listed in the briefs.

It is asserted that, “The Court Erred in Granting Plaintiff’s Requested Instruction No. 3 and Telling the Jury That Where a Person Is Injured While Attempting to Board a Bus That a Presumption of Negligence on the Part of the Bus Owner is Created.” The questioned instruction reads as follows:

“You are instructed that if you find from a preponderance of the evidence that the Plaintiff, Mrs. Charlotte Jones, was attempting to board the bus belonging to the Defendant and you further find that she sustained injuries because of the manner in which the bus was being operated by the driver, then you are instructed that this creates a presumption of negligence on the part of the Defendant.”

This instruction was erroneous. It, in effect, told the jury if they found that Mrs. Jones was attempting to board the bus, and was injured because of the manner of operation of the vehicle, whether the manner of operation was negligent or otherwise — that negligence was to be presumed. In other words, the traditional function and duty of the jury to determine what facts constitute negligence was taken away. Appellee relies upon the cases of Dillahunty v. Chicago, Rock Island & Pacific Railroad Company, 119 Ark. 392, 178 S. W. 420, and Huckaby v. St. Louis I. M. & S. Railway Co., 119 Ark. 179, 177 S. W. 923. It is true that formerly, in railroad cases, we said that where an injury results, from the operation of the train, to the passenger while, boarding or alighting from the train, a presumption of negligence arises in favor of such passenger, — and further, the Court might so instruct the jury. However, this last is no longer the law. Following the decision of the United States Supreme Court in Western & Atlantic R. Co. v. Henderson, 279 U. S. 639, this rule was changed, and several eases have held similar instructions fatally defective. In Mo. Pac. Railroad Co. v. Vaughan, Admr., 225 Ark. 848, 286 S. W. 2d 6, appellee obtained a judgment against appellant company, and an appeal was lodged in this Court. The judgment was reversed because of the following instruction which had been given, and which this Court held to be erroneous:

“You are instructed that if you find from a preponderance of the evidence in this case that the deceased, Joseph C. Caruth, was injured and killed by the operation of one of the trains of the defendant company, as alleged in the complaint, then you are told and instructed by the Court that the law presumes negligence on the part of the defendant company, and it will be your duty and you are instructed to find for the plaintiff, unless the defendant has overcome that presumption by a preponderance of the evidence in this case.”

Quoting from the Opinion: 767, 136 S. W. 2d 158; and St. L. S. F. Ry. v. Hovley (opinion on rehearing), 199 Ark. 853, 137 S. W. 2d 231.” It will. be noted that the instruction at bar even goes further than the instruction in the Vaughan case, since the instruction before us simply declares a presumption of negligence on the part of the defendant without adding the words “unless the defendant has overcome that presumption by a preponderance of the evidence in this case.” In either event, the instruction constituted error.

“The appellee seeks to defend the above instruction by citing such cases as St. L. S. W. Ry. Co. v. Vaughan, 180 Ark. 559, 21 S. W. 2d 971; Mo. Pac. R. Co. v. Overton, 194 Ark. 754, 109 S. W. 2d 435; and Mo. Pac. R. Co. v. Thompson, 195 Ark. 665, 113 S. W. 2d 720. It is true that in some of these cases an instruction like the one here involved was sustained; but our later cases (necessitated by the decision of the U. S. Supreme Court in Western & Atlantic R. v. Henderson, 279 U. S. 639, 73 L. Ed. 884, 49 S. Ct. 445) have held fatally defective an instruction like the one here involved. Some of our later cases holding the instruction fatally defective are: Mo. Pac. R. Co. v. Beard, 198 Ark. 346, 128 S. W. 2d 697; Mo. Pac. R. Co. v. Ross, 199 Ark. 182, 133 S. W. 2d 29; St. L. S. F. Ry. v. Mangum, 199 Ark.

Were it otherwise, it would still appear that the instruction was erroneous, for our cases have held that the presumption of negligence rule was not applicable to street railway cases. See, inter alia, Hot Springs Street Railroad Co. v. Hildreth, 72 Ark. 572, 82 S. W. 245; Little Rock Ry. & Elect. Co. v. Newman, 77 Ark. 599, 92 S. W. 864. Logically, it seems that this holding would apply to buses, since this means of transportation has replaced the street railway.

It is also urged that Plaintiff’s Requested Instruction No. 5, given to the jury over appellant’s objection, was error. This instruction told the jury that if they found that Mrs. Jones was standing at or near the regular bus stop of the appellant corporation, that the bus in question stopped at or near the regular bus stop for the purpose of taking on passengers, and that appellee was attempting to board the bus, then Mrs. Jones would be considered a passenger. This was a correct declaration of the law. See 10 Am. Jur., § 965.

Appellant complains that the Court permitted appellee’s daughter, in listing separately the medical bills that were incurred because of her mother’s injuries, to state in response to interrogation from appellee’s counsel, that same had not been paid. Appellant asserts that this testimony was not material, and was prejudicial, for it could only serve the purpose of arousing sympathy among the jurors for appellee. Inasmuch as the judgment is being reversed on other grounds, it is not essential that we determine whether the admission of this evidence constituted reversible error. We do agree that the matter of whether the bills had been paid, was immaterial to the pertinent issues, and better practice would seem to indicate that these questions should not be asked.

Reversed and remanded.

       In this case, the Court said: “Sec. 6773, Kirby’s Digest, making all railroads responsible for all damages to property caused by the running of trains in this State, is not applicable to street railways. They do not run trains, in the sense in which the term was intended by the lawmakers. The whole act, February 3, 1875, shows that the Legislature did not have in mind street railways. This court, since Little Rock & F. S. Rd. Co. v. Payne, 33 Ark. 816, has often held under this statute that where stock is killed by the running of trains there is a presumption that such killing was through the negligence of the company operating such trains. St. Louis S. W. Ry. Co. v. Russell, 64 Ark. 236; St. Louis, I.M. & S. Ry. Co. v. Bragg, 66 Ark. 248, Little Rock & F. S. Ry. Co. v. Wilson, 66 Ark. 414; St. Louis S. W. Ry. Co. v. Costello, 68 Ark. 32. But no such presumption prevails in the case of street railways. In such cases it is not a question of presumption, but a matter of proof.” Section 6773 of Kirby’s Digest is identical with Section 73-1001, Ark. Stats., Anno.