author: Carretón Harris, Chief Justice.

text:
    Theodore PLANTS v. TOWNSEND CURTNER LUMBER Co. et al
    5-5037
    448 S. W. 2d 349
    Opinion delivered December 22, 1969
    [Rehearing denied January 26, 1970.]

      Hodges, Hodges & Hodges and John Norman Harhey, for appellant.

      Riddick Riff el, for appellees.
   Carretón Harris, Chief Justice.

This is a workmen’s compensation case. Theodore Plants, appellant herein, contends that he was permanently disabled as a result of an accidental fall which he suffered in the course of his employment on April 16, 1965. Plants was a timber cruiser for Townsend Curtner Lumber Company in Newport, and was injured when he tripped on a root in the woods, and fell. A claim was filed which was heard by a referee on May 10, 1966. The referee found that a compensable injury had been sustained on April 16, 1965, but that no compensalble time was lost as a result of the injury, and he held Plants' had failed to show that any disability he held at the time of the hearing was the result of this accident. The claim for compensation benefits was denied, and on appeal to the full commission, at which time further evidence was heard, that tribunal held that under the state of the record the decision of the referee was correct, and should be affirmed. The commission added, however, in effect, that certain medical evidence had been introduced which could mean that claimant might possibly have a compensable injury, but found that it would require a surgical myelogram to reveal this fact. Whereupon, the commission withheld its opinion until communicating with the attorney for claimant, in order to determine whether Plants desired to have the myelogram. Claimant reported in the affirmative, and was sent to Dr. John H. Adametz, a neurosurgeon of Little Rock, who examined Plants on July 24, 1967. Adametz made an examination, took a myelogram, and reported his findings. After receiving this report, the commission affirmed the referee’s opinion as correct, finding “that claimant is suffering from a multitude of ailments and conditions, but the evidence does not establish that claimant’s present disability resulted from his accidental injuries on April 16, 1965.” This finding was appealed to the Woodruff County Circuit Court, and was affirmed. From the judgment so entered, appellant brings this .appeal.

Of course, we are primarily interested in determining whether there was substantial evidence to support the finding of the commission. Plants testified that, following the injury, his left elbow immediately began to swell, and the arm turned black in the vicinity of the elbow. He reported to his supervisor, and was sent to see Dr. Jackson, a physician of Newport. Jackson took X-rays, administered shots, and issued a prescription. Subsequently, according to Plants, further X-rays were taken, and he was given pain tablets. Thereafter, Plants saw Dr. Weatherford, a chiropractor of Newport, and claimant was given some chiropractic treatments. Plants went to Weatherford for four or five weeks, until the first part of J nly, though continuing to report for work, and continuing on the payroll; he did not, howevér, make any more trips to the woods, but stayed around the office. Claimant testified that he asked W. T. Arnold, the supervisor, to take him off the payroll on.August 4, because he (Plants) could not continue to work. Subsequent to the last visit to the chiropractor, claimant went to see Dr. John D. Ashley, Jr., of Newport.

In November of 1965, Plants entered the Veterans Administration Hospital, and was discharged on February 14, 1966. Appellant stated that the attending physicians at the Veterans Administration advised that they were not able to make a diagnosis, and they desired to send him to Memphis, specialists being there available that were not available in Little Rock. He said that the Memphis hospital did not have a bed available at the time, and he was asked (by the Veterans Administration, Little Rock) to consent to the taking of a myelogram, This was done, but, according to claimant, two or three days later, he was again requested to authorize ■a second myelogram. Plants said that he first authorized it, but later changed his mind, since he felt that he was in worse shape than he had been when he first arrived. He was then advised by one of the doctors that the Memphis unit refused to accept him because he would not agree to the myelogram. Appellant said that Dr. Ashley recommended against having another myelogram.

Arnold testified that he remembered Plants’ reporting the injury to him, and recalled that claimant’s left arm was considerably swollen. The witness stated that .Plants had been physically capable of performing the duties required of him up to the time of the injury, and that employment was terminated on August 4, 1965, when appellant told him that he (Plants) was not capable of physically performing the duties required of him. Arnold said that the employment of Plants after the accident was pretty well confined to riding around in a truck, instructing a replacement who was being acquainted with the job. The supervisor added that he knew that Plants did not get around as well as he did prior to the fall. It was stipulated that L. L. McAdams and Henry Latner, if called as witnesses, would testify that they worked with Plants prior to the date of the accident, and that he had been physically capable of performing all duties of his employment, but that he had not been capable of performing these duties after April 16, 1965. It was further stipulated that John W. Lewis and William Lewis would testify to the same facts.

Dr. Ashley testified that Plants “had process that resembled rheumatoid arthritis in his neck and shoulders, and acute bursitis;” also, “he had a markedly elevated blood uric acid, which led us to establish a diagnosis of gout.” X-rays revealed healing fractures in the third and fourth ribs on the right, and there was some deformity of the left elbow which Ashley considered due to a previous dislocation of the elbow. The witness testified that he prescribed ACTH, a preparation used in the treatment of gout, and also indocin, another drug used for the relief of pain in gout and arthritis. The witness said that originally there had been a dislocation of the left elbow, fractures of the ribs, and a neck injury, and that Plants had considerable stiffness and soreness, with some swelling of the small joints of the fingers and wrists; appellant also complained of pain in the ankles and feet, but the doctor observed no swelling. Dr. Ashley explained that gout is a metabolic disease, the origin of which is little understood, and “is characterized by a failure of the kidneys to eliminate uric acid in the normal acid.” He said that Plants was not capable of doing physical work, and when asked if he held an opinion as to the cause of the gout, responded:

“As I stated a moment ago gout is a metabolic disorder which may exist in a quiescent form for a number of years and very often it is precipitated by an injury sometimes it is a fairly trivial injury which will precipitate the symptoms of gout and once it is precipitated the symptoms will persist for a long period of time in spite of treatment.”

He then added:

“I feel that his injury on the 16th of April, 1965, was the direct cause of the gout occurring at that time.”

Dr. Ashley admitted that the diagnosis of gout did-not explain all of appellant’s complaints about his hands, his feet, his back, and his cervical region, and he stated that the total picture was considerably confused, because of the possibility of muscular dystrophy or perhaps even a spinal cord tumor. He also said it was possible Plants might have some undiagnosed neurological disease. Dr. Ashley testified that, when he first made the diagnosis of gout, the disease was in the acute phase, but that phase had terminated (at the time of his testimony), and had terminated within three or four weeks after August. The residuals of gout suffered by the claimant were soreness and stiffness in the muscles, and fatigue, which the doctor said could be caused by something other than gout. He also testified that arthritis is one of the symptoms of this disease. The witness stated that Plants’ gout is a permanent condition. While Ashley had been of the opinion in August that there was no permanent disability because of the gout, the doctor stated that he had changed his opinion, because “he hasn’t gotten well” — however, the uric acid count had gone back down.

Dr. Alfred Kahn, of Little Rock, examined Plants, and submitted a summary of his findings. The report is rather lengthy, but it is interesting that under the heading, “impressions,” he made mention of sixteen ailments. Dr. Kahn concluded his report by stating:

“ ‘In summary, this portion of the patient’s workup indicates to me that the differential diagnosis with regard to the patient’s discomfort in his upper extremities and chest lies between trauma to the neck as a result of his fall and some type of muscular or spinal dystrophy of idiopathic origin which is entirely unrelated to his fall; in order to make this diagnosis, I feel that a neurosurgical consultation is most necessary, and that a cervical myelogram is most likely necessary. But I would leave this point up to the neurosurgeon. If the cervical structures are entirely normal, then it would be my opinion that the degenerative process in the patient’s hands is entirely unrelated to his fall on April 16, 1965.

“ ‘There are a number of other important facets of this patient’s health which should be reviewed at this time.

“ ‘First of all, this patient has cardiovascular disease and arteriosclerotic heart disease. His electrocardiographic tracing is quite abnormal and suggests more than hypertension; it suggests moderately severe coronary disease. The patient does not describe any symptoms which could be ascribed to his coronary disease or to his high blood pressure, such as smothering or angina.

# # #

“ ‘Reference has been made to the fact that this patient has gout and it probably is correct. On the other hand, I doubt that gout in any way explains this patient’s pain syndrome other than a very mild degree. It is also true that gout may be precipitated by trauma but gout seems rather far afield from the patient’s clinical picture at this time even though he does have some manifestations of gout.

“ ‘Of particular metabolic interest is the fact that the patient’s blood cholesterol is 385 Mg.%. A cholesterol this high goes along with a low thyroid and, in addition to this, it is an accelerating factor in coronary artery sclerosis. A low fat diet and thyroid would do much to reduce this in all probability. An effort should be made in this direction.

“ ‘The other findings in this patient’s case are of less importance. He probably has a benign nephrosclerosis, as there is some albuminuria. There is some pulmonary fibrosis. There is a moderate deformity of the duodenal cap and the second part of the duodenum. There is some atrophy of the right testis.

“ ‘In summary, this patient has a pain syndrome associated with atrophy of his hands. The differential diagnosis lies between a neck injury sustained in his fall and an idiopathis disorder of the muscles and/or muscles and spine entirely unrelated to his trauma. In my opinion, the gout and the other factors do not play a significant vole in explaining his pains. On the other hand, this patient has many disorders entirely unrelated to his fall which do have an effect on his health and, in some instances, should be treated as noted above.

“ ‘I strongly urge a neurosurgical consultation and ■a cervical myelogram if it is deemed advisable by tbe neurosurgeon.’ ”

A report from Dr. Thomas M. Fletcher, Jr., was also made a part of the record. This report was not nearly so comprehensive as the testimony of Ashley and the report of Kahn; the doctor said, that whether claimant ’s condition was a result of his fall could not be determined with certainty, though such a possibility did exist. The principal finding of Fletcher was that to complete a neurological examination, it would be necessary that a cervical myelogram be performed. He also said that it would be desirable to make an electromyelographic study and additional spinal fluid studies should be obtained.

As previously pointed out, the commission suggested that Plants be given another myelogram, and he consented for this to be done by Dr. John H. Adametz. Dr. Adametz, after describing the results of the physical examination, then reported:

“ ‘A complete myelogram was performed, which showed the cervical cord to be of normal size, without any evidence of enlargement, indicating tumor or atrophy. There was some posterior ridging at C3 through C7 from arthritic ridging, but no evidence of actual extrusion of the disc material. There was some minimal posterior bulging at L4-5 and L5-S1 levels.

“ ‘None of these myelographic findings were significant to account for the atrophy in the patient’s hands. It was noted definitely on examination that pressure over the wrist on the volar side aggravated the discomfort in his fingers and palms.

“ ‘The myelogram was done on July 26, 1967, and the patient was kept in the hospital following the myelogram for a two-day period of observation, to let him recover from this study. He was discharged from the hospital on July 28, 1967.

“ ‘It was my impression that this patient had a bilateral carpal tunnel syndrome, causing pressure on his median nerves bilaterally, but more marked on the right. I feel that his symptomatology could well be alleviated, as far as his hands are concerned, by a surgical procedure to open up the carpal tunnels. He did show some degenerative arthritic changes in the neck and lower back, but this would be in keeping with his stated age of 68 years. I could find no relationship between his findings as far as his hands were concerned and the described trauma that he reported to me as having occurred on April 16, 1965. The compression syndrome of the median nerve, which we refer to as a carpal tunnel syndrome, is one of a gradual narrowing of the canal through which the median nerve passes at the wrist, and this is also seen as part of the aging process, and not related to trauma. This patient has considerable problems of degenerative disease, such as generalized arteriosclerosis, generalized osteoarthritis, but I can see no relationship between the described trauma and these natural aging processes.’ ”

Claimant objected to the submission of this report for the reason that it was not verified as required by statute; whereupon, the report was verified. Claimant further objected to the report for the reason that the physician was to perform a cervical myelogram, and, says appellant, the examination was to be restricted to that test. Instead, Adametz made a general examination, including history, physical findings, and extensive conclusions, which appellant contends were not warranted, in view of the fact that he was merely to perform a cervical myelogram.

As stated at the outset, we are only called upon to determine whether there was substantial evidence to support the finding of the commission, and, as stated in Reynolds Mining Company v. Raper, 245 Ark. 749, 434 S. W. 2d 304, handed down December 2, 1968:

“* * * It must be kept in mind that the question is not whether the testimony would have supported a contrary finding, but whether it supports the finding made. The Commission’s decision should not be reversed unless the proof is so nearly undisputed that fair-minded men could not reach the conclusion arrived at by the Commission.”

Actually, had the commission held to the contrary, we would doubtless have affirmed. Appellant insists that the testimony of Dr. Ashley was definite, while the testimony relied upon by appellee, particularly that of Dr. Kahn, was somewhat indefinite. In Georgia Pacific Corporation v Craig, 243 Ark. 538, 420 S. W. 2d 854, we made a comment which is pertinent to appellant’s argument. Quoting from an earlier case, American Life Insurance Company v. Moore, 216 Ark. 44, 223 S. W. 2d 1019, we said:

“Appellant insists that Dr. Monroe’s testimony is speculative, since he admitted the possibility that death was due to some other cause. But medicine, like the law is not an exact science. If mathematical certainty were required, a surgeon would act at his peril in advising his patient to undergo an operation. The law does not compel adherence to a standard so precise. The effect of Dr. Monroe’s testimony is that in his opinion the most probable cause of death was a pulmonary embolism, attributable to the fractured leg.”

We added:

“Here, though unable to pinpoint the work, or the exact number of overtime hours that would have contributed to the heart attack, Dr. Regnier, like Dr. Agar, gave his best opinion after acquainting himself with the history and the facts deemed pertinent. Doctors are experts in their field, and as pointed out in Dorman, it is for that reason that they are permitted to express an opinion.”

The commission chose to take the view expressed by Kahn and Adametz, and we certainly cannot say that there is no substantiality to their evidence.

It is asserted that the commission erred in admitting into evidence, over the appellant’s objection, the report of Dr. Adametz. Appellant contends that Dr. Adametz, in performing the myelogram, was confined to only giving a report of his findings in that connection, but instead, the doctor rendered a report making extensive findings .and recommendations not connected with the taking of the myelogram. It is also asserted that Dr. Adametz did not make the report to the commission until nearly six months after his examination, and that this delay affects the credibility of his report. It is further contended that appellant had no opportunity to cross-examine the doctor. We do not agree. As to the first assertion, the commission has authority upon its own initiative to cause a medical examination to be made, and take whatever action it deems proper for the protection of all parties. Ark. Stat. Ann. § 81-1319 (i) (Repl. 1960). As to the delay in sending the report, there is no explanation in the record, but certainly we can see no prejudice to either party thereby. Finally, with reference to the contention that appellant’s counsel had no opportunity to cross-examine Dr. Adametz, we can only say that the record does not reflect that counsel made any request to this effect. The report was objected to on the grounds that it was not verified, and that Dr. Adametz went beyond his authorization, but no objection was made that appellant was being deprived of the right of cross-examination. We cannot find error on the part of the commission for failing to allow cross-examination when it was not asked to do so.

We hold that there was substantial evidence to support the commission finding, and no prejudicial error was committed.

Affirmed.

      Plants testified that he was discharged from the Army in February, 1919, with a diagnosis of arthritis of the spine.

      (1) History of fall resulting in fractures of the right third and fourth ribs and injury to the left elbow on April 16, 1965.
      (2) Syndrome of muscle degeneration of both hands.
      (3) Arteriosclerosis, general.
      (4) Coronary artery sclerosis.
      (5) Defective vision.
      (6) Deafness, mild.
      (7) Edentula.
      (8) Osteoarthritis.
      (9) Deformity of the duodenum.
      (10) Pulmonary fibrosis.
      (11) Atrophy of right testis.
      (12) Gout.
      (13) Hypercholesterolemia.
      (14) Nephrosclerosis, benign.
      (15) Hypothyroidism.
      (16) Hypertensive cardio-vascular disease.

      The report was thereupon verified.


source: Caselaw Access Project

author: Carleton Harris, Chief Justice.

license: Public Domain

text:
    MOTORS INSURANCE CORPORATION v. William T. WARREN
    5-5085
    448 S. W. 2d 14
    Opinion delivered December 22, 1969

      Rarber, Ilenry, Thurman, McCaskill & Amsler, for appellant.

      F elver A. Rowell, Jr., for appellee.
   Carleton Harris, Chief Justice.

This appeal relates to whether Motors Insurance Corporation, appellant herein, paid the wrong party in settling a claim. The case was submitted to the trial court for determination on stipulated facts and an exhibit. The stipulation was as follows:

“On or about May 2, 1968, William T. Warren purchased from Gosnell Chevrolet Buick Company, Russellville, a 1962 Chevy II Station Wagon, for a stated cash price of $995.00, less down payment, plus collision and comprehensive insurance written in Motors Insurance Corporation, in policy that is attached as an Exhibit and introduced into evidence as Exhibit A. .

“The contract under which Mr. Warren purchased the car was by Gosnell Chevrolet Buick Company assigned to General Motors Acceptance Corporation under an agreement in which Gosnell Chevrolet Buick Company was obligated to repurchase the contract in the event of non-payment by Mr. Warren.

“Mr. Warren entered into possession of the automobile and made one payment under the conditional sales contract in the month of June, 1968. The next payment, under the conditional sales contract was due July 2, 1968. On July 8, 1968, the automobile was involved in a collision in Morrilton, causing heavy damage.

“At the time of the accident the payment due July 2 had not been made. Following the collision the automobile was moved to Gosnell Chevrolet Buick Company at Russellville.

“At the time of the collision the automobile had a fair market value of $650.00. The insurance policy contained a deductible clause of $50.00 in respect to collision coverage.

“The latter part of July, 1968, GMAC called on Gosnell Chevrolet Buick Company to repurchase the contract for the debt. At that time the net balance due GMAC, after crediting all unearned finance charge and insurance premiums was $816.99, which, amount was paid by Gosnell Chevrolet Buick to General Motors Acceptance Corporation. Motors Insurance Corporation received from the Gosnell Chevrolet Buick Company an agreed repair price on the damaged vehicle in the amount of $534.75. Motors Insurance Corporation paid to Gosnell Chevrolet Buick Company $484.75, which was computed at the agreed repair cost, less the $50.00 deductible.

“Subsequently,. Gosnell Chevrolet Buick didn’t repair the automobile, but sold it in its damaged condition without notice to Mr. Warren. The salvage value was $50.00.

“Mr. Warren has not been the payee of any check issued by Motors Insurance Corporation and has not signed any release in favor of Motors Insurance Corporation. ’ ’

In addition to this stipulation, the insurance policy issued by Motors Insurance Corporation was offered into evidence. The court entered a judgment against Motors Insurance Corporation, and in favor of Warren, appellee, in the amount of $550.00, plus a $66.00 penalty, and awarded an attorney’s fee of $220.00. The court’s reason for entering the judgment was “that the court feels, or determines, he [Warren] has not had his day in court.” From the judgment, comes this .appeal.

The court erred, and the judgment will have to be reversed. In his brief, appellee states:

“* * * Without notice to or with the consent of the Appellee, the automobile was moved to Gosnell Chevrolet-Buick Company. * * * The Appellee never had any notice of any of the dealings between General Motors Acceptance Corporation and the Appellant. * * * No replevin action had been instituted by Gosnell Chevrolet-Buick Company and no notice of any delinquent or forfeiture had ever been given to the Appellee.”

Whether these facts are pertinent to a determination of the litigation cannot be passed upon by this court for the reason that it will be observed that they were not included in the stipulation. The policy of insurance was issued in favor of Warren and General Motors Acceptance Corporation, “as their interests may appear.” Section 7 of the policy, under “Conditions, ” provides as follows:

“The limit of the company’s liability for loss shall not exceed the actual cash value of the property, or if the loss of a part thereof the actual cash value of such part, at time of loss, nor what it would then cost to repair or replace the property or such part thereof with other of like kind and quality, nor, with respect to an owned automobile described in this policy, the applicable limit of liability stated in the declarations # * *.”

Tbe stipulation sets out that the fair market value of the automobile, at the time of the collision, was $650.00. It will be noted that, since Warren had only made one payment, and was delinquent in the second payment due, appellee owed a net amount under the contract which was in excess of the fair market value of the car. Under the stipulation, when payments to GMAC became delinquent, Gosnell Chevrolet Buick Company repurchased the contract as it was obligated to do under its agreement, and was accordingly subrogated to the rights of that company. Gosnell gave appellant a repair price on the damaged car in the amount of $534.75, and .appellant then paid the company $484.75, which represented the repair cost, less the $50.00 deductible.

The policy very clearly provided that Warren and General Motors Acceptance Corporation, in case of a loss, should be paid as their interests appeared. Of course, GMAC was entitled to the full amount of insurance under the aforesaid provision, but since Gosnell paid the indebtedness, the latter “stepped into the shoes” of the acceptance corporation. It was entirely proper for Motors Insurance Corporation to pay the money to Gosnell for two reasons, first, because of its being subrogated to the rights of GMAC, and second, because of Gosnell’s having agreed to repair the automobile. Let it be remembered that we are here dealing with the liability of Motors Insurance Corporation — not Gosnell. If Gosnell picked up the damaged vehicle and moved the car to its place of business in violation of a contractual arrangement with Warren — or settled the claim with appellant for an insufficient amount — or if Gosnell sold the wrecked automobile for a sum much less than its actual value — relief could have been sought by Warren against that company.

We can only determine this litigation from the facts stipulated by the parties, and, under that stipulation, the car admittedly being of less value than the amount owed by Warren, and GMAC or its subrogee being entitled to payment prior to any payment to Warren, we find no liability on the part of appellant.

Reversed.

Byrd, J., dissents.


text:
    Lewis A. WILLEY, Adm'r v. V. A. MURPHY
    5-5097
    448 S. W. 2d 341
    Opinion delivered December 22, 1969

      J. Marvin Holman, for appellant.

      Williams & Gardner, for appellee.
   Carleton Harris, Chief Justice.

This litigation involves deposit certificates in two different financial institutions. The First Federal Savings and Loan Association of Fort Smith filed an interpleader action in the Johnson County Chancery Court against Y. A. Murphy, and Lewis A. Willey, Administrator of the Estate of Pearl Bailey, the association asking the court to determine the ownership of Certificate No. N-6319 in the amount of $8,000.00. In answer, both Murphy and Willey filed pleadings asserting ownership of the certificate. The Peoples Bank and Trust Company of Russell-ville likewise filed its Bill of Interpleader in the Johnson County Chancery Court, asking the court to determine the rightful owner of two certificates, one for $2,-700.00, and the other for $800.00, making a total of $3,-500.00. The cases were consolidated for trial, .and heard by the court. At the conclusion of the trial, the court decided the Federal Savings and Loan Association case in favor of Murphy, but decided the companion case, instituted by the Peoples Bank and Trust Company, in favor of Willey, as administrator. Willey appeals the decision in favor of Murphy, and Murphy appeals the decision in favor of Willey. We discuss first the disposition of the Fort Smith case.

John R. Tinsley, employed by the First Federal Savings and Loan Association as Secretary, identified the certificate issued for $8,000.00 to Pearl Bailey or Y. A. Murphy. Mr. Tinsley testified that he did not remember under what circumstances the certificate was issued, since it was not prepared under his direction. Subsequent proof reflected that Mrs. Bailey and Mr. Murphy had gone to the savings and loan association office on a Saturday morning, and Mr. Tinsley testified that, if the transaction occurred on a Saturday, the card would have borne the date of the following Monday. He did remember a couple coming to the office on Saturday, May 22, but did not recall their appearance. However, he had the deposit slip, which was in his handwriting, and the signature card for the account. The card, dated Monday, May 24, 1965, was a joint account card designating Mrs. Bailey and Murphy as joint tenants with right of survivorship. Dividend checks bore both names, and were mailed to Route 2, Clarksville, Arkansas, Mrs. Bailey’s address. There is no evidence whatsoever that the provisions of Ark. Stat. Ann. § 67-1838 (Repl. 1966) were not complied with. The pertinent portion of that statute provides as follows:

“If the person opening such savings account fails to designate in writing the type of account intended, or if he designates in writing to the association that the account is to be a ‘joint tenancy’ account or a ‘joint tenancy with right of survivorship’ account, or that the account shall be payable to the survivor or survivors of the persons named in such account, then such account and all additions thereto shall be the property of such persons as joint tenants with right of survivorship.”

The attack made by Willey is based, not on any failure to comply with statutory requirements, but rather on the contention that Murphy exerted undue influence upon Mrs. Bailey in order to persuade her to deposit this money in a joint account with him; further, that the deposit in the joint account was a gift from Mrs. Bailey to Murphy in contemplation of marriage, and should be returned to the donor under the circumstances herein. It is also asserted that the deposit was made jointly with Murphy for the purpose of convenience.

We do not .agree with any of these contentions. Murphy had formerly been married to Mrs. Bailey’s sister, May Quatum, but the parties were divorced in about 1961, and be had accordingly been acquainted with Mrs. Bailey prior to her second husband’s death. Murphy himself testified that he lived with Mr. and Mrs. Bailey for a while, and would calculate interest for Bailey on some of the notes and loans held by the latter. The testimony reflected that Mrs. Bailey was 81 years of age at the time of her death, and appellant’s testimony is directed to a melange of contentions. Evidence was offered that Mrs. Bailey was old, and .apparently becoming forgetful and senile; that she depended upon Murphy for advice, the latter, it is asserted, taking advantage of a confidential relationship, and thus being able to defraud her of her money.

Bud Wise, a neighbor, testified that, after Mr. Bailey died, Mrs. Bailey brought papers to his home that she didn’t understand, and asked his advice. He mentioned a couple of mortgages, .and said she asked his opinion of what should be done. Wise stated that she had given him money to hold for her in the past, and on one occasion, had brought $1,300.00 in cash to his home, together with papers, leaving them with him while she took a trip to California; that he kept this property from August until October. He .also said that he accompanied her when the money was originally placed in the bank at Russellville. Referring to questions asked by the banker, Wise said:

“Oh, yeah, well he asked her did she have a will ma.de. First said, asked her did she have a husband and she told him no. He says you have any children and she told him no. He said well have you got a will made and she said no, I haven’t. And he said well you oughta have someone on here with you. And she spoke up and said what about my neighbor here. Said he lives right next to me. And I said no. And this banker spoke up and said I would be just like your neighbor. He said the thing for you to do is to have you a will made out if you haven’t got any folks to leave it to. Leave it to a church and have you a will made.”

Wise also stated that at another time, she had left $700.00 in cash with him overnight; however, he said that she did not seek his advice during the last two years of her life. The witness stated that he saw Murphy at the Bailey home many times, and that Murphy had lived there a couple of months. As to any planned marriage, Wise testified:

“Well, the only thing she told me one time she said to me she said, well said I don’t know what the neighbors thinks about him a coming and staying at nights, but says it don’t make no difference. Said we are going to get married anyhow.”

When asked when this conversation took place, the witness first said, “A couple of years ago,” but then stated:

“Well it could have been. It could have been less. I’m pretty bad about remembering things.”

Lee Feltner, 82 years of age, Mrs. Bailey’s first husband, testified that they were married in 1905, and had two children, both having died, and there was one grandchild, James Feltner. The witness stated that the last time he had talked with Mrs. Bailey was six or seven years before her death. He said that his present wife had made application for Social Security, and needed a copy of Ms divorce decree, but the clerk could not find it in the records. He then went to see Mrs. Bailey, and asked if she had gotten the divorce, and she replied that she didn’t; however, the next morning the clerk advised that he had found the record of the divorce which had been granted to Mrs. Bailey.

James Feltner, Jr., the grandson, and the only heir of Mrs. Bailey, lives in Oxnard, California. He testified that he last saw his grandmother about three years before her death, while visiting back in Arkansas, staying at her home part of the time, and with his grandfather part of the time. He said that he wrote to Mrs. Bailey and sent her presents at Christmas:

* * i stayed with her when I was a boy and I guess I was so little I got homesick for California and she said uh — I told her I wanted to go home to California. I was hot and wasn’t used to the weather nor to her type of cooking. She said, ‘Well, Jim, we don’t have the money to send you home.’ And I says, ‘Well, you’ve got a cow. You can sell that cow and get me a train ticket and send me home. ’ So she went — had a suit made of my dad’s — had it cut down, made me a suit, and. give me the new suit and I still wanted to go home. So I didn’t eat well at that time. The only thing I could eat was tomatoes and she would put them on ice and feed me those tomatoes with salt. She took me to a doctor and the doctor said well this boy is homesick, and he’s not going to eat. And I just wanted to go home.”

Feltner testified that Mr. Murphy visited in the home during the time he was back on the visit, stayed one or two nights, and had Thanksgiving dinner with the witness and his grandmother; that she indicated, by remarks, that Murphy stayed there quite a bit. As to her mental condition, the witness stated:

“Well, I would s,ay she was getting old. She was— Well, old people — I wouldn’t say that their mind is failing, but I wouldn’t say that of my grandmother. I would say that — I would say that she was getting old and forgetful and I don’t know any polite term for it, but I’d call it senile.”

Feltner reiterated his thought that she was senile, stating:

“Yes, sir, because she was scared to ride in the truck with me and I remember we was going down the road and we come to a hill and she couldn’t see over the hill, and I guess she got the idea that it was just going to drop right off into the river. We were down close to the river.”

The grandson testified that, after Mrs. Bailey’s death, when he had returned from the funeral, he made a search of the house, and found numerous letters to his grandmother from Murphy. He said he found them at various places, the attic, shoe boxes, bureau drawers, and some thrown in the corner. Twenty-five dollars in money was found; also the certificates of deposit from the bank at Kussellville. Feltner stated that his grandmother had told him at the time of his visit that Murphy had taken care of her business affairs for the last four or five years; he subsequently changed that statement, and said that he meant “three years.”

John Marlar, who lived 2% miles north oE Mrs. Bailey, and was related by marriage, testified concerning Mrs. Bailey’s physical and mental health:

“Well, since Bailey died, she just didn’t seem like herself. She just went down so fast.”

Several witnesses testified on behalf of appellee. Murphy, 75 years of age, testified that he and Mrs. Bailey would have been married at the end of the previous year, except for her death. As to the certificate of deposit, lie testified that he and Mrs. Bailey went to the First Federal Savings and Loan Association office in Fort Smith, and that all directions (as to how the account should be set up) were given by Mrs. Bailey; he testified that he had an account in Jonesboro at the Citizens Federal Building and Loan in the amount of $1,500.00, all of the money being his, but the account being in the joint names of the witness and Pearl Bailey. Murphy testified that he paid the hill for Mrs. Bailey’s funeral.

Mrs. J. E. Goodin, a neighbor, testified that she saw Mrs. Bailey every day after Mr. Bailey died; that she would drive Mrs. Bailey to town, and to the grocery store. She said that Mrs. Bailey was able to remember events from day to day, and that she mentioned loans that had been made to persons from whom she was collecting interest. Mrs. Goodin testified that Mrs: Bailey left her purse with the witness when it became necessary to go to the hospital, telling her to take care of it. She also said that she had been told that her neighbor and Mr. Murphy were planning to get married. Mrs. Goodin was familiar with the Fort Smith savings account, Mrs. Bailey having told her about it; the fact that it was a joint account was not mentioned, but the dividend cheek was made to the two.

Truman Owens, another neighbor, testified that he noticed nothing unusual in conversation with Mrs. Bailey; that he would say she had a good memory to be as old as she was. In rebuttal, Mrs. Ruby Willey, a beautician whose former husband was a nephew of Mrs. Bailey, testified that she had fixed Mrs. Bailey’s hair for a long number of years, and that following her husband’s death, Mrs. Bailey was lonely, and seemed to be “real miserable.” Nothing was said to indicate there was anything wrong with Mrs. Bailey, mentally.

We think the proof falls far short of establishing that Murphy stood in a confidential relationship and took advantage thereby. There is nothing in the record to show one affirmative act by appellee of advising, or suggesting to .Pearl Bailey where, and in what manner, to deposit her money. In letters that were found and introduced, there are no suggestions for a joint account. For that matter, it appears there were also others that Mrs. Bailey must have had confidence in, since she left money and possessions with both Mr. Wise and Mrs. Goodin. We see nothing unusual in the fact that .an elderly woman, or for that matter, anyone, who lives alone, seeks advice in business matters from friends, particularly when the nearest relative is hundreds of miles away in California, and that relative has only been in the home twice in 13 years. The law, of course, does not frown upon the seeking of advice from friends— nor does it prohibit the giving of advice. It is the overreaching — taking advantage of the trust of another— that is condemned. There is no evidence here that Mrs. Bailey was overreached — or that she was talked into doing something that she did not want to do. Certainly, it is not established that Murphy never intended to marry Mrs. Bailey and was just “leading her on.” The nearest evidence in support of this contention was the testimony of Wise, heretofore mentioned. While there may be those who condemn the marriage of people in advanced years, this is certainly the prerogative .and right of every single person, and such marriages occur every day throughout the country.

It will be noted that the majority of .appellant’s witnesses are related or connected in some manner with Mrs. Bailey’s family, but at any rate the proof is insufficient to establish the contention made by Willey in his appeal.

The issue on the appeal by Murphy with regard to the certificates issued by the Russellville bank is a much closer question. Donald Barger, Chairman of the Board and Chief Executive Officer of the Peoples Bank and Trust Company of Russellville, testified that the certificates of deposit were stamped by the bank “as joint tenants with right of survivorship and not as tenants in common.” Barger said that he was working at the bank one Saturday, and someone kept knocking on the door until he finally let them in. A man and woman came in, the woman introducing herself as Pearl Bailey, and introducing the man with her as Mr. Murphy. Barger said that she told him she wanted the certificates issued in both names, and he .assumed that she wanted it in a normal wording of a joint account with right of survivorship. Barger testified that he misplaced the name of the man, and wrote Mrs. Bailey a letter on February 20, 1968, asking for the name. A copy of this letter was introduced into evidence. The witness then said that he received a letter from Mrs. Bailey directing the issuance of the certificates in her name and the name of Mr. Murphy. Apparently, he thought that he had the letter, but it could not be found, and accordingly, was not offered in testimony. A copy of the reply to the Bailey letter was then offered in evidence. In this reply, Mrs. Bailey was advised that:

“* * # Both these certificates have now been changed to a joint ownership form as follows: Mrs. Pearl Bailey or Y. A. Murphy, as joint tenants with right of survivorship and not as tenants in common.
“The two certificates referred to above are returned herewith and we trust you will find them changed to your satisfaction. If for any reason there is any misunderstanding about the form of registration, please contact us promptly. * * *”

Barger identified Y. A. Murphy as the man who accompanied Mrs. Bailey on the Saturday morning. Neither a signature card for the .account nor a signature card signed by Murphy, was found. The trial court held that the statute was not complied with, and that the two certificates involved were not issued in the form required by law to vest title in Murphy as survivor. The pertinent portion of the statute, Ark. Stat. Ann. § 67-552 (Repl. 1966), reads substantially like the previous statute discussed in the Fort Smith case:

“If the person opening such account, or purchasing such certificate of deposit, designates in writing to the banking institution that the account or the certificate of deposit is to be held in ‘joint tenancy’ or in ‘joint tenancy with right of survivorship,’ or that the account or certificates of deposit shall be payable to the survivor or survivors of the persons named in such account or certificate of deposit, then such account or certificate of deposit and all additions thereto shall be the property of such persons as joint tenants with right of survivorship.”

In Cook v. Bevill, 246 Ark., handed down May 5, 1969, 440 S. W. (2d) 570, we said that there must be a substantial compliance with the “designate in writing” requirements of the act in order to effect survivorship. Under the testimony herein, we cannot find substantial compliance. This is not because the request to add Mr. Murphy’s name was by letter, rather than by the signing of a signature card; nor is our finding based on the fact that Mrs. Bailey’s letter had been lost. Rather, the testimony makes clear that the writing (letter) signed by Mrs. Bailey did not request that the certificates be issued in “joint tenancy,” or “joint tenancy with right of survivorship.”

From the record:

‘ ‘ Q. And what she furnished you then was just the man’s name?
A. Right.
Q. Was there anything else on that directing the type of account for you to set up?
A. No.”

The trial judge held correctly.

Affirmed.

      Mrs. Bailey had previously been married to Lee Feltner, whose testimony will be subsequently discussed.

      Mrs. Bailey had taken out the $2,700.00 certificate in October, 1964, and this is the occurrence referred to by Wise. The $800.00 certificate was issued to her in January, 1966.

      The divorce was granted in 1926.


text:
    LOFLAND COMPANY of Arkansas et al v. Henry SIMPKINS
    5-5111
    448 S. W. 2d 39
    Opinion delivered December 22, 1969

      House, Holmes & Jewell, for appellants.

      Bobbie Jean Barton, for appellee.
   Carleton Harris, Chief Justice.

This is a workmen’s compensation ease. Appellee, Henry Simpkins, received injuries to his skull and left eye on May 23, 1968, when he was struck by a fellow employee while at work for the Lofland Company of Arkansas, one of the appellants herein. A claim was filed for compensation, which was controverted by the company and its insurance carrier. The referee held that the claim was not compensable, and this holding was affirmed by the full commission in a 2 to 1 vote. On appeal to the Pulaski County Circuit Court (Second Division) the order of the commission was reversed, and the cause was remanded to the commission for further adjudication with regard to the amount of disability benefits due, together with.medical expense incurred. From this judgment, appellants bring this appeal. For reversal, it is simply asserted that:

“The Circuit Court erred in reversing the Commission since the employee’s injury did not arise out of the course of employment but as a result of ‘horseplay’ which was unrelated to his employment.”

The facts giving rise to the filing of the claim are succinctly and correctly stated by the commission, as follows :

“Briefly stated, claimant and another man, by the name of Robert Young, were both employed by the respondent employer. On May 23,1968, while the men were at work, Young temporarily ceased work and threw a piece of wire at claimant, all in a friendly manner.' There w,as no dispute or controversy between them as to the work or job, and the throwing of the wire had nothing to do with their employment or duties. After Young threw the piece of wire at claimant, claimant threw a rock at Young, although it does not appear that he meant any harm, or threw a rock of such size or force as to be calculated to produce physical injury. Young then got claimant’s hat and threw it up to Dobbins, a crane operator, and Dobbins threw the hat down on the floor. Claimant then asked Young to pick up the hat, but he would not do it. Thereupon, claimant went over to where Young was and got his hat off his head and held it in his hand until Dobbins came down off the crane and took Young’s hat out of claimant’s hand and put it back on Young’s head. Dobbins then picked up claimant’s hat and restored it to claimant. This is claimant’s explanation of how it started. It appears that during this time, either before or after Dobbins came down off the crane and restored the hats to the proper owners, that Young got a hammer and shoved claimant a couple of times, but Young did not otherwise use the hammer on claimant. He did, however, start to shove claimant the third time; but claimant, who was sweeping the floor, drew a broom on Young and told him that he had better not do it. Young then gave the hammer to another employee by the name of Isaiah Ranson. When claimant walked away and bent over, Young struck claimant on the head with an iron pipe, thereby inflicting the injuries forming the basis of this claim.”

The commission stated the question, which is presented in this litigation as:

‘ ‘ * * * whether disabilities arising out of an assault, which began in friendly horseplay, but which had no relation to the work in the sense that they did not concern the work in any manner, and the assault was not over the work, are compensable. There is no contention-made that the work, or the performance of it, had anything to do with the assault in which claimant was injured. The only connection between the work and the assault was that the assault occurred at a time and place where the parties thereto were in close proximity to each other for the purpose of doing their work. In fact, they had actually begun their work, but had laid aside the performance of their duties for a short time in order to engage in some friendly horseplay, which horseplay terminated in a criminal assault by one of the parties.”

The commission pointed out that Southern Cotton Oil Division v. Childress, 237 Ark. 909, 377 S. W. 2d 167, the case relied upon by the claimant, was entirely a horseplay case, and not an assault; also, the airhose, which was used to inflict the injury during the horseplay, was being used by Childress in his employment. It is pointed out that, in Childress, the employer had, on prior occasions, acquiesced in horseplay between employees, but that in the case before us, these employees had been previously warned by the employer not to engage in horseplay, and both were acting in disregard of these warnings. Referring to the case of Johnson v. Safreed, 224 Ark. 397, 273 S. W. 2d 545, also relied upon lby appellee, the commission distinguished that case by saying that, even- though the claimant was the aggressor,

“* * * the assault did .arise over the work, an element which is lacking in the present case.”

The commission, and also appellant, mention the case of West Tree Service, Inc., et al v. Hopper, 244 Ark. 348, 425 S. W. 2d 300, which we will subsequently discuss.

We agree with the trial court that the commission’s order should be reversed. While the facts in the case before us are somewhat different from those in Childress, Safreed, and Hopper, we think they more nearly conform to Childress. We see no similarity between this case and Hopper. In the first place, the men were not at work in Hopper, the opinion very clearly stating that the incident of firing the rifle occurred following lunch, but at a time when the foreman had not ordered the men back to work. The rifle used in firing (which occasioned the loss of Hopper’s eye) was the personal property of the foreman, and had never been used in any manner by the members of the crew, either for recreation or while engaged in their work; there was nothing in the record to suggest that the company should have expected such an event to occur. In the case before us, the men were already at work, including Simpkins. As found by the commission, Young temporarily ceased work and threw a piece of wire at claimant, Simpkins responding by throwing a rock at Young, though there is no dispute but that both acts were “horseplay.” The hat-throwing incident cited in the recitation of the facts then took place, and Dobbins, a fellow employee, ceased his work on the crane, and restored the hats to their respective owners. Thereafter, Young, angry, struck Simpkins while the latter was preparing to put the broom back on the handle, preparatory to going back to his task of sweeping. Morris Holmes, the foreman, testified that the sweeping being performed by Simpkins was a necessary job, which had to be done at regular intervals.

It is true that the instrument (the iron pipe) with which Simpkins was assaulted, was not being used in the work being performed at the time, though it did belong to the company, and was used in other types of work, and in this respect, the facts are different from Childress, where claimant was injured by an airhose which was being used in the work being performed before the horseplay commenced. It is also true that in Childress, horseplay had been tolerated, while in the instant case, the employees had been repeatedly warned to refrain from such acts; however, the testimony of the various employees made it very clear that, despite the warnings, horseplay continued, and was engaged in practically every day by some of the workers. Simpkins had been previously fired, though it appears that his dismissal was because of remarks made to his foreman, rather than because of engaging in horseplay on the job. Be that as it may, he was re-hired, irrespective of past conduct.

We agree with the logic employed by the dissenting commissioner, Harrell Gr. Mays, who, after pointing out that the law is well settled in this state that injuries resulting from horseplay are compensable, said:

“In this case the claimant and a fellow employee were engaged in horseplay which led to an assault. The evidence reflects that the assault was a direct consequence of horseplay which the employer knew that his employees engaged in. The employment brought the employees together and because of the employment association they engaged in horseplay which is a reasonable activity that is expected of men working together. When they are thrown together by reason of their employment ,and engage in horseplay, it is also reasonable to expect that fights or assaults will ensue from some cases of horseplay. It seems unreasonable and inconsistent to say that an injured employee may be compensated for his injuries resulting from horesplay but that he cannot be compensated for injtiries resulting from an assault arising out of the horseplay where the chain of causation remains unbroken.’

As pointed out in the italicized language, the chain of causation remained unbroken; the occurrence under discussion turned in a “split second,” from horseplay into anger — but was Simpkins any less injured because Young lost his temper? "Was Simpkins more guilty of disregard for his duties because he was criminally assaulted, rather than being accidentally injured? To ask these questions is but to answer them, and, in fact, it is •established that Simpkins did not commence the horseplay, and further, it also definitely appears that he had returned to work, or was preparing to do so, when the injuries occurred. In this respect, he stands, in an even better light than the claimant in Childress, the latter having been the instigator of the horseplay, and actually being injured by the very instrument he was endeavoring at the time to use on a fellow .employee. We can see no logical reason why Simpkins should be denied compensation simply because his assailant had become angry during the horseplay that had previously ensued. In either instance, the company’s interests are not being advanced, but this last argument was held to be without merit in Childress. In that case, this court quoted with approval the remarks of the trial court, as follows:

“The important question which poses itself to this court appears to be whether or not the injury which caused the death of Childress arose out of the employment. In reading Johnson v. Safreed, 224 Ark. 397, 273 S. W. 2d 545 (1954), it is crystal clear that the Arkansas Supreme Court is no longer using as the test in Workmen’s Compensation cases, ‘whether the parties here were acting in the furtherance of the employer’s business,’ as stated in the Opinion of the Commission in the instant case. In the Johnson v. Safreed case the Arkansas Supreme Court declared that the more modern rule and the more humanitarian doctrine of ‘arising out of the employment’ would be the applicable yardstick . . .
“Therefore, it is the opinion of this court that Hughes v. Tapley, supra, is not now the law in this State; that in the instant case the question whether or not the decedent was the instigator is insignificant; that the conditions of employment did induce the horseplay; that tne employer had knowledge of the fact that horseplay was engaged in by employees; and that the injury which caused the claimant’s death arose out of the employment. Therefore, this case is held to be compensable.”

We think the thin line of distinction drawn by the commission majority is unwarranted, and the injury suffered by Simpkins, as surely as the injury to Childress, arose out of the employment.

Affirmed.

      The commission used the nicknames of the persons involved, but we use the actual names.

      The sweeping portion of the broom had come off the handle, possibly during the horseplay.

      Isaiah Ranson testified relative to horseplay: “Well, that’s an every day habit. Everybody in the shop mostly. We have been told a hundred times ........ Q. Have you been told not ........ A. We have been told. That’s an every day habit. Even I ........ I’m assistant shop foreman and even I play and that’s an every day habit. It still goes on. After this accident happened it still goes on.”

      Both Simpkins and Young were fired after the present altercation.

      Our emphasis.

      The Circuit Court, in its memorandum opinion, stated:
      “* * * To deny recovery, in my opinion, would require a finding that there was a deliberate and conscious deviation from employment; that the alleged injury did not result from a spontaneous and unpremeditated impulse. Here, I find that there was no willful, deliberate and total departure from the duties for which claimant was employed and that his claim is compensable.”


author: George Rose Smith, Justice.

text:
    George Walker ALLEN et ux v. ARKANSAS STATE HIGHWAY COMM’N
    5-5086
    448 S. W. 2d 27
    Opinion delivered December 22, 1969

      Henry 8. Wilson, for appellants.

      Thomas Keys and Philip Oowen, for appellee.
   George Rose Smith, Justice.

In this condemnation proceeding the appellee is taking a 1.53-acre tract of land owned hy the appellants. Two expert witnesses for the highway department valued the land at $7,650. The landowners introduced two estimates of value, one of $14,000 and the other of $12,800. The jury’s verdict was for $8,000.

For reversal the landowners insist that the court erred in refusing to require the condemnor to answer interrogatories about the expert witnesses it expected to use at the trial. The interrogatories asked the names and addresses of the experts who had appraised the land for the highway department, their occupation, whether they were highway department employees, the date of their reports to the department, whether they were to be called as witnesses, how often they had previously testified for the department, and how they were to be compensated. The court refused to require the department to answer any of the interrogatories.

In ruling upon the matter the trial court did not have the benefit of our opinion in Bower v. Murphy, 247 Ark. 238, 444 S. W. 2d 883 (1969), which was not delivered until after the case at bar had been tried. There we held that a litigant is entitled to obtain by interrogatories the names of his adversary’s expert witnesses. The other interrogatories propounded in the court below were also proper, for the requested information was needed to enable counsel to prepare for trial by investigating the qualifications and credibility of the department’s experts. The opportunity to elicit such information by cross-examination at the trial is not the equivalent of a complete independent investigation made ahead of time.

The error must be taken to have been prejudicial unless we can say with confidence that it was not. Ark. State Highway Comm’n v. Parks, 240 Ark. 719, 401 S. W .2d 732 (1966). Here the amount' of the verdict was so slightly in excess of the figure fixed by the department’s expert witnesses that we cannot say with assurance that the award would not have been larger if the landowners had been afforded a better opportunity to explore the qualifications and credibility of the experts in advance of the trial.

Reversed.


author: Lyle Brown, Justice.

text:
    Anna M. BRYANT v. Elmo McALISTER et al
    5-5101
    448 S. W. 2d 13
    Opinion delivered December 22, 1969

      Mobley, Bulloch & Harris, for appellant.

      Dobbs, Pryor & Hubbard, for appellees.
   Lyle Brown, Justice.

This litigation arose from an intersection collision between an automobile driven by Deborah McAlister and owned by her father, Elmo Mc-Alister, and one driven by Mrs. Anna M. Bryant. The McAlisters obtained judgment for her personal injuries and his property damage, and Mrs. Bryant appeals. Appellant contends she was entitled to a directed verdict and further asserts error in the court’s failure to give an instruction covering the McAlisters’ measure of damages.

The accident occurred in Russellville during mid-afternoon in February 1967. The only eyewitnesses were the drivers, and their testimony as to the details of the mishap was brief. There were no obstructions, shrubbery or otherwise, to the drivers’ vision of the intersection. Deborah McAlister was driving east on M Street, which was paved. From her right and driving north came the Bryant car on Greenwood Street, which was not hard-surfaced. Miss McAlister said she approached the crossing at eighteen miles per hour; that she looked both ways and, seeing nothing, entered the intersection; and that thereafter the Bryant car suddenly came in front of her “like a streak” and they collided in or near the southeast quadrant. “She just came in front of me and there was no possible w,ay I could stop or do anything to avoid it, because I was already there.”

Mrs. Bryant was employed as a bookkeeper for a truckstop. She had left her office to get some sandwich trays in preparation for an employees’ meeting that night and intended to return to the truckstop with the trays. She testified she entered the intersection after looking both ways and seeing no traffic. She fixed her speed at between twenty and thirty miles an hour but said she slowed down considerably as she entered; that just at that point she realized something was approaching from her left; ,and that when she saw the McAlister car it was right on her. On cross-examination she conceded that she was concerned about a hole of muddy water on the north side of Greenwich and was anxious tq miss it because she had just had her car washed. It was also brought out that within a matter of weeks she had another accident at the same crossing and while proceeding in the same direction.

The investigating officer testified that the intersection was uncontrolled. He could not precisely fix the point of impact but he was positive the McAlister car struck the Bryant vehicle. In his opinion no skid marks were made prior to impact, but thereafter both cars skidded. It was his best judgment that the cars collided in the southeast quadrant, which was Mrs. Bryant’s lane of traffic.

Appellant argues there is no substantial evidence upon which the jury could have based its verdicts for appellees. In resolving that issue the evidence must be viewed in the light most favorable to appellees. According to Miss McAlister, she lawfully entered the intersection and was the first of the two vehicles therein, and Mrs. Bryant suddenly appeared in front of the Mc-Alister car after Miss McAlister had traversed most of the southwest quadrant. Taken at face value, her testimony made a case for submission to the jury. Then there was evidence from which the jury could have concluded that Mrs. Bryant entered the intersection at a speed that was unreasonable under the circumstances; that her concentration on missing the muddy hole caused her not to observe a proper lookout before entering and that she did not in fact see the McAlister car until the moment of impact. Also the jury could have concluded that Deborah McAlister could have exercised a more careful lookout and yet thought that Mrs. Bryant’s negligence exceeded the negligence of Miss McAlister. The verdicts were general and awards were returned for much less than the amounts sought. The attack upon the substantiality of the evidence is without merit.

Secondly, appellants allege that the court committed error by not instructing the jury on the elements of damages with reference to any recovery to be awarded the McAlisters. The abstract makes no reference whatsoever to the giving or refusing to give any instructions. The only way of resolving the point would be for each of our judges to proceed to examine the trial record and read most, if not all, the instructions. Of course we are protected from such an ordeal by our Rule 9, requiring abstracting of all material necessary to an understanding of the issues on appeal.

Having concluded that the two points advanced for reversal are without merit, we find it unnecessary to reach a technical point raised on appeal by appellees.

Affirmed.


text:
    Charles Eugene JACKSON, a minor, et al v. Lloyd C. McCUISTON III, a minor, et al
    5-5105
    448 S. W. 2d. 33
    Opinion delivered December 22, 1969

      nieves & nieves, for appellants.

      Hale & Fogleman, for appellees.
   Lyle Brown, Justice.

This appeal resulted from the granting of a directed verdict in favor of defendants at the close of plaintiffs’ testimony in a tort case. Charles Eugene Jackson, a minor, and his father, Charles E. Jackson, Sr., sued the McCuistons for injuries caused young Jackson (called Gene throughout the trial) when his leg got caught in a tractor-propelled stalk cutter (“bush hog”) operated by the defendant minor, Lloyd C. McCuiston III. Young Lloyd was employed on the farm of his father and grandfather, who operated as a partnership under the name of L. C. McCuiston & Son. The single point advanced for reversal is that the trial court erred in directing a verdict for the defendants.

Young Gene Jackson had just turned nine years of age at the time of the accident. His father was a month-to-month renter on the McCuiston farm and had lived there with his family during Gene’s entire life. Lloyd McCuiston III was almost fourteen years old. The two boys were close companion's. The McCuiston farm was mechanized and young Lloyd had been trained to operate several types of tractors. On the occasion of the accident, young McCuiston was engaged in cutting cotton stalks. The cutter itself roughly resembled a single-blade rotary lawnmower excepting it was much larger. The cutter was attached to an Allis-Chalmers D17 farm tractor which pulled and powered the mower. Lloyd III w,as not cutting each row of stalks as he came to it; rather he was on each turn leaving an area of aboiit ten rows of uncut stalks between the cleared areas. Gene Jackson had followed Lloyd III to the field and was playfully running behind the tractor and cutter. When the driver would reach the end of a row and make his turn, Gene would cut across the uncut “turn row” and again resume the frolic of following the machinery. Lloyd III was aware of Gene’s presence; he did not tell him to leave the field; he did not tell Gene to quit running behind the machinery; on one occasion Lloyd III thought Gene was dangerously close and motioned him to move back, and Gene complied. After that warning, according to Lloyd, four rows were cut before the accident occurred which necessitated amputation of the left foot. Gene got too close to the cutter and his foot was thrust under the shield of the cutter and into the blade. Gene’s activity at the precise moment of the tragedy is not known. That is because he was not permitted to testify since he was adjudged too immature; also, the driver did not observe Gene’s approach at the time of the accident. Lloyd Avas bound to have observed Gene almost immediately thereafter because he Avas able to stop the tractor so quickly after Gene’s fall that the wheel of the cutter did not run over Gene’s foot. Regardless of the precise movement which Gene made that caused, his foot to become entangled, the underlying cause of the mishap Avas his dangerous proximity to the instrumentality. He likely stumbled or tripped, or conceivably he might have attempted to mount the cutter. Irrespective of those possibilities, he Avas so close as to endanger his own life and limb and being in that position was the cause of his injuries. Whatever incident may have triggered the fall was secondary.

There were no witnesses to the accident other than the two boys. Plaintiffs rested their claim of liability upon the testimony of the defendants (being called by plaintiffs), Lloyd III and his father. We have substantially recounted young Lloyd’s testimony. Lloyd’s father conceded that the stalk cutter was dangerous when being operated, more dangerous than some equipment, less dangerous than other machinery on the farm. Of the propensity of the cutter with respect to danger, he said this:

Q. But to answer my question: Is it poor judgment to permit one to remain near a stalk cutter while it is being operated; is that correct!
A. Yes; I would say probably so.

The case was tried on the theory that Lloyd III was negligent in failing to keep a proper lookout for Gene and in failing to warn him of the inherent danger of getting too close to the machinery. At the conclusion of plaintiffs’ testimony and after extended review in chambers the trial court concluded there was no. proof of any act or omission on the part of Lloyd III which contributed to cause the mishap.

In resolving the propriety of the directed verdict we must of course take that view of the evidence most favorable to plaintiffs and see if there is any substantial evidence on which the jury could have based a finding of negligence. If the answer is in the affirmative then the case should have gone to the jury. Har deman v. Hass Co., 246 Ark. 559, 439 S. W. 2d 281 (1969). If the evidence permits of more than one reasonable conclusion, that conclusion is for the jury and not the court. St. Louis Southwestern Ry. Co. v. Cone, 111 Ark. 309, 163 S. W. 1170 (1914). We think the evidence, and circumstances in this case (the substance of which we have recited) presented a jury question as to whether defendants’ driver was negligent. In reaching that conclusion we were faced with the problem of resolving the standard of care owed by the tractor operator to the minor plaintiff. Our precedent nearest to the situation at hand is Harr elson v. Whitehead, 236 Ark. 325, 365 S. W. 2d 868 (1963). There we held a minor operator of. a motor vehicle to the same standard of care as ■ an adult. Of course that standard is an exception to our general rule that a minor owes that degree of care which a reasonably careful minor of his age .and intelligence would exercise under similar circumstances. Gates v. Plummer, 173 Ark. 27, 291 S. W. 816 (1927).

The trend in the law points to further relaxation of the genera] rule.

“An exception [to the general rule] may arise where the child engages in an activity which is normally undertaken by adults, and for which adult qualifications .are required.” 2 Restatement of Torts 2d § 283 A c.
“There is more support for the proposition that whenever a child, whether as plaintiff or as defendant, engages in an activity which normally is one for adults only, such as driving an automobile or flying an airplane, the public interest and the public safety require that any consequences due to his own incapacity shall fall upon him rather than the innocent victim, and that he must be held to the adult standard, without any allowance for his age.” Prosser Torts 3rd Ed. HB, p. 159.
“It is our conclusion that courts should and probably will (for the most part) hold the child defendant who is engaging in dangerous adult activities (such ,as driving a car) to the standard of the reasonably prudent adult.” 2 Harper & James Torts, p. 927.

The Minnesota court, citing Restatement, has extended the requirement of adult care to a minor when he is operating a motorboat. Dellwo v. Pearson, 107 N. W. 2d 859 (1961).

We find it unnecessary in this case to adopt a rule in such broad form as stated by the cited authorities. For the present we think it wiser to solve the problem as it is presented in the setting of a given case. In the case before us the adult defendants trained the minor defendant in the operation of a dangerous machine— dangerous particularly to third persons who found themselves in proximity during operation. Young McCuiston regularly operated all different types of farm tractors since he was twelve years of age. Unquestionably he was performing a job normally expected to be done by adults. Since he had been made proficient in the operation of the equipment it was his responsibility, and that of his masters, to see that he was apprised of those safeguards for others which would be possessed by an adult operator. If he is negligent in that important aspect of the operation then neither the minor operator nor his master should be permitted to invoke the aid of his minority. We therefore conclude that within the ambit of this case, the defendant operator should be held to the standard of care of a reasonably careful adult.

Reversed

Fogleman. J., disqualified.