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

text:
    J. Paul Smith Co. v. Tipton.
    5-3148
    374 S. W. 2d 176
    Opinion delivered January 13, 1964.

      Shaw, Jones & Shaw, for appellant.

      Sexton (& Biorgan, J. Btarvin Holman, for appellee.
   Paul Ward, Associate Justice.

This litigation grows out of a collision between a 1954 Ford passenger car and a large trailer truck. Of the five people in the car, two were killed and the other three were injured. Of the three injured, one seeks no damages and is not a party herein. The basic facts are not complicated hut the pleadings are somewhat involved and will be fully set out to clarify the several issues.

Facts. The accident occurred at about 3:30 a.m. on May 12, 1962 on U. S. Highway No. 64, a few miles west of Clarksville—near a motel called the “64 Hub’’. The car was owned and driven by Billy Joe Woolsey, aged 35. In the car were: Ronnie Tipton, aged 15, who was killed; Johnnie Lee Roughley, aged 18, who was killed; James C. Campbell, aged 18, and Tommy Crowder, aged 16, who is not a party litigant. The trailer truck which was hit from the rear was owned by appellant, J. Paul Smith Company [hereafter called Company], and it was being driven by appellant, Pete George. For brevity, we may hereafter refer to the occupants of the car as the driver and the boys.

The driver and the boys got together about 9 or 10 p.m. the day before preparatory to going on a frog hunt that night. After the hunt was over and as they were returning home at about 3:15 a.m., traveling east, the car hit the rear end of the trailer truck as it was entering upon or was already on the highway. The truck had been parked at the motel on the previous afternoon on the south side of the -highway—headed north. It was dark, and when the truck was pulling out onto the highway (according to appellees) or after it had proceeded some 100 to 200 feet east along the highway (according to appellants) the collision occurred. Whether another car (traveling west) contributed to the cause of the collision is a disputed question. Appellants, however, do not challenge the sufficiency of the evidence to support a finding of negligence on their part.

Pleadings. The parents of Tipton and Roughley, and the mother of Campbell sued the Company and Pete George (hereafter referred to as appellants) for negligently driving the truck upon the highway. They also sued Woolsey, charging him with wanton and wilful negligence in driving the car. Woolsey entered a general denial and also cross complained against appellants. Appellants denied all allegations of negligence in the complaint and the cross complaint, and, in addition, pleaded (a) that the boys were on a joint venture with Woolsey and consequently his negligence was imputed to them; and, (b) that the boys were guilty of contributory negligence. Appellees denied the allegations in appellants’ cross complaint. Woolsey, who was an original defendant, received no award from the jury, and he has not appealed.

Trial. At the close of all the testimony interrogatories were submitted to the jury with the results indicated :

No. 1. Appellant, Pete George, was guilty of negligence as charged which was the proximate cause of the injuries—Ms negligence was 80%.

No. 2. Woolsey was negligent in operating his car which was the proximate cause of the injuries—negligence was 20%.

No. 4. The boys were not on a joint enterprise with Woolsey.

Nos. 6, 7, and 8. Campbell, Tipton, and Roughley assumed the risk of riding with Woolsey.

No. 9. Judgments:

Campbell .$20,000

Tipton .... . 12,500

Roughley . 12,500

No. 10. No judgment for Woolsey.

For a reversal, appellants ably and earnestly rely on the eight separate points hereafter discussed.

One. Appellants here make the novel and interesting contention that the boys should not be allowed to recover because they “assumed the risk of the harm that might come to them through the negligent acts of Billy Joe Woolsey in the operation of the vehicle in which they were riding”. This contention is based partly on the fact (as found by the jury) that Woolsey was 20% negligent and that his negligence was a proximate canse of the injuries. It is also contended that under the well established “assumption of the risk” rule they could recover nothing, and that this rule was not affected in any way by our comparative negligence statute—Ark. Stat. Ann. § 27-1730.1 (Repl. 1962). This argument, appellants say, is supported by the case of Bugh v. Webb, 231 Ark. 27, 328 S. W. 2d 379. We are not convinced by appellants’ argument. We think the Webb case relied on by appellants is not in point for the reasons hereafter pointed out. In that case [at page 34 of the Arkansas Reports] we said:

“The rule which we think is most applicable in the case under consideration is set forth in 15 A.L.R., Second, Page 1180, Section 9, under the heading ‘Assumption of Risk’. It is there stated that the necessary elements of assumption of risk by guests are clearly defined as follows: ‘First, there must be a hazard or danger inconsistent with the safety of the guest; second, the guest must have knowledge and appreciation of the hazards; and third, there must be acquiescence or willingness on the part of the guest to proceed in the face of danger.’ ”

We then pointed out (1) that drag racing was hazardous; (2) that Webb was aware of the hazard; and, (3) that he had an opportunity to protest but failed to do so. The above mentioned set of facts is just the opposite of the facts in the case under consideration—(1) driving on the highway is not drag racing; (2) the boys did not know the truck would be negligently driven onto the highway; and, (3) they had no reasonable opportunity (14 seconds) to protest. In the Webb case the Court made it plain, we think, that the result would have been different if any of the enumerated facts had been lacking.

To adopt the rule which appellants appear to espouse would lead to an illogical and unjust result. It would allow Woolsey (the negligent driver) to recover, but it would deny recovery to the boys who had no control over the car.

We are unable to understand how our comparative negligence statute in any way operates to modify or repeal the doctrine of assumption of the risk as it applies to the case under consideration and as it has been uniformly construed by the courts in this and other jurisdictions—that is, a person does not assume the risk of the negligence of a third party and does not assume a risk of which he is not aware. The rule, as applied to cases of this nature is very well stated in 61 C.J.S. Motor Vehicles § 486, where appears this statement:

“A guest’s assumption of risk, in case of a motor vehicle collision, applies only as between the guest and his host, and does not bar recovery from a third person for injuries to which the third person’s negligence prosimately contributed, unless the acts of the host, in which the guest acquiesces, operate as the cause of the collision. ’ ’

There are many authorities and decisions in substantial agreement with the above statement. See: 4 Blashfield, Cyclopedia of Automobile Law and Practice, § 2511; Keowen v. Amite Sand & Gravel Co., (La. 1941 4 So. 2d 79; and Guile v. Greenberg, 192 Minn. 548, 257 N. W. 649.

Two. On August 29, 1962, the complaint herein to recover for the death of Ronnie Tipton and Johnnie Lee Roughley was filed by Ronnie’s parents (as next of kin) and by Johnnie’s mother (as next of kin). The trial began on Feb. 14, 1963, and later that same day it was learned that Harlan Tipton had just been appointed administrator of the estate of his son (Ronnie) and that the mother of Johnnie had been appointed administratrix of his estate. When the above information was revealed to appellants they promptly moved the court to dismiss the complaint insofar as it applied to the deceased boys. The motion was founded on Ark. Stat. Ann. § 27-907 (Repl. 1962), enacted in 1957. It suffices here to point out that it requires these two mentioned actions to be “brought by and in the name of the personal representatives” of the deceased boys. We think the trial court was correct in refusing appellants’ motion to dismiss. As soon as the erroneous procedure was called to appellees’ attention they, with permission of the court, amended the complaint by proper interlineations.

We are unable to see how appellants were in any way prejudiced, and they did not ask for a continuance on that ground. Under the liberal method of procedure provided for in Ark. Stat. Ann. § 27-1160 (Repl. 1962) we think the trial court not only had the power to permit the amendment but that he would have been derelict in his duty had he not done so. This section, among other things, provides:

“The court may, at any time, in furtherance of justice, and on such terms as may be proper, amend any pleadings or proceedings by adding or striking out the name of any party, or by correcting a mistake in the name of a party, or a mistake in any other respect, or by inserting other allegations material to the case; or when the amendment does not change substantially the claim or defense, by conforming the pleading or proceeding to the facts proved.” (Emphasis added.)

It cannot be contended here that the substitution of parties plaintiff changed “substantially the claim or defense” of either party. This Court apparently has recognized a difference between bringing an action and maintaining an action in court. In St. Louis M. & S. E. Rd. Co. v. Garner, 76 Ark. 555, 89 S. W. 550, it was said: “The plaintiff (appellee) had no right to bring or maintain this action, there being a personal representative of the deceased”. (Emphasis added.) In the case before us the next of kin did not try to maintain the action after the appointment of the personal represenatives was called to the attention of the court.

Three. We find no reversible error in the court’s instruction telling the jury it had the right to “take into consideration . . . any loss of earnings sustained or which may be sustained in the future as a result of said injury”. This particular instruction was given with reference to appellee James C. Campbell, who was 18 years old at the time of the collision. Appellants also objected to similar instructions, though worded differently, with reference to the two deceased boys. There, the court told the jury they could take into consideration the value of the services the boys would have rendered their parents until they should reach the age of majority, and the amounts the}’' would have contributed after reaching the age of majority. Appellants cite Missouri and Arkansas Railway Co., v. Treece, 210 Ark. 63, 194 S. W. 2d 203, as holding that, in this situation, the verdict of the jury must be based upon reasonable inferences from established facts and not on conjecture or speculation. Just how much the jury allowed in each case cannot be known because of the form of the verdicts, which was not objected to by appellants. It has been held that a person can recover for impairment of earning capacity even though he was not employed at the time. See: Germ v. City and County of San Francisco, 222 P. 2d 122 (Cal. 1950). It has been held that a housewife who stays at home can recover. See: LeMay v. Minn. St. Ry. Co., 71 N. W. 2d 826 (Minn. 1955), and to the same effect is the case of Fort Smith Gas Co. v. Lewis, 202 Ark. 427, 150 S. W. 2d 622. Examination of many of our own cases reveals that we have been liberal as to the amounts of evidence required to justify an instruction for loss of earning's. See: Wis. & Ark. Lbr. Co. v. Standridge, 132 Ark. 535, 201 S. W. 295.

In the case of Campbell, 18 years old when injured, it was shown he had been attending a 'school for mechanics to prepare for work in the future and it also appears that he was going to “work in peaches” during the season. In his case there can be no doubt his earning capacity has been diminished as a result of his extensive injuries. As to the deceased boys: The record shpws that Konnie, aged 15, did work around the house, waxed floors, mowed the lawn, and helped with flowers. The record shows that Johnnie, aged 18, was a good boy, worked around the house, ran errands and helped to look after the younger child. Prom these facts we think the jury could very reasonably infer that to supply all of these services would have cost money. Just how much value should have been placed on these services, or was placed on them by the jury, is of course speculation. For that reason alone, no reversible error has been shown.

Four. After careful study of the record we find no substantial evidence to justify submitting to the jury the question of contributory negligence on the part of any one of the boys. There was testimony that each boy drank a can of beer sometime during the trip, and there was also testimony they didn’t drink any beer. At any rate there is no evidence as to when beer was drunk or that it contributed to the accident. Also, Crowder said he heard one of the boys tell Woolsey to “step on it” —“or something like that”, but there is no evidence to show which boy made that statement. Moreover, if the identity of the boy were known, his negligence (if any) could not be imputed to the other boys since (as found by the jury) they were not on a joint enterprise and therefore no boy had any control over any other boy. It might be urged, however, that each boy was negligent in not protesting Woolsey’s accelerated speed when he was told to “step on it”. The answer is that (according to Crowley’s testimony) one boy did promptly tell Woolsey to “watch out”. But again, that one boy is not identified. Prom all this we are led to conclude that any finding of negligence on the part of any one of the boys would have to be based entirely on speculation.

Five. Over appellants’ objections the court gave the following instructions:

“You are instructed that vehicles being operated on a through highway have the right of way over other vehicles attempting to enter or cross such through highway. You are further instructed that such right of way extends to the entire passage across the through highway, and that the driver of a vehicle attempting to enter or cross such through highway does not discharge his duty by merely stopping before entering the through highway. ’ ’

“You are instructed that the driver of a vehicle upon a through highway has the right of way and is not required to slow down at a private driveway or bring his vehicle under such control as to be able to stop, but is entitled to assume that other drivers attempting to enter or cross such through highway will obey the law and yield the right of way to him. ’ ’

Appellants apparently admit these instructions accurately state the law as set out in our statutes, but object that the instructions do not impose on both drivers (the driver of the truck and the driver of the car) the same duty to exercise due care. We find no merit in this objection for the reason that other instructions (not challenged here) cover the matter of due care. The purpose of the instructions was to aid the jury in determining which of the two drivers was at fault, or most at fault, for the collision.

Six. The trial court refused to give appellants’ instruction No. 60 which reads:

“You are instructed that if you find from a preponderance of the evidence in this case that the plaintiff’s decedents and plaintiff, James C. Campbell, had been drinking intoxicants, or were drinking intoxicants with the driver of the vehicle in which they were riding, then you are instructed that the plaintiff’s decedents and the plaintiff, James Campbell, tvere on a joint venture with the driver of the vehicle in which they were riding* and the negligence, if any, on the part of the driver of the vehicle in which they were riding is imputed to them.” (Emphasis supplied.)

Appellants, recalling the testimony relative to the five cans of beer previously referred to, rely on our opinions in Mo. Pac. Tpn. Co. v. Howard, 201 Ark. 6, 143 S. W. 2d 538, and Wilson v. Holloway, 212 Ark. 878, 208 S. W. 2d 178, to justify the instruction. We cannot agree with appellants that the above decisions justify giving the instruction under the facts in this case. In the Howard case there was testimony that the people in the car were “driving around on pleasure bent”; that they had been drinking both beer and whiskey; and that the owner of the car and another member of the party attempted to dance, “but were too inebriated to do so”. In the Wilson case the issue of whether the parties were on a joint enterprise was left to the jury. The vice in the proffered instruction is that it binds the jury to reach a definite result regardless of when, where, or how much intoxicants were drunk. In those respects, nothing was left to the discretion of the jurors.

Seven. Trooper Bob Pritchard, Arkansas State Police, was placed on the stand by appellees to testify relative to the location of the debris (resulting from the collision) and relative to how long it would take to drive a car between two points at a specified rate of speed. Appellants say the court erred in allowing the witness to virtually “reconstruct” the collision which we said in two recent decisions constituted reversible error. The decisions referred to are Henshaw v. Henderson, Special Adm’r, 235 Ark. 130, 359 S. W. 2d 436, and Waters v. Coleman, 235 Ark. 559, 361 S. W. 2d 268. We are unable to agree with appellants that Pritchard’s testimony in this case amounted to or even approached recreating the collision. The testimony objected to is set out hereafter.

‘ ‘ Q. At my request, did you run a test of a vehicle driving sixty miles an hour, the time it took a vehicle at sixty miles an hour to come from that point to the place on the highway where you found the debris and where the skid marks terminated?

“A. Yes sir.

££Q. Now, from the sign midway up the hill west of Little Spadra Creek to the place on Highway 64 at the Hub where you located the debris and where' the skid marks terminated, driving at sixty miles an hour, what was the elapsed time it takes a vehicle to travel from that sign to that place?

“A. Sixteen seconds.

£ £ Q. Sixteen seconds ? ’ ’

From the above it, is obvious that the witness was not called on to reconstruct anything, to express any mysterious conclusions, to comment on the evidence, nor did the accuracy of his answers depend on the weather, the make or condition of the car, or the condition of, the road—-some of the controlling factors in the cases cited above.

Eight. Finally it is argued that the verdicts are excessive. At first it was thought by'appellants that one verdict exceeded the amount sued for, but this is satisfactorily explained as a typographical error. We find nothing in the record that indicates any of the verdicts is excessive, considering all the elements the jury had a right to consider. As to Campbell: He sued for $47,-930.10 and recovered $20,000. He received serious and permanent injuries; suffered great pain and will continue to do so; he incurred hospital bills of more than $1,200; his leg will be permanently disabled to some extent, and Ms earning capacity has been and likely hereafter -will be impaired. All this, we think, justified the jury in returning a verdict of $20,000. As to the deceased boys, there has not been and never will be devised a definite and satisfactory rule by which to determine the amount of money required to compensate parents for mental anguish. Ronnie Tipton and Johnnie Lee Roughley were normal boys with normal parent-child relationships. There can be no doubt from the testimony that their parents’ grief was deep and genuine. The depth of grief of the mother of Johnnie was so great that she was unable to sleep at night and she often arose from the bed and walked some four miles to the cemetery where he was buried. Ronnie Tipton was an only child. We are unwilling to say the judgment of $12,500 in each case ivas excessive.

Finding no error we hereby affirm on direct appeal the judgment of the trial court.

Gross Appeal. As previously set out the jury returned a verdict in favor of Campbell in the amount of $20,000, and verdicts in the amount of $12,500 in each of the other cases involving the two deceased boys. Thereupon the trial court reduced the amount of each verdict by 20% and entered judgment accordingly. Undoubtedly the trial court was guided by the fact that the jury found (as previously set out) that Woolsey was 20% negligent (in causing the accident) and by the fact that the boys assumed the risk of riding with Woolsey (as found by the jury).

Appellees acknowledge that this Court has never before considered the exact point here raised, but they contend that the principles we announced in the case of Lockhart v. Ross, 191 Ark. 743, 87 S. W. 2d 73, logically lead to a reversal of the court’s action in reducing the judgments. The Lockhart decision does to some extent confirm appellees’ contention herein. It is a definite announcement, under the facts of that case, that a passenger in a car (as Campbell) is not liable in damages to third parties (as appellants) because of the negligence of the driver of the car (as Woolsey) where the passenger was not on a joint enterprise with the driver (as Avas the relationship in this case). It would seem to follow from the above, therefore, that the boys in this case should not be penalized (by a reduction of the judgments against appellants) because of the negligence of Woolsey.

However, since Ave are not bound by any decision under the facts of this case, we feel at liberty to consider certain other features which lead us to a different conclusion than that urged by appellees. In the first place, in the Lockhart case, the question of assumption of the risk Avas not involved. If it had been, Ave can not be sure Avhat effect it would have had on the court’s decision. From the standpoint of logic and justice much can be said to sustain the action of the trial court in reducing the- judgments here involved. To simplify the point at issue Ave will consider only the case of Campbell. The verdict of the jury has - established the fact that appellants’ negligence was only 80% the cause of his injuries and that Woolsey’s negligence was 20% the cause. It is further established by the jury that Woolsey’s negligence was assumed by Campbell. Under these established facts we cannot escape the conclusion that the more logical and equitable rule calls for each party to be responsible in proportion to his own degree of negligence. Under the court’s holding appellants will pay their proportional part, while the part for Avhich Woolsey Avas responsible was voluntarily waived by Campbell. So, as between Campbell and appellants, it seems more reasonable that he should bear the loss of 20% of the judgment. What we have said relative to Campbell is applicable, of course, to the other occupants of the car.

It is therefore our conclusion that the judgment of the trial court on cross appeal should be, and it is hereby, affirmed.

Affirmed.

McFaddin, J., concurs.

Ed. F. McFaddin Associate Justice

(concurring). I concur in the final result reached by the Majority in this case, but I have pursued a slightly different method of reasoning to arrive at such conclusion; and, for whatever benefit it may be to the litigants and the Bar generally, I now state my method of reasoning.

In Point Four the Majority Opinion says: “After careful study of the record we find no substantial evidence to justify submitting to the jury the question of contributory negligence on the part of any one of the boys. ’ ’ I think that this issue of the contributory negligence of the boys should have been submitted to the jury in the interrogatories requested by the appellants. The appellants pleaded the defense of contributory negligence on the part of the boys; there was evidence that the boys and the driver of the car (Woolsey) had been drinking together; there was evidence that one of the boys urged Woolsey to see how fast the car would go; there was evidence that Woolsey then began driving the car 85 miles per hour; there was no evidence that any of the boys-ever protested such speed; and there was evidence that the car was going at a very rapid rate of speed at the time it hit the trailer. These items of evidence, I think, were sufficient to require the Court to submit to the jury the question of whether the boys were guilty of contributory negligence; so I differ with the reasoning of the Majority on this point.

However, I arrive at the same conclusion that the Majority has reached, because I think that any error in failing to submit to the jury the issue of the contributory negligence of the boys was cured when the Trial Court reduced the verdicts by 20%, which was the amount of the contributory negligence of Woolsey. Certainly the occupants of the car could not have been guilty of a greater degree of contributory negligence than was the driver; so in reducing the verdicts the Trial Court cured the error in failing to submit to the jury the issue of the contributory negligence of the boys.

The jury verdict for Campbell was $20,000.00; the Trial Court reduced this 20% and rendered judgment for Campbell for $16,000.00. The jury verdict for the Tip-tons was $12,500.00; the Trial Court reduced this 20% and the judgment was for $10,000.00. The jury verdict for Mrs. Roughley was $12,500.00; the Trial Court reduced this 20% and the judgment was for $10,000.00. Thus the Trial Court reduced the verdicts by 20% which was the percentage of contributory negligence the jury found to be attributed to Woolsey, the driver of the car. The appellees are in no good position to claim that this reduction of 20% was excessive, since it was at their insistence that the issue of contributory negligence of the occupants of the car was not submitted to the jury. Therefore, my conclusion is that there should be affirmance of the case on direct appeal and cross appeal.


source: Caselaw Access Project

author: Sam Robinson, Associate Justice.

license: Public Domain

text:
    Jones v. Comer.
    5-3116
    374 S. W. 2d 465
    Opinion delivered January 13, 1964.
    [Rehearing denied Feb. 17, 1964.]

      Franldin Wilder, Charles R. Garner, for appellant.

      Warner, Warner, Rag on S Smith, for appellee.
   Sam Robinson, Associate Justice.

Appellants, Eugene Jones, Charles Williams and Betty Williams, and Richard Wilson James, Jr., were the parents of three young boys who drowned in a .pond located on land owned by appellees near the city limits of Ft. Smith. The trial court granted defendants’ motion for a summary judgment and plaintiffs have appealed. The only issue is the action of the trial court in granting the motion for summary judgment.

Ark. Stat. Ann. § 29-211 (Repl. 1962) provides : “(b) . . . A party against whom a claim, counterclaim, or crossclaim is asserted or a declaratory judgment is sought may, at any time, move with or without supporting affidavits for a summary judgment in his favor as to all or any part thereof.

“(c) . . . The motion shall be served at least 10 days before the time fixed for the hearing. The adverse party prior to the day of hearing may serve opposing affidavits. The judgment sought shall lie rendered forthwith if the pleading, depositions, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law. . . .”

In the very recent case of Epps v. Remmel, 237 Ark. 391, 373 S. W. 2d 141, decided by this court December 16, 1963, we pointed out that if in a hearing on a motion for summary judgment it is shown by uncontroverted affidavits that there is no genuine issue of fact, it becomes the duty of the trial court to dispose of the case accordingly.

The plaintiffs allege that the defendants owned the property on which the pond is located, and it is further alleged in the complaint: “Situate upon said described property and in the Northeast corner thereof is an old pond, lake or body of water approximately 150 feet long by 100 feet wide and 15 feet deep, upon which an old boat or part thereof was located together in the near proximity with a large tree with a hanging cable or rope used by the decedents and other children to swing upon, play with, wade in, swim in and otherwise enjoy because same was attracted to them. All of said lands being unfencod, unenclosed and easily accessible to the public and more particularly to the three decedents.

“Plaintiffs further state that the situated land, lake, swinging tree, playground and other areas as mentioned and allowed to be mentioned is a dangerous instrumentality that is attractive to children. That same had been made attractive to children and was an open invitation to children to come upon the premises. That all of same was in such an attractive character that the defendants, and each of them, knew or as reasonable, prudent persons, should have known, would invite the attention of children and draw them to it, particularly to their sported and playful natures; and defendants and each of them, allowed said condition and situation to exist, well knowing same to be attractive and dangerous to the public and more particularly to the three deceased minors.

“As a direct and proximate result of the conditions existing as aforesaid, the three deceased minor children on April 7th, 1962, went upon the described premises at or around 4:00 P.M. on said date and were drowned, thereby causing the damages as hereinafter complained of.”

The defendants filed an answer denying the allegations of the complaint and alleging the affinnative defense of contributory negligence. On authority of Ark. Stat. Anno. § 28-355 (Repl. 1962), defendants then propounded interrogatories to plaintiffs, requesting: ‘ ‘ State the names and addresses of all persons known to you or your Attorneys having any knowledge or information of any facts relevant or pertinent to any of the allegations of fact contained in paragraphs 8, 9, 10, 11, 12 and 13 of your complaint.”

In response, plaintiffs filed a list of their witnesses. The defendants then served notice on plaintiffs that discovery depositions -would be taken from the witnesses named by the plaintiffs in the response to the interrogatories. Depositions were taken, counsel for both sides being present. Also affidavits of other witnesses were filed. Later, defendants filed a motion for a summary judgment alleging, in effect, that according to the uncontroverted evidence, as shown by the depositions and affidavits, there was no genuine issue of a material fact; that according to the undisputed evidence there was no liability on the part of the defendants, and that, as a matter of law, defendants were entitled to a judgment in their favor. The court granted the motion and entered a judgment for the defendants. The plaintiffs have appealed.

Two of the boys that drowned were nine years of age and one was eight years of age. Two of the boys had bicycles. Late in the afternoon on April 7, 1962, the boys disappeared from their homes. About 8 o’clock p.m. on that same day a cap belonging to one of the boys was found floating in the pond on appellees’ property. The property is located about one-half mile from where the boys lived. A further search was made by police and firemen and the bodies of the three young boys were recovered from the pond. The bicycles belonging to the boys were found the following day on the west side of appellees’ property.

The property owned by appellees was formerly used as a golf course and the pond was part of the course. It is about 150 feet long by 100 feet wide and about 15 feet deep. One of the bodies was located about eight feet from the west shore of the pond, near the north end. The other two bodies were recovered from a little farther out in the pond. On the northeast shore of the pond there was an old boat partly in and partly out of the water. About 150 or 200 feet north of the pond there -was an old bag swing hanging from a limb of a tree.

There is no indication whatever that appellants contend that there is any liability on the part of the defendants except the theory that the defendants maintained an attractive nuisance. If appellants cannot recover on the attractive nuisance doctrine there can be no recovery under the allegations in the complaint. There is no showing, by affidavit or otherwise, that there is an issue of a material fact. If appellant liad knowledge of facts that would make applicable the attractive nuisance doctrine, such facts should have been shown by counter-affidavit. In Epps v. Remmel, supra, we quoted from U.S. v. Dollar, 100 F. Supp. 881: “The motion [for summary judgment] requires the opposition to remove the shielding cloak of formal allegations and demonstrate a genuine issue as to a material fact.”

The weight of authority in this country is that ponds, lakes, streams, reservoirs, and other bodies of water do not constitute an attractive nuisance in the absence of any unusual element of danger. See 8 A.L.R. 2d 1298, § 42, which cites a long list of cases from many states supporting this rule. We have subscribed to the foregoing rule. Carmichael v. Little Rock Housing Authority, 227 Ark. 470, 299 S. W. 2d 198.

Appellants rely on Brinkley Car Works & Mfg. Co. v. Cooper, 60 Ark. 545, 31 S. W. 154. That case is clearly distinguishable from the case at bar. There, a six year old child was scalded by walking into a pit containing hot water, the water being covered with pieces of bark to such an extent that the -water could not be seen. Clearly the boiling water covered with bark created an extremely dangerous situation that Avas very unusual and amounted to a trap for a six year old child.

The proposition of ponds, lakes, streams, etc. being excluded from the attractive nuisance doctrine is thoroughly discussed in the Carmichael case, and there is no doubt about this court’s holding on that point. But we pointed out in that case that if the pond or other body of water constituted a trap, or there was some other hidden inherent danger, the attractive nuisance doctrine would apply. Here, however, there is nothing about the pond in question that could be said to be a trap or hidden danger within the meaning of those terms as expressed in the Carmichael case, unless it could be said that the bag swing located at least 150 feet north of the pond or the old boat could come within that category.

There is nothing' that indicates that the old boat could, in any way, have contributed to the tragedy. It was partly on the bank on the opposite shore from the shore near which the bodies were found, and, of course, the bag swing being at least 150 feet north of the pond could not have been involved. Even if it could be said that the bag swing and old boat were instrumental in attracting the children to the pond to play, still that would not be sufficient to make applicable the attractive nuisance doctrine. In the Carmichael case it was found that: “The pond is unenclosed and children from the heavily populated area congregate there in the shade of the trees and on the large rock to watch and throw rocks at the fish. Parents in the vicinity caution their children against playing around the pond but have difficulty keeping them away. ’ ’

In harmony with the Carmichael case, where it was held that the attractive nuisance doctrine was inapplicable although it was shown that children congregated in the shade of trees and on a large rock at the pond to throw rocks at the fish, there is a long line of cases, such as National Metal Edge Box Co. v. Agostini, 258 F. 109 (Five year old boy drowned attempting to get stick from hole in ice.); Cox v. Alabama Water Co., 112 So. 352 (Slime had accumulated on sides of reservoir creating danger. Eight year old boy fell and drowned.); Melandez v. Los Angeles, 68 P. 2d 971 (Children playing on raft and boards. One child fell off and drowned.); Denver Tramway Corp. v. Callahan, 150 P. 2d 798 (Eleven year old child tried to cross pond by cable and drowned.); Harriman v. Afton, 281 N. W. 183 (Thirteen year old child fell off raft into pond and drowned.); McKenna v. Shreveport, 133 So. 524 (Ten year old boy fell off raft and drowned.); Cooper v. Overton, 52 S. W. 183 (Ten year old boy fell off plank and drowned.); Lomas v. West Palm Beach Water Co., 57 So. 2d 881 (Fact pond had white sand banks did not render owner of pond liable for drowning of child.); Newby v. West Palm Beach Water Co., 47 So. 2d 527 (Pond had a white spray with rainbow effect.); Smith v. Chicago & E.I.R. Co., 95 N. E. 2d 95 (Nineteen month old girl slipped off partially submerged timber and drowned.); Anneker v. Quinn-Robbins Co., 323 P. 2d 1073 (Three year old child fell off raft and drowned. Pact that rafts, logs, or other objects were floating on pond did not constitute attractive nuisance.).

According to the testimony given by plaintiffs’ witnesses in the discovery depositions and other affidavits filed in the case, no counter-affidavits being filed, there is no issue of a material fact. The facts do not bring the case within the attractive nuisance doctrine and the trial court, therefore, correctly granted appellants’ motion for a summary judgment.

Affirmed.

Johnson, J., dissents.


author: Jim Johnson, Associate Justice.

text:
    Hake v. Ark. State Medical Board.
    5-3086
    374 S. W. 2d 173
    Opinion delivered January 13, 1964.

      Brown, Compton $ Prewett, for appellant.

      Warren & Bullion, for appellee.
   Jim Johnson, Associate Justice.

This is an appeal from order revoking a license to practice medicine. On June 11, 1962, appellant Orin Joseph Hake was sent a letter by appellee’s secretary advising appellant that a complaint had been filed Avith appellee, the Arkansas State Medical Board, relative to an alleged malpractice and requesting appellant to appear before that board on June 14th. The letter stated in part that, “no formal action Avill be taken against you at this meeting. The Board simply Avishes to discuss this complaint Avitli Arou and determine if there is sufficient evidence for proceedings to be instituted against you for revocation of your license.” Appellant appeared at this meeting. Thereafter a formal complaint Avas filed against appellant and an order'to show cause and an order of suspension Avere issued, with hearing set for July 26, 1962, before the appellee board. Appellant appeared at this reported hearing Avith counsel and at a later hearing on November 15, 1962. On November 21, 1962, an order revoking appellant’s license to practice medicine and surgery in the State of Arkansas Avas served upon appellant. Appellant then petitioned Pulaski Circuit Court for a Avrit of certiorari, Avkich was granted. Upon review, the Circuit Court on April 12, 1963, affirmed the action of the board, from which appellant has prosecuted this appeal.

For reversal appellant urges that the circuit court erred in affirming the Medical Board’s action in revoking appellant’s license to practice medicine in the State of Arkansas.

The Medical Practice Act, at Ark. Stat. Ann. § 72-613 (JEtepl. 1957), sets out fifteen grounds for revocation, suspension or refusal to issue licenses. More than one of these grounds were included in the serious and somewhat sensational charges against appellant. Section 72-614 provides for the filing of complaints, hearing and appeal. The last of this section reads as follows:

“All evidence considered by the Board shall be reduced to Avriting and available for the purpose of appeal or certiorari to any of the parties of said hearing. Nothing herein shall be construed so as to deprive any person of his rights without full, fair and impartial hearing.”

The Order of Revocation recites:

“As a result of the observation of the respondent, conversations with him, and oral examination of him, as well as the evidence adduced at the hearing, the Board is unanimously of the opinion that Orin Joseph Hake is mentally and emotionally incompetent to practice medicine; that the safety of the people of the communitj7' in which he practices will be endangered by his continuing to practice medicine. The Board further finds that said Orin Joseph Hake has been guilty of grossly negligent and incompetent malpractice and that his license to practice medicine in the State of Arkansas should be cancelled and revoked.”

The concensus of appellant’s argument is that there is absolutely no evidence in the record to substantiate the findings and rulings of the board. Appellee urges that the board, as an administrative body, and as is also provided in the Medical Practice Act in § 75-615, “. . . shall not be bound by strict or technical rules of evidence . . that the board’s finding of mental and emotional incompetency is the medical opinion of the nine doctor-members which they are competent, as doctors, to make. "We cannot say that either argument as such is completely without merit. We fully understand the justice of informal hearings on complaints to determine whether a formal complaint should be filed, and that the power to suspend a doctor’s license pending hearing on a formal complaint is necessary for the safety of the community where a doctor practices. However, we are equally cognizant that the right to practice medicine is a valuable property right not to be treated lightly.

In Bockman v. Ark. State Medical Board, 229 Ark. 143, 313 S. W. 2d 826, this court stated:

“The appellant contends that the board’s findings of fact are not sustained by any substantial competence evidence. Upon this point it is our rule in proceedings like this one that the board’s action will not be set aside on certiorari unless there is an entire absence of evidence to sustain the findings, in which case the board’s action will be deemed arbitrary. Hall v. Bledsoe, 126 Ark. 125, 189 S. W. 1041; Eclectic State Med. Bd. v. Beatty, 203 Ark. 294, 156 S. W. 2d 246.”

In Kuhl v. Ark. Bd. of Chiropractic Examiners, 236 Ark. 58, 364 S. W. 2d 790, after quoting the above language of the Bookman case, the court added:

“But even so, we would send this case back to the Board of Chiropractic Examiners for a new trial if it appeared that appellants did not receive a fair trial, 5 ?

In McKay v. State Board, 103 Colo. 305, 86 P. 2d 232, a similar case, the Colorado Supreme Court said:

“. . . the law which the board acted contemplates a review of the board’s action by a court presumably not expert in medical matters, with authority in the court to determine whether the board regularly pursued its authority or abused its discretion. Without testimony by an expert the court cannot determine the limits of proper treatment in good faith of one possessing ordinary skill nor can it assume that the board members out of their own individual knowledge and skill correctly fixed the limits within which one might prescribe in these particular cases and be within the bounds of ordinary care and skill so that good faith might be presumed, and beyond which good faith and ordinary skill could not both be successfully asserted. Such matters being only within the knowledge of experts must be shown by testimony of experts appearing in the record.”

“. . . It does not appear in the evidence that such treatment for a patient in her condition was not proper, judged by sound and recognized medical standards. The board says that in its opinion it was not, but until there was competent evidence to support it, the board was not authorized to form such an opinion and exceeded its authority in so doing.”

In the case at bar, the record furnished no factual standard for the board’s conclusions and no standard for this court to determine wheher the acts charged amounted to malpractice and no standard for the board’s opinion as to appellant’s mental and emotional incompetency to practice medicine. From the record before us, it seems that the findings and opinion of the board are based on testimony or conversation or other matters which arose or were presented at the first informal and unreported hearing. (A minute scraping of the record might yield some scintilla of evidence to substantiate some of the findings of the board, but this would hardly be compatible with the provisions of the Medical Practice Act which assures that no person will be deprived of his rights without full, fair and impartial hearing.) We have uniformly held that while administrative tribunals are not bound by strict or technical rules of evidence, there must be evidence in the record to sustain the finding's of the administrative board. In addition, the Medical Practice Act specifically provides that “[a] 11 evidence considered by the Board shall be reduced to writing and available for the purpose of appeal or certiorari to any of the parties of said hearing.” There is a virtual absence of evidence in the record to sustain the board’s findings, as well as no expert testimony to provide a standard for the board’s medical opinions. The valuable property rights here involved cannot be taken from appellant upon such questionable compliance with due process. Accordingly the case must be reversed. However, the health and welfare of an entire community demands that the cause be remanded. Therefore this cause will be remanded, through the circuit court, to the board, to the end that the board may have a new hearing upon evidence competent before such an administrative body consistent with this opinion, pending which appellant’s license to practice medicine in the State of Arkansas shall remain suspended pursuant to the board’s original order of suspension of June 25, 1962.

McFaddin, J., concurs.


author: Frank Holt, Associate Justice.

text:
    Zullo v. Alcoatings, Inc.
    5-3160
    374 S. W. 2d 188
    Opinion delivered January 13, 1964.

      Earl J. Mazancler & B. W. Thomas, for appellant.

      R. Scott Campbell, for appellee.
   Frank Holt, Associate Justice.

This is an action by the appellee to collect $580.95 on an open account for roofing materials. In appellant’s answer he admitted the purchases and by cross complaint sought $2,025.00 in damages as the “proximate result of the material not being as represented and guaranteed * * *” by the appellee. The court, sitting as a jury, found the issues in favor of the appellee. The appellant, on appeal, relies upon two points for reversal. We combine them for discussion on sufficiency of evidence since both points, in effect, contend that the evidence was insufficient to sustain the findings of the court as trier of the facts.

Appellant ordered and purchased roofing materials from appellee through a Maurice Bowman who Avas appellant’s tenant. Appellant testified that, upon Boavman’s recommendation, he employed and paid a certain individual to apply the roofing materials and that Boavman supervised the application. Within a short period of time after the application of the product on the roof, leaking occurred which damaged the interior and furnishings of appellant’s apartment building. Additional roofing material was ordered and applied to no avail and within a few months it became necessary to install a “complete new roof”. Appellant contends Mr. Bowman told him he was appellee’s agent and that he relied on Bowman’s unconditional representation and guarantee that the roofing material would keep his roof from leaking for ten years and, therefore, appellee is bound by its agent’s representations. The law is well settled that neither an agency nor the scope of an agency can be established by the declarations or actions of a purported agent. Smith v. Pleasant, 200 Ark. 1190, 139 S. W. 2d 377; Wright v. Harris, 222 Ark. 661, 262 S. W. 2d 112.

Further, it is a well established rule of law as to principal and agent that the nature and extent of an agent’s authority, when the evidence is in conflict, is a question of fact for the jury. Bradley Advertising, Inc., v. Froug Stores, Inc., 193 Ark. 639, 101 S. W. 2d 789. The appellee denied Bowman was its agent. Appellee adduced evidence that Bowman, as its salesman, was only authorized to make such guarantees as were conditionally expressed on its brochures, invoices, and in the printed instructions furnished with the product.

The invoice received by appellant reads inter alia:

“No representations, agreements or promise of the salesman (not shown on this invoice) whether verbal or in writing, shall be valid, except when confirmed in writing by an officer of the company. ’ ’

There is no evidence that appellee was ever aware of or confirmed in any manner Bowman’s unconditional representation. The brochure and the material replacement guarantee, in substance, provides for replacement of the material for a period of ten years to keep a roof in waterproof condition when applied according to instructions. According to appellee’s chief chemist the roofing material is waterproof when properly applied. It is significant in this case that no witness testified the Four Seasons Fibred Aluminum Coating roofing material was applied according to requirements.

On innumerable occasions we have held that in determining the sufficiency of the evidence to support a verdict all of the evidence must be viewed, with every reasonable inference derived therefrom, in the light most favorable to the appellee. Harkrider v. Cox, 232 Ark. 165, 334 S. W. 2d 875. Further, it is well settled law in this state that the findings of the trial court, as trier of the facts, have the verity and binding effect of a jury verdict and will be sustained if there is any substantial evidence since it is not within our province to determine where the preponderance lies. International Harvester Co. v. Layton, 148 Ark. 156, 229 S. W. 22. In the case at bar the evidence was in conflict. The appellee denied Bowman’s authority to make any representations or guarantees other than those contained in the terms of the replacement guarantee which required proper application of the roofing material. It cannot be said there is no substantial evidence to sustain the findings of the trial court sitting as a jury.

The judgment is affirmed.

       “Should FOUR SEASONS be applied according to our simple printed instructions and fail to give you ROOFING, METAL or MASONRY PROTECTION for Ten Years from invoice date, except in case of earthquakes and other acts of God, and the account discharged per terms of order, we hereby agree to furnish NO CHARGE sufficient additional FOUR SEASONS TO KEEP your roofing, metal or masonry surface in a waterproof condition for the full duration of the TEN YEAR GUARANTEE PERIOD.”


author: Carlbton Harris, Chief Justice.

text:
    Mabry v. Ross.
    5-3169
    374 S. W. 2d 361
    Opinion delivered January 20, 1964.

      Bob Scott, Walter Davidson, for appellant.

      Dickson, Putman, Millwee and Davis, for appellee.
   Carlbton Harris, Chief Justice.

This litigation involves an interpretation of Ark. Stat. Ann. § 28-348, Sub-section (d) ',(Repl. 1962). The section, overall, deals with the taking of discovery depositions. The sub-section refers to the use of the depositions during the trial of a case, and reads as follows :

“At the trial or upon the hearing of a motion or an interlocutory proceeding, any part or all of a deposition, so far as admissible under the rules of evidence, may be used against any party who was present or represented at the taking of the deposition or who had due notice thereof, in accordance with any one of the following provisions:

(1) Any deposition may be used by any party for the purpose of contradicting or impeaching the testimony of deponent as a witness.

(2) The deposition of a party or of any one who at the time of taking the deposition was an officer, director, or managing agent of a public or private corporation, partnership, or association which is a party may be used by an adverse party for any purpose.”

Appellant, Wayne Mabry, a minor, was involved in an automobile collision with Dwight Nickell on January 16, 1962, on U. S. Highway 71, approximately one mile south of Lowell, Arkansas. Mabry was traveling north, and Nickell, traveling south, was immediately behind a south-bound truck, owned by appellee, Standard Rendering Company, hereinafter called Standard, and driven by appellee, G. W. Ross, Jr. As the two south-bound vehicles approached a hill, Ross (according to appellants’ contention) signaled to Nickell that all was clear, as far as approaching traffic was concerned, and Nickell went around and collided with the approaching Mabry vehicle on the southern portion of the crest of the hill. Thereafter, Wayne Mabry, and Major Mabry, his father, both in his own right, and as Father and Next Friend of Wayne, instituted suit against Standard, G. W. Boss, Jr., and Dwight Nickell. The complaint alleged, inter alia, that Ross was a servant and employee of Standard, acting within the scope of his employment on the occasion mentioned. Negligence charged against appellees was based on the allegation that immediately before the collision, Boss signaled Nickell that it was proper and safe for Nickell to go around his (Ross’) truck; and that Ross, with the exercise of ordinary care under the circumstances, should have known that it was unsafe for Nickell to pass. The complaint charged Nickell with negligence in failing to keep a proper lookout; failing to yield the right of way to Mabry’s automobile; failing to maintain proper control of his automobile; and in relying upon the directions of Ross, by passing at a point where Nickell’s view was inadequate to assure safe passage. Judgment was sought against the defendants, jointly and severally for the total sum of $6,876.85. Standard and Ross filed their answer, denying each and every material allegation, and further alleged that if appellants had been damaged, such damages were the result of the negligence of appellant, Wayne Mabry. A counter-claim was filed against Major Mabry, wherein it was alleged that the latter was guilty of negligence sufficient to bar his recovery by reason of knowingly entrusting his vehicle to a dangerous and incompetent driver, Wayne Mabry, and that Wayne Mabry, at the time of the collision, was acting as agent, servant, and employee of Major Mabry. In the alternative, appellees pleaded Wayne Mabiy was a bailee of the automobile owned by Major Mabry, then the damages to said automobile were the proximate result of the negligence of Wayne Mabry, and that the defendants, Gr. W. Ross, Jr., and Standard Rendering Co., are entitled to contribution from Wayne Mabry for any judgment rendered against them in favor of the plaintiff, Major Mabry.”

A cross-complaint was filed against Nickell, wherein appellees asserted that any injuries and damages sustained by appellants were the proximate result of the negligence of Nickell, and that Ross and Standard should have contribution over and against Nickell for any judgment which might be returned against appellees. Nickell then filed an answer and cross-complaint against appellees wherein he stated that he was following immediately behind the truck operated by Ross in behalf of Standard, and that Ross signaled to him that he could safely pass the truck which Ross was operating; that in so doing, the Nickell automobile collided with the Mabry automobile. By counter-claim against appellants, he also alleged negligence on the part of Mabry, asserting that the latter was traveling at an excessive and reckless rate of speed. The pleading set forth injuries and damages allegedly sustained by Nickell, and he sought judgment against Mabry and his father, and Ross and Standard, jointly and severally, in the sum of $4,743.78. Appellants filed a reply to the counter-claim, denying all material allegations. Thereafter, by stipulation of the parties, the depositions of G. W. Ross, Jr., and Dwight Nickell were taken with all attorneys being present. "When the case proceeded to trial, appellants attempted to introduce the depositions of Ross and Nickell as evidence in chief for the purpose of making a prima facie case against appellees, but the trial court, in separate rulings, excluded both depositions on the ground that Ross and Nickell were present in the court room, and therefore available to testify. Objections and exceptions were duly noted to this ruling. Because of the adverse ruling, appellants then called Ross and Nickell as witnesses. The testimony of Ross was substantially the same as that given in his deposition, and appellants make no contention of reversible error because of the exclusion of his deposition. However, the testimony of Nickell is asserted to be materially different from his deposition, and the oral testimony of this defendant did not make out a prima facie case of negligence on the part of Ross and Standard. There was no other witness presented to testify with regard to the alleged signal given by Ross to Nickell (to pass his truck), and Ross denied giving a signal. Thereupon, appellants rested, and the court sustained a motion for directed verdict for the appellees. The case proceeded on the remaining issues, and at the conclusion of the testimony, the court granted motions for directed verdicts in favor of appellees on the cross-complaint filed by Nickell, and in favor of appellants on the counter-claim filed by Nickell. The final issue was submitted to the jury, and it found for appellants against Nickell, awarding a judgment in the sum of $3,200.00. This judgment was entered on May 3, 1963. On May 15, Nickel filed a motion to quash the judgment, and prayed that all proceedings in the cause be dismissed against him for the reason “ * * >:s * that the said defendant is and was at the time of the bringing of this cause under and incapacitated by virtue of a legal Guardianship; that the fact of the existence of the aforesaid Guardianship did not become known until subsequent to the entry and rendering of the judgment herein and that a copy, duly certified, of the Letters of Guardianship are attached and made a part hereof as though set out -word for word.”

On June 4, the court found that Nickell had been legally adjudged incompetent by the Probate Court of Washington County in 1957; that his brother had been appointed and qualified as guardian, and was still acting as legal guardian; that on the date of the trial “Dwight Nickell was not competent to the degree required by law to testify or to legally have a judgment returned against him, and the motion to quash the judgment against Dwight Nickell should be sustained.” The court then entered its order quashing and setting aside the judgment in favor of the Mabrys against Nickell, and further ordered that appellant’s cause of action against this defendant be continued, subject to further orders of the court.

Appellents have appealed from the judgment of the Circuit Court rendered on May 3, insofar only as the judgment finds for Ross and Standard. The sole question before this court is whether the trial court erred in excluding the deposition of Dwight Nickell.

Before proceeding to discuss this issue, we might first point out that the reason given by the trial court for excluding the depositions of both Nickell and Ross was erroneous. The ruling of the court was based upon the fact that these persons were present in court and available for testimony. We have held that the presence of the party in court is no reason for exclusion of the deposition . In Superior Forwarding Company v. Sikes, 233 Ark. 932, 349 S. W. 2d 818, this court said:

“Next, appellants contend that the trial court erred in permitting the use of a deposition of Fred Russell, who was a party defendant. He was present in the courtroom and plaintiff had previously taken his discovery deposition. Ark. Stats. § 28-348 provides that the deposition of a party may be used by an adverse party for any purpose. Here Fred Russell was an adverse party to the plaintiff. Hence, it was perfectly proper to use his deposition.”

See also Volume 4, Moore’s Federal Practice (Second Edition) Section 26.29, and Cleary v. Indiana Beach, Inc., 275 F. 2d 543.

Appellees point out that the deposition was not offered as substantive evidence in the controversy between appellants and Nickell, hut rather was offered as evidence in the separate controversy between the Mabiys and appellees. Appellees state:

" Had-Appellants brought two separate suits, as they could have done, against Appellees and Nickell, it is clear that Nickell would have been simply a witness in the separate suit against Appellees, and his deposition would not have been admissible since he was not ‘unavailable.’ Appellees submit that the joinder statutes which are designed for economy of time and expense should not he used to permit a misapplication of the rules concerning use of deposition.”

It is strongly argued that in the controversy between the Mabrys on the one hand, and Ross and Standard on the other, Nickell is not an adverse party to appellants. Appellees rely mainly upon the case of Napier v. Bossard, 102 F. 2d 467 (Second Cir. 1939), a case decided under New York law, hut this case is not persuasive for the reason that the New York statute, at that time, did not contain the pertinent provisions of our statute, viz, “* * any par£ Qr ap 0£ a ¿^position * * ® may be used against any party who was present or represented at the taking of the deposition” and * * may be used by an adverse party for any purpose.”

Appellees also contend that the purpose of the deposition was limited to discovery, and that no effort was made to frame questions in admissible form as a matter of preserving testimony. The stipulation for the. taking of Nickell’s deposition does not so state, and the concluding sentence provides, “The right to except to all evidence adduced for incompetency, irrelevency and immateriality, is hereby expressly reserved. ’ ’ Of course, there was no agreement in advance that the deposition would be used as evidence, as this would have bound all parties to testimony that they had not heard, but it certainly appears that the reservation of the right to except to introduction as contained in the quoted sentence would have been a meaningless gesture unless it had been contemplated that the deposition, or portions thereof, might be introduced.

Be that as it may, it is clear that our statute provides that the deposition may be used “against any party” and “for any purpose.” To hold with appellees, it would be necessary to completely disregard the literal meaning of the quoted phrases. As pointed out by appellants, we would have to write into Sub-section (d) “The additional requirement that the deposition of a party may be used only ‘against that party’ contrary to its express language that it may be used ‘against any party.’ ”

Accordingly, we reach the real question, i.e., “Were appellants and Nickell adverse parties?” In Mahoney v. Founders’ Insurance Company, 12 Cal. Rptr. 114, the District Court of Appeals for the Second District of California, declared that “. . . adverse parties are those who, by the pleadings, are arrayed on opposite sides.”

In the citation from Moore’s Federal Practice, previously mentioned, the author states, “ ‘Adverse party’ as used in this rule is a term of art, and means a party whose interest in the case is adverse to that of another party, . . .” We are persuaded that appellants and Nickell come within the definition of “Adverse parties.” The Mabrys instituted suit against Nickell, and Nickell filed a counter-claim against the Mabrys. Appellants obtained a judgment against Nickell. In fact, all parties appear to have been adverse to each other. The Mabrys sued appellees and Nickell. Appellees counter-claimed against appellant, Major Mabry, and cross-complained against Nickell; Nickell counter-claimed against appellants, and cross-complained against appellees. Having reached the conclusion that the Mabrys and Nickell were adverse parties, it follows that the court erred in not admitting the Nickell deposition. Of course, appellees will have the opportunity to refute and rebut the evidence contained in the Nickell deposition, and may even subpeona Nickell for this purpose, if it develops that he is competent to testify when, and if, the case is re-tried.

This last brings us to the final argument advanced by appellees. They contend that the ruling of the trial court should be upheld because Nickell was not competent, to the degree required by law, to testify. The court entered its finding that Nickell was not competent to testify on the date of the trial; however, no finding was made as to Nickell’s competency on the date of the taking of the deposition. The mere fact Nickell had been adjudged incompetent in 1957, and had never, by court order, been restored to competency, does not, within itself, establish that Nickell was incapable of testifying at the time of the taking of the deposition. Ark. Stat. Ann. 'S 28-601 (Repl. 1962) provides that certain persons shall be incompetent to testify. Among those declared incompetent to give testimony are the following:

“Persons who are of unsound mind at the time of being produced as witnesses, provided, however, that no person shall be denied the right to testify who is in possession of his or her mental faculties during a lucid interval, and provided further that it shall be within the sound discretion of the Trial Court to permit any person to testify who understands the obligation of an oath and who has sufficient understanding, and the fact that such person has been adjudged of unsound mind shall only affect his or her credibility as a witness, and the court shall so instruct the jury.”

See also Parker v. Walrath, 232 Ark. 585, 339 S. W. 2d 121. "Whether Nickell was competent to give the deposition is a matter that will have to be determined in future proceedings.

Because of the error, heretofore set out, the judgment is reversed, and the cause remanded to the Benton County Circuit Court with directions to proceed in a manner not inconsistent with this opinion.

       Appellants contend that Ross gave this signal by blinking rapidly his left hand turn signal at the rear of the truck.

       This fact was subsequently admitted by the company in answering “Request for Admission of Pacts.”

       Emphasis supplied.


author: En. F. McFaddin, Associate Justice.

text:
    Chronister v. Custer
    5-3112
    374 S. W. 2d 357
    Opinion delivered January 20, 1964.

      James K. Young, U. A. Gentry, for appellant.

      John T. Jernigan, Prosecuting Attorney, By John W. Barron, Deputy Prosecuting Attorney, for appellee.
   En. F. McFaddin, Associate Justice.

The appellant is Grace Chronister, administratrix of the estate of AY. J. Chronister, deceased; and the appellee is Katheryn B. Custer, Business Manager and Administrator of the Pulaski County Hospital; and this appeal involves a claim allowed by the Probate Court of Pulaski County in favor of the appellee against the Chronister estate. In proper time the appellee filed the following claim:

“I, Kathryn Custer, Business Manager and Administrator of the Pulaski County Hospital, Little Rock, Arkansas, on behalf of the County of Pulaski in the State of Arkansas, do solemnly swear that the County of Pulaski is entitled to claim the sum of $320.00 against the Estate of AY. J. Chronister, and that the said claim arises as follows:

“That the deceased, AY. J. Chronister, was appointed guardian of the person and estate of Eunice Vaughn, Incompetent, in the Probate Court of Pope County, Arkansas, and that the said guardianship has now been terminated. That the said W. J. Chronister filed in the said guardianship proceedings an accounting stating certain assets of the said Eunice Vaughn, and stating, among other things, that no assets existed other than those shown in the said accounting. That the County of Pulaski filed a claim in the said guardianship proceeding-praying that it be allowed to claim against the estate for money expended by the said County for the care and custody of the said incompetent in the Pulaski County Hospital, which claim was allowed. That since the time of the termination of the said guardianship the said incompetent has remained in Pulaski County Hospital, and that the County of Pulaski is entitled to claim against any assets of the said incompetent for her care, custody and maintenance. That on March 21, 1961, it was learned that after the termination of the guardianship of the incompetent, Eunice Vaughn, four checks in the total amount of $320.00 were received by W. J. Chronister and cashed by him, as shown by Exhibit ‘A’ attached hereto; that the County of Pulaski is entitled to be compensated for the care and custody of the said Eunice Vaughn, and that the said money so received by W. J. Chronister should have been paid to the County of Pulaski for use on behalf of the said incompetent or the guardianship in Pope County reopened and a supplemental accounting filed therein, neither, of which was done. “'Wherefore Katheryn Custer prays that her claim on behalf of Pulaski County be allowed in the amount of $320.00, and that this Court order payments of the above sum to the Pulaski County Hospital, /s/ Katheryn Custer.”

From the allowance of the claim there is this appeal presenting several points of which we discuss only two, since they are decisive.

I. The Chronister Estate was not indebted to Pulaski County. Eunice Vaughn was indebted to Pulaski County, but the ■ Chronister estate was not so indebted; so the claim filed by Katheryn Custer for Pulaski County was entirely improper. The Chronister estate might or might not have been indebted to Eunice Vaughn, that could only have been determined if a claim had been filed for Eunice Vaughn. But Pulaski County could not file a claim, such as this one, against the Chronister estate as though the claim were a garnishment proceeding. The estate of Eunice Vaughn filed no claim against the Chronister estate, nor did the estate of Eunice Vaughn make any assignment of any claim to Pulaski County. Since the Chronister estate did not owe anything to Pulaski County, and since no assignment of the claim of Eunice Vaughn to Pulaski County was shown, it necessarily follows that the Court was in error in allowing the claim of Pulaski County against the Chronister estate.

II. The holding in Jones v. Arkansas Farmers’ Assn., 232 Ark. 186, 334 S. W. 2d 887, affords the appellee no support. Before the administratrix of the Chronister estate denied the Pulaski County claim, the statute of non-claims had run against any claim that the estate of Eunice Vaughn might have filed. It was therefore insisted below, and is urged here, that such failure of a more prompt denial amounted to a waiver by the administratrix of the Chronister estate to resist the present claim: that is, the failure to deny the present claim before the statute of non-claims ran against any claim that Eunice Vaughn might have urged, constituted a waiver of the right to resist the present claim. We see no merit in appellee’s position. In the Jones case it was pointed out that a party waives objection to the form in which a claim is filed if the disapprovel of the claim be not made until after the statute of non-claims had run. That case does not stand for the proposition that if a claim is filed in behalf of the wrong claimant then the estate against which the claim is filed becomes liable merely because such claim was not denied until after the expiration of the time in which the proper claimant could have filed a claim.

Since the claim cannot be considered as a claim filed in behalf of Eunice Vaughn, and since the Chronister estate is not indebted to Pulaski County, the claim here allowed must be denied. The judgment is reversed and the cause remanded with directions to disallow the claim here involved.


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

text:
    Spitzer v. Barnhill
    5-3133
    374 S. W. 2d 811
    Opinion delivered January 20, 1964.
    [Rehearing denied Feb. 24, 1964.]

      Bruce Ivy, Frierson, Walker c% Snellgrove, for appellant.

      E. L. Rolloioay, for appellee.
   George Bose Smith, J.

In this case the question which has given us the greatest concern is whether a chancery court, after having taken jurisdiction of a suit to restrain a tort defendant from denuding himself of Ms property, must then, as a matter of giving complete relief, retain jurisdiction and hear the common-law tort action on its merits.

On April 29, 1963, a collision occurred near Corning, assertedly as a result of drunken driving on the part of the appellee Boy C. Barnhill. The appellant was seriously injured, her husband was killed, and others in the car were also injured. As a result of the accident civil actions for damages totaling $217,000 were later filed against Barnhill. He was also charged with manslaughter and other criminal offenses.

At the time of the collision either Barnhill alone or he and his wife owned a combined restaurant and service station north of Corning. Within a few days Barnhill, while still in the hospital, sent for Clifford Cole, a gasoline and oil dealer, and began negotiating a sale of the property. On May 10, eleven days after the collision, the Barnhills and the Coles entered into a contract by which the Coles bought the property for $30,000.

When the appellant learned that Barnhill ivas apparently disposing of his assets she filed the present suit to enjoin him from transferring his property except in the normal course of business. At the inception of the case the chancellor issued a temporary restraining order in accordance with the prayer of the complaint. Later on the appellant ammended her complaint to assert also her cause of action in tort for her husband’s death and for her own injuries.

A preliminary hearing ivas held on the question-whether the restraining order should be continued in force. The chancellor decided that the order ought to be dissolved, though he permitted it to remain in effect pending this appeal under Ark. Stat. Ann. 27-2102 (Repl. 1962).

The first issue is whether the chancellor ivas right in holding that the proof failed to show that Barnhill ivas insolvent and had made conveyances in fraud of his creditors. We think the chancellor abused his discretion in directing that the restraining order be dissolved.

It appears that of the original $30,000 purchase price Barnhill at fix’st received $18,000 in cash and a note and mortgage for $10,500. The other $1,500, which was to be payment for the personal property and fixtures, was put in escrow in a bank pending compliance with the Bulk Sales Law. On May 25, the same day that Barnhill ivas served with a summons in the present case, he converted the $10,500 note into cash by means of a $2,000 discount agreement with the Coles.

Barnhill at once denuded himself of all the proceeds of sale. He paid a number of outstanding debts. He used $2,400 in prepaying for several years the premiums upon a life insurance policy in which, his wife was named as beneficiary. He paid off a $6,000 mortgage to his father. He made prepayments totaling $860 upon the mortgage on his house. He spent more than $1,500 upon hospital and medical bills owed by his mother-in-law. When, after all his disbursements, he still had some $12,000 in cash, he gave it to his wife. He admits that since then he has obtained money from her when he needs it. In our opinion the decided weight of the proof shows that, at the time of the hearing upon the matter of continuing the restraining order in force, Barnhill’s financial condition had already deteriorated beyond the point of insolvency. The chancellor’s decision to dissolve the restraining order was an abuse of discretion that must be set aside.

The remaining issue is the serious one in the case. Upon terminating the preliminary restraining order the chancellor directed that the cause be transferred to the circuit court for trial of the tort action. The appellant, citing Horstmann v. LaFargue, 140 Ark. 558, 215 S. W. 729, maintains that we should now require the chancellor to retain jurisdiction of the tort claim and hear the case upon its merits in equity.

The opinion in the Horstmann case undeniably supports the appellant’s position. There the plaintiff brought suit in the chancery court to set aside fraudulent conveyances and to recover damages for personal injuries. The defendants challenged the jurisdiction of equity. In upholding the chancellor’s action in hearing and determining the tort claim we relied upon this statute: “In suits to set aside fraudulent conveyances and to obtain equitable garnishments, it shall not be necessary for the plaintiff to obtain judgment at law in order to prove insolvency, but in such cases insolvency may be proved by any competent testimony, so that only one suit shall be necessary in order to obtain the proper relief.” Ark. Stat. Ann. § 68-1308 (Repl. 1957). We reasoned that under this statute it was the duty of the chancellor to hear the tort action in order to afford complete relief in one proceeding.

Upon reconsidering the matter we are convinced that our conclusion in the Horstmcmn case was wrong. Before the adoption of the statute in question it was necessary for a plaintiff to obtain a judgment at law before he could bring suit in equity to avoid a fraudulent conveyance. We think it clear that the statute was concerned only with the avoidance of fraudulent conveyances and was intended only to permit the plaintiff to obtain that relief (described in the act as “the proper relief”) in a single suit. If the legislature had intended to bring about such a drastic change in our law as that of permitting personal injury actions to be tried in equity as a matter of right, we think that intention would have been stated in language too plain to be misunderstood. It certainly was not so stated.

This question was considered in Jones v. Jones, 79 Miss. 261, 30 So. 651. There the plaintiff attempted to maintain in equity a suit for personal injuries, relying upon statutes that permitted a creditor to attack a fraudulent conveyance without having first obtained a judgment at law. In summarily rejecting this novel contention the court said: “It was never the contemplation of the statutes invoked by appellant to authorize chancery courts to take cognizance of a suit for unliquidated damages arising out of a tort before there has been any judgment at law ascertaining the damages, the defendant being within the jurisdiction of the court.” See also Dowling v. Garner, 195 Ala. 493, 70 So. 150. It is our conclusion that upon this point the holding in the Horstmann case must be disapproved.

The decree is reversed and the cause remanded with directions that the restraining order be reinstated and that the tort action be transferred to law.

McFaddin, J., dissents.

Ed. F. McFaddin, Associate Justice,

(dissenting in part). The Majority of this Court is holding that the Chancery Court abused its discretion in dissolving the temporary restraining order. I agree with that portion of the Opinion. But the Majority is holding that the Chancery Court should transfer the tort action to the law court. Here is the directive in the Majority Opinion: “The decree is reversed and the cause remanded with directions that the restraining order be reinstated and that the tort action be transferred to law.”

I dissent from so much of the Majority Opinion in this case as directs that the tort action he transferred to lato. I think that when equity takes jurisdiction for one purpose it should grant full and complete relief, rather than have a restraining order pending in the equity court, to hang there until a damage suit is disposed of in the circuit court and judgment obtained, and then the Judgment brought back to the chancery court to see' what can be done about alleged fraudulent conveyances. I have always understood that when equity takes jurisdiction for one purpose, it takes jurisdiction for all purposes. The Majority Opinion in the present case admits that our own case of Horstmann v. LaFargue, 140 Ark. 558, 215 S. W. 729, holds in accordance with the views that I am now expressing; and the present Majority is now overruling a portion of Horstmann v. LaFargue.

I dissent from so much of the Majority Opinion as overrules any part of Horstmann v. LaFargue. It is a landmark case, having been decided by this Court on November 17,1919, and cited and followed in a number of cases since that date. Back in 1919 when Horstmann v. LaFargue was decided, this. Court consisted oh Chief Justice Edgar A. McCulloch, and Associates Justices Carroll D. Wood, Jesse C. Hart, Frank Gr. Smith, and Thomas H. Humphreys; and Horstmann v. LaFargue was a unanimous decision of that Court. LaFargue filed suit in the Chancery Court against Henry Horstmann, Sr., Henry Horstmann, Jr., and the wife of the latter, to recover damages from Henry Horstmann, Jr. for personal injuries, and to uncover real estate mortgaged by Henry Horstmann, Jr. in fraud of his creditors. Jurisdiction of the Chancery Court in such a case was questioned by Horstmann, Jr., both on the theory that a claim for damages was not within the jurisdiction of chancery, and on the further claim that a tort-claim-plaintiff was not a creditor. This Court, in a unanimous Opinion delivered by Justice Frank G.-Smith, held that under the statute (which is now Ark. Stat. Ann. § 68-1308 [Eepl. 1957]) a person holding a tort claim against a defendant was a creditor of such defendant and could sue the defendant in equity to reduce the tort claim to judgment and to uncover hidden assets of such defendant, if it be shown that the defendant was insolvent and that the remedy at law was inadequate and incomplete. The Court further held that the plaintiff’s allegation, that the defendant was insolvent, was admitted unless the defendant denied such allegation. The Opinion reviewed many of our cases and gave the history and effect of the statute that is now Ark. Stat. Ann. § 68-1308 (Repl. 1957). It is a scholarly opinion.

The case of Horstmann v. LaF argue is a definite holding that a plaintiff may file a personal injury suit for damages in the Chancery Court provided (a) the plaintiff alleges that the defendant is insolvent; (b) that the defendant has secreted his property with intent to hinder, delay, and defraud the plaintiff; and (c) that the plaintiff’s remedy at law is inadequate and incomplete. Horstmann v. LaFargue has been cited a number of times on the jurisdiction of equity to render a judgment for damages where equitable relief is sought on other grounds. Some of such cases are: Sims v. Hammons, 152 Ark. 616, 239 S. W. 19; Protho v. Williams, 147 Ark. 535, 229 S. W. 38; Everist v. Wood, Judge, 204 Ark. 124, 161 S. W. 2d 18; and Eirmann v. Beck, 221 Ark. 138, 252 S. W. 2d 388.

In 73 A. L. R. 2d p. 749, there is an annotation entitled: “Right of tort claimant, prior to judgment, to attack conveyance or transfer as fraudulent ”; and the holdings from nearly a score of jurisdictions (including Arkansas) are cited to sustain this text: “In most of the courts where the question has been raised it has been held that a tort claimant whose injury occurred prior to a conveyance by the person causing the injury may maintain an action to set aside such conveyance as fraudulent even though he has not obtained a judgment on his claim.” The rule is further stated in this language: “In some cases a tort claimant, having reason to believe that the tort feasor is about to convey or has conveyed property for the purpose of hindering or delaying payment of the claim, has in the same action been permitted to sue for damages for the tort and to restrain or set aside the conveyance.”

The case of Horstmann v. LaFargue is also a direct holding: (a) that a tort claimant is a creditor; (b) that the defendant’s failure to deny insolvency is an admission of such status; (c) that equity has jurisdiction to reduce the tort claim to judgment and to impound assets of an insolvent debtor about to be secreted from the creditors where the remedy at law is inadequate and incomplete; and (d) that equity, having taken jurisdiction for one purpose, will retain it for all purposes.

I have already listed some of the cases in which Horstmann v. LaFargue has been cited and followed, but I desire to particularly call attention to what this Court said in Cleveland v. Biggers, 163 Ark. 377, 260 S. W. 432, which was decided on March. 17, 1924 (over six years after Horstmann v. LaFargue), and after the Bench and Bar of Arkansas had considered the case of Horstmann v. LaFargue. Here is what the Court said in Cleveland v. Biggers:

‘ ‘ The action of the court in sustaining the demurrer and dismissing the complaint is defended upon the ground • that, as a suit for damages, relief could be granted only in a suit at law. The case of Horstmann v. LaFargue, 140 Ark. 558, is against that view. In that case a suit for personal injuries was brought in equity, and in the same suit it was asked that certain alleged fraudulent conveyances be uncovered. The jurisdiction of the court was challenged upon the ground that a suit for unliquidated damages could be maintained only at law; but we held that, inasmuch as it was necessary for the plaintiff to go into equity to uncover the fraudulent conveyances, all the matters in issue should be adjudged and complete relief afforded. This subject was there thoroughly considered, and need not be again reviewed.

“So here the plaintiffs asked the relief of uncovering certain alleged fraudulent conveyances, which could be obtained only in a court of equity, and the court would therefore have had jurisdiction to afford complete relief, by way of granting damages, if plaintiffs had elected to pursue that remedy. ’ ’

In the present Opinion the Majority says: “If the legislature had intended to bring about such a drastic change in our law as that of permitting personal injury actions to be tried in equity as a matter of right, we think that intention would have been stated in. language too plain to be misunderstood. It certainly was not so stated.” I make the point that in 1919 this Court held that a personal injury action could be tried in equity under the conditions stated in Horstmann v. LaFargue; and that since 1919 there have been innumerable sessions of the Arkansas Legislature; and if anyone had thought that Horstmann v. LaFargue was incorrect, the statute relied on by this Court in Horstmann v. LaFargue could have been amended by the Legislature. All through the years, from 1919 to the present time, Horstmann v. LaFargue has been the law of Arkansas, and is so stated in the annotation previously herein cited; and the Legislature has never changed the statute on which Horstmann v. LaFargue was based. Now, after a lapse of more than .forty years, this Court is overruling a portion of Horstmann v. LaFargue. I stand by the Opinion of this Court in 1919, and I would leave Horstmann v. LaFargue unchanged. Therefore, I dissent.

       The said statute reads: “In suits to set aside iraudulent conveyances, and to obtain equitable garnishments, it shall not be necessary for the plaintiff to obtain judgment at law in order to prove insolvency, but in such cases insolvency may be proved by any competent testimony, so that only one suit shall be necessary in order to obtain the proper relief.”


author: Paul Ward, Associate Justice.

text:
    Carr v. Carr.
    5-3115
    374 S. W. 2d 359
    Opinion delivered January 20, 1964.

      Rhine é Rhine, Lee Ward, for appellant.

      W. B. Howard, for appellee.
   Paul Ward, Associate Justice.

The bonds of matrimony between the parties hereto were dissolved first by a decree in the State of Georgia and again by a decree in this State. It is from the latter decree that comes this appeal. The material facts involved are hereafter summarized.

Appellant (George Thomas Carr) and appellee (Orine Carr) were both domiciled in Greene County, Arkansas when they were married on August 2, 1952. To this union a daughter (Norma Jean) and a son (Bruce Edward) were born. About the time the parties were married appellant joined the armed forces where he has remained until this date. At present he is a sergeant in the U. S. Air Forces, stationed at Turner Air Force Base located in Albany, Georgia, where he has been since early in 1959. During the intervening years of his service appellant was stationed at other-places as his duties required. During all this time he and Orine lived together as husband and wife. There is, however, no contention by appellant that they established a domicile at any place before he was assigned to the Albany base in 1959.

About tbe middle of 1959 appellee and the children joined appellant at Albany and stayed until appellant brought them back to her parents in Arkansas in December, 1960. Apparently the reason for appellant’s action was that Orine did not want to stay ‘ ‘ alone ’ ’ in the apartment while her husband was away several weeks on a military assignment. At least, appellant did not at that time tell Orine their marital relations had ended.

On December 28,1961 appellant filed suit for divorce in Georgia and proceeded to secure constructive service on his wife. On January 13, 1962, while appellant was visiting in Arkansas, he told his wife about the suit in Georgia and on the same day she received a newspaper containing a publication of official notice of the suit in Georgia. Also on the same day (January 13,1962) Orine filed suit for divorce in the Greene County (Arkansas) Chancery Court, and procured personal service on appellant. In addition to a divorce Orine asked for alimony, custody of the children, and child support. On January 31, 1962 appellant entered a general denial. Later, by proper pleadings, appellant introduced a duly authenticated copy of the divorce decree, dated March 19, 1962, which had been granted by the court in Georgia, contending that the Arkansas Court must give full faith and credit to such decree. Based on the above contention appellant moved the trial court to dismiss appellee’s complaint. Responding, appellee alleged her husband was not a domiciliary of Georgia at any time prior to the rendition of the decree in that State and that, consecprently, said decree' was not entitled to full faith and credit by the courts of Arkansas. The trial court refused to dismiss appellee’s complaint, and the cause proceeded to a trial.

Upon the testimony presented the trial court found, among other things, that appellant was not a domiciliary of Georgia as appellant claims, that the said decree was not entitled to full faith and credit in Arkansas, and that the Greene County Chancery Court had jurisdiction of the cause of action. The court then granted a divorce to appellee, gave her an alimony allotment and custody of the children, and ordered appellant to pay a specified amount each month for the support of the children.

Appellant concedes the power and jurisdiction of the trial court to grant alimony, child custody, and child support, and its decree in those respects is not here questioned and is not an issue on this appeal.

The Only Issue Is Moot. The only issue on direct appeal is stated by appellant in these words:

“The only issue raised by appellant in this appeal is that the trial court erred in holding that the divorce decree obtained by him in the State of Georgia was not entitled to full faith and credit in the courts of Arkansas for the reason that he was not a bona fide resident of the State of Georgia.”

In view of the fact that all matters relating to alimony, custody and support have been settled to the satisfaction of both parties, we cannot escape the conclusion that the question appellant here raises is moot, and its solution can be of only academic concern to him. So far as we are informed appellant’s only interest is to be sure he has an absolute divorce good in all states. If we affirm the trial court appellant has such a divorce by virtue of the Arkansas decree. If we reverse the trial court then appellant is fully protected by the Georgia decree. The situation here is very similar to that described in Alton v. Alton, 347 U. S. 610, 74 Sup. Ct. 736; 98 L. Ed. 987, where a similar issue was held to be moot.

Shortly before the date of the decree appellant filed a motion to dismiss appellee’s cause of action based on certain letters written by appellee’s attorney to Air Force officers in Albany, Georgia. Thereupon appellee filed a motion to strike appellant’s motion. The trial court refused both motions. On cross-appeal appellee contends the trial court committed reversible error in overruling her motion. On oral argument appellee’s attorney, with commendable candor, absolved his client from any complicity in connection with the letters he wrote. In view of the disposition we made of the direct appeal, we find that this issue is also moot, and the cross-appeal is likewise dismissed.

We hereby reinvest authority in the trial court, if it sees fit to do so, to remove from the files of this case the said motion of appellant to dismiss, and also to allow appellee’s attorney an additional fee not to exceed $100.

Appeal and cross-appeal dismissed.