author: John I. Purtle, Justice.

text:
    Elvis JOHNSON and Mae Hester HUDSON v. Enda POORE, Executrix
    79-117
    587 S.W. 2d 44
    Opinion delivered October 1, 1979
    (In Banc)

      C. Mac Norton, of Brockman & Brockman, for appellants.

      Wright, Lindsey & Jennings, for appellee.
   John I. Purtle, Justice.

Elvis Johnson, a minor, and Mae Hester Hudson, his mother, filed suit for personal injuries and expenses arising out of an automobile accident against the decedent’s estate after the statute of nonclaim had expired. Appellee moved for dismissal of the complaint because the liability insurance carrier for decedent had been discharged in a federal district court by way of a Bill of Interpleader. The trial court agreed with appellee’s motion and dismissed the complaint. Appellants bring this apeal from the order of dismissal.

The question to be decided by this Court is whether a minor and his mother may maintain tort actions against the estate of decedent after the expiration of the statute of non-claim when there was in force a policy of liability insurance on decedent’s vehicle which policy has been depleted through the use of a Bill of Interpleader in the federal district court. We hold the court erred in dismissing appellants’ complaint.

The facts involved an automobile collision in which the tortfeasor, Robert Poore, was fatally injured. Several suits and claims were filed in the administration of the Poore estate. The liability carrier for decedent filed a Bill of Interpleader in the federal district court and was subsequently discharged after distribution of the limits of its policy among the parties to the interpleader suit.

Appellant, Elvis Johnson, a minor, nor his mother were parties to the interpleader in the federal court proceeding. The suit on their behalf was filed on June 24,1976, which was about 6 months after the order of distribution by the federal district court.

The statutes in question are Ark. Stats. Ann.§§ 37-226 (Repl. 1962) and 62-2601 (Repl. 1971).

Ark. Stat. Ann. § 37-226 (Repl. 1962) provides:

If any person entitled to bring any action, under any law of this state, be, at the time of accrual of the cause of action, under twenty-one (21) years of age, . . . such person shall be at liberty to bring such action within three (3) years next after full age, or such disability may be removed.

Ark. Stat. Ann. § 62-2601 (Repl. 1971) provides:

Limitations On Filing of Claims. — a. Statute of Nonclaim. Except as provided in Sections 111 (§ 62-2602) and 119 (§ 62-2610), other than expenses of administration and claims of the United States, are not barrable by a statute of nonclaim, but including claims of a state or territory of the United States, and any subdivision thereof, whether due or to become due, absolute or contingent, liquidated or unliquidated, founded on contract or otherwise, shall be forever barred as against the estate, the personal representative, the heirs and devisees of the decedent, unless verified and presented to the personal representative or filed with the Court within six (6) months after the date of the first publication of notice to creditors.
f. Certain Tort Claims Not Affected. Notwithstanding the foregoing provisions relating to the time for filing claims against an estate, or any other provisions of this Probate Code, a tort claim or tort action against the estate of a deceased tortfeasor, to the extent of any recovery which will be satisfied from liability insurance or from Uninsured Motorist insurance coverage and which will not use, consume or deplete any assets of the decedent’s estate, may be brought within the limitation period otherwise provided for such tort action. No recovery against the tortfeasor’s estate shall use, consume, diminish, or deplete the assets of the decedent’s estate, and any such recovery shall not affect the distribution of the assets of the estate to the heirs, next of kin, legatees, or devisees of the deceased tortfeasor unless a claim is filed in the manner and within the time provided by the Probate Code for filing claims against the estate.

No doubt the trial court dismissed the complaint because the policy limits had been paid into the court and the carrier had been discharged. The appellants were not named as parties in the interpleader action and, therefore, are not bound by that proceeding. It is true the carrier had the right to file its Bill of Interpleader but it was incumbent upon it to name all parties who had an interest in the proceeds of the policy. Since appellants’ rights, if any, to the proceeds of the policy had not been determined, it was error for the court to dismiss the complaint.

We do not find that we have previously interpreted paragraph (f) of Ark. Stat. Ann. § 62-2601 (Repl. 1971). When an interpleader is filed it is necessary for all those having an interest in the proceeds to be made parties to the action if they are to be bound by the proceeding. Our prior interpretations of this statute were made before the enactment of paragraph (f) in 1971. Therefore, they have no preceden-tial value in the case at bar. To hold otherwise would allow an insurance carrier to discharge its responsibility under a policy of liability insurance by selecting the claimants it preferred to the detriment of others regardless of the merit or value of the claims.

We do not know whether the appellant Johnson will be successful in obtaining a judgment against the estate at the trial of this action. However, we would ignore the plain meaning of the statute if we were to hold that, as a matter of law, the appellant is not entitled to a determination of the rights alleged in the complaint. In so holding, we do not imply that appellant would be entitled to obtain satisfaction of any judgment against the assets of the estate of the decedent.

That portion of the complaint filed by the mother of Elvis Johnson on her own behalf is an independent claim and since it was filed within 3 years it is not barred by the non-claim statute. Therefore, we return the matter to the trial court with directions to reinstate the compláint.

Reversed and remanded.


source: Caselaw Access Project

license: Public Domain

text:
    RAY ROSS CONSTRUCTION CO., INC and AMERICAN INSURANCE COMPANY v. Eugene RANEY
    79-124
    587 S.W. 2d 46
    Opinion delivered October 1, 1979
    (Division II)

      Jake Brick, for appellants.

      Bill W. Bristow, of Seay & Bristow, for appellee.
   John I. Purtle, Justice.

Appellants, a domestic corporation and its surety on a performance bond, a foreign corporation, were sued by a subcontractor of the domestic corporation on a contract arising out of the construction of a highway in Lawrence County, Arkansas. Both appellants were found liable on the subcontractor’s claim and were assessed a penalty, interest and attorney’s fee. Appellants contested venue and applicability of the penalty, interest and attorney’s fee statute from the beginning.

Appellants contend on appeal that the trial court erred in fixing venue in Lawrence County and in applying the penalty statute to the amount recovered in this case. We agree with the learned trial judge that Lawrence County was the proper venue and that he correctly applied the penalty, interest and attorney’s fee statute. Ray Ross does not question the ruling on interest, penalty and attorney’s fee.

Ray Ross Construction Co., Inc. is a domestic corporation with its principal place of business in Crittenden County, Arkansas. American Insurance Company is a California corporation authorized to transact insurance and bonding business in the state of Arkansas. American became surety on a construction performance bond for Ray Ross on August 14, 1976. Eugene Raney, appellee, contracted with Ross to haul gravel to a job site in Lawrence County. American Insurance Company filed a copy of its surety bond in Lawrence County where the work was being done. Raney and Ross subsequently disagreed about the terms of the contract and it was terminated. Raney made demand on Ross for $10,309.87, which he alleged represented the amount due for hauling up to the date of termination of the contract. Ross attempted to compromise the claim but Raney stood fast.

Raney filed suit against Ross and American, as surety on the bond, in the circuit court of Lawrence County for the amount of $10,309.87. He sought the penalty, interest and attorney’s fee in the event the amount was not paid within 20 days. Included in this suit was a prayer for $3,824.69 for damages caused by breach of contract by Ross. Both appellants made a special appearance for the purpose of questioning venue. The court overruled the motion and without waiver the appellants answered. The same attorney represented Ross and American. At the trial the matter was submitted upon interrogatories and the jury awarded Raney the amount of $10,309.87 on the account and denied him anything for breach of contract damages. The interrogatories on these two items of damages were submitted separately. Based upon the interrogatories by the jury awarding Raney the full amount of $10,309.87, which he claimed due on the contract, the court added interest in the amount of $1,288.72, penalty in the amount of $1,237.17 and attorney’s fee in the amount of $1,500.

The matter of venue in this case is a particularly troublesome one. We agree with the appellants that the general venue statutes, Ark. Stat. Ann. §§ 27-613, 27-614, 27-615, 27-621 and 27-622 (Repl. 1966), were not followed in this case. Therefore, we look to the only statutes which we think could give rise to venue in Lawrence County. Ark. Stat. Ann. § 66-2218 (Repl. 1966) states in part as follows:

Each foreign insurer applying for a certificate of authority to transact business in Arkansas and every domestic reciprocal insurer shall file with the Commissioner an appointment of the Commissioner and his successor’s in office, on a form as furnished by the Commissioner, as its attorney to receive service of legal process against it in this State. . . .

Ark. Stat. Ann. § 66-3234 (1) (Repl. 1966) states in part as follows:

(1) An action brought in this State by or in behalf of the insured or beneficiary against an insurer as to a loss occurring or benefits or rights provided under an insurance policy or annuity contract shall be brought in either:
(a) The county in which the loss occurred, ...
(b) The county of the insured’s residence at the time of the loss... .

Before deciding the question on venue in this case we first discuss the matter of penalty, interest and attorney’s fee. Ark. Stat. Ann. § 66-3238 (Repl. 1966) states in part as follows:

In all cases where loss occurs and the cargo fire, marine casualty, fidelity, surety, cyclone, tornado, life, health, accident, medical, hospital, or surgical benefit insurance company and fraternal benefit society or farmers’ mutual aid association liable therefor shall fail to pay the same within the time specified in the policy, after demand made therefor, such person, firm, corporation and/or association shall be liable to pay the holder of such policy or his assigns, in addition to the amount of such loss, twelve per cent (12) damages upon the amount of such loss, together with all reasonable attorneys’s fees for the prosecution and collection of said loss; . . .

We believe the case of Vern Barnett Construction Co., Inc., v. J. A. Hadley Const. Co., 254 Ark. 866, 496 S.W. 2d 446 (1973), is controlling in this situation. In Barnett we stated:

We note that this statute has been applied to sureties on contractor’s bonds by the Eighth Circuit Court of Appeals in Trinity Universal Ins. Company v. Smithwick, 222 F. 2d 16 and Reid v. Miles Construction Corp., 307 F. 2d 214, where the sureties contended the proper demand to justify allowance of penalty and attorneys’ fees had not been made.

In holding the provisions of Ark. Stat. Ann. § 66-3238 (Repl. 1966) applicable in this case, we do not ignore the argument of appellants that American did not resist the amount of the claim and that the only reason they did not pay was because their insured, Ross, refused to agree to such payment. Likewise, we do not ignore appellants’ argument that American just went along with Ross and never really resisted payment of the claim. We disagree with the contention that such action by appellants did not contest the claim because the same attorney represented American and Ross. It cannot be disputed that the attorney vigorously resisted the claim. We cannot say that at any one time he was acting solely for one client instead of the other. We also notice that Ross admitted, in response to the complaint, it owed Raney the sum of $10,309.87. If it was admitted by Ross that this amount was owed, we cannot understand how they can refuse to pay it and still contend it was unresisted. Therefore, we agree that the trial court properly applied the provisions of Ark. Stat. Ann. § 66-3238 (Repl. 1966) in this case.

We return to the question of venue at this time. You will note that we held the penalty statute to apply and the basic reason for this is that it specifically mentioned “surety” in the statute. This term was used along with all the other terms relating to insurance. Now we turn back to the provisions of Ark. Stat. Ann. § 66-3234 (Repl. 1966). This statute applied to domestic as well as foreign corporations.

In 1966 we considered the case of Pacific Insurance Co. of New York v. Droddy, 240 Ark. 535, 400 S.W. 2d 673 (1966), and there in an action by a subcontractor against the surety on the contractor’s performance bond held that venue lay in the county of the residence of the beneficiary of the bond, the subcontractor. There we may have seemed equivocal as to whether or not venue should be controlled by Ark. Stat. Ann. § 27-608 (Repl. 1966) or Ark. Stat. Ann. § 66-3234 (Repl. 1966). We expressed a hope that the General Assembly would see fit to definitely fix the venue in actions by beneficiaries on performance bonds. However, the General Assembly did not change the venue statute. Since we relied on Ark. Stat. Ann. § 66-3234 (Repl. 1966) in Droddy, we now hold that the residence of the beneficiary on the surety bond and the county in which the loss occurred are sufficient to establish venue on a subcontractor’s complaint against a surety. We do not ignore Cavette v. Ford Motor Credit Co., 260 Ark. 874, 545 S.W. 2d 612 (1977), where we stated that venue could not be had against a foreign corporation pursuant to Ark. Stat. Ann. § 27-608 (Kept 1966). Thus it appears that Cavette made it clear that venue in Droddy was based upon Ark. Stat. Ann. § 66-3234 (Repl. 1966). For the above reasons we are of the opinion that Lawrence County was the proper venue when the action was brought in that county of the residence of the beneficiary and the place of the loss.

Affirmed.

We agree. Harris, C.J., Byrd and Holt, JJ.


author: J. V. Spencer, III Special Justice. Frank Holt, Justice,

text:
    DRUMMOND CITIZENS INSURANCE COMPANY and ROLLER FUNERAL HOME v. Chester SERGEANT, as Executor of the Estate of Dorothy Mae MILLER, Deceased and Elton KIRBY and Alan BLEVINS d/b/a KIRBY-BLEVINS FUNERAL HOME
    78-206
    588 S.W. 2d 419
    Opinion delivered October 1, 1979
    (In Banc)
    [Rehearing denied November 19, 1979.]

      H. B. Stubblefield and Terry Poynter, for appellants.

      Ted H. Sanders, for appellees.
   J. V. Spencer, III Special Justice.

This appeal involves the proper contractual interpretation of three (3) burial certificates issued by the Baxter County Burial Association, and whether a restraining order should have been issued by hte lower court to protect an alleged contractual right.

The material facts are undisputed. The Baxter County Burial Association issued certificate No. 11022A in the amount of $300.00 to Dorothy Mae Miller, and later issued certificate No. 11950 in the amount of $500.00 to Pauline Iris Walton, and certificate No. 12067 in the amount of $500.00 to John E. Beam. The burial certificates state that they are subject to the burial association by-laws, which are fully reproduced in the Miller certificate, and a general summary of the by-laws are reproduced in the Walton and Beam certificates. The by-laws as set forth in the Miller certificate are different from those set forth in the Walton and Beam certificates.

On May 25, 1973, the Baxter County Burial Association entered into a reinsurance contract, under the terms of which all existing burial certificates issued by Baxter County Burial Association were transferred to the appellant, Drummond Citizens Insurance Company, which assumed all contractual liability thereunder. Drummond Citizens Insurance Company had selected the appellant, Roller Funeral Home of Mountain Home, Arkansas, to furnish the funeral services and supplies. Both appellants have essentially common ownership and officers, and a common telephone number in Mountain Home, Arkansas.

On December 25, 1976, Dorothy Mae Miller died and the appellants were notified by Kirby-Blevins Funeral Home that Kirby-Blevins Funeral Home had been selected by the family of the deceased to handle the funeral, and they were asked if any benefits under the $300.00 burial certificate would be provided. The appellants responded that no services or merchandise would be provided unless Roller Funeral Home was allowed to furnish the entire funeral services and merchandise. Kirby-Blevins Funeral Home then proceeded with the funeral arrangements.

On June 25, 1977, John E. Beam died, and on July 20, 1977, Pauline Iris Walton died. Notice of each death was given by Kirby-Blevins Funeral Home to the appellants, who again refused to provide any services or merchandise unless Roller Funeral Home provided the entire funeral services and merchandise. Kirby-Blevins Funeral Home again proceeded with the funeral arrangements.

The appellant, Drummond Citizens Insurance Company, filed a petition in interpleader and tendered into the lower court $400.00 on an insurance policy which is not in issue and named the two appellees as respondents. The appellee, Chester Sergeant, as executor of the estate of Dorothy Mae Miller counterclaimed for 1300.00 on the Miller burial certificate and the appellees, Elton Kirby and Alan Blevins d/b/a Kirby-Blevins Funeral Home, as assignees of the Walton and Bean burial certificates counterclaimed for $500.00 on each of those certificates. The appellant, Drummond Citizens Insurance Company, prayed for injunctive relief restraining Kirby-Blevins Funeral Home from advertising that it would give credit on all burial insurance policies, regardless of the company with which the policy was carried. The appellant, Roller Funeral Home, intervened in the case, and adopted the pleadings of Drum-mond Citizens insurance Company.

The lower court in its decree, dated October 26, 1977, referring only to the wording contained in the Miller burial certificate, found nothing in the certificates which provided that the burial association was not required to furnish benefits under the certificates unless it was allowed to furnish all of the funeral services through a director of its choice. It further found that the appellant, Drummond Citizens Insurance Company was not required to pay cash under these certificates to be used in purchasing services or merchandise from a funeral director not approved by the appellant, but having failed to furnish merchandise or services through its approved undertaker as provided in the certificate of a value equal to their face amounts, it was liable in case for the face amounts of the certificates. The lower court also denied any injunctive relief finding that appellants had failed to show by a preponderance of the evidence that the appellee, Kirby-Blevins Funeral Home, performed acts constituting unfair competition which resulted in any damage to the appellants.

The appellants have raised two points for reversal. First, the appellants contend that cash cannot be recovered under a burial certificate providing for a funeral service where the funeral service is tendered as provided in the contract; and secondly, that Kirby-Blevins Funeral Home should be enjoined from advertising that it will give full credit on burial certificates where the appellant, Roller Funeral Home, is designated to provide the funeral service.

The first contention must be placed in the context of the specific provisions of the three (3) burial certificates. The material portion of the by-laws in the Miller certificate reads as follows:

“4. When a member dies, the person in charge of the body shall at once notify the Secretary-Treasurer, who shall furnish the service and casket through an undertaker of his choice.
5. All members shall receive funeral, including services and casket in the amount specified in the class in which they held their benefit certificates.
The services and casket to members holding benefit certificates with the Baxter County Burial Association, shall be up to the standard of, and in keeping with the services and casket sold at similar prices by licensed embalmers and funeral directors of this and other towns in this territory. The funeral services to be furnished by this Association do not include any payment for any burial lot in any cemetery.
(a) If more expensive funeral than that furnished by the Association is desired, it may be arranged by the family of the deceased and the member’s benefit applied on payment of same.
(b) The relatives in charge shall have the privilege of embalming, selecting clothing and casket, or any other merchandise or service of the funeral director.”

In the Beam and Walton certificates, the material portion of the by-laws of the association contain the following language:

“Upon the death of a member of the Association, those in charge of the body of the deceased shall notify the Secretary-Treasurer, who shall have exclusive right to furnish funeral services and supplies, to be selected by those in charge of the body of the deceased and of the value equal to the face amount of the Membership Certificate, through a funeral director of the Secretary-Treasurer’s choice. Funeral services and supplies shall be furnished a deceased member of the Association wherever he or she may be, upon notice to the Secretary-Treasurer. If the funeral Director customarily employed by the association issuing this certificate cannot service the body of the deceased on account of the distance to be traveled, then the Secretary-Treasurer shall employ another funeral director who can service the body. No cash shall be paid to the family or those in charge of the body of the deceased, but all amounts for which the Association is liable shall be applied in payment to the funeral director for the funeral services and supplies furnished by him. In such instances, the minimum shall be 70 per cent of the face amount of the certificate. The Association will not be held liable for any funeral arrangements, services or supplies made or furnished by any other that the Secretary-Treasurer of the Association.”

We need not decide whether the apparent change in the association by-laws between the date of the issuance of the Miller burial certificate and the Beam and Walton burial certificates was binding on Dorothy Mae Miller, as that decision is not necessary to a decision in this case. We also note that Ark. Stat. Ann. § 66-1809, adopted as a part of Act 91 of 1953, provides that all burial associations shall have and maintain rules and by-laws as prescribed by the Burial Association Board. The record in this case does not reflect what by-laws were prescribed for burial associations at the time of the reinsurance contract or at the time of death of each of the certificate holders, so we need not decide whether any such prescribed by-laws were binding on these certificate holders. All the parties have placed reliance on the by-law provisions as previously set forth.

Burial associations arose out of the depression years in our country for the mutual benefit of those who desired assurance at a modest price that they would be given a decent and proper burial. The Baxter County Burial Association was incorporated in 1935. The one distinguishing and laudatory characteristic of these burial associations was that a person was guaranteed a complete and respectable funeral. Arkansas first recognized burial associations by statute through Act 264 of the 1933 Acts of Arkansas. In 1953, Act 91 of 1953, inter alia, created the Arkansas Burial Association Board, redefined a Burial association, and limited the amount of benefits provided to any member of an association to not more than $500.00.

As the cost of funeral services and merchandise increased over the years, the by-laws of the associations were changed so that many associations no longer guaranteed a complete funeral. This evolution can be recognized in the wording of the earlier Miller burial certificate as opposed to the wording in the later Walton and Beam burial certificates. A reasonable interpretation of the material portions of the Miller certificate indicates that a complete funeral was guaranteed by the burial association, including services and casket for the sum of $300.00. Although a $300.00 complete funeral is difficult to imagine in our present economy, this was the obligation of the association. However, in the certificates issued later by the association, the language indicated that a complete funeral was not intended, but that the association would have the exclusive right to furnish services and supplies of a value equal to the face amount of the certificate to be selected by those in charge of the body.

The appellants have placed considerable reliance on the case of Lowery v. American Burial Association, 70 So. 2d 38 (1954), from our sister state of Mississippi, involving a 1936 funeral benefit contract which provided a complete funeral valued from $35.00 to $125.00 depending on the number of years of membership in the burial association. In 1952, the contract holder died and the association agreed to furnish a complete funeral valued in the amount of the contract. However, the husband of the deceased used the services of a funeral home not authorized by the burial association and called upon the association to furnish a casket for his wife’s body. The policy provided that the policy amount could be used by the family in any way desired such as for casket, hearse service, embalming, etc. The court stated that it was plainly apparent that this contemplated that the benefits, whatever furnished, are required to be furnished through the facilities of the association, and since the association offered full performance of its contract by furnishing through its facilities a complete funeral, including casket, robe, and hearse service as valued in the contract, it was guilty of no breach of its contract.

We agree that the benefits both in that case and in the case at bar were required to be furnished through the facilities of the association. We do not agree, however, that the facilities of the association could not be used by the family of the deceased for the selection of funeral services or supplies up to the value of the policy, unless complete services were provided by the association. It should also be noted that the policy language in the Lowery case may be distinguished from the language contained in the Walton and Beam certificates as those later certificates do not provide for a complete funeral. We have reviewed the record before us in considerable detail, and the record is unclear as to whether the appellants tendered a complete funeral valued at $300.00 on the Miller certificate, but regardless, our decision on this point would remain unchanged.

This court has previously held that a burial association certificate is so similar to a policy of insurance that the recognized rules of construction governing such policies are applicable. Anderson v. Frank Reid Burial Association, Inc., 218 Ark. 817, 239 S.W. 2d 12 (1951).

It is our opinion that the by-law provisions in all three (3) certificates suffer from ambiguity, and in such circumstances, the court will adopt that interpretation which is most favorable to the insured or his beneficiary. 46 CJS Insurance Sec. 1468, p. 802; Woodman of the World Life Ins. v. Reese, 206 Ark. 530, 176 S.W. 2d 708 (1943).

A principal of insurance law firmly established in our state is that provisions contained in a policy of insurance must be construed most strongly against the insurance company which prepared it, and if a reasonable construction may be given to the contract which would justify recovery, it would be the duty of the court to do so. Traveler Indemnity Company v. Imogene Hyde, 232 Ark. 1020, 342 S.W. 2d 295 (1961).

It is a cardinal rule of insurance law that a policy of insurance is to be construed liberally in favor of the insured and strictly against the insurer or, as more fully stated, if the language employed is ambiguous, or there is doubt or uncertainty as to its meaning and it is fairly susceptible of two interpretations, one favorable to the insured and the other favorable to the insurer, the former will be adopted. 44 CJS Insurance Sec. 297 c. (1), p. 1166; First Heritage Life Assurance Company v. James K. Butler, 248 Ark. 1164, 455 S.W. 2d 135 (1970).

A reasonable construction of the material provisions of the burial certificates would indicate that those in charge of the body have the right to select those funeral services and/or supplies of a value equal to the face amount of the certificate from the designated funeral home of the burial association or its assigns. We find no requirement in the certificate that the family or those in charge of the body must allow the funeral home so designated to furnish the complete funeral on penalty of forfeiture of all benefits.

The refusal of the appellant, Drummond Citizens Insurance Company, to provide services and merchandise to the extent of the value of the certificates constituted a breach of the contractual provisions. Although the certificates do not provide cash benefits, since the funeral services and merchandise have already been provided for the deceased certificate holders, monetary awards for the face value of the certificates are justified as the proper measure of damages for the contractual breach of each of the certificates.

The second point raised by the appellants is whether the lower court shall have enjoined Kirby-Blevins Funeral Home from advertising that it would give full credit on burial certificates where Roller Funeral Home is designated to provide the funeral service, or as restated by the appellants, that Kirby-Blevins Funeral Home should be enjoined from intentionally interfering with the contracts and business expectancies of appellants. The appellants state in their brief as follows:

Such advertising wrongfully deprives Appellant Roller Funeral Home of its vested right and business expectancy of providing the benefits under the burial certificates as well as depriving it of the business expectancy in furnishing merchandise and service over and above the amount of benefits provided in the policy or certificate involved.

Since it is our opinion that the Drummond Citizens Insurance Company, through its designated funeral home, Roller Funeral Home, had the contractual right and obligation to furnish benefits under the burial certificates to the extent of their face value, but did not have the contractual right to furnish merchandise and service over and above the amount of the benefits, such advertising by Kirby-Blevins Funeral Home does not interfere with any valid contractual right of the appellant, Roller Funeral Home. Certainly, the right of Roller Funeral Home to provide benefits to the extent of the value of the certificates is not compromised or endangered by this advertising as demonstrated by the request of Kirby-Blevins Funeral Home for benefits under the certificates. It is a fact of human nature, not susceptible of argument, that beneficiaries desire the benefits of insurance contracts. We feel confident that the appellants will be given the opportunity to provide all benefits as set forth in all the burial certificates which were reinsured by the appellant, Drummond Citizens Insurance Company.

We can understand the desire of appellants to furnish a complete funeral service at a cost in excess of the value of the burial certificates, but under the certificates, they neither have this right as a matter of contract, nor can they deny benefits because another funeral home is selected for additional services or merchandise.

An injunction is an extraordinary remedy, and like mandamus and prohibition, is one which is reserved for extraordinary circumstances. It is our opinion that an injunction should not be granted where the contract does not plainly confer the right to be protected, and, in this case, we find no contractual right that commands protection. Cf; 43 A CJS Injunctions, Sec. 90, p. 113.

The decree of the lower court is accordingly affirmed.

Fqgleman, Byrd and Purtle, JJ., not participating.

Special Justice G. B. Nance, Jr., joins in the opinion.

Harris, G.J., and Holt, J., dissent.

Frank Holt, Justice,

dissenting. I respectfully dissent from the majority opinion which holds the certificates ambiguous. In my view, the certificates in effect provide that the designated funeral home has the exclusive right to provide funeral services and that the Association is not liable for funeral services or supplies furnished by another. Since the holders of the certificates chose to avail themselves of the services and merchandise of a funeral home other than the one designated and approved by the appellant insurance company, they are not entitled to any cash benefits under the certificates.


author: George Rose Smith, Justice. Conley Byrd, Justice,

text:
    Nora GIBSON v. Merna W. GIBSON and Cecil L. GIBSON
    79-59
    589 S.W. 2d 1
    Opinion delivered October 8, 1979
    (In Banc)

      Bradley & Coleman, by: Douglas Bradley, for appellant.

      Oscar Fendler and Moore & Gibson, by: Michael L. Gibson, for appellees.
   George Rose Smith, Justice.

This is the second appeal in this case. Gibson v. Gibson, 264 Ark. 418, 572 S.W. 2d 146 (1978). We are of the opinion that the pivotal issue — the appellant’s right to obtain a partition of the property in question — was decided on the first appeal, when all the essential facts were before us. Nevertheless, as the appellees argue several issues that were not argued on the first appeal, we shall discuss the case in some detail.

The facts are simple. The appellant’s husband, Herman Gibson, owned 585.21 acres of land at his death in 1976. He was survived by the appellant, his widow, and by the appellees, two sons by an earlier marriage. Mrs. Gibson elected to take against the will. At Mrs. Gibson’s request the probate court assigned as her dower a life estate in a specified 195.07 acres, exactly one third of the total acreage. Mrs. Gibson then brought this suit in chancery for a partition of that 195.07 acres, asking that the property be divided in kind if possible, and if not, that it be sold. We have statutes providing for the determination of the present value of a life estate. Ark. Stat. Ann., Title 50, Ch. 7 (Repl. 1971).

In the chancery case the appellees filed a motion to dismiss, the exact language of which is pertinent. Attached to the motion was a copy of the probate court order by which that court approved the report of its commissioners, dividing the entire acreage by allotting the widow a life estate in a specified 195.07 acres. The motion to dismiss admitted the plaintiff’s life estate in the land and went on to assert as grounds for dismissal:

3. That a widow, having taken dower in Probate Court, cannot later go into Chancery against the remaindermen and obtain the sale of the fee for purposes of partition, and the petition should therefore be dismissed.
4. That the plaintiff, widow, who is a life tenant entitled to exclusive possession of said lands . . . cannot maintain a partition suit against the defendants, vested remaindermen, and the petition should therefore be dismissed.
5. That, as admitted in the pleadings, the land described in the petition was divided according to the commissioners and by stipulation of counsel for plaintiff and counsel for defendants and the estate; and dower was allotted to the plaintiff for and during her natural life and has been confirmed by the court . . .
Wherefore, defendants pray that the petition filed herein be dismissed . . .

The chancellor simply dismissed the petition, without specifying the particular basis for the dismissal.

On the first appeal we pointed out that we had held in Monroe v. Monroe, 226 Ark. 805, 294 S.W. 2d 338 (1956), that one in exclusive possession of land as dower is not entitled to a decree of partition against the remaindermen. After the Monroe decision, however, the partition statute was amended to permit any person having an interest in land “as assigned or unassigned dower” to obtain partition. Act 324 of 1957; Ark. Stat. Ann. § 34-1801 (Supp. 1977). We therefore concluded on the first appeal that Mrs. Gibson was entitled to partition. The cause was remanded for further proceedings not inconsistent with the opinion.

On remand the appellees filed an answer asserting various defenses, including want of jurisdiction in the chancery court, res judicata, election of remedies, and es-toppel. After a hearing, at which the probate court proceedings and testimony were introduced, the chancellor again dismissed the case, on what we take to be the plea of res judicata. The chancellor assumed that we were not aware on the first appeal that the 195.07 acres constituted only a third of the decedent’s land, not the whole of it. The chancellor concluded that Mrs. Gibson had already obtained what amounted to a partition in the probate court and could not obtain the same relief in chancery. He accordingly denied the petition for partition. Mrs. Gibson again appeals.

We have said that no principle of law is more firmly settled than the rule that matters decided upon one appeal become the law of the case and govern even this court upon a second appeal. Wilson v. Rodgers, 256 Ark. 276, 507 S.W. 2d 508 (1974). Moreover, the judgment on the first appeal is conclusive not only of every question of law or fact that was actually decided, but also of questions which might have been, but were not, presented. Storthz v. Fullerton, 185 Ark. 634, 48 S.W. 2d 560 (1932). In commenting on the Storthz case we explained the reason for the rule in Moore v. Robertson, 244 Ark. 837, 427 S.W. 2d 796 (1968):

The appellee’s contention is not now available to him, because it coujd and should have been made on the first appeal. The rule is that the decision on the first appeal is conclusive of any arguments that were or could have been made at that time. Storthz v. Fullerton, supra. The case at bar confirms the wisdom of the rule. If the appellee’s contention has merit — a point which we do not decide — its assertion on the first appeal would have done away with the necessity for a second trial and a second appeal, with their attendant expenditure of time and money. Such waste can be effectively prevented only by a strict adherence to the principle that points not urged upon the first appeal are not available later on.

In the case at bar all the pertinent facts were before us on the first appeal. The record showed that the probate court had awarded dower to the widow, that the commissioners’ report allotting her a life estate in a specified 195.07 acres (which of course could not have been all the land) had been approved, and that on the basis of that allotment the widow sought a partition in chancery, in kind or by sale, as between her as a life tenant and the defendants as remaindermen. The motion to dismiss had specifically asserted that the widow, having taken dower in probate court, could not later go into chancery and obtain the sale of the fee for purposes of partition. Consequently nearly every argument that is now made could have been presented upon the same essential facts upon the first appeal. Hence our decision upon that appeal is conclusive of most of the issues.

We may, however, point out briefly that all the appellees’ present arguments are without merit. The doctrine of election of remedies prevents a person from pursuing two remedies only when they are inconsistent. Kapp v. Bob Sullivan Chevrolet Co., 232 Ark. 266, 335 S.W. 2d 819 (1960). When a party has two or more concurrent and consistent remedies, he may pursue one or all until satisfaction is had. Davis v. Lawhon, 186 Ark. 51, 52 S.W. 2d 887 (1932). That is the situation here.

Mrs. Gibson unquestionably had a right to gc into the probate court to obtain an allotment of her dower. She could not have obtained a sale of the land in that proceeding, because the commissioners found that her life estate could be set aside in kind. That finding precluded a sale. Ark. Stat. Ann. § 62-717 (Repl. 1971); Johnson v. Johnson, 92 Ark. 292, 122 S.W. 656 (1909). Indeed, Mrs. Gibson may possibly still not obtain a sale, for the property may be susceptible of a division in kind. Ark. Stat. Ann. §§ 34-1801 and 34-1817.

It has been suggested, apparently on the theory of res judicata, that the probate court might have partitioned the land in the proceeding for the allotment of dower. No such power existed. The probate court, although a court of superior jurisdiction, is also a court of special and limited jurisdiction which has only such powers as are expressly conferred by the constitution or by statute or are necessarily incident to such express powers. Hilburn v. First State Bank, 259 Ark. 569, 535 S.W. 2d 810 (1976). There is no statute conferring upon the probate court the power to partition land. The personal representative certainly has the privilege of applying to the probate court for the sale of land in the administration of a decedent’s estate. Ark. Stat. Ann. §§ 62-2401 and 62-2704 (Repl. 1971). But the probate court’s authority to order a sale does not emcompass the power to order a partition, which is preferably accomplished by a division in kind. Furthermore, the application for a sale must be made only for certain purposes and by the personal representative, not by the widow. There is no language in Doss v. Taylor, 244 Ark. 252, 424 S.W. 2d 541 (1968), cited by the appellees, indicating that the probate court has the power to partition land. That power simply does not exist.

Since the widow could not have obtained a partition in the proceeding to assign dower, that proceeding cannot be the basis for the pleas of res judicata, election of remedies, and estoppel. The widow, having obtained her dower as an undivided interest in a specified 195.07 acres, has an absolute right to seek partition under the amended statute which we held to be controlling on the first appeal. As we said in Davis v. Lawhon, supra, one may pursue consistent remedies until satisfaction is had.

The appellees perfunctorily argue that the partition and dower statutes deny due process and equal protection, but those contentions were not raised in the trial court and are therefore not before us.

The decree is reversed and the cause remanded with directions that the appellant’s right to a partition of the property be carried into effect.

Byrd, }., dissents.

Conley Byrd, Justice,

dissenting. I disagree with the majority for in my view the partition proceedings in probate court are res judicata of the issues here — i.e. if the widow desired to have her dower rights reduced to their present value pursuant to Ark. Stat. Ann. § 34-1801 (Supp. 1977) such proceeding should have been requested when the parties were there arguing about whether the partition of the dower could be equitably laid out.

The majority suggests that the probate court does not have constitutional jurisdiction to partition lands and cites as authority Johnson v. Johnson, 92 Ark. 292, 122 S.W. 656 (1909). However, the good citizens of this State in 1938 adopted Constitutional Amendment No. 24 (Art. 7 § 34) which provides:

“In each county the Judge of the court having jurisdiction in matters of equity shall be judge of the court of probate, and have such exclusive original jurisdiction in matters relative to the probate of wills, the estates of deceased persons, executors, administrators, guardians, and persons of unsound mind and their estates, as is now vested in courts of probate, or may be hereafter prescribed by law. The judge of the probate court shall try all issues of the law and of facts arising in causes or proceedings within the jurisdiction of said court, and therein pending. The regular terms of the courts of probate shall be held at such times as is now or may hereafter be prescribed by law; and the General Assembly may provide for the consolidation of chancery and probate courts.”

Furthermore, the General Assembly by Acts 1961, No. 424 (Ark. Stat. Ann. § 62-2401) specifically provided for the partition of real estate by the probate court. See Doss v. Taylor, 244 Ark. 252, 424 S.W. 2d 541 (1968). Consequently, it appears to me that the probate court had jurisdiction of the parties and the subject matter at that time they litigated the partition of the lands for the purpose of the assignment of dower. See also Ark. Stat. Ann. § 62-717 (Repl. 1971).

It is also suggested that appellees are foreclosed from claiming res judicata in this proceeding because of the former appeal. With this suggestion I beg to disagree. On the first appeal the only issue before us arose on a motion to dismiss because a life tenant could not have partition, Gibson v. Gibson, 264, Ark. 420, 572 S.W. 2d 148 (1978). In reversing on the first appeal we only considered the one issue. Furthermore, res judicata is a defense that must be pleaded and proved and can only be reached after a trial on the merits or upon a motion for summary judgment after the facts have been established. In Hurst v. Hurst, 255 Ark. 936, 504 S.W. 2d 360 (1974), we said that res judicata “cannot properly be raised by a motion to dismiss.” See also Southern Farmers Assn. v. Wyatt, 234 Ark. 649, 353 S.W. 2d 531 (1972).

The suggestion that such a partition suit can only be brought in chancery court as distinguished from the probate court encourages vindictive litigation — i.e. under the majority’s view, the widow can force the heirs to sell other lands to pay for estate taxes and then gouge the heirs a second time by again being put to the additional expense of a partition suit for the purpose of selling the remaining lands. Statutes should be construed as a whole and be given a construction that will settle litigation in one suit instead of two. Added to the absurdity of the majority opinion is the fact that the same trial judge sits both as chancellor and probate judge and tries all issues in both courts by the same procedure.

The final injustice in permitting the widow to take two bites at her dower rights can best be demonstrated by the majority’s illogical reasoning — i.e. the majority acknowledges that a widow seeking dower rights cannot obtain a sale when dower can be laid out in kind. However, the majority by permitting the widow to seek in the probate court an allotment of a one-third life estate in particular lands which includes improvements then permits the widow to file a partition suit in chancery court to reduce her dower rights to a fee title. If the widow has caused her dower rights in the probate proceeding to be allotted so that the lands are not susceptible to further division, then the widow can force a sale of the lands for purposes of securing her dower rights contrary to the authority of Johnson v. Johnson, 92 Ark. 292, 122 S.W. 656 (1909). Of course it goes without saying that the division in kind of a partial interest from a whole tract is much different from a division in kind from only a part of such lands, in fact the widow here contends that the land in which her dower was allotted is not now susceptible to a further division in kind.

For the reasons herein stated, I respectfully dissent.


author: George Rose Smith, Justice.

text:
    Teddy Joel SPELL and his wife v. Sandra Barham SPELL
    79-110
    587 S.W. 2d 221
    Opinion delivered October 8, 1979
    (Division I)

      Honey & Rodgers, by: Danny P. Rodgers, for appellants.

      F. C. Crow and James H. Pilkinton, Jr., of Pilkinton & fílkinton, for appellee.
   George Rose Smith, Justice.

The appellant Teddy Spell and the appellee Sandra Spell, natives of Arkansas, were married here in 1961. They moved to Illinois in 1966, where Sandra obtained a divorce in 1973. The decree erroneously recited that the parties jointly owned 150 acres in Arkansas, in which Sandra had “special equities.” Teddy actually owned the land, with Sandra having only inchoate dower. The decree did not award Sandra any interest in the land nor direct Tedddy to convey her any interest in it. The decree gave custody of the couple’s three children to Sandra, with an allowance of SI 50 a week for their support. In 1975 the Illinois court entered a supplemental decree reducing to judgment the amounts that had accrued as unpaid child support.

After the divorce Teddy returned to Nevada County, Arkansas, and Sandra moved to Texas with the children. In 1978 Sandra brought this suit (a) to obtain partition of the 150 acres in Nevada County, (b) to register the 1975 Illinois supplemental decree, (c) to obtain judgment for back payments accruing since the supplemental decree, and (d) to obtain a reasonable award for child support in the future. Upon trial the chancellor entered a decree recognizing Sandra’s dower interest in the land but deferring partition. The chancellor awarded Sandra a money judgment for the net arrears due upon the 1975 supplemental decree. As to arrears accruing after that, the chancellor modified the Illinois award by entering judgment at the rate of only $70 a week, instead of $150, with credit for payments made by Teddy. For the future the chancellor reduced the child support to $63 a week. Teddy appeals from the chancellor’s recognition of Sandra’s interest in the land. Sandra cross appeals from the chancellor’s modification of the Illinois decree between the date of the Illinios supplemental decree and the date of the trial below.

On direct appeal Teddy must prevail under our holding in Knighton v. Knighton, 259 Ark. 399, 533 S.W. 2d 215 (1976), citing earlier cases. In Knighton we held that under Arkansas law a wife who gets a divorce must press her claim to an interest in her husband’s property at that time; she cannot assert it later. There, as here, the wife had obtained an out-of-state divorce without an award of any interest in her husband’s land in Arkansas. We held she could not later bring suit here to assert a statutory interest in the land. Otherwise, two or more successive wives might be entitled to assert dower rights in a decedent’s property. On direct appeal the decree is reversed and the cause dismissed as it relates to Sandra’s dotal or statutory interest in the land.

On cross appeal Teddy first argues that Sandra is not in a position to question the chancellor’s modification of the Illinois decree as to installments accruing before the trial, because her notice of cross appeal recites that she appeals from the decree in the following particulars:

“1. The court should have given full faith and credit to the Illinois decree and ordered defendant to pay the same amount of child support that he was under order in Illinois to pay, that is $50 each week per child.
“2. The court should have granted plaintiff’s prayer [for partition of the land] .”

Teddy argues that the cross appeal is limited to the award of $63 a week for the future, which is all we should consider under our holding in Miles v. Deisch, 228 Ark. 803, 310 S.W. 2d 505 (1958).

We do not construe the notice of cross appeal so narrowly. The language might refer either to the chancellor’s reduction of the award to $70 a week for the future. The complaint allowance of $63 a week for the future. The complaint specifically sought judgment for $150 a week for the period after the Illinois supplemental decree, but only a reasonable sum for the future. Sandra’s brief on cross appeal does not question the $63 allowance. Hence we think it fair to interpret the language of the notice of cross appeal to refer to the chancellor’s reduction of the Illinois award to $70 a week. Moreover, Teddy designated the entire record for his direct appeal; so Sandra was not even required to specify the points on which she was cross appealing. See Linxwiler v. El Dorado Sports Center, 233 Ark. 191, 343 S.W. 2d 411 (1961). In the circumstances Teddy has not been prejudiced by the ambiguity in the notice of cross appeal.

On the merits, the chancellor was in error in modifying the Illinois decree as to payments that had already accrued. We are not concerned with the Illinois court’s possible power to make a retroactive modification (a power that does not seem actually to be recognized by the Illinois cases), because neither side invoked Illinois law as required by Ark. Stat. Ann. § 27-2504 (Supp. 1977). Holley v. Holley, 264 Ark. 35, 568 S.W. 2d 487 (1978). We are therefore governed by Arkansas law, which does not ordinarily permit a retroactive modification of accrued payments. Riegler v. Riegler, 246 Ark. 434, 438 S.W. 2d 468 (1969); Sage v. Sage, 219 Ark. 853, 245 S.W. 2d 398 (1952). No exceptional circumstances exist here, such as the mother’s refusal to recognize the father’s visitation rights. Sharum v. Dodson, 264 Arts. 57, 568 S.W. 2d 503 (1978). Consequently the chancellor did not have the power to reduce the amount of accrued installments, even though he may not see fit to enforce the decree by contempt proceedings. On cross appeal the decree is reversed and the cause remanded for the entry of a judgment for the net amount due between the date of the Illinois supplemental decree and the date of trial.

Reversed on direct and cross appeal.

We agree. Harms, C.J., and Fogleman and Hickman, 11


author: John A. Fogleman, Justice.

text:
    Gerald D. BARNES v. PEARSON TERMITE AND PEST CONTROL, INC. and Elmer T. PEARSON, Individual
    79-82
    587 S.W. 2d 823
    Opinion delivered October 8, 1979
    (Division I)
    [Rehearing denied November 13, 1979.]

      Her by Branscum, Jr., for appellant.

      Joe Cambiano, for appellee.
   John A. Fogleman, Justice.

Appellant Gerald D. Barnes filed a suit against Elmer T. Pearson, appellee herein, on December 13, 1976, seeking to recover one-half of the assets of Pearson Termite & Pest Control, Inc. and an accounting for profits subsequent to February, 1976. The corporation was formed on October 28, 1974, and Barnes and Pearson were the sole stockholders, each owning one-half of the capital stock of the corporation. Barnes alleged that Pearson had operated the business, without any accounting to Barnes, since February, 1976, when Barnes had become disabled, and that Pearson had converted the assets of the corporation to his own use under a new name. Pearson filed a general denial in answer to the original complaint, except that he admitted that the two parties were the sole stockholders of the corporation. By an amendment to the complaint, Barnes asked that Pearson be declared trustee of all funds earned by Pearson Termite & Pest Control, Inc. since October 1, 1976, and alleged that an accounting for, and division of, such funds should have been made. In his answer to the amendment to the complaint, Pearson alleged that Barnes had received funds for franchise sales for which he should be required to account and claimed the right to set off one-half of these receipts against any amount due Barnes.

On June 1, 1977, a decree was entered upon agreement by the parties. The decree contained the following findings: that Barnes and Pearson were each entitled to one-half of the corporation assets; that injunctive relief should be provided so that each could operate his respective business after division; that the corporate name and structure should become the property of appellant; that Pearson should pay appellant $1,700; that the physical assets of the corporation should be divided between the parties, that all accounts should be divided equally, but, if the parties were unable to agree upon a division, a commissioner would be appointed; that each party might maintain his franchise agents; and that each party would be enjoined from serving the accounts belonging to the other. On June 22, 1977, Pearson filed a notice of appeal from this decree, but the appeal was never perfected.

On June 28, 1977, Barnes filed a petition alleging that Pearson had violated the terms of the decree and asking that Pearson be held in contempt of court and that steps be taken to protect the rights of Barnes. After Pearson filed a motion to require Barnes to make his pleading more definite arid certain as to matters alleged to be in violation of the decree, Barnes filed an amendment to his petition. In that pleading, he alleged that Pearson had failed to divide the assets of the corporation with him, had failed to bring the books and documents belonging to the corporation to him, had failed to pay the judgment for $1,700, was continuing to use the corporate telephone and telephone number and was contacting customers and accounts that were being serviced by Barnes. Pearson answered, denying these allegations.

Thereafter, on August 5, 1977, Barnes filed another petition alleging that Pearson had failed to comply with the decree of June 1, 1977, which ordered Pearson to divide the assets of the corporation with Barnes and that there were items of personal property in Pearson’s custody and possession that should be sold at public auction and the proceeds divided equally between Barnes and Pearson. Then, on December 20, 1977, Barnes filed another petition, alleging that the cancelled checks and bank statement for May, 1977, on an account in the name of “Elmer Pearson Special Account NO. 11-788-57,” which had been furnished pursuant to an order of the chancery court upon appellant’s motion, showed a balance of more than $18,000 when the case was tried in June, and that this balance was greater than the amount represented as the balance by Pearson at the trial in June, 1977.

No testimony except that of Barnes and Pearson at the original trial is included in the transcript. Barnes testified that when he commenced working for the corporation in December, 1974, it was servicing 320 accounts and, in addition, had franchise dealers who used the corporate name, license and insurance, and received 20 percent of the gross income on the accounts serviced by them. He also testified that when he had to quit working, on doctor’s orders, in February, 1976, because of a back problem, the parties agreed that they would divide the profits as of June, 1976, and that the profits thereafter would be put back into the corporation for Pearson to use as he saw fit, but that Barnes was to get the income from one-half of the franchise dealers. According to Barnes, he learned in November, 1976, that Pearson had started operating the business under a new name (Pearson Pest Control), and that Pearson had changed the bank account so it was carried under the title, “Elmer Pearson Special,” without authorization from the board of directors. Barnes said that he could not tell anything about the financial picture of the corporation from the documents furnished by Pearson, and that, since November, 1976, Pearson had chosen the franchise checks he wanted to keep and had sent Barnes the ones that he wanted Barnes to have. Barnes stated that the value of a pest control business is determined by multiplying its annual income by a multiplier ranging from six to ten, depending upon the reputation of the company. He said that the value of this corporation was 130,000. Barnes testified that he never intended to give his half of the corporation to Pearson.

Pearson confirmed the agreement on division of the income from the franchise dealers made when Barnes became incapacitáted. He said that there was no money in the corporation’s bank account and that, when the company’s accountant said that Barnes and Pearson were each entitled to $852, Barnes refused to accept that as his share of the corporation. ' Pearson testified that he had formed a new company named “Pearson Pest Control,” had obtained a new license in October, 1976, and had, since that time, operated his pest control business under this name and license. He said that Barnes had to know that he was going to operate under a new name because he had told Barnes that if he didn’t buy Barnes out, he was going to pull out of the corporation. Pearson recalled, upon cross-examination, that on March 15, 1977, he had testified in a deposition that there had been a balance of $6,124.23 in the Pearson Termite & Pest Control account, which was, at the time of the trial, in the “new” bank account. In his testimony at the trial, Pearson denied that this amount had been in the account at that time.

We have great difficulty in following Pearson’s testimony about this account. He denied having transferred a balance of $6,124.23. The following question was asked and response given on cross-examination:

Q. Well, I asked you on March 15th if there was any money in the account when you pulled out and took all of the accounts with you on October 28th, 1976 and you said, “Yes, there is. It is $6,124.23 is what I got.”
A. We took that off the check book cause I can’t remember.

Pearson then testified that he wrote the last check on the corporate account on January 27, 1977 and that there was $6,-124.43 in that account when he “pulled out of the corporation.” Thereafter, the cross-examination went as follows:

Q. When did you close that account?
A. When I cashed — Just a minute. I cashed it out when I closed this check that you had here. I had to put some money in there even to make enough to do it.
The Court: I don’t understand what you are saying sir?
Mr. Branscum [Appellant’s attorney]: I don’t understand either.
The Court: Did you write a check for $6,124.43?
Mr. Pearson: No.
The Court: What are you saying, Mr. Pearson; you’ve lost me ever since you’ve been up here?
Mr. Pearson: When I pulled — before I pulled out when I went over there and tried to buy him out, I started a new account.
The Court: At that time there was $6,124.43 in the old account?
Mr. Pearson: No, Sir.
The Court: What was there in the corporation account, Mr. Pearson? Gentlemen, I’m serious, I have never seen a situation of trying to look at the financial structure of the corporation. We’ve had the accountant and we don’t have the balance sheet or the profit and loss statement. These are absolutely necessary to make any determination of the structure of the corporation.
Mr. Cambiano [Appellee’s attorney]: The accountant has testified as to the assets of the corporation.
The Court: Without the benefit of the balance sheet or the profit and loss statement.
Mr. Cambiano: But he had the material that these came from.
The Court: I have examined these, Mr. Cambiano. I can’t tell what checks these were written on after he completed his testimony, I could not know. He said it was on Pearson Pest Control. I thought we were dealing with Pearson Pest Control, Inc. I have not seen anything on the corporation. And sometime gentlemen, somebody is going to have to furnish me some information before I can make any kind of determination. I’m not trying to be facetious about this.

Pearson then testified that the accounts were “put together,” without his consulting anyone, that he made an offer which Barnes would not accept, so he “pulled out,” as he told Barnes he would, and took the money and started paying bills. This exchange took place between the chancellor and Pearson:

The Court: You put the income in one account and paid the expenses out of the other?
Mr. Pearson: Well, it was all mine anyway.
The Court: No, it wasn’t sir. I think that is what the problem is.
Mr. Pearson: Okay, it wasn’t mine then.

A hearing on the petitions filed by Barnes following the original decree was held on June 1,1978. The chancellor then ruled that Barnes was not entitled to offer evidence about the financial activities of the business from the time Pearson commenced his Own business until the matter was initially determined on June 1, 1977. The chancellor stated that, on the record before him on that date, he had held that the corporation had, for all practical purposes, been terminated on November 1, 1976.

Barnes then preferred the testimony of Robert Hill, a certified public accountant, who had made an investigation of the accounts of Pearson Termite & Pest Control, Inc., Pearson Pest Control and Elmer Pearson Special Account. He said that on November, 1, 1976, there had been $6,123.93 in the Elmer Pearson Special Account, which had been opened on September 28, 1976 with $6,123.50. He found approximately $100 in the account of Pearson Termite & Pest Control, Inc., on December 1, 1976. He said that on June 1, 1977, there was $18,581.77 on deposit in the Elmer Pearson Special Account, which came from business deposits, and that there had been checks written on that account for $8,100 for capital expenditures and $1,400 for personal expenditures. He found documents previously presented by Pearson’s accountant of little help in arriving at the financial structure of the business. According to Hill, after taking into consideration operating costs, each stockholder would have been entitled to approximately $13,300 on June 1, 1977, based on the figures he had previously stated.

On August 2, 1978, the chancery court entered an order finding that Barnes was not entitled to submit proof about the earnings of Pearson Termite & Pest Control, Inc. since November 1, 1976, and that the court’s order of June 1,1977, dissolving the corporation and dividing its profits as of November 1, 1976, should not be altered. Based upon these findings, the court ordered that appellant’s petition seeking a division of profits from November 1, 1976, to June 1, 1977, be dismissed.

Appellant first contends that the chancellor erred in failing to hold appellee in contempt for failing to comply with the court’s orders. We have considerable difficulty in treating this point. Appellee says that a hearing on the petition to cite him for contempt was held on August 3, 1978, and that the chancery court declined to take action on this petition. There is no abstract of any such hearing or any order touching on this matter. In any event, it was appellant’s responsibility to obtain a ruling on this petition and if there was action adverse to him to bring up the record on the hearing, including the court’s order. Arkansas State Hwy. Com’n. v. Stupenti, 222 Ark. 9, 257 S.W. 2d 37. In the absence of any order of the court, we are really not in a position to pass on the question. Brown v. Patterson Construction Co., 235 Ark. 433, 361 S.W. 2d 14; Burns v. Local Trademarks, Inc., 222 Ark. 855, 263 S.W. 2d 483; North River Ins. Co. of N.Y. v. Thompson, 190 Ark. 843, 81 S.W. 2d 19.

It was the responsibility of appellant to obtain a ruling by the chancery court ©a Sufe petition. North River Ins. Co. of N.Y. v. Thompson, supra; Akins v. Pierce, 263 Ark. 15, 563 S.W.2d 406. If the chancery court refused to act on the petition, appellant could have applied to this court for mandamus to the'trial court to d© so. State v. Nelson, 246 Ark. 210, 438 S.W. 2d 33; McCreary v. Rogers, 35 Ark. 298. See also, Wyatt v. Magee, 3 Ala. 94. The burden also rested upon appellant, on appeal, to demonstrate error on the part of the trial court. Holt v. Holt, 253 Ark. 456, 486 S.W. 2d 688. Refusal of a trial court to punish an alleged contemnor will be reviewed by an appellate court only to determine whether there has been an abuse of discretion. State Grand Lodge of Pennsylvania v. Morrison, 277 Pa. 41, 120 A. 769 (1923); In re Ensslen’s Estate, 163 Pa. Super. 246, 60 A. 2d 429 (1948); Engleman v. Engleman, 145 Colo. 299, 358 P. 2d 864 (1961); Haynes v. Haynes, 168 Kan. 219, 212 P. 2d 312 (1949); In re Sobol, 242 F. 487 (2 Cir., 1917); Yancey v. Mills, 210 Ga. 684, 82 S.E. 2d 505 (1954). On the record before us, we are unable to say that the trial court erred in this respect or abused its discretion on the matter of contempt.

Appellant also argues that the chancellor erred in denying appellant’s request to require an accounting and division of the funds derived from the assets and customers of the corporation for the period from November 1, 1976 to June 1, 1977. He says that the corporation was dissolved by the decree of June 1, 1977, and, therefore, the assets of the corporation on that date should have been divided equally between appellant and appellee as of that date, but that the chancellor orally stated that the division of assets should have been made as of November 1, 1976.

We have some difficulty in dealing with this point. Appellant’s original complaint was filed on December 13, 1976. Trial was had on April 28, 1977. The chancellor stated that he had found, when the decree was entered on June 1, 1977, that Pearson Termite & Pest Control, Inc. had ceased to exist on November 1, 1976, but the decree does not contain a specific recitation of this finding. The decree entered June 1, 1977, provided that the corporate structure should become the property of Barnes, that Pearson should pay Barnes $!,- 700, and that the accounts should be divided equally. As we understand the decree, the accounts that were to be divided were simply those of the customers of the business, which included payments subsequently made by these customers for services already rendered and amounts to be paid for subsequent services. No appeal was taken by appellant from that decree. The time for giving notice of appeal expired July Í, 1977. There was no pleading of any kind filed by appellant within the 30 days allowed for appeal except for the petition that Pearson be held in contempt of court. That petition stated conclusions only and did not specify the respects in which Pearson had violated the decree.

Appellant has not attempted to proceed under Ark. Stat. Ann. § 29-506 et seq. Even if appellant’s pleading be taken as a complaint in compliance with Ark. Stat. Ann. § 29-508, it does not contain allegations which would have justified the setting aside of the decree of June 1, 1977. Appellant actually sought to vary the terms of the original decree upon the basis of false or fraudulent testimony, the truth of which might have been an issue before the court which resulted in the decree. This is not sufficient basis for setting aside the original decree under these statutes. Makin v. Makin, 244 Ark. 310, 424 S.W. 2d 875; Hardin v Hardin, 237 Ark. 237, 372 S.W. 2d 260; Pattillo v. Toler, 210 Ark. 231, 196 S.W. 2d 224; Hendrickson v. Farmers’ Bank & Trust Co., 189 Ark. 423, 73 S.W. 2d 725; Parker v. Sims, 185 Ark. 1111, 51 S.W. 2d 517.

Nothing that could be considered as a bill of review was filed prior to December 20, 1977. The principal basis of that pleading was the contention that there was a balance of $18,-000 in the corporate bank account and that this was an amount much greater than Pearson had said was present in the account when the case was tried on June 1, 1977. Appellant’s petitions, except those relating to the contempt proceedings, are in the nature of a bill of review.

A bill of review is a bill or complaint filed after the lapse of the term seeking to reverse or modify a decree that has been entered. Smith v. Rucker, 95 Ark. 517, 129 S.W. 1079, 30 LRA (n.s.) 1030. A bill of review in an equity court in this state lies only for error apparent on the face of the record or for newly discovered evidence. Cornish v. Keesee, 21 Ark. 528; Smith v. Rucker, supra; Evans v. Parrott, 26 Ark. 600. It does not lie to enlarge or modify a decree rendered by consent. Cornish v. Keesee, supra. False testimony is not a sufficient basis to justify a bill of review. Tri-County Hwy. Improvement Dist. v. Vincennes Bridge Co., 170 Ark. 22, 278 S.W. 627.

As a bill of review, appellant’s petition, having been filed more than 90 days after the original decree was entered, and after the time for appeal had expired, could be considered only for newly discovered evidence. Pyles v. Holland, 187 Ark. 550, 60 S.W. 2d 1029. Such a bill serves the same purpose as a petition for a rehearing in chancery or a motion for new trial at law. Richardson v. Sallee, 207 Ark. 915, 183 S.W. 2d 508. The granting or refusal of such a bill lies within the sound discretion of the chancellor, and is subject to review on appeal only for abuse of discretion. Smith v. Rucker, supra; Richardson v. Sallee, supra. Before a bill for review will lie on the ground of newly discovered evidence, the matter must be such as was not known to the petitioner or could not have been discovered by reasonable diligence, and must be sufficient to change the result of the original trial Smith v. Rucker, supra; Richardson v. Sallee, supra; Dent v. Adkisson, supra; TriCounty Hwy. Improvement Dist. v. Vincennes Bridge Co., supra; Killion v. Killion, 98 Ark. 15, 135 S.W. 452. Before allowing a petition to rehear or a bill of review to be filed, a court ought to be satisfied that the evidence relied on is new and could not, by ordinary diligence, have been discovered prior to the date of the decree complained of. Stone v. Sewer Improvement Dist. No. 1, 107 Ark. 405, 155 S.W. 99.

The chancellor may have sustained appellee’s plea of res judicata. We are not favored with the complete record on which the court’s decree of June 1, 1977 was entered. The terms of the agreement between the parties for dissolution of the corporation and division of its assets are not shown except for the statement in the decree that it embodies the agreement. The only specific statements as to division of assets in the original decree relate to physical assets and customer accounts. In any event, appellant has failed to demonstrate error or abuse of discretion in the chancery court’s holding on his post-decretal petition.

The decree is affirmed.

We agree. Harris, C.J., George Rose Smith and Hickman, JJ.

      Under the present statutes, the bill would be one filed more than 90 days after the decree was rendered. Ark. Stat. Ann. § 22-406.3 (Supp. 1977).


text:
    Arnal Wayne GRIFFIN v. GEORGE’S INC.
    79-195
    587 S.W. 2d 225
    Opinion delivered October 8, 1979
    (Division I)

      Wommack & Hawkins, by: Claude S. Hawkins, Jr., for appellant.

      Crouch, Blair, Cypert & Waters, for appellee.
   John A. Fogleman, Justice.

In this case appellant filed suit against George’s, Inc. and other defendants seeking to recover damages for injuries allegedly suffered by appellant when he became trapped in an unguarded grain auger owned and operated by George’s. Appellant alleged that he was, at the time, an employee of George’s, Inc., and that certain individual defendants, as supervisory employees of George’s, assigned him to work which exposed him to danger of injury by the grain auger, which he alleged was maintained and operated by his employer in such a hazardous and dangerous condition that the defendants recognized the substantial certainty that injury would result to a worker because of that condition. All the defendants filed a demurrer to appellant’s amended complaint which made these allegations. The demurrer was sustained as to George’s, Inc., but was overruled as to the individual defendants. In the order entered on the demurrer, the trial court granted appellant 30 days to plead further against George’s, Inc. The record discloses no further pleading by appellant, except for a notice of appeal. Nor does it disclose any final order dismissing appellant’s complaint. The appeal was taken from the order sustaining the demurrer.

We find ourselves in a position identical to that in Nunez v. O. K. Processors, 238 Ark. 346, 381 S.W. 2d 754, except that, in this case, the notice of appeal did not contain an election by the appellant to stand on his pleadings. As we did in Nunez, we elect to afford the parties an opportunity to supply what is lacking, i.e., a final judgment dismissing the complaint as to George’s, Inc., and a notice of appeal from that judgment. If the parties will, within 15 days, take the necessary action to supplement the record in those respects and file a stipulation that the appeal may be heard upon the briefs already filed, we shall decide the case upon its merits; otherwise, the appeal will be dismissed without prejudice.

We agree. Harris, C.J., George Rose Smith and Hickman, JJ.


author: Darrell Hickman, Justice.

text:
    Maragrette COMPTON, Adm’x. of the Estate of Willie H. GRIFFIN, deceased v. Pearlie Mae WHITE, Guardian, et al
    79-135
    587 S.W. 2d 829
    Opinion delivered October 8, 1979
    (Division I)
    [Rehearing denied November 13, 1979.]

      Coleman, Gantt, Ramsay & Cox, for appellant.

      Bridges, Young, Matthews, Holmes; Drake and Drake and Bynum & Dennis, Ltd., for appellees.

      Jones & Petty, for amicus curiae, J. E. Shannon.
   Darrell Hickman, Justice.

This is an appeal from a Jefferson County Probate decree granting three illegitimate children the right to inherit from their father.

The probate judge ruled that Ark. Stat. Ann. § 61-141(d) was unconstitutional in the light of a United States Supreme Court decision, Trimble v. Gordon, 430 U.S. 762, decided April 26, 1977. The probate judge also held any common law rule unconstitutional that could have prevented illegitimate children from inheriting property the same as could legitimate children. Trimble v. Gordon, supra, was applied retroactively.

While this appeal was pending we decided in two other cases all the issues raised on appeal.

The three appellees, as represented, were found to be the minor illegitimate children of Willie H. Griffin. The probate judge found the children to have been acknowledged by Griffin as his own. Griffin had set up savings accounts for each child, two for $20,000.00, one for $10,000.00. The probate judge’s findings that the children were indeed the seed of Griffin is supported by the great weight of the evidence. It was virtually undisputed.

Wfe came to the same conclusion the probate judge did regarding the constitutionality of Arkansas law and common law that treat illegitimate children unequally.

We decided in Lucas v. Handcock, Adm’x., 266 Ark. 142, 583 S.W. 2d 491 (1979), that Trimble required us to declare Ark. Stat. Ann. § 61-141 unconstitutional, it being indistinguishable from an Illinois law declared unconstitutional in the Trimble case. We also declared any common law unconstitutional that would work to the same end.

Consequently, the probate judge’s judgment in these two regards was the same as ours in Lucas. However, the other issue in the case, the application of the Trimble decision in Arkansas, we decided differently than did the probate judge.

On the same day we delivered the Lucas decision, June 15, 1979, we also handed down a decision in the case of Frakes v. Hunt, 266 Ark. 171, 583 S.W. 2d 497 (1979). We held in Frakes that Trimble would not be applied retroactively in Arkansas, that is, it would only be applied in Arkansas to cases pending at the time Trimble was decided, April 26, 1977.

In Lucas v. Handcock, Adm’x., supra, we found litigation was pending when Trimble was decided; therefore, we concluded an acknowledged illegitimate child could inherit from a father. In Frakes we found litigation was not pending when Trimble was decided and denied relief to an offspring claiming to be an acknowledged illegitimate child.

In Frakes we recited the reasons Trimble should not be applied retroactively. Justice Fogleman, in a dissenting opinion, sharply disagreed with our right to decide whether a United States Supreme Court decision should not be given retroactive effect.

We referred to the decisions of Kentucky and Tennessee and their treatment of the problem. Tennessee concluded its decision regarding illegitimate children would only be applied prospectively — from the date of Tennessee court’s decisions — it was to govern all pending cases. Allen v. Harvey, 568 S.W. 2d 829 (Tenn. 1978). Kentucky decided that Trim-ble would not be applied before April 26, 1977, the date of the Trimble decision; pending cases in which the constitutional issue was raised were excluded. Pendleton v. Pendleton, 560 S.W. 2d 538 (Ky. 1978).

We concluded in Frakes v. Hunt, supra, that Trimble would not be applied retroactively in Arkansas.

Willie Griffin died March 30, 1977, before Trimble was decided April 26, 1977. Pleadings were not filed in this case until after the Trimble decision. Therefore, the case was not pending when Trimble was decided. Consequently, the appellees’ claim cannot prevail. The probate judge’s decision was contrary in this regard and the decree is reversed with directions to dismiss the appellees’ claim.

Reversed and dismissed.

11 We agree. George Rose Smith, Byrd and Purtle,


text:
    Joe Edward PRIDGEON v. STATE of Arkansas
    CR 79-158
    587 S.W. 2d 225
    Opinion delivered October 8, 1979
    (Division I)

      Donald H. Smith of Eilbott, Smith, Eilbott & Humphries, for appellant.

      Steve Clark, Atty. Gen., by: Catherine Anderson, Asst. Atty. Gen., for appellee.
   Darrell Hickman, Justice.

Following a retrial held pursuant to Pridgeon v. State, 262 Ark. 428, 559 S.W. 2d 4 (1977), Joe Edward Pridgeon, the appellant, was convicted under Ark. Stat. Ann. § 82-2617 (Repl. 1976) of possessing heroin with the intent to deliver. Because he had been convicted of the same offense before, the appellant was sentenced under Ark. Stat. Ann. § 82-2624 (Repl. 1976) to 45 years in prison. On appeal, the appellant alleges three errors in the result below. We are not convinced by appellant’s arguments, and, accordingly, affirm his conviction.

Appellant first contends that the trial judge erred in refusing to instruct the jury on the meaning of intent. While it is true that the jury must be told what the elements of the offense charged arq, Johnson v. State, 142 Ark. 573, 219 S.W. 32 (1920), and that the prosecution must prove each element beyond a reasonable doubt, Peals v. State, 266. Ark. 410, 584 S.W. 2d 1 (1979), it does not follow that the judge must give the jury a definition of each element. For example, we have said before that common words with ordinary meanings need not be explained to the jury. Stephens v. State, 164 Ark. 90, 261 S.W. 37 (1924). We agree with those courts which have found intent to be such a word. See People v. Ortega, 181 Colo. 223, 508 P. 2d 784 (1973); State v. Siekermann, 367 S.W. 2d 643 (Mo. 1963); and State v. Audette, 128 Vt. 374, 264 A. 2d 786 (1970). It should be noted that the Arkansas Model Criminal Instructions contain a relevant instruction, AMCI 3307, which does not define intent.

Second, the appellant argues that Ark. Stat. Ann. § 82-2624 (Repl. 1976), which permits the doubling of the normal penalty imposed for a drug violation upon a second conviction, violates his right to equal protection of the laws because it authorizes a more severe punishment than that provided for in our general habitual offender act, Ark. Stat. Ann. §41-1001 (Repl. 1977). We disagree. The equal protection clause forbids only those legislative classifications which represent some form of invidious discrimination. Levy v. Louisiana, 391 U.S. 68 (1967), reh. den. 303 U.S. 898 (1968) and Yarbrough v. Arkansas State Highway Commission, 260 Ark. 161, 539 S.W. 2d 419 (1976). Generally, a classification will not be held to be invidious if some rational basis can be found to support it. Rinaldi v. Yeager, 384 U.S. 305 (1966). The severity of the state’s drug problem is a rational basis for this classification. Only when a classification is based on a suspect category, such as race, or infringes on a fundamental liberty, such as the right to travel, will strict scrutiny, a more demanding standard of review, be applied. See generally Shapiro v. Thompson, 394 U.S. 618 (1968) and Loving v. Virginia, 388 U.S. 1 (1967). We refuse to hold habitual drug possession a suspect category or delivering heroin a fundamental liberty.

Finally, the appellant argues that doubling a sentence for a person convicted twice for a drug-related offense is cruel and unusual punishment. We reject this argument. Punishment, simply because it is severe, is not cruel and unusual. Blake v. State, 244, Ark. 37, 423 S.W. 2d 544 (1968). For example, in Thom v. State, 248 Ark. 180, 450 S.W. 2d 550 (1970) we upheld a sentence of 63 years when it was imposed on a habitual criminal convicted of burglary and grand larceny. We have often said:

Punishment authorized by statute is never held cruel or unusual or disproportionate to the nature of the offense unless it is a barbarous one unknown to the law or so wholly disproportionate to the nature of the offense as to shock the moral sense of the community. Hinton v. State, 260 Ark. 42, 49, 537 S.W. 2d 800, 804 (1976).
For these reasons, the appellant’s conviction is affirmed.
Affirmed.

We agree. Harris, C.J., and George Rose Smith and Fooleman, JJ.