author: George Rose Smith, J. Jim Johnson, Associate Justice,

text:
    Glover v. Henry.
    5-2020
    328 S. W. 2d 382
    Opinion delivered November 2, 1959.

      Warren & Bullion, for appellant.

      Frank Holt, Prosecuting Attorney, Bruce Bennett, Atty. General, Howard Cockrill, Ilerschel H. Friday, Jr., for appellee.
   George Rose Smith, J.

This is a suit by the appellant, as a taxpayer and school teacher, for a declaratory judgment fixing the interpretation to be placed upon two recent statutes affecting the public schools, Act 248 of 1959 and Act 9 of the 1958 special session. The appellees, the members of the County Board of Election Commissioners and of the Little Rock School Board, reduced the issues to questions of law by demurring to the complaint. The chancellor entered a decree construing both statutes in a manner contrary to the plaintiff’s contentions, and she has appealed.

The controversy as to Act 248 may be disposed of in two paragraphs. The title states that this act is to require that the annual school election be held on the last Saturday in September, but the body of the act provides that the election is to be held on the first Tuesday in December. The legislative journals show that the conflict arose in this way: The act was introduced as a Senate bill to change the election date to the last Saturday in September. Senate Journal of 1959, p. 70. The House, without changing the title, amended the text of the bill to fix the date as the first Tuesday in December. House Journal, p. 868. The Senate concurred in the amendment, Senate Journal, p. 1667, and thus the bill as approved by both houses contained the variance between title and text.

The appellant contends that this conflict renders the act void and hence leaves the election date to be determined by prior laws. The chancellor was right in rejecting this contention. The title of an act may be considered in arriving at the legislative intention, but the title “is still no part of the act and is not controlling in its construction.” Special School Dist. No. 33 v. Howard, 124 Ark. 475, 187 S. W. 444. We have accordingly held, in a case closely similar to this one, that it is necessary to disregard words in the title which the legislature neglected to change when the corresponding language in the body of the measure was deleted by amendment. Morgan v. Hattendorf, 210 Ark. 495, 197 S. W. 2d 477. That principle is controlling in the case at bar; the chancellor’s construction of Act 248 is therefore affirmed.

The remaining issues arise under Act 9 of the 1958 special session. The parties have not questioned the constitutionality of this act, and ordinarily we would not consider that issue, in view of the familiar rule that points not properly raised are deemed to have been waived. Campbell v. Beaver Bayou Dr. Dist., 215 Ark. 187, 219 S. W. 2d 934; Latham v. Hudson, 226 Ark. 673, 292 S. W. 2d 252. Here, however, the appellant in her capacity as a taxpayer represents the general public, and we have recognized the fact that persons acting in a representative capacity do not have an unlimited right to control the litigation, as is normally true in purely private cases. Pafford v. Hall, 217 Ark. 734, 233 S. W. 2d 72. Since the validity of Act 9 is undoubtedly a matter of public interest we deem it better to express our view on this point than to leave this important question open to doubt.

Act 9 establishes a procedure for the recall of school directors and provides in § 8 that vacancies created under the act are to be filled by the county board of education. The constitutional question is whether the vesting of the appointive power in the county board of education rather than in the governor violates this language in constitutional amendment No. 29: “Vacancies in the office of United States Senator, and in all elective state, district, circuit, county, and township offices except those of Lieutenant Governor, Member of the General Assembly and Representative in Congress of the United States, shall be filled by appointment by the Governor.”

The difficulty is that of determining the scope of the word “district” in the enumeration of elective officers. It is obvious that the word was intended to refer to the offices of prosecuting attorney and chancellor, for their districts fall between the state and the county in geographical area, and the word district is so placed in the enumeration. The question is whether the term “district” was chosen not only as a means of referring to prosecuting attorneys and chancellors but also as a means of referring to school directors, who are elected by school districts.

Our study of the amendment convinces us that there can be no reasonable doubt of the fact that school directors do not come within the scope of the amendment. No less than three pertinent considerations point compellingly to this conclusion.

First, a familiar and sensible rule of constitutional interpretation requires that the word district be read in the light of its context. The amendment refers to all elective state, district, circuit, county, and township offices. This enumeration, extending from the state constitutional officers down to the township justice of the peace, encompasses those public officers who are mentioned elsewhere in the constitution and who exercise in some measure the state’s governmental powers. The office of school director does not fit at all harmoniously into the enumeration. This office is not a part of the constitutional scheme. It is a subordinate administrative position, created by statute only, and exercises only the limited powers possessed by the school district. See Schmutz v. Special Sch. Dist. of Little Rock, 78 Ark. 118, 95 S. W. 438. It is not reasonable to suppose that the word district was selected for the purpose of bringing into the enumeration an office that differs sharply from all the others listed.

Secondly, § 4 of Amendment 29 contemplates that the successors to the governor’s appointees will be elected at the general election and will take office on the following January first. The constitution has always provided that elective state, district, circuit, county, and township officers be elected at the general election, Schedule, § 3, and Art. 3, § 8; so Amendment 29 creates a workable plan for filling vacancies in these offices. On the other hand, school directors have never been elected at the general election. From 1875 to 1931 they were selected at an annual meeting of the patrons of the district, held on the third Saturday in May. C. & M. Dig., § 8909. By Act 169 of 1931, § 81, the date was changed to the first Tuesday in March, and by Act 30 of 1935, § 3, which was in force when Amendment 29 was adopted, the school election date was fixed as the third Saturday in March. It is wholly impossible to apply the provisions of § 4 of Amendment 29 to, the office of school director, owing to the fact that the school board members are not selected at the general election.

Thirdly, in construing a constitutional amendment it is helpful to determine what changes the amendment was intended to make in the existing law. Bradley v. Hall, 220 Ark. 925, 251 S. W. 2d 470. Amendment 29 provides that the governor shall fill vacancies in the office of United States senator and in all elective state, district, circuit, county, and township offices except lieutenant governor, member of the legislature, and member of Congress. It is significant that these provisions made no substantial change in the law as it already existed, for the governor had the power to fill vacancies in the office of United States senator (Pope’s Dig., § 11807) and in the designated elective offices (Const., Art. 6, § 23) with the exception of the lieutenant governor (Amendment 6, § 5), member of the legislature (Const., Art. 5, § 6), and member of Congress (Pope’s Dig., § 4676). Thus the purpose of Amendment 29 was not to create a new appointive power in the chief executive; it was to reaffirm the existing law as á basis for the operation of the other provisions in the amendment. Vacancies upon school boards were not filled by the governor when the amendment was adopted, Pope’s Dig. § 11524, and we find it impossible to believe that the ■word district was inserted in the amendment for the purpose of creating a new power of appointment pertaining to school directors only. Had that been the intention of the draftsman he could easily have inserted the phrase “school district” in the enumeration, between county and township. The absence of any such reference to school districts convinces us that they were not meant to come within the scope of the amendment.

Turning from the constitutional question the other issue is that of determining whether, under Act 9, a person appointed to succeed a recalled school board member serves (a) for the entire unexpired term of the recalled member or (b) only until the next regular annual school election. The chancellor adopted the latter view.

The pertinent facts are recited in the complaint and admitted by the demurrer. In the spring of 1959 three of the six members of the Little Rock School Board were recalled at a special election conducted under the provisions of Act 9. In accordance with the act Mackey was appointed to succeed one recalled member, Rowland, whose term would have expired in 1959; McDonald was appointed to succeed another recalled member, Laster, whose term would have expired in 1960; and Cottrell was appointed to succeed the third recalled member, McKinley, whose term would have expired in 1961. Upon the first branch of this case we have already held that a school election must be held on the first Tuesday in December of 1959. It is conceded that a successor to Mackey must be chosen at that election, for the unexpired term being filled by Mackey expires in 1959. The disputed question is whether the other two appointees are to remain in office until the expiration of their predecessors’ terms or only until the positions can be filled by popular vote at the annual school election. The answer to this question must be found in the provisions of Act 9.

This act (with a minor amendment contained in Act 19 of 1959) is the only statute having to do with the recall of school board members. The first six sections of the act establish a procedure by which the electors of any school district may petition for an election to determine whether one or more school board members are to be recalled by majority vote. The act provides for the appointment of persons to succeed recalled board members, but it contains no explicit language governing the duration of the appointee’s term of office. The solution to that inquiry must be discovered in these three sections of the act:

“Section 7. In the event that a majority of the qualified electors voting at the election shall vote in favor of removing the subject school board member or members, a vacancy or vacancies are hereby declared to exist.
“Section 8. Vacancies occurring under the provisions of this act shall be filled by the County Board of Education. Not more than one election for recall shall be held under the provisions hereof in any one school year. Persons appointed to fill the vacancies hereunder may also be recalled under the provisions of this act.
“Section 9. All laws and parts of laws in conflict herewith are hereby repealed except Act 30, Ark. Acts of 1935, § 4 (Ark. Stats, (1947) § 80-504), pertaining to vacancies occurring other than under the terms of this act.’’

After studying the act carefully and long we are of the opinion that § 8 contains the only clear and reliable guide to the legislative intention. That is the only section in which the lawmakers turned their attention to the matter of filling vacancies created by a recall election. On that subject two pertinent, unequivocal declarations are made: First, not more than one recall election shall be held in any one school year. Secondly, persons appointed to fill vacancies arising under the act may also be recalled under its provisions.

It can be demonstrated with complete certainty that the second declaration becomes completely meaningless if an appointee is to serve only until the next annual school election. Since only one recall election can be held within a year, it follows that an appointee must serve for more than a year in order to be subject to recall, as the act declares him to be. But, if we adopt the appellees’ contention that an appointee serves only until the next annual school election, it would be impossible for any appointee ever to serve more than a year and thus be subject to recall, for an annual school election must always be held within a year after the first recall election. Hence the legislative assertion that appointees are subject to recall becomes mere surplusage under the appellees’ construction of the act.

On the other hand, the provision is meaningful and effective if the view is taken that an appointed board member serves until the end of his predecessor’s term. It is a familiar rule of law that we must, if possible, give effect to all the language that the legislature sees fit to insert in a statute. We are not at liberty to reduce any section or sentence to a nullity if some meaning and some effect can be given to the wording of the law. Cypress Creek Dr. Dist. v. Wolfe, 109 Ark. 60, 158 S. W. 960. Unless we are to strike out, arbitrarily, the legislature’s explicit command that appointees are subject to recall under the terms of the act, there is no logical or defensible basis for saying that the lawmakers did not intend for such appointees to serve beyond the date of the next annual school election.

The appellees, tacitly conceding the force of the appellant’s argument under § 8 of the act, suggest that a contrary legislative intention may be found in § 9. That section provides that all laws conflicting with Act 9 are repealed, with the exception of § 4 of Act 30 of 1935, “pertaining to vacancies occurring other than under the terms of this act.” The cited section of the 1935 statute provides, with respect to school boards in general, that vacancies shall be filled by the remaining directors or, in certain cases, by the county judge, and that all directors so appointed shall serve only until the next annual school election.

We are unable to find, in the legislature’s reference to the 1935 statute, any indication that its provisions were being embodied in the 1958 law; indeed, counsel frankly concede that this interpretation can be reached only if one strikes out some of the words in § 9 and substitutes others of his own choosing. No principle of statutory construction calls for that action on our part. Section 9 of the act, as worded by the legislature, has a meaning not difficult to ascertain. The lawmakers evidently believed that the 1935 act should be expressly protected against the possibility of an implied repeal — a possibility that came about because Act 9 provided a new and different method for filling vacancies on the school board. But in preserving the older law the legislature took occasion to point out that it pertained “to vacancies occurring other than under the terms of” Act 9. To say that the 1935 statute applies to vacancies arising under Act 9 would be to proceed in the teeth of the lawmakers’ express declaration to the contrary.

With respect to Act 9 the decree is reversed and the cause remanded with directions to overrule the appellees’ demurrer.

Johnson, J., dissents.

Jim Johnson, Associate Justice,

dissenting. This case involves two separate and distinct points of law. The first point was obviously raised to divert attention from the second point which is the gravaman of this lawsuit. Certainty I agree with the majority opinion relative to point one.

Point two urged by appellant for reversal is as follows :

“The lower court erred in holding that persons appointed to serve on the school boards, to fill vacancies created as the result of recall, pursuant to Act 9 of 1958, Acts of Arkansas, were appointed to serve only until the next annual school election, at which time the unexpired terms of the recalled members would be filled.”

The trial court adopted the view that under Act 9 a person appointed to succeed a recalled school board member serves only until the next regular annual school election, thereby sustaining the demurrer filed by appellees. I am convinced that the demurrer should have been sustained but not for the reasons given by the Chancellor. We have said many times that we would not disturb a decree in Chancery if the results reached, even though based on incorrect reasons, corresponded with the result reached by us on trial de novo. Martin v. Taylor, 188 Ark. 114, 65 S. W. 2d 4. The Chancellor based his ruling on § 8 and an exception contained in § 9 of Act 9 of the 1958 Special Session of the Legislature. This dissent is based not on the terms of the Act but upon the crystal clear language of the Constitution of the State of Arkansas.

It is true that the constitutionality of Act 9 was not raised in the trial court nor was it argued in the briefs. In fact, appellees came very near confessing judgment in this case. The last time we were called upon to render a decision in a case involving a matter of such public interest, wherein it was obvious from the briefs that all parties to the lawsuit wanted the same result, we invited all attorneys in Arkansas, who were interested in the question involved, to file briefs amici curiae. See: Andres v. First Arkansas Development Corp........... Ark.........., 324 S. W. 2d 97. This same procedure should have been followed in this case. I am confident that had such procedure been followed, it would have been helpful in preventing the majority from interpreting the constitution according to their notion of what the constitution ought to say rather than what its language clearly provides.

I am acutely aware of the long standing rule that this Court will not pass upon a constitutional question unless necessary for disposition of the pending cause. Dept, of Public Utilities v. Ark. La. Gas Go., 194 Ark. 354, 108 S. W. 2d 586. Certainly it is necessary to the disposition of this cause to rule on the constitutionality of Act 9 since § 8 of the Act is diametrically opposed to § 1 of Amendment 29 of the Constitution of the State of Arkansas.

Section 8 of Act 9 is as follows:

“ Vacancies occurring under the provisions of this act shall be filled by the County Board of Education. Not more than one election for recall shall be held under the provisions hereof in any one school year. Persons appointed to fill the vacancies hereunder may also be recalled under the provisions of this act.”

Section 1 of Amendment 29 is as follows:

“Vacancies in the office of United States Senator, and in all elective state, district, circuit, county, and township offices except those of Lieutenant Governor, Member of the General Assembly and Representative in the Congress of the United States, shall be filled by appointment by the Governor.” (Emphasis supplied).

It is obvious that these two sections cannot be reconciled. This being true, then the Constitution must prevail. The majority opinion contends that § 1 of Amendment 29 does not apply to school districts. My research reveals that Amendment 29 was initiated by the people and approved at the General Election November 8, 1938; that there was in existence at the time of the adoption of this Amendment an Act of the Legislature, Act 30 of 1935, which provided a method for filling all vacancies occurring on school boards contrary to Amendment 29; that the boards have consistently followed Act 30 since the adoption of this Amendment and that the method of selection has remained unchanged until the adoption of § 8 of Act 9 of 1958; that this Court has never had occasion to pass on the constitutionality of either of these acts until the appeal of the case at bar. Does the fact that school boards have ignored Amendment 29 exempt them from its application? My research fails to reveal one single precedent where this Court has held that an Act of the Legislature, which is clearly contrary to a constitutional provision, should be held valid simply because certain persons failed or refused to follow the law. It is unthinkable that the majority should now at this late date so hold.

What is a district? Webster defines the word “district” as a defined portion of the state. Can the majority say that a school district is not a defined portion pf the State? C. J. S. Vol. 27, page 617 defines “district” as follows: “In its ordinary meaning the word is commonly and properly used to designate any one of the various divisions or subdivisions into which the State is divided for political or other purposes, and may refer either to a congressional, judicial, senatorial, representative, school, or road district, depending always on the connection in which it is used . . .” (Emphasis supplied). Can the majority say that a school district is not a political subdivision of the state which enjoys the privileges and immunities as such? Every other Supreme Court in the United States that has ruled on this question, that I have been able to find, says that a school district is a political subdivision of the State. See: Vol. 26, Sec. II B, Key 21, page 1340, Sixth Decennial Digest. The Supreme Court of New York in Nassau County v. Lincer, 165 Misc. 909, 3 N.Y. S. 2d 327, page 334, said that: ‘ ‘ School districts are, like counties, governmental subdivisions of the state, though their governmental function is confined to education.” The Supreme Court of Florida in State v. Special Tax School District No. 5 of Dade County, 144 So. 356, held that where a constitutional amendment authoxúzed issuance of refunding bonds by counties, municipalities, and districts, the word “district” included school districts. The Supreme Court of Nebraska in State ex rel Gordon v. Moores et al., 96 N. W. 1011, in interpreting the following language in their constitution, “all state, district, county, precinct, and township officers, by the Constitution or laws made elective by the people, except school district officers, and municipal officers in cities, villages and towns, shall be elected at a general election to be held as aforesaid,” had this to say: “It would seem that the word ‘district’ as used in the Constitution in reference to general elections, must refer as well to districts created by the Legislature as those provided for in the Constitution, because it excepts specially ‘school district officers,’ thus mentioning a district that must be created by the Legislature, but which would be included in the requirement unless so specially excepted.” (Emphasis supplied).

Unlike the Nebraska Constitution, our Constitution does not except school districts. There are, however, other exceptions in the amendment and it is reasonable to believe that if the people had meant to make further exceptions they would have done so. The majority opinion, in effect, says that because of the sequence in which the word “district” appears in the amendment that its meaning changes according to the position it holds in the same sentence.

I have been unable to find one single opinion in the history of recorded cases from any jurisdiction so holding, nor was the majority able to supply one. All of the decisions are to the contrary. See: State ex rel Gordon v. Moores et al, supra. It is a well settled rule of construction that where words or a group of words have received a judicial interpretation, it is presumed that they are used in the light of the interpretation placed upon them. Glover v. Hot Springs Kennel Club, 230 Ark.........., 323 S. W. 2d 902.

The majority says that a school district office is not a part of the constitutional scheme. Obviously they must have overlooked Amendment 40 to the Constitution, and as to school districts Art. 14, § 3, and Amendment 11. In fact, the office is so much a part of thé constitutional scheme that the framers of the Constitution found it necessary to add a special constitutional provision, Art. 19, § 26, allowing them to hold executive or judicial offices at the same time they were holding a public school office. To the majority, the office of school director may be merely a subordinate administrative position, but to me they hold one of the most important positions in government. Not only do we place under their supervision our most treasured possession (our children) but we entrust them with the expenditure of more public money than is expended by any other political subdivision of the State. I will admit that school districts are created by statute] however, it must be admitted by the majority that the districts of the two offices they contend Amendment 29 applies to are also created by statute.

Let’s assume that the Legislature had made the office of Commissioner of Education an elective state office, the same to be filled at the following school election. John Doe was elected. Two months after assuming office he dies. Would the majority say that the vacancy could not be filled by the Governor under Amendment 29? The amendment says: “all elective state, district, circuit, county, and township offices . . .” Not all elective state, district, circuit, county, and township offices created by the Constitution. Since prosecuting attorneys and chancellors are paid by the State and participate in the State Retirement Act, it seems to me much more logical to say that the offices of prosecuting attorney and chancellor are state offices and not district offices than it is to say that a school director is not a district office.

It is true that § 4 of Amendment 29 contemplates that the successors to the Governor’s appointees will be elected at the general election and will take office on the following January first. Point one of the present opinion with which I agree affirms the date of the annual school election to be on the first Tuesday in December. Section 80-505, which was Act 30 of 1935, provides:

“Each school director elected or appointed shall, within ten (10) days after receiving notice of his election or appointment subscribe to the following oath * # *
The County Clerk upon receipt of oath prescribed for school director, shall immediately commission such persons and they shall enter at once upon their duties as school directors.”

Prom the date of the election, the time required for the certification of the votes, the sending and receiving of the notice of election, the preparation and filing of the oath, and the preparation and delivery of the commission, could easily consume a great part of one month. If it should not, the greatest span of time possible between the election and assuming office under the above statute would be less than 30 days. The majority is grabbing at straws when it cites this as an excuse for not yielding to the clear terms of the Constitution; particularly is this true since the variance in the time of assuming office would only occur in cases of elections following the filling of vacancies by appointment. The same variance of time, for example, would occur in an election following the appointment of a Secretary of State, State Auditor, State Treasurer, or Attorney General, since neither of them assume office on January 1st. Certainly the Constitution must prevail.

The majority says that “The Constitution has always provided that elective state, district, circuit, county, and township officers be elected at the general election and cites Schedule, § 3, Art. 3, § 8, as authority for such statement. Schedule, § 3, says absolutely nothing about general elections and Art. 3, § 8, simply gives the Legislature the authority to fix the time of general elections. The Legislature has exercised this authority many times. It has set some general elections on odd number of years. See: Laster v. Pruniski, 228 Ark. 132, 306 S. W. 2d 123; some on even number of years. See § 3-802, Ark. Stats.; and some, such as school elections, every year. A general election is one that regularly recurs in each election precinct of the state on a day designated by law. Bethune v. Funk, 166 P. 931, 85 Ore. 246. Since school elections under Ark. Stats, regularly recur in each election precinct of this state on a day designated by law, the annual school election is a general election.

I agree with the majority when they say that “in construing a constitutional amendment it is helpful to determine what changes the amendment was intended to make in the existing law. Bradley v. Hall, 220 Ark. 925, 251 S. W. 2d 470.” However, I sharply disagree with them when they say, in effect, that no changes were made; that Amendment 29 was passed simply to reaffirm powers that the Governor already possessed in order that other powers he possessed might be changed a bit. If the majority view is correct in this matter, then there was no need for the greater portion of Amendment 29. Having personally sponsored two proposed constitutional amendments by initiative petitions, as Amendment 29 was sponsored, I find it hard to believe that the people who circulated the petitions to get it on the ballot were working just for the exercise. From what I have said above, the only rational conclusion that I can reach is that a school board member under Arkansas law is an elected district officer within the clear terms of § 1 of Amendment 29.

Act 9 has a separability clause, construing it liberally as we must in favor of effectuating its purpose. It is our duty to strike the invalid portions of the Act and allow the other portions to stand. Cotham v. Coffman, 111 Ark. 108, 163 S. W. 1183. Therefore, I would hold that Section 8 of Act 9 of 1958 is unconstitutional and must fall in its entirety; that the exception in § 9 relative to Act 30, Ark. Acts of 1935, must fall because of its unconstitutionality. Following this action I would declare that the remaining portions of Act 9 of 1958 are valid and constitutional. The balance of this Act would be far from meaningless since § 4 of Amendment 29 would supply the machinery to make the application of the remaining portions of the Act complete and whole.

Section 4 of Amendment 29 is as follows:

“The appointee shall serve during the entire unexpired term in the office in which the vacancy occurs if such office would in regular course be filled at the next General Election if no vacancy had occurred. If such office would not in regular course be filled at such next general election the vacancy shall be filled as follows: At the next General Election, if the vacancy occurs four months or more prior thereto, and at the second General Election after the vacancy occurs if the vacancy occurs less than four months before the next General Election after it occurs. The person so elected shall take office on the 1st day of January following his election.”

In construing § 4 of Amendment 29 relative to the case at bar, I would declare that the 1st Tuesday in December is the date of the next General School Election. See: Laster v. Pruniski, supra.

I would further declare that the present appointees serving on the Little Bock School Board are de facto officers serving only until replaced by valid appointees of the Governor; that since the span of time between such gubernatorial appointment and the next General School Election would be less than four months, such appointees, except the one filling the position the term of which expires this year, would serve until the second General School Election following their appointment.

In addition to the fact that I am convinced that appellant is not a proper party in interest to bring this action under our declaratory judgment statutes, 2which point also was not argued by appellee, I respectfully dissent.

       See Micklish v. Grand Lodge of the Loyal Star, 162 Ark. 71, 87 A.L.R. 1243.


source: Caselaw Access Project

author: Paul Ward, Associate Justice.

license: Public Domain

text:
    Farmers Union Mutual Insurance Co. v. Blankenship.
    5-1931
    328 S. W. 2d 360
    Opinion delivered November 2, 1959.

      Charles A. Wade, for appellant.

      Arnold <$> Haimlton, for appellee.
   Paul Ward, Associate Justice.

We are here dealing primarily with the interpretation of certain language contained in a fire insurance policy.

Appellee, W. R. Blankenship, d/b/a Ashley County Saw Company, had for several years been engaged in the business of retailing chain saws and allied merchandise in Crossett, when on or about September 11, 1957, numerous articles of his merchandise were damaged allegedly as a result of a fire originating in his place of business. The merchandise was covered by a fire insurance policy insured by appellant, Farmers Union Mutual Insurance Company, which policy was in full force and effect at the time.

When appellant refused to pay the amount of damages demanded by appellee, suit was filed which resulted in a verdict and judgment in favor of appellee in the amount of $2,500.00 which was approximately $800.00 less than the amount sued for.

In seeking a reversal appellant sets forth four points, one point is not argued and the others can be adequately considered under two subdivisions, namely; One, the trial court erred in refusing to direct a verdict, and Two, there is no substantial evidence to support the full amount of the judgment. These assignments will now be discussed in the above order.

One. Appellant’s motion for an instructed verdict is based upon the following factual situation. The policy insured against all “DIRECT LOSS AND DAMAGE BY FIRE”. The proof shows that the saws and allied articles were not damaged by coming in contact with the flames but that they were damaged by a gaseous vapor caused by using a fire extinguisher in an effort to put out the fire, the vapor causing precision parts to corrode and deteriorate. Appellant makes no contention that the fire extinguisher was improperly designed or improperly used, but it does contend that the above quoted language in the policy excludes loss or damage caused in the above manner.

Much stress is placed by appellant upon the word “DIRECT” found in the above quotation. Consequently, it is contended by appellant that the damage or loss under the above circumstances was not the direct result of the fire. Appellant appears to be correct in stating that the wording of this policy is different from the wording in the usual policy, and that this court has never had occasion to construe the phraseology used here.

Our investigation of the authorities from other jurisdictions drives us to conclude that appellant is liable under the provisions of its policy since the fire in this instance was the proximate cause of the loss or damage. In the case of Princess Garment Company v. Firemans Fund Insurance Company of San Francisco, 115 F. 2d 380, a policy was under consideration which insured “against all direct loss .or damage by fire . . .” In that case the fire started some five hundred yards away and was spreading toward the insured’s building. At the same time rising flood waters were threatening contents stored in the insured’s building and apparently they could have been saved from the water had the fire chief not ordered all men out of the building preparatory to destroying it in an effort to prevent the fire from spreading. Damages under the policy were denied by the trial court. In reversing the trial court the Appellate Court, after stating the general rules relative to proximate cause, stated: “Applying the rule that the phrase‘all direct loss or damage by fire . . is not restricted to fire on the premises and that a loss would be held to be within such policies where a fire was a means or agency in causing it, we are of the opinion that there is substantial evidence in the record that the proximate cause of the loss complained of was the fire in question”. In O’Connor v. Queen Insurance Company of America, 140 Wis. 388, 122 N. W. 1038, the insured lived in a rented house heated by a furnace. His servant built a fire in the furnace of material not supposed to be used which caused intense heat and great volumes of smoke to escape into the several rooms and greatly damaged insured’s property. The policy in force insured “against direct loss and damage by fire”. The Supreme Court after reviewing numerous authorities relative to policies containing the phrase “direct loss or damage by fire” defined said words to “mean loss or damage occurring directly from fire as the destroying agency in contradistinction of remoteness of fire as such agency”. In the same connection the court stated that “to render a fire the immediate or proximate cause of loss or damage it is not necessary that any part of the insured’s property actually ignited or was consumed by the fire”. For other decisions to this same effect see Board of Commissioners, etc. v. Norwich Union Fire Insurance Society, 51 F. Supp. 245; California Insurance Company v. Union Compress Company, 133 U. S. 387; see also Cyclopedia of Insurance Law (Couch) Vol. 6, Page 5304, § 1467 and Insurance Law and Practice (Appleman) Vol. 5, Page 219, § 3083.

In addition to what we have heretofore said we think it is clear from other provisions in appellant’s insurance policy that appellee is entitled to recover in this instance for a loss occurring in the manner heretofore stated. The policy, under Standard Provisions, states: ‘‘ This company shall not be liable for loss or damage caused directly or indirectly ... by neglect of the insured to use all reasonable means to save and preserve the property at and after a fire or when the property is endangered by fire on neighboring premises”. Under the above provisions of the policy it seems that appellee in this instance would have faced a dilemma when the fire broke out in his building, for if he had failed to try to extinguish the fire and protect his property then appellant would not have been liable. Since, however, appellee did attempt to extinguish the fire and save his pr.operty it would seem unjust if appellant should escape liability.

Two. We do not agree with appellant that there is no substantial evidence to support the amount of the verdict and judgment. In order to substantiate the amount of his damage appellee introduced the following testimony. Witness Bob Fallin who was an employee of the company from which appellee purchased his saws and accessories and who stated that, by virtue of his employment, he was “familiar with chain saws and chain saw parts”, stated that he received a request from appellee to visit his shop and review the results of the fire. On the witness stand he was shown five sheets of paper which he identified as being a list of the parts which he examined and initialed. He then stated that he examined each piece shown on the inventory and stated that the iron and steel parts were rusted; that the magnesium parts were corroded or coated and that in each case it was not a surface condition but rather one that actually deteriorated the article involved.

“Q. In your opinion, were those parts suitable for resale?

A. No, sir, they were not.”

The total damage as set forth in the inventory or list amounted to $2,528.03. Similar testimony was offered by Bill Womack who was a chemical engineer and by Robert S. Williams who was a field representative for the Poulan Chain Saw Company which furnished saws to appellee. None of the testimony offered by appellee’s witnesses was objected to, and each witness was fully cross-examined by appellant. It is true that there was other testimony tending to show less damage than that claimed by appellee but that is a situation which presents a jury question.

Under these circumstances we must conclude that there was substantial evidence to support the jury’s verdict and the judgment of the trial court is accordingly affirmed.

Affirmed.


text:
    Fletcher v. Johnson.
    5-1943
    328 S. W. 2d 373
    Opinion delivered November 2, 1959.
    [Rehearing denied November 23, 1959]

      J. II. Spears and Ralph W. Sloan, for appellant.

      Hale S Fogleman, for appellee.
   Paul Ward, Associate Justice.

On September 22, 1957, a large trailer truck allegedly belonging to one Hollis Fletcher and being driven at the time by Henry Atkins, Jr., collided with an automobile occupied by W. H. Johnson, his wife, Consada, and their minor daughter, Carolyn. The collision took place near the city of West Memphis on Highway 63. It is alleged that the occupants of the automobile were injured and that the automobile was damaged as a result of the • collision.

At a trial held on December 4, 1958, the jury returned a verdict in favor of Mr. Johnson in the amount of $750.00 for damages to the automobile and $10,-000.00 for personal injuries, a verdict in favor of Mrs. Johnson in the amount of $15,000.00 for personal injuries, and a verdict in the amount of $2,000.00 in favor of their minor child (Carolyn). Judgment was entered accordingly.

Upon appeal to this court appellant, Fletcher, abstracts no instructions and complains of none except •one as hereinafter set out, but he does seek a reversal on five separate assignments of alleged error. These allegations of error are substantially as follows: Point one, the judgments are excessive; Point Two, the court should have declared a mistrial; Point Three, there was no valid service; Point Four, the court erred in allowing appellees to amend their complaint; and Point Five, the court erred in giving appellees’ requested Instruction No. 3.

Before proceeding to the discussion of the points above mentioned, it is in order to make a brief explanation of one phase of this appeal about which there is considerable discussion by both sides. In the original complaint filed by appellees on October 14, 1958, it was alleged that the vehicle of the defendant (Fletcher) was responsible for the resulting damages. On the same day a summons was issued against Fletcher and, on November 3, 1958, Fletcher filed an answer in which, among other things, he specifically denied all allegations of negligence and in addition thereto pleaded contributory negligence. On November 15, 1958, Fletcher filed an amendment to his answer in which he denied “that he is individually the owner of the truck described in plaintiff’s complaint”. During the trial testimony was produced to the effect that Fletcher was not the owner of the truck individually but that it belonged to a partnership composed of himself and two other people, namely, Henry Sciambra and Leo Bondi. Thereupon appellees asked to have the complaint amended to conform with the proof and the court gave them permission to do so. It appears from the record, however, that this amendment was not considered as adopted because no instruction was requested or given referring to Sciambra or Bondi, and judgment was rendered against Fletcher only. The notice of appeal to this court was given by the partnership. It is our conclusion that Sciambra and Bondi were never actually made parties to this action, and consequently in our further discussion of the case we treat it as an action against Fletcher only.

Point One. On this appeal appellant asks us to re-, solve a very difficult issue —an issue which has been before this court many times and about which there is usually a great deal of uncertainty. That is, he has asked this court to reduce the amount of the jury verdict. After a great deal of deliberation we have concluded that the judgments must be affirmed. The evidence relative to the verdicts in favor of each of the appellees will now be discussed in some detail after first making a preliminary statement. Appellant does not question the judgment of $750.00 for the damages to the automobile.

At the time of the accident on September 22, 1957, none of the appellees appeared at that time to be seriously injured, although it is shown that Mrs. Johnson ■did go to the drug store and secure a sedative. There were no outward signs of injuries to any of the appellees at the time of the accident nor were any shown to exist thereafter. After appellees had stayed at the scene of the accident for something like an hour or an hour and a half while an investigation was being made they continued their journey to Memphis where they had lunch and then drove to the Tri-State Fair. They remained there until rather late in the afternoon and then drove to their home that evening a distance of several miles. Apparently no one of the appellees thought it necessary to go that day to see a doctor. It also appears from the record that although each of the appellees was examined from one to two or three times no doctor seemed to think it was necessary to prescribe any kind of treatment except in the case of Mrs. Johnson.

Mr. Johnson. Mr.- Johnson’s testimony in . substance was as follows: Soon after the accident his neck was somewhat stiff and stayed that way for six or eight weeks — he had some trouble in moving his head sideways but could move it up and down, and his arm and back gave him considerable trouble. He had had trouble with his back some years before the accident happened, and for this he had worn a brace but had not worn it for several months prior to the accident — he runs a service station and used to be able to change tires but is not able to do so now. Since the accident he has continued to operate his business but has employed one extra boy. He has more pain now than he had before the accident. He is unable to do heavy lifting around the station.

Dr. Gernstetter examined Mr. Johnson on May 13, 1958, but did not treat him; he stated that Mr. Johnson wanted to be examined because of symptoms complained of and that he made a general medical examination primarily of bones, joints, extremities and a neurological examination of nerves and made X-Rays of his neck, cervical spine and lumbar region; the X-Rays showed developmental deformities with large bony processes in the sacrum. He stated that Johnson complained of pains in his neck which were relieved by turning and twisting his neck until he could make it pop; that Johnson had pains in his right leg prior to the accident but thought they were intensified since the accident; that Johnson had several years previously been given treatment and that he wore a metal brace. In the opinion of the doctor there was a good chance of spontaneous recovery of symptoms of his neck within a year after the injury but there was a chance that he would have some symptoms indefinitely from the neck injury.

Mr. Johnson was also examined by appellant’s witness, Dr. Nicholas Gotten. Among other things he testified that Johnson told him that his ability to work was impaired; that it was his opinion that Johnson sustained a cervical neck strain but was making a good recovery except for the subjective symptoms which he manifested, that he was complaining of soreness in his neck, and he did not think any active treatment was indicated but thought he could continue to work. The doctor stated that it was difficult to give an opinion regarding his back injury because of the back trouble he had had previously.

The doctor’s prognosis was that Johnson’s condition was “more or less stabilized, that no treatment for his injury was indicated” and further stated “I think he will continue to improve in the future and that he will make a complete recovery.”

In view of the above and considering that he has been forced to hire extra help around his filling station and will have to hire extra help for his wife for an indefinite period, and considering further that he is entitled to something for the partial loss of the full companionship of his wife due to her injury, we cannot say there is no substantial testimony to support a judgment in his favor in the full amount.

The questions of the extent of injury and the re-numeration therefor are traditionally within the province of the jury and, as we have frequently said previously, this court will not reduce the amount of a jury verdict unless it is so grossly excessive as to shock the conscience. We are unwilling to say it is so excessive in this instance.

As to Mrs. Johnson, we are not willing to say that the judgment for $15,000.00 in her favor is not supported by substantial evidence. Unlike Mr. Johnson she did indicate some injury immediately after the accident and stated that she was suffering pain that afternoon and that night and that she would have called a doctor when she got home but that it was too late and she did not want to disturb him. The following day she went to a doctor who gave her a sedative and told her to come back if she did not feel better in a few days. She got no better but got worse and went to Dr. Hopkins several times; Dr. Hopkins gave her medicine and put a brace on her neck to support her chin; she got very little relief and the pain began to get worse — she was really suffering; Dr. Hopkins suggested that she go to a hospital in Memphis where she stayed three days during which time she was put in traction; she bought traction equipment which she took home and wore it at night and most of the day; this treatment gave her some relief but she was still in terrible pain; later she went to see Dr. Gernstetter some fifteen or eighteen times; she is unable to do her ordinary housework and is bothered with the lack of balance; she gets staggery and sometimes she has to go to bed to keep from falling; at one time she fell on a coffee table and bruised her leg severely and at another time she fell on a stove and was burned — the scar is still on her left elbow. Dr. Gernstetter confirms her testimony regarding treatment; he made X-Rays which show persistence of forward and backward dislocation between the 4th and 5th vertebrae and in addition showed a degenerative lipping or mild spur formation from the anterior margin of the 5th and 6th vertebrae. His diagnosis was a strain with nerve root pressure caused by a whiplash^ that the nerve root pressure is responsible for headaches; his prognosis was that she is likely to continue to experience pain in the neck, headaches and dizziness and will continue to so suffer indefinitely and may become progressively worsened as time goes on. Dr. Nicholas Gotten, who also examined Mrs. Johnson, did not specifically contradict the foregoing testimony; his opinion was that she had sustained a cervical neck strain moderately severe and that she continued to have these symptoms as a result of injuries which he thought to be legitimate. Dr. Gotten further stated that from his examination of Mrs. Johnson he found that she had a limitation of motion in her neck which was in his opinion about 25%.

Carolyn. The testimony relative to Carolyn’s injuries to sustain a judgment in her favor in the amount of $2,000.00 is not so convincing as it is in the case of Mrs. Johnson but we are unable to say that the judgment is not supported by substantial evidence. Carolyn is a girl about 14 years of age and is an accomplished piano player, obviously requiring considerable practice. It appears as a result of her injury she is not now able to continue her practice as she did formerly. According to her testimony it is painful for her to move her head in a forward motion. Dr. Gernstetter examined her on May 13, 1958, and made X-Rays of the bones in her neck and cervical spine and right shoulder. This shows evidence of a subluxation and instability between the 2nd, 3rd, 4th and 5th cervical vertebrae — or bones in the neck; the doctor also found limitation of full rotation of the right shoulder to the extent of about 15% and stated that she complained of pains in the right shoulder blade region and that they were aggravated when she attempted to practice at the piano.

Point Two. We find no merit in appellant’s contention that the court should have declared a mistrial. When Mr. Johnson was testifying he stated that the police officer investigating the accident said that he would have to take the driver to town. Appellant feels that the above statement violates Ark. Stats. § 75-1011 winch prohibits the introduction of evidence concerning a conviction. This, of course, was not evidence of a conviction — in fact there is no evidence that the driver of the truck was ever arrested. We agree with the trial court in this connection that there is no inference from this statement that any arrest was made and that the driver might have been taken into town to complete the report, to get a wrecker or to see a doctor. Moreover, the court asked counsel for appellant if he desired the jury to be instructed in any manner with reference to the above testimony and no such instruction was asked for. We are unable to see anything in this occurrence that would have justified a mistrial, and we think the trial court was correct in refusing one. Appellant also asked for a mistrial because an arrest report was found lying on the table occupied by appellees’ attorneys during the trial. The inference sought to be left was that the jury might have seen this report and might have construed therefrom that the driver of the truck was actually arrested. We think any such inference, however, was completely overcome since it appears that the report was ten or twelve feet away from the nearest juror and was lying sideways to the jury or with the top of the report in the direction of the jury. In the latter instance the jury would have had to read it up side down. In the absence of anything showing that any one of the jurors actually saw or read any portion of the report we conclude that the trial court was amply justified in refusing to grant a mistrial.

Point Three. There is no merit in appellant’s contention that Fletcher was not properly served. A summons was issued October 14, 1958, and a return was filed thereon four days later. On November 3, 1958, appellant filed a complete answer without having made any objection to the manner or method of service. It is well established by many of our opinions that an appearance is entered by the filing of an answer.

Point Four. It is insisted by appellant that the court erred in permitting appellees to amend their complaint to conform to the proof. This has reference to the proof that Fletcher was only one of the three partners. As heretofore indicated the record does not show that the complaint was at any time amended, therefore, the court committed no error. For procedure necessary to take advantage of defect of parties see Kane v. Coker-Dover Mercantile Co., 206 Ark. 674 (pages 676-677), 177 S. W. 2d 41.

Point Five. Finally, it is contended by appellant that the court erred in giving Plaintiff’s Requested Instruction No. 3. It is not incumbent on the court to consider this an assignment of error for the reason that said instruction is not set forth in appellant’s abstract. See Griffin v. Missouri Pacific Railroad Company, 227 Ark. 312 (at page 313), 298 S. W. 2d 55; and Porter v. Times Stores, Inc., 227 Ark. 286 (at page 287), 298 S. W. 2d 51.

A search of the record, however, reveals that said Instruction No. 3 told the jury that Hollis Fletcher would be responsible for any negligence of Henry Atkins, Jr., if any. From the above it appears, of course, that said Instruction No. 3 was a proper declaration of the law, i.e., the master is responsible for the negligence of the servant. See Ward v. Young, 42 Ark. 542 and Hunter v. First National Bank of Morrilton, 181 Ark. 907, 28 S. W. 2d 712.

Although the point is not specifically raised by appellant, we think that it is in order to consider whether there is substantial evidence in the record from which the jury could have found that Fletcher was the owner of the trailer truck. We find that such substantial evidence is shown by the record. It was shown that on the side of the truck appeared this sign: “Hollis Fletcher, 604 Clearview Drive”. Henry Atkins, Jr., (the driver of the truck) testified:

‘ ‘ Q. Did you have a sign on the side of your tractor?
A. Yes, sir, I had a sign. |
Q. What did it say?
A. It said ‘Hollis Fletcher, 604 Clearview Drive’.
Q. Did Mr. Sanders look at yonr invoices, waybills, manifest?
A. No, sir.
Q. He didn’t know where you had been?
A. He asked me where I had been.
Q. He asked you who you worked for?
A. Yes, sir.
Q. You told him Hollis Fletcher?
A. Yes, sir.
Q. Did you tell him Sciambra, Bondi and Fletcher?
A. No, sir, I didn’t tell him that.
Q. But your boss is Mr. Hollis Fletcher, isn’t it?
A. Yes, sir, he is boss.”

It is true that testimony was introduced which tended to show that this truck might have belonged to a partnership but appellant in his testimony leaves that question in somewhat of a confused status. It shows that some of the trucks had the name of one partner on them and others had the name or names of still another partner on them but no explanation was given as to why this was true. It would place an unreasonable burden on appellees to require them to explore all of the ramifications of a partnership which was domiciled in another state in order to determine the exact status of each individual partner. Taking the record as a whole we find there is substantial evidence to support the jury’s verdict against Fletcher.

In accordance with the above, the several judgments rendered by the trial court will be affirmed.

Affirmed.


author: Sam Robinson, Associate Justice. Carleton Harris, Chief Justice, Paul Ward, Associate Justice, Jim Johnson, Associate Justice,

text:
    Ark. Power & Light Co. v. Ark. Public Service Commission et al.
    5-1940
    330 S. W. 2d 51
    Opinion delivered November 2, 1959.
    [Rehearing denied January 11, 1960]

      House, Holmes, Butler <& Jewell, for appellant.

      Toon Gentry, for appellee.
   Sam Robinson, Associate Justice.

The United States Government purchased several thousand acres in Pulaski County to be used' as an Air Force Base. Prior to this purchase by the Government, the right to sell electricity in a portion of the area had been allocated to the First Electric Cooperative Corporation, hereinafter called the Co-op, and the right to sell electricity in the other portion had been allocated to the Arkansas Power & Light Company, hereinafter called the Power Company. After the Government acquired the land it required the Co-op and the Power Company to remove all their electrical equipment of every kind and description from the area and paid them for doing so. Subsequently the Government constructed on the property an electrical distribution system that it owns and operates. In 1954 the Government contracted with the Power Company for the purchase by the Government of electricity to be used at the Air Base. The electricity is supplied by the Power Company at its substation located in an area previously allocated to it by the Public Service Commission and adjacent to the Air Base property.

In 1957 the Government began construction of several hundred housing units for Air Force personnel. Some of these houses are located in the area formerly supplied with electricity by the Co-op before the Air Base was established, and part were constructed in the area which had been supplied by the Power Company under the allotment made before acquisition of the land by the Government. The Government uses electricity obtained under a 1957 supplemental contract with the Power Company to supply all the housing units within the Air Base area. '.

This litigation was started when the Co-op filed a complaint with the Arkansas Public Service Commission asking that the Power Company be ordered to cease and desist from furnishing electric power to the Government to be used in supplying the Government housing units located in that part of the Air Force Base which had been serviced.by the Co-op before acquisition of the property by the Government. Of course, the effect of such an order would be to enable the Coop to supply electricity to the area mentioned. The Commission, in effect granted the petition but attempted to simplify the matter by ordering the Power Company to meter separately the electricity going into that part of the housing units located on property formerly supplied by the Co-op and to settle with the Co-op by charging it at the rate it pays the Power Company for electricity and giving it credit for the price received from the Government. A meter or meters would have to be installed on Government property and made a part of the Government distribution system: Such an arrangement would give the Co-op a handsome profit without any investment whatever on its part. It was shown that the Power Company has spent several hundred thousand dollars to enable it to supply electricity to the Air Base. The circuit court affirmed the order of the Commission.

The real question is whether the Public Service Commission has authority to force the Government to buy electricity from the Co-op, for such is the effect of the order. The Government wanted to construct in the area its own electrical distribution system. The Power Company and the Co-op were required to remove their equipment from the property. In contracting with the Power Company for electricity, the Government required the Company to provide certain facilities to guarantee as nearly as possible an uninterrupted supply of electricity. The Government then tied its facilities in to those constructed by the Power Company. It was shown that the Government initiated the negotiations with the Power Company to purchase electricity. A fair abstract of the testimony of Mr. H. F. Minnis, Vice-President of the Power Company, on this point, as prepared by appellant, is as follows:

“The negotiations first started on February 5, Í953 when the Corps of Engineers came to us about relocation or removal of our existing facilities in the Air Base area and the possible relocation of our 115 kv transmission line. That was all consummated by the Corps of Engineers, but later on February 25, 1953 Colonel Ben Harvey of the Corps of Engineers asked our Company for a conference with reference to a power supply. The government solicited us to furnish the power supply and set a tentative date for a conference on October 8, 1953. On that date we had a meeting and went into all requirements upon the power supply. In these negotiations the government laid down specifications as to the material and kind of power it would need to serve the Air Base and the type of load it would be. They requested a source of power from our transmission system and that the sub-station be located adjacent to the Air Base property but not on it. They requested that the service be metered and the point of delivery be at the south boundary line of the Air Force property so that from that location the Air Force would build its entire distribution system to serve the requirements of the Air Base . . .
“We built a 115 kv transmission line adjacent to the south border of the Air Base property fed directly from our 115 kv transmission system, that is energized from two ways so that they could have continuous service so far as primary distribution voltage was concerned. In order to do that we built a new transmission line from Little Rock to Jacksonville completely shielded up to this sub-station site and put in an oil circuit breaker that would protect the rest of the line towards Newport so if there was a fault beyond Jacksonville to Newport it would not affect the Air Base. The contract was reduced to writing as to the electric service specifications in which the Government stated the amount of capacity and energy they wanted and the delivery voltage. The contract provides that the premises to be served is the Little Rock Air Force Base. The electric service specifications are on page 10 of the contract, showing 7,500 kilowatts estimated maximum demand and 32,400 kilowatts estimated annual consumption. It provides that the point of delivery of service should be at the Base boundary as shown on Exhibit D to the contract. Exhibit A to the contract, or the specifications of the sub-station we were required to furnish the government, consists of a schematic diagram which shows exactly how to build the station and shows the point of delivery and that the government would have as near a continuous source of supply as possible. From the point of delivery to the south boundary indicated on Exhibit A to the contract, the government built their entire distribution system to serve the whole Air Base. On the map introduced in evidence the sub-station site is shown in Section 18 adjacent to the south boundary of the Base and is shown as a small green square south of the Air Base boundary. The 115 kv line is fed from two ends and originated at the Dixie substation at one end and the Newport sub-station at the other. We built an entirely new line from the Dixie sub-station to the Air Base. I don’t know the exact cost of the construction, but I judge it is approximately ten miles and costs about $25,000 a mile so it is approximately $250,000. It is a heavy line, big conductor, completely shielded.
"Our sub-station was built according to government requirements, and the line was built according to government requirements set forth in the contract. The government gets transmission line connection at our sub-station right at the terminus of the new line which we built from the sub-station. On towards Newport the old line goes in and that is the-reason they insisted we put an oil circuit breaker there so if there is a fault between the sub-station and Newport, it would not interrupt service to the Air Base. All of this was done to meet requirements of the United States. Cost of the sub-station was negotiated, and the government paid approximately three-fourths of it and the power company paid the other one-fourth less any salvage we might get if the government discontinues service. It resolves itself down into a connection charge of $85,860, and this is detailed in the contract.
"Under the terms of our agreement with the government they will get back the connection charge in electricity as we give them credit for ten per cent of the monthly billing until they recover their money. I am familiar with the government’s distribution system within the Base and have been over it. Prom the point of delivery at our sub-station the government built two circuits of heavy conductors, about 500,000 circular mills aluminum to a switching station, which is about three-fourths of a mile northwest from the sub-station in the Air Base. From there it goes into the switching station, and they installed three circuit breakers. From these circuit breakers go three different 13 kv lines that radiate out over all the Air Base property on which are installed air break switches which permit the government to sectionalize any part of these feeder circuits and operate them as a loop. Where they have a small lateral over one of these big feeder circuits they have installed fuse switches so if there is a fault on one of the small laterals it does not interfere with service from the main feeder and if there is a fault on the feeder circuit they can sectionalize it quickly and feed the rest of the area from the other circuits. To protect it from lightning, which is quite a problem, they shielded their feeder circuit just as we shielded our 115 kv line. Their whole grid system of distribution voltage, except for some laterals, which are not complete, is shielded. The government’s entire system at the Air Base is what is ordinarily known as a loop system, and you can get service three ways from almost any portion of it. This was done to preserve the continuity of service as far as is possible.”

Although it does not appear that the United States has acquired jurisdiction pursuant to Title 40, § 255, USCA in the circumstances of this case the Power Company cannot be prevented from selling electricity to the Government for use over the entire area of the Air Base. The Air Base is a facility established for a national purpose. In the case of Public Utilities Commission of California v. U. S., 355 U. S. 534, 2 L. Ed. 2d 470, 78 S. Ct. 446, the principle was reiterated by the United States Supreme Court that state laws or their administrators cannot interfere with the carrying out of a national purpose. There the court held invalid a state statute authorizing the state commission to approve rates charged by common carriers to the United States as being an unlawful interference with the activities of the Federal Government. If a state cannot regulate the rates a utility charges the Federal Government, then it is hard to understand how the commission can enjoin the utility company from furnishing all the service the Government requires.

In 1958 an issue almost identical with the one in the case at bar was before the North Dakota Public Service Commission. Re Souris River Telephone Mutual Aid Corp., 24 P. U. R. 3d 84. There the question was whether the public service commission should revoke a certificate of convenience and necessity theretofore granted to the Northwestern Bell Telephone Company and grant such a certificate to the Souris Biver Telephone Mutual Aid Corporation. The commission held that it had no authority to dictate to the Government as to the persons or corporations with which it should contract for utility facilities. In that case it was said: “The thing to be remembered is that the responsibility for this decision [the obtaining of utility facilities] is with the Secretary of the Air Force and no one else. If it was to be said that a company not having an established service area must obtain a certificate from the commission before it can enter into a contract with the secretary, then it follows that the commission would also have the power to deny the company such authority and thus directly interfere with the discretion vested by Congress in the federal officer. The federal statute does not require that the company with whom the secretary desires to contract also obtain a certificate of authority from a state commission and if Congress had intended such to be the case it would have so stated.” The Commission was referring to USCA, Title 50, § 491, but Title 10, § 9773 is equally applicable. It provides: “The Secretary of the Air Force shall determine the sites of such additional permanent air bases and depots in all strategic areas of the United States and the Territories, Commonwealth, possessions, and holdings as he considers necessary. He shall also determine when the enlargement of existing air bases and depots is necessary and for the effective peacetime training of the Air Force. ... At each Air Base or depot established under this section the Secretary shall remove or remodel existing structures as necessary; do necessary grading; and provide buildings, utilities, communication systems, landing fields and mats, roads, walks, aprons, docks, runways, facilities for the storage and distribution of ammunition, fuel, oil, necessary protection against bombs, and all appurtenances to the foregoing. . . .” (Emphasis supplied)

In Johnson v. Maryland, 254 U. S. 51, 65 L. Ed. 126, 41 S. Ct. 16, Mr. Justice Holmes quoted from Osborn v. Bank of U. S., 9 Wheat. 738, 867, 6 L. Ed. 204, as follows : ‘ ‘ Can a contractor, for supplying a military post with provisions, be restrained from making purchases within any state, or from transporting the provisions to the place at which the troops were stationed? Or could he be fined or taxed for doing so? We have not yet heard these questions answered in the affirmative.”

And in the Osborn case the court goes on to say: “It is true, that the property of the contractor may be taxed, as the property of other citizens . . . But we do not admit that the act of purchasing, or of conveying the articles purchased, can be under state control.” Likewise, in the case at bar the Public Service Commission cannot designate the utility company from whom the Government must purchase electricity, nor can the Commission dictate the area of Government owned property in which the Government must use the electricity it has purchased.

The Co-op argues, also, that under the terms of the contract between the Power Company and the Government, regulations adopted by the Public Service Commission shall prevail. The contract provision in question is as follows:

“5. PUBLIC REGULATION AND CHANGE OF RATES, (a) Public regulation. Service furnished under this contract shall be subject to regulation in the manner and to the extent prescribed by law by any Federal, State, or local regulatory commission having jurisdiction. If during the term of this contract the public regulatory commission having jurisdiction receives for file in authorized manner rates that are higher or rates that are lower than these stipulated herein for like conditions of service, the Contractor agrees to continue to furnish service as stipulated in this contract and the Government agrees to pay for such service at the higher or lower rates from and after the date when such rates are made effective.”

Disregarding the question of whether the Coop can properly invoke a provision of the contract between the Government and the Power Company, the above quoted provision of the contract appears to apply only to rates. But in any event, it is not subject to the construction that the Government cannot do the principal thing it was seeking to do, and that was to buy electricity from the Power Company for use on the entire Air Base.

Reversed, with directions to dismiss the complaint.

Harris, C. J., and Ward and Johnson, JJ., dissent.

Carleton Harris, Chief Justice,

dissenting.

My dissent in this matter is based purely and simply upon the provisions of Section 5 of the contract No. DA-03-050-eng-2399, between the United States of America and the Arkansas Power & Light Company, dated February 19, 1954. Section 5 provides as follows:

“5. PUBLIC REGULATION AND CHANGE OF RATES
(a) Public regulation. Service f urnished under this contract shall be, s%ibject to regulation in the manner and to the extent prescribed by law by any Federal, State, or local regulatory commission having jurisdiction1b If during the term of this contract tire public regulatory commission having jurisdiction receives for file in authorized manner rates that are higher or rates that are lower than these stipulated herein for like conditions of service, the contractor agrees to continue to furnish service as stipulated in this contract and the government agrees to pay for such service at the higher or lower rates from and after the date when such rates are made effective. ’ ’

To me, the underscored language indicates clearly that the Government voluntarily subjected itself to the regulations of the Public Service Commission, and inasmuch as the Commission’s holding was based upon substantial evidence, was not arbitrary, and in my view, entirely lawful, I would affirm.

Paul Ward, Associate Justice,

dissenting.

There is nothing in the record in this case to show that the United States Government cared which Company furnished its electricity, but, as pointed out in another dissent, the record does show that it was willing to abide by State regulations. This, I submit, is the reasonable and sensible attitude that the Government should have taken —and did in fact take.

It is apparent to me that this case is before us now in its present status simply because appellant contracted with the Government before the question here involved could be raised. Putting it another way, it appears that appellant never disclosed to the Government that any question of assignment of territory might be involved. On this point consider the testimony of appellant’s Vice-President :

‘ ‘ Q. The question that I asked you is this: Did you tell the government at the time that they contacted you concerning the power for the Air Base that you did not have a Certificate of Public Convenience and Necessity to serve the entire Air Base?
A. In the negotiation the Government gave us the point of delivery they wanted. We looked at that and saw that it was in an area that was allocated to the Arkansas Power and Light.
Q. Now then, answer my question. Did you tell them the First Electric Cooperative had a Certificate of Public Convenience and Necessity to serve the area?
A. Did I tell them?
Q. Yes, sir.
' A. No, sir, I did not.
* * #
Q. Do yon know of your own knowledge, Mr. Minnis, whether or not the Contracting Officer had any idea who had the right to serve that territory under a Certificate of Convenience and Necessity from this Commission?
A. I think I know the Contracting Officer had the right to sell the service at the point he sold it and I think he knew the IT. S. Government can do what they dern please with it after they get it.-.
Q. That is not the question I asked you and I am going to stay here all day until I get an answer to my question if the Commission will permit me. My question was: You did not know whether or not the Contracting Officer knew that the First Electric Cooperative had a right to serve a part of that territory at that time when you entered into the contract, do you?
A. I don’t think these Contracting Officers are dumb. We have dealt with them a lot of times and they knew all about their business in a big way and they came in with their requirements and we met them on that basis.
Q. And you did not tell them that you did not have a Certificate of Necessity to serve all the territory in the Air Base?
A. We have a certificate to serve the Base at the place we did serve it and he knows that.
Q. But you did not tell him that you did not have a Certificate of Public Convenience and Necessity to serve all of the Air Base, did you?
A. It was not necessary from our standpoint.
Q. You did not do it whether it was necessary or not, did you? Why are you so reluctant to answer?
A. Because we did not try to tell the Government how to run their business.
Q. Just answer my question, did you or did you not?
A. They asked us for a point of delivery and it was at a place we had a right to serve. We sold it there and took it from there.
Q. You did not tell them?
A. I told them just exactly what I told you.
Q. And that was no, I believe you said.
A. Sir?
Q. That was no.
A. I said we had a right to serve at the place we did serve and they took it from there. ’ ’

Jim Johnson, Associate Justice,

dissenting.

In respectfully dissenting to the majority opinion, I want to state at the outset that I do not disagree with any of the cases cited therein. The cases, as I view them, simply do not touch top, side nor bottom the issues involved in this lawsuit. This dissent is based wholly upon the clear language of Section 5 of the contract between the United States and the Arkansas Power.& Light Company. This section is headed: “Public Regulation and Change of Rates.” The title alone shows that two subjects are covered in Section 5: (1) Public Regulation; and (2) Change of Rates. The first sentence in Section 5 is as follows:

“Service furnished under this contract shall be subject to regulation in the manner and to the extent prescribed by law by any Federal, State, or local regulatory commission having jurisdiction.” (Emphasis supplied)

I can place only one interpretation upon this sentence and that is the United States voluntarily submitted to the regulations of the commission having jurisdiction. In reading Section 5 and the contract in its entirety I am unable to find one word indicating that it was the intention of the United States to limit the jurisdiction to which it voluntarily submitted to rates alone. Section 5, as I see it, (1) submits the United States to general public utility regulation, including (2) regulation of rates.

It must be conceded that under our law the Public Service Commission is the “regulatory commission having jurisdiction.” This being true, I can see no good reason for abandoning our well settled rule that we only review the following four questions on appeals from the Public Service Commission:

1. Is the Commission’s order supported by substantial evidence?

2. Is the Commission’s order free from fraud?

3. Is the Commission’s order arbitrary?

4. Does the order of the Commission violate any right of the appellant under the United States or State Constitutions? See: Inc. Town of Emerson v. Ark. Public Service Commission, 227 Ark. 20, 295 S. W. 2d 778.

Nowhere in the record is it seriously indicated that any of the above questions could be answered in the affirmative. In fact, I am convinced that the Commission’s Order is the only logical conclusion that could possibly be reached in this case under the circumstances. The United States indicated its recognition of the clear terms of its contract by its failure to intervene in this lawsuit. The majority opinion, in effect, is saying that this does not matter; Arkansas Power & Light Company is entitled to all the privileges and immunities of the United States Government, yea even entitled to rights that the Government itself is not claiming. The states of this Union have already, voluntarily or otherwise, relinquished too many rights to the central Government without our forcing upon a contractor with the Government rights which the Government lias voluntarily relinquished to our State-utility regulatory authority.

For the reasons stated above, I respectfully dissent.

         and 1b. Emphasis supplied.


author: Jim Johnson, Associate Justice.

text:
    Mercer v. Mercer.
    5-1901
    328 S. W. 2d 365
    Opinion delivered November 2, 1959.

      Brockman & Brockman, for appellant.

      John Harris Jones, for appellee.
   Jim Johnson, Associate Justice.

This is a divorce case; the parties are negroes. The Plaintiff-Appellee is Pantroy Mercer; the Appellant is Bertha Lee Mercer. It questions the correctness of a decree granting the husband a divorce and denying the wife alimony or property rights.

The parties were married in 1933 and lived together as husband and wife until February 1942. There were no children born of this marriage. In June 1944, Pan-troy filed suit for divorce alleging Bertha Lee had deserted him. On July 17, 1944, Pantroy was granted a divorce on constructive service. On August 26, 1944, this decree was set aside at the instance of Bertha Lee. Pan-troy was in the service at the time and insists he did not receive notice that the divorce decree had been set aside. Pantroy married Cleo Mercer in 1947 and they have lived together since that time.

Bertha Lee, in the meantime, after leaving Pantroy, moved to another location in Pine Blnff and operated a beanty shop for awhile and then moved north. In 1946, she married Jim Henry Marsh in Ohio. This relationship was annulled in 1949. In 1954, Bertha Lee married Willie Thomas in Detroit and this relationship •culminated in a divorce in 1955.

In August, 1958, Pantroy, in attempting to arrange a loan, found that his divorce decree from Bertha Lee had been set aside in 1944. He then brought this suit for divorce. Bertha Lee defended on the ground that both parties were guilty of adultery and therefore neither could obtain a divorce.

Under our statute allowing three years separation as a ground for divorce, the defense of recrimination has been abolished, so the question of the plaintiff being guilty of adultery is immaterial insofar as it affects the divorce decree. Young v. Young, 207 Ark. 36, 178 S. W. 2d 994; Larsen v. Larsen, 207 Ark. 543, 181 S. W. 2d 683; Martin v. Martin, 225 Ark. 677, 284 S. W. 2d 647.

Appellant also contends she is the injured party so as to entitle her to alimony and a division of the property. Ordinarily, where the wife shows she left the husband’s home, she must allege and prove that she is not guilty of desertion by showing that her husband’s conduct was such as to justify her leaving the home. Mullikin v. Mullikin, 200 Ga. 638, 38 S. E. 2d 281, 2 A. L. R. 2d 318. If she cannot prove she was justified in leaving she cannot obtain alimony or maintenance. Reischfield v. Reischfield, 166 N. Y. S. 898, 6 A. L. R. 10. In White v. White, 228 Ark. 732, 310 S. W. 2d 216, we said:

“Appellant earnestly insists that she is the injured party in this case, and should be awarded a division of the property . . . The evidence was conflicting, but we think the preponderance sustains the holding of the Chancellor. It is also noticeable that though Mrs. White testified she was forced to leave the home in December, 1953, because of indignities suffered at the hands of the appellee, no suit was filed for two and one-half years, and the matter was not heard until the parties had been separated for more than three years and the complaint amended to that effect. At any rate, considering that the witnesses were before the court, where the Chancellor had the opportunity to observe their demeanor and attitude from the witness stand, we are unable to say that the court’s holding was against the preponderance of the testimony, and without so finding, Mrs. White cannot prevail.”

In the instant case there was no attempt to obtain alimony and other property until fifteen years after the separation, during which time the appellant considered two other men as her husband.

As to the fault of the parties, in Martin v. Martin, 225 Ark. 677, 284 S. W. 2d 647, we said:

“Here the Chancellor found that the fault as between the parties appeared to be equal, that the fault of Mrs. Martin was at least equal to that of her husband, and in the exercise of the discretion accorded him, denied, as indicated, both alimony and a property settlement to Mrs. Martin.”

It would serve no purpose to set out in detail the testimony which leads us to our conclusion. Suffice it to say that it appears Bertha Lee was more at fault in the separation.

The entire question of the allowance or disallowance of alimony is for the trial court and rests within its sound discretion. Carty v. Carty, 222 Ark. 183, 258 S. W. 2d 43; C.J.S. Volume 27A, Divorce § 232 at page 1027. It appeats this discretion was not abused and the decree is therefore affirmed.

         Ark. Stats. 34-1209 — “If it shall appear to the court that the adultery, or other offense complained of, shall have been occasioned by the •collusion of the parties, or done with an intent to procure a divorce, or that the complainant was consenting thereto, or that both parties have been guilty of adultery, or such other offense or injury complained of in the bill, then no divorce shall be granted or decreed.”

       Ark. Stats. 34-1202.

       This subject is annotated in 152 A.L.R. 327.