text:
    Alexander v. Alexander.
    5-1261
    302 S. W. 2d 781
    Opinion delivered June 3, 1957.
    [Rehearing denied July 1, 1957]

      House, Holmes, Roddy, Butter S Jewell and Shaw, Jones & Shaw, for appellant.

      Hardin, Barton, Hardin & Garner, for appellee.
   Minor W. Millwee, Associate Justice.

The principal issue in this divorce suit is whether the appellant, Verna Cook Alexander, is entitled to a division of appellee’s property as the injured party under our three-year separation statute (Art. Stats. Sec. 34-1202 (7)) which reads: “Where either husband or wife have lived separate and apart from the other for three (3) consecutive years, without cohabitation, the court shall grant an absolute decree of divorce at the suit of either party, whether such separation was the voluntary act or by the mutual consent of the parties, and the question óf who is the injured party shall be considered only in cases wherein by the pleadings the wife seeks either alimony under Section 34-1211, Arkansas Statutes 1947, or a division of property under Section 34-1214, Arkansas Statutes 1947, as hereby- amended, or both.”

Appellee, A. B. Alexander, was reared in Spartan-burg, S. C., where he was engaged in the insurance and patent medicine businesses for some time. These ventures had proved unsuccessful in 1932 when he came to Hot Springs, Arkansas, where he obtained a divorce from his first wife. Appellant, who is 13 years younger than appellee, was reared in Malvern, Arkansas, where her father, A. B. Cook, was then president and principal stockholder of the Malvern Brick & Tile Company and the A. B. Cook Company, which was engaged in the lumber business. A. B. Cook was killed in an automobile accident in August, 1934, and the parties to this suit were married in October, 1934, and moved to Spartanburg, S. C., where they maintained their principal place of abode until their separation in 1952:

A. B. Cook and the two companies were heavily indebted at the time of his death and his widow used the greater portion of $350,000 in life insurance left by her husband to pay debts of the corporations and to acquire certain shares of the Malvern Brick & Tile Co. owned by others than Mr. Cook at the time of his death. Appellee and two friends of the Cook family assisted the widow in these negotiations. Mr. Cook left his estate to his widow and two daughters in equal shares with the widow designated as trustee for the daughters. They each received substantial income in the form of salaries from the two corporations for several years.

The two corporations had again become in poor financial condition in 1943 when appellee was employed as manager, and he later became president of the companies. He made certain advances to the corporations which prospered under his management with assets increasing from approximately $400,000 in 1943 to about $3,000,000 in 1955. In addition appellee participated individually in the creation of separate building corpó7 rations from which he received considerable income. The manufacturing companies were forced to sell scarce construction materials to the separate corporations at O.P.A. prices but the latter concerns, whose stockholders were ineligible to hold stock in the manufacturing corporations, made much higher profits in their operations. In 1946 appellee negotiated a purchase of the stock of the two corporations owned by Mrs. Cook and appellant’s sister. After taking charge of the corporations appellee spent much of his time in Malvern, Arkansas where the companies still maintained the Cook family residence and at a hotel penthouse in Hot Springs also maintained by the companies. Appellant spent much of her time in Florida looking after a $300,000 demonstration or show house maintained by the companies for advertising purposes. She also spent considerable time in other sections of the country in an effort to restore the health of their only child, a son, who died in November, 1954.

The marital troubles of the parties began in the latter part of 1951 primarily over stock ownership and the controlling interest of the two corporations. It was precipitated by his persistent refusal to give her possession of certain stock certificates belonging to her or to transfer such stock on the company books. It was also about this time that appellee, acting on “gossip”, allegedly became suspicious of appellant’s association with a wealthy Florida widower who was a close personal friend and business associate of both parties. Although appellee stated he wrote a letter of warning to his friend about the matter, their business relations continued as usual and the man remarried shortly after the incident. Appellee also stated, and the appellant as stoutly denied, that she made apologies for the incident.

In October, 1952, tbe parties separated and became involved in a long and bitter suit over their respective interests in the two corporations in which litigation appellee first contended he was sole owner of the corporate stock bnt later reduced his claim to at least 50% ownership. The trial court found that Mrs. Alexander owned 71% and appellee 29% of said stock and we affirmed in Malvern Bride & Tile Company v. Alexander, 224 Ark. 74, 272 S. W. 2d 77, which was handed down October 18, 1954. In the meantime separate divorce suits by appellant in Hot Spring County, Arkansas, and by appellee in South Carolina were dismissed. After the appellant gained control of the corporations from the appellee, he sold his interest, in the Malvern Brick & Tile Company to the corporation for $625,000 receiving about $160,000 in cash and notes of the corporation for the balance payable over a period of several years.

Appellee moved to Ft. Smith, Arkansas shortly before January 16, 1956, when he brought the instant suit for divorce on the ground of three-years separation without cohabitation. In her cross-complaint for divorce appellant admitted the separation for three years which she alleged was occasioned by his cruel treatment, false accusations, habitual drunkenness and general indignities such as to render her condition in life intolerable. She made specific allegations as to his actions in connection with the long legal battle over control of the companies which will be referred to later. She also asked for statutory allowances in his property and alimony.

After another lengthy trial a decree was entered granting appellee a divorce and awarding him two items of jewelry. Appellant was given certain household furnishings in the Spartanburg home and $5,000 for legal and travel expenses but denied alimony or any division of appellee’s property. In a memorandum opinion rendered as a basis for the decree the chancellor found that both parties were somewhat at fault in the separation but that money and the control of the Malvern Brick &' Tile Company were the main source of their trouble. In considering the question of who was the “injured party” under Sec. 34-1202 (7), supra, the court found the equities against the appellant.

Appellant does not question the court’s action in granting the divorce to appellee under the three-year separation statute, but earnestly contends there was error in the refusal to find she was the “injured party” and entitled to a division of his property under the statute. But preliminary to a decision of this issue are the questions whether the court erred in excluding proof of any alleged misconduct on appellee’s part that occurred prior to five years before commencement of the suit and the admission of proof offered by appellant as to incidents that happened after the separation in 1952. We hold the court erred in excluding the former but was correct in admitting the latter testimony.

The chancellor held that evidence of misconduct occurring prior to the five-year period before commencement of the suit was inadmissible under Ark. Stats. Sec. 34-1208 which provides that the plaintiff, to obtain a divorce, must prove that the cause of divorce occurred, or existed, within five years next before the commencement of suit. We think such evidence was. material and admissible to show who was the injured party within the meaning of the three-year separation statute. Appellant was not attempting to establish her cause of action for divorce by such testimony. As appellant suggests, if appellee’s contention is correct a spouse might be absolutely precluded from introducing any evidence to establish who was the injured party in a case where the parties had been separated five years or longer at the time of the filing of a divorce complaint under the three-year statute. This was certainly not the purpose of Sec. 34-1208, and that is the effect of our holding in Grytbak v. Grytbak, 216 Ark. 674, 227 S. W. 2d 633, where we approved the chancellor’s consideration of incidents that transpired more than five years prior to commencement of the suit in determining who was the injuréd party under the three-year separation statute. In this connection however, it should he pointed out that the appellant did not offer to show what the witnesses would testify to if they had been permitted to give such testimony.

We cannot agree that the chancellor was precluded from considering evidence of any .events which transpired subsequent to the separation in determining who' was the injured party or at fault in wrecking the marriage venture. In Larsen v. Larsen, 207 Ark. 543, 181 S. W. 2d 683, the appellant-husband was guilty of adultery committed after the separation and we held that such misconduct should be taken into consideration in determining property and alimony rights under a prior statute practically identical with Sec. 34-1202 (7), saying: “The fact that appellant has been guilty of adultery would not alone be sufficient to preclude his right to divorce under the three-year statute, quoted supra. In the recent case of Young v. Young, 207 Ark. 36, 178 S. W. 2d 994, in construing the effect of this section of the statute, we said: ‘The Legislature has eliminated all consideration of which spouse is the guilty party, except in settling property and alimony rights . . . In other words, recrimination is abolished as a defense under this three-year separation statute.’ So here, the trial court in settling and determining the property rights of the parties and appellee’s alimony rights, must take into account appellant’s adulterous conduct.”

Each party made numerous charges and counter charges against the other relative to alleged misconduct which occurred both before and after the separation in an attempt to prove the “injured party” status. Appellant’s charges that appellee was guilty of improper relations with a dancing teacher- at Hot Springs and another young lady employed in his office were about as weak and as ineffectively proved as his accusations of her misconduct with their Florida friend and a deputy sheriff who appeared as a witness in her behalf. While there was some evidence of excessive drinking on his part, habitual drunkenness was not shown; besides she also took a cocktail when she got ready and the serving of liquor in the home was “routine.” . .

We concur in the trial court’s determination that both parties were at fault and that the principal source of their trouble was money and control of the corporations. But we think a preponderance of the evidence is contrary to the conclusion that the equities are against appellant on the question of who is the injured party within the meaning of the statute. While either might have been hard pressed to establish a ground for divorce other than the three-years separation, we think appellee’s conduct immediately before and following the separation demonstrates he was perhaps more at fault than appellant. His persistent and wrongful refusal to recognize her interests in the companies prior to the separation must be viewed in the light of his subsequent conduct.

It is remembered that appellee was president and in complete control of the Malvern Brick & Tile Company from 1946 and during the pendency of the stock suit. While the suit was pending in chancery court he caused appellant’s ouster as vice-president and secretary of the company, cancelled all her company credit cards, cut off the salary she had drawn for years, which was then her principal means of livelihood, and eliminated her as beneficiary in his life insurance policies. At that time he was contending he owned 50% of the company stock and that appellant owned 50% less one share owned by their son. In the Fall of 1953 he had himself appointed guardian of their son in an ex parte proceeding in South Carolina. In January, 1954, shortly after the chancery decree in the stock suit, he filed an affidavit for “Inquisition of Incompetency” against appellant in the county court of Broward County, Florida, and caused her to be confined in a mental institution for several days pending an examination and observation on said charge. The proceeding Aras ex parte and neither the examining physicians nor the presiding judge saw appellant prior to her confinement. The charge was found to be unwarranted and appellant was promptly adjudged “not incompetent” and discharged on a writ of habeas corpus. We are not impressed by appellee’s assertion that all this was done in order to effect a reconciliation with his wife. It rather serves to demonstrate the validity of her apprehension that he was prompted by other less charitable motives.

In view of this situation the next question is whether the appellant is entitled to one-third of appellee’s personalty absolutely under Ark. Stats., Secs. 34-1202 (7) and 34-1214, supra. The latter statute provides that the wife shall be entitled to such interest in the husband’s property where she is granted a divorce. It is also true that the wife would ordinarily be entitled to such an award under the three-year separation statute where she is found less at fault, or the injured party, in the marital debacle. But there are other factors to be considered here which Avould render it inequitable to aAvard her as much as one-third of his wealth. This three-year separation statute is unusual in several respects as we indicated in Young v. Young, supra, Avhere Ave held recrimination Avas no defense to a divorce action brought under it. In making a property division here we have an unusual situation when we consider the respective incomes and financial condition of the parties. Appellant is about three times as wealthy as the appellee and her income from properties worth approximately $3,000,000 is far in excess of that earned by appellee.

Under all the circumstances, we conclude the decree should be modified so as to allow appellant one-sixth of appellee’s personal property not already disposed of by agreement. We are also of the opinion that the chancellor erred in ordering appellant to return the diamond necklace and pearl lavaliere to appellee. While the evidence is in dispute as to whose money was used to purchase the lavaliere and a portion of the necklace, we think it is clear that both Avere intended as gifts to the appellant. The decree is accordingly reversed and the cause remanded for purposes of modification as indicated. In all other respects the decree is affirmed.


source: Caselaw Access Project

author: George Rose Smith, J.

license: Public Domain

text:
    American Republic Life Insurance Company v. Claybough.
    5-1287
    302 S. W. 2d 545
    Opinion delivered June 3, 1957.

      Talley S Oiuen by Robert L. Rogers, II, for appellant.

      L. A. Hardin, for appellee.
   George Rose Smith, J.

This is an action by the appellee to recover all premiums paid upon a policy of health and accident insurance issued in 1944 by American Republic Insurance Company and later assumed by the appellant. It is the plaintiff ’s theory that the insurer repudiated its contract by ■wrongfully declaring a cancellation in 1955. Mutual Relief Ass’n v. Ray, 173 Ark. 9, 292 S. W. 396. The insurer insists that the policy lapsed for nonpayment of a quarterly premium and that in any event the policyholder recognized the can-collation by accepting a refund of tbe premium that was assertedly tendered after its due date. The circuit court, sitting without a jury, found for the plaintiff and entered judgment for the amount of all premiums paid upon the policy, with interest and an attorney’s fee.

A quarterly premium of nine dollars was due on June 20, 1955. Claybough testified that on July 11 he received from the company a second notice that the premium was due. That afternoon his wife paid the premium in cash at the insurer’s office, receiving a handwritten receipt instead of a printed official receipt. On July 12 the insurance company wrote Claybough this letter:

“Please be advised that the above numbered policy was due June 20, 1955 and lapsed July 5, 1955 for non-payment of premium. Since this is not a form of policy which the Company is reinstating, we regret that you have allowed it to lapse.

“Enclosed please find Company Check in the amount of $9.00 in lieu of cash tendered by you on July 11, 1955. This refund of premium cancels the Temporary Receipt given you on said date. We regret that we are unable to further serve you.”

Claybough cashed the company’s check within a day or two and brought this suit some eleven months later.

The trial court was justified in finding that the policy did not in fact lapse. Although the contract provides that premiums must be paid on their due date, without days of grace, it is shown that the company repeatedly accepted overdue payments, the delays ranging from two to seventeen days. By this conduct the insurer waived its right to insist, without notice, upon a strict compliance with the contract. Universal Life Ins. Co. v. Bryant, 196 Ark. 1143, 121 S. W. 2d 108. At the trial the company introduced testimony tending to prove that it had voluntarily adopted a practice of allowing its policyholders fifteen days of grace in the payment of premiums. Claybough’s rights, however, cannot be said to have been affected by this decision on the part of the insurer, for it is not contended that he was ever informed of it.

Nor can it be said as a matter of law that Clay-bough’s acceptance of the refunded premium prevents him from maintaining this action. It is true that the parties to an insurance contract may, with full knowledge of the facts, enter into a binding agreement for its cancellation. Missouri State Life Ins. Co. v. Hill, 109 Ark. 17, 159 S. W. 31; Illinois Bankers Life Assur. Co. v. Petray, 195 Ark. 144, 110 S. W. 2d 1070. But the agreement to cancel is not binding if the insured’s consent was obtained by fraud or misrepresentation. Glickman v. New York Life Ins. Co., 16 Calif. 2d 626, 107 P. 2d 252; Riddle v. Rankin, 146 Kan. 294, 69 P. 2d 722; Independent Life Ins. Co. v. Evans, 162 Ky. 150, 172 S. W. 105. Here there is substantial evidence to support the trial court’s conclusion that the company’s positive statement that the policy had lapsed on July 5 was a misrepresentation of fact which induced Claybough to accept a return of the premium.

The court erred, however, in allowing the plaintiff an attorney’s fee under the authority of Ark. Stats. 1947, § 66-524. That statute applies by its language to suits by the insurer to cancel or alter the policy, to suits for a declaratory judgment upon the policy, and to suits by the insured for reinstatement. Owing to its penal nature a statute like this one is to be strictly construed. National Fire Ins. Co. v. Knight, 185 Ark. 386, 47 S. W. 2d 576. Since the statute does not in any way refer to suits for the recovery of premiums paid upon a policy wrongfully cancelled, we cannot read that language into the act. The award of an attorney’s fee must therefore be set aside.

With this modification the judgment is affirmed.


author: Paul Ward, Associate Justice.

text:
    Bryan v. Bishop.
    5-1292
    302 S. W. 2d 524
    Opinion delivered June 3, 1957.

      J. B. Milham, for appellant.

      David J. Burleson, for appellee.
   Paul Ward, Associate Justice.

This is a suit brought by the vendor of a parcel of land against the vendee for a breach of the sales contract by the latter, asking for judgment for the balance of the purchase price, and that the land be sold if the judgment is not paid. Prom a decree in favor of the seller, comes this appeal. The principal question relates to the description of the said parcel of land.

On October 13, 1954 Helen M. Bishop (appellee) entered into a written contract to sell Edna W. Bryan (appellant) a parcel of land described as follows:

“A part of the NE % of NE 3/4, 16-20-26, described as follows, to-wit: Commence at the SE corner of said forty; thence North 107 feet for a- place of beginning; thence West 154 feet; thence North 189 feet; thence East to the West line of Spangler tract; thence South to'the point of beginning. . . .”

The total purchase was $4,500, of which $500 was paid as earnest money, $1,250 was to be paid on or before November 1, 1954 “and upon approval of title by buyer”, and the balance at the rate of $50 per month including interest at 6 per cent. The contract further provided: “Upon payment of the $1,250, as aforesaid, seller will have abstract of title brought to date, showing good, merchantable title”; A deed, the contract, and the abstract were to be placed in escrow; It was provided that “When the entire balance is due is paid then the deed, abstract and other papers are to be turned to buyer”; (We consider the word is, above, as surplusage and meaningless) ; Failure of the buyer to meet any installment when due entitled the seller to declare the entire balance due, and to bring suit on 10 days notice, and; The buyer was to pay the taxes and keep the property insured, there being a house on the parcel of land.

Sometime before November 1, 1954 appellant made the $1,250 payment and took possession without making any objection to the title or the description. She made a $50' payment on December 1, 1954, and January 1, 1955, moved out of the property, secured a renter, and collected the rents.

When no further monthly payments were made by appellant the parties, on June 10, 1955, executed an extension agreement whereby appellant was to make certain small payments on furniture and interest, and payment on the principal balance of the purchase price was extended for a period of 6 months.

Although appellant was either occupying the property or was collecting the rents thereon, no further payments were made on the purchase price, and on December 12, 1955 appellee filed suit against appellant asking for judgment of the balance of the purchase price, that said judgment be declared a lien on the land, and if not paid that the property he sold by a special commissioner. Service on appellant was by publication. She did not appear in the trial court but later filed an answer and an appeal to the Supreme Court. In the meantime the trial judge set the decree aside, and this court sanctioned a new trial on the merits in a per curiam order dated May 7, 1956.

In her answer appellant admits the execution of the contract and agrees that she made only the payments heretofore set out, amounting in all to $1,850. In her cross complaint and in her amended cross complaint she makes, in substance, the following allegations: Appellee breached the sales contract on November 1, 1954 and continues said breach to this date; Appellee failed to make the warranty deed and furnish an abstract of title showing a good and merchantable title as provided in the contract; Appellee does not have good title to the property in question, and; The description to appellee’s property is defective. Her prayer was that she be allowed to recover the money she had paid to appellee together with a reasonable attorney fee. In the alternative appellant asked that she be allowed a reasonable time to pay the balance due appellee and that appellee be required to furnish her a good and merchantable title.

After the introduction of testimony by both sides the trial court, on September 24, 1956 found the issues in favor of appellee and rendered judgment against appellant for the balance of the purchase price together with interest, all in the amount of $2,997.32. It is further ordered that said judgment should be a lien on the lands in question which should be sold by a special commissioner if the judgment was not paid within 30 days.

For a reversal appellant relies on three separate grounds, to-wit: 1. Appellee did not furnish an abstract showing good and merchantable title as agreed to in the contract of sale; 2.' The court erred in failing to require appellee to execute and tender a warranty deed conveying the lands in question to appellant, and; 3. The judgment is excessive. We shall discuss the above questions in the order mentioned.

1. We cannot agree with appellant on the first assignment for the reasons hereinafter mentioned. In the first place, we are unable to tell from the testimony at what time appellee delivered the abstract to appellant, if in fact it was ever delivered. We do gather from the record however that the abstract was in the hands of the escrow agent and could have been obtained by appellant by asking for the same. In the second place, we have concluded that appellant has waived many rights that she had under the terms of the written contract. Although the terms of the contract are somewhat vague there is no doubt but that appellant could have had the abstract carefully examined before she made the $1,250 payment which was apparently due on or before November 1, 1956. Instead of doing this however appellant went into possession of the property for a few months and when she moved away she put a renter in charge and collected the rents. During this period of time no complaint seems to have been made by appellant regarding the abstract, the deed, the title or the description of the property. Even after the extension agreement was executed on June 10, 1955 no objections were made by appellant before the first foreclosure suit was filed. In fact the record does not disclose any demand by appellant upon appellee for the deed or the abstract, or any objection to the title or the description prior to April 11, 1956 when appellant’s first, answer and cross complaint were filed. Appellant cannot now complain about appellee’s failure to present her with the abstract and deed. A similar question was presented in the case of Sturgis v. Meadors, 223 Ark. 359, 266 S. W. 2d 81, where the court said: “Appellant looked over the land and therefore knew what she was buying. Appellant stopped payment on the check before appellees had time to perfect their title and thereby rendered further efforts useless on appellees ’ part. ’ ’ Here appellant had stopped making payments and had entered into possession of the property.

Iii addition to the above appellant earnestly insists that the description contained in the contract is indefinite and that appellee has not shown that she is able to convey the land to her by a definite description. Most of the testimony and most of appellant’s arguments revolve around this point. As above stated appellant has already waived her right to insist on the correction of mere irregularities in the description that can be cured. If appellant had any such objections and had made the same known to appellee, appellee would have been entitled to a reasonable time in which to make the corrections. The sentence following the above quote from the Sturgis case, reads: “Appellees were entitled to a reasonable time to perfect their title.”

Appellant has not, in our opinion, shown that the description in question is so defective that it cannot be cured or made definite. It is true that the description standing alone is somewhat indefinite. For instance the north line runs “East to the West line of Spangler tract, . . .” and there is nothing in the description to show where the Spangler tract is located. There are other portions of the testimony however which, to our mind, make the location of the property certain and definite.

From appellant’s pleadings we gather that she is disturbed because the description in the contract does not read the same as the description in the deed by which the land was conveyed to appellee. This discrepancy however is explained in this way. Appellee received title to a parcel of land in the shape of a parallelogram. The north and south sides of which were 154 feet in length and east and west sides were. 326 feet. However in selling to appellant, appellee left out a strip of land 47 feet in width squarely off the south side of the above described parcel. There is nothing to indicate that appellant expected to get the latter strip of land and it is in no way involved in this suit. The description was clarified by the testimony of the County Surveyor who testified with reference to a survey which lie made' on June 9, 1956 and by a plat which was attached to the record. The substance of his testimony was that the parcel of land in question is definitely described by beginning at the southeast corner of the northeast quarter of Section 16, Township 20 North, Range 26 West and run north 107 feet to the point of beginning, thence west 154 feet, thence north 189 feet, thence east 154 feet, thence south 189 feet to the place of beginning. He stated that he measured the south line and found it to be 154 feet and that the north line had to be the same length because the east and west lines were parallel. This constitutes a definite description of the land.

It would unduly extend this opinion and would serve no useful purpose to set forth the testimony id detail, much of which is more confusing than enlightening relative to the description of the parcel of land in question. The burden was on appellant to prove the title was not merchantable. See Ray v. Robben, 225 Ark. 824, 285 S. W. 2d 907. The chancellor found the issues in favor of appellee and we cannot say that such finding is against the weight of the testimony. He was able to see the witnesses and understand their references to the exhibits. In some instances here it is impossible for us to understand the testimony of the witness. For example when one witness was asked with reference to a certain point in connection with the description of the land, his reply was: A. “ This point right here. (Witness indicates on map which reporter could not see.) ” On another occasion w¿ find this testimony: Q. “Do you know how much is that street out there, under that escrow agreement?” A. “This portion right here. (Witness indicates on map.)”

2. What we have already said makes it unnecessary to discuss the second ground relied on by appellant. Her own course of action previously set forth made it unnecessary for appellee to tender the deed.

3. We have carefully reviewed the record and do not find that the amount of the judgment is excessive. There is no merit in appellant’s contention that she should have been given credit for $219.38 for lumber which she had purchased and had used in the repair of a building situated on the land in question. Under the contract she had no right to repair the building and it was at her own risk that she attempted to do so. It is appellant’s contention that she should not be charged with interest after December 12, 1955 because'appellee had not furnished a deed and title as contracted for. It is obvious from what we have already said that this contention is untenable.

Affirmed,


author: Sam Robinson, Associate Justice.

text:
    Jones v. Dixon.
    5-1297
    302 S. W. 2d 529
    Opinion delivered June 3, 1957.

      Q. Byrum Hurst and C. A. Stanfield, for appellant.

      Lindell Hile and Alfred Featherston, for appellee.
   Sam Robinson, Associate Justice.

This suit was filed in the county court to contest an election on the question of building a county hospital under authority of Amendment No. 17 to the Constitution, as amended by Amendment, No. 25. The principal issue is whether the county court has exclusive original jurisdiction to hear the election contest.

The election was held on December 22, 1956, and on the 26th day of December the county court entered an order declaring that a majority of the electors had voted for construction of the hospital. On January 10, less than twenty days later, this action was filed. The complaint alleges that the election was invalid, and assigns various reasons therefor. The contestees, appellees here, on the 26th day of January, 1957, filed a demurrer to the complaint. On February 2, the court sustained the demurrer on the ground that the county court did not have jurisdiction to try the election contest. Contestants, appellants here, appealed to the circuit court; on February 9, that court sustained a demurrer on the ground that the appeal Avas not taken within thirty days of the entering of the order by the county court finding the result of the election.

Amendment No. 17 to the Constitution, as amended by Amendment No. 25, authorizes the holding of county elections to determine whether a county hospital shall be constructed and authorizes the levy of a tax to defray the cost and expenses thereof. Section 4 of Amendment No. 17 provides: “It is hereby made the duty of the usual Election Officers to prepare the ballots and to hold such election in manner and form as is noAV or hereafter may be provided by law, and to certify the returns thereof to the County Court. If a majority voting in such election shall vote for such improvement, then the County Court shall make and enter of record an order showing the total vote for and the total vote against such.” . . . Amendment No. 17 was adopted at the General Election in 1928. Act No. 294 of the General Assembly for the year 1929 Avas adopted as an enabling act for Amendment No. 17. The last sentence in Section 4 of Act 294 provides: “Any elector and any property owner of the county may appeal from the finding of the County Court as to the result of the election within thirty (30) days thereafter; and if no appeal is taken within that time, such finding shall be conclusive.” Ark. Stats. § 13-1216.

Amendment No. 25 was adopted at the General Election in 1938. It provides that it shall be self-executing, and amends Amendment No. 17 by authorizing an election on the question of the construction of a county hospital, as well as a court house and county jail as authorized by Amendment No. 17. In Hughes v. Jackson, County Judge, 213 Ark. 243, 210 S. W. 2d 312, this court said: “Act 294 of 1929 facilitates the purposes intended to be served by Amendments 17 and 25. Although this statute ivas enacted before Amendment 17 was amended, our decisions are to the effect that when substance of Amendment 25 was brought into Amendment 17, the latter (prospectively) would be treated as having been enlarged, hence Act 294 is germane where its terms do not conflict with the basic law.”

It is the contention of the contestees, appellees here, that Act 294, limiting the time of appeal from the order of the county court finding the result of the election, is controlling; and, since the contestants did not appeal from such finding within the thirty day period, they have lost their right to contest the election; and this was the holding of the circuit court.

The finding of the county court as to the number that voted for the submitted proposal and the number that voted against it is one thing, and an election contest is something entirely different. An analogous situation was presented in Parsons et al v. Mason, 223 Ark. 281, 265 S. W. 2d 526. Act No. 403 of 1951 deals Avith school elections. Section 1 of the Act provides: “. . . Within ten days after the election the county court shall canvass the returns and declare the result of the election by an order entered of record. This order shall be final unless an appeal is taken from it to the circuit court within fifteen days after it has been entered.” In the Parsons case, we said: “That court (county court) merely canvasses the returns and declares the result, its order constituting a permanent record of the outcome of the election. An appeal from that order would- merely test the correctness of the court’s tabulation of the returns. An election contest, on the other hand, involves the matter of going behind the returns and inquiring into the qualifications of the electors and other matters affecting the validity of the ballots.” See also Jones v. Lawless, 226 Ark. 110, 288 S. W. 2d 324.

The Constitution requires the county court to make a finding as to the number of votes cast for and against the proposal submitted to the electors, and according to Act 294 of 1929 (Ark. Stats. § 13-1216), any one dissatisfied with the tabulation as announced by the court must appeal within thirty days. But such finding by the court does not amount to a judgment rendered in an election contest. Patterson v. Adcock, 157 Ark. 186, 248 S. W. 904, also supports the view that an entry of the result of the election is not an election contest.

We come now to the proposition of which court has jurisdiction in an action to contest an election held on the question of constructing a county hospital. Article 19, Section 24, of the Constitution provides: “The General Assembly shall provide by law the mode of contesting elections in cases not specifically provided for in this Constitution.” Pursuant to this provision of the Constitution the General Assembly adopted Ark. Stats. § 3-1205, which places in the county court jurisdiction for the contesting of elections for county officers except that of county judge. In Glidewell v. Martin, 51 Ark. 559, 11 S. W. 882, it is said: “It is patent that the legislature was expected to confer this jurisdiction upon some board, council or tribunal which might be inferior to the circuit court.”

Article 7, Section 11, of the Constitution gives the circuit court jurisdiction in all cases where exclusive original jurisdiction is not placed in some other court by the Constitution. But Article 7, Section 28, gives to another court — the county court — exclusive original jurisdiction in all matters of internal improvement and local concerns; it provides: “County courts shall have exclusive original jurisdiction in all matters relating to . . . the internal improvement and local concerns of the respective counties.” Is an election on the question of building a county hospital an internal improvement or a local concern of the county? If so, then according to the Constitution, the county court has exclusive original jurisdiction in the ease at bar.

Some of our cases, which may appear to hold that the circuit court has jurisdiction in cases of this kind, are easily distinguished from the case at bar. For instance, Wheat v. Smith, 50 Ark. 266, 7 S. W. 161, and State ex rel Attorney General v. Sams, 81 Ark. 39, 98 S. W. 955, hold that the circuit court has jurisdiction, but, upon examination, it will be seen that the issue in those cases was whether there had been an usurpation of office. They were not cases concerning internal improvements or local concerns of the countjq but were prosecuted under authority of the Civil Code, Section 525, Ark. Stats. § 34-2203. The cases of Payne v. Rittman, 66 Ark. 201, 49 S. W. 814, Whittaker v. Watson, 68 Ark. 555, 60 S. W. 652, and Purdy v. Glover, 199 Ark. 63, 132 S. W. 2d 821, were contests of elections for municipal offices; Article 7, Section 28, of the Constitution does not apply to municipalities.

It was held, however, in Patterson v. Adcock, 157 Ark. 186, 248 S. W. 904, and Alexander v. Stuckey, 159 Ark. 692, 253 S. W. 9, that the circuit court has original jurisdiction in contests over county stock laws, but neither of these cases mentions Article 7, Section 28, of the Constitution giving the county court exclusive original jurisdiction in matters of internal improvement and local concerns. In the Patterson case, Payne v. Rittman and Whittaker v. Watson were cited, but, as above mentioned, both of those cases involve contests of an election for a municipal office. Sumpter v. Duffie, 80 Ark. 369, 97 S. W. 435, is cited also, but that case involved a contest of an election for county judge. It is pointed out in the Sumpter ease that Article 19, Section 24, of the Constitution provides that the General Assembly shall provide by law the mode of contesting an election and that the statutes give to the circuit court jurisdiction in a contest of a county judge election. Citing Act 34 of the Acts of the General Assembly of 1875 (Ark. Stats. § 3-1201). But the legislature has not given the circuit court jurisdiction of the contest of an election such as the one involved in the case at bar. Act 34 of 1875 also gives the county court jurisdiction of election contests for county offices other than the office of county judge. Evidently it was considered that it would be less complicated, to give circuit court jurisdiction in the contest of election for the office of county judge than it would be to substitute another county judge to try the case. And, in Alexander v. Stuckey, supra, it was held that the circuit court has jurisdiction in stock law elections, and that the suit must be filed within six months. On the jurisdiction question, no authority is cited except the Patterson case.

But, in Russell et al v. Jacoway, Judge, 33 Ark. 191, and in Willeford et al v. State, ex. rel., 43 Ark. 62, it was held that the county court has exclusive original jurisdiction in the contest of an election to remove the county seat. Likewise, the county court has exclusive original jurisdiction in the contest of elections on the liquor question. Freeman v. Lazarus, 61 Ark. 247, 32 S. W. 680; Yarbrough v. Beardon, 206 Ark. 553, 177 S. W. 2d 38. And the county court also has exclusive original jurisdiction in the contest of an election for road overseer, Condren v. Gibbs, 94 Ark. 478, 127 S. W. 731; and for the office of school director, Ferguson v. Wolchansky, 133 Ark. 516, 202 S. W. 826. Certainly, an election on the question of whether a county hospital should be constructed and the levying of a tax against the property in the county to defray the expenses of such construction, is a matter of local concern just as much as it is possible for anything to be, and exclusive original jurisdiction to try an election contest in connection with such question is, therefore, in the county court.

The only remaining question is whether the suit was filed in time. The election was held on December 22nd; the county court entered an order showing the result of the election on December 26th; this suit contesting the election was filed on January 10th, less than twenty days thereafter. Buffington v. Carson, 219 Ark. 804, 244 S. W. 2d 954, was a contest of an election pertaining to the county road tax (the jurisdictional question was not raised). It was pointed out that we have two statutes fixing the time for bringing an election contest: Ark. Stats., § 3-1202, fixing a limitation of one (1) year for election of Supreme Court Judges and six (6) months for other offices; and § 3-1203 fixes a period of twenty (20) days to contest an election of any person to any county, city or township office. It was held that the twenty day limitation applied; that a county road tax is more like an election for a county officer than one for a state officer. Likewise, in the case at bar, we think the twenty day statute is more applicable to an election on the question of construction of a county hospital. Here, .the complaint was filed within the twenty day period, and since it was filed in apt time in a court of competent jurisdiction, the county court erred in sustaining the demurrer; and on appeal to the circuit court, the cause should have been remanded to the county court for a trial on the merits.

Reversed, with directions to remand to the county court.

Harris, C. J., and Holt & Mill wee, JJ., dissent.


author: Carleton Harris, Chief Justice.

text:
    Davis v. Davis.
    5-1232
    302 S. W. 2d 769
    Opinion delivered June 10, 1957.

      Surrey E. Gilliam and Melvin E. Mayfield, for appellant.

      James M. Rowan, Jr. and Brown <& Compton, for appellee.
   Carleton Harris, Chief Justice.

Mrs. Mable Flaherty, age 59, a resident of Camden, suffered a stroke on October 7, 1948. Prior to such time, she had worked as a secretary at the South Arkansas Grocery, but never returned to work after suffering the stroke. On Juty 11, 1953, Mrs. Flaherty suffered a second stroke, and remained a total invalid thereafter. Richard H. Davis, a brother, was duly appointed guardian on October 16, 1953. On December 7, 1953, subsequent to petition of the guardian, the court found that Arlene K. Davis, appellant herein, and former wife of Richard H. Davis, had in her possession certain postal savings certificates, series “E” U. S. Savings Bonds, and a pass book for a joint account of Mrs. Flaherty and Mrs. Davis in the Citizens National Bank of Camden, all of which belonged to Mrs. Flaherty, and ordered appellant to deliver same to the guardian. The court further found that Arlene K. Davis, in her response to the guardian’s petition, alleged the existence of a trust relationship between Mable Flaherty and the respondent, (appellant) and had moved the court to transfer the cause to Chancery for the purpose of determining that issue. In compliance therewith, the .court did make such transfer. The guardian, (appellee herein) filed a reply in Chancery Court on April 20, 1955, alleging that appellant was still holding funds and properties belonging to the incompetent, and that appellant should be required to render an accounting, and further required to make restitution of any funds or property which she had received from Mrs. Flaherty, and which had been applied to appellant’s use or gain. Following the filing of various motions, the court proceeded to hear the cause on March 23,1956, and entered its decree on May 31,1956, in which the following findings were made:

1. That plaintiff’s ward, Mable Flaherty, suffered a cerebral hemorrhage on or about October 7, 1948, and as a result thereof was rendered incompetent, and from such date was not legally competent to transfer or dispose of her property.

2. That during the month of February, 1952, Mrs. Flaherty had certain U. S. government bonds re-issued to add the name of the defendant, Arlene Davis, as co-owner. That on October 27, 1953, the defendant, Mrs. Davis, cashed these bonds and received therefor the sum of $12,200.75, and that said defendant converted said sum to her own use and benefit.

3. That on January 28, 1952, the said Mable Flaherty directed the Merchant & Planters Bank to add the name of Arlene Davis as co-owner of the savings account of Mrs. Flaherty in that bank. That between July 27, 1953, and December 7,1953, the defendant withdrew from said bank account the sum of $1,236.50 and used the same for defendant’s own benefit.

4. That sometime after October 7, 1948, the defendant, Arlene Davis, came into possession of a valuable diamond ring owned by Mrs. Flaherty and that the defendant now has said ring in her possession.

5. The court further finds that none of the said transactions constituted a valid legal gift.

In accordance therewith, the court rendered judgment for appellee against appellant in the total'sum of $13,437.25 together with interest at 6% per annum from such date until paid, and directed appellant to return the diamond ring to appellee. From such judgment comes this appeal.

Appellant first contends that the court was without authority to transfer the cause from Probate Court to Chancery Court, and erred in ordering such transfer; that all subsequent pleadings filed were of no effect whatsoever because the transfer was without any force or validity. The matter of transferring causes from Probate to Chancery Court was passed upon by this Court on November 26, 1956, in the case of Merrell, et al., v. Smith, Special Administrator, et al., 226 Ark. 1016, 295 S. W. 2d 624. There the Court approved such a transfer with the following language:

“ * * * While it properly admitted the will to Probate, the Probate Court lacked the jurisdiction to decide the issue of specific performance of the alleged oral contract. The case must be, and is remanded with directions that it be transferred to equity for further proceedings.”

Appellant argues that the mental incapacity of Mrs. Flaherty to make a gift is not shown by a preponderance of the evidence. This, of course, is the main issue in the litigation. No point would be served in reviewing all of the evidence. Some eleven witnesses, mostly neighbors, testified to the effect that Mrs. Flaherty did not act in her normal manner after suffering the first stroke in October, 1948. Most of the witnesses testified to a “silly giggle” that she developed after the stroke, occurring most of the time when nothing humorous had been said. Various witnesses testified that she had been a quiet, conservative type of person prior to the stroke, and that a marked difference was observed thereafter. It was testified that she would go to the back lot and transfer different trees and pine bushes, then go over to the next lot and bring back two or three brick in her hand; perhaps next day she would move the plants to another location and move the brick. She would sit on the wet and cold ground, and would go barefooted. In conversations, she would not stay on one subject, would talk at random, and her answers to questions would not be responsive. She was careless about her personal appearance, whereas prior to the stroke she had been careful about her grooming and was attractive and neat. She wanted to give things away, and endeavored on one occasion to give an expensive Kodak to a neighbor who refused to accept it. Another neighbor, Mr. W. G. Hatch, testified that she would come over to his yard, steal his flowers, and take them over and put them in her yard; then she would weed her flowers and bring the weeds over into his yard. Mr. Hatch, whose home was only 8 or 10 feet from Mrs. Flaherty’s bedroom, further testified that she frequently had crying spells, and would awaken him at night crying; that she would find a sunny spot in the yard and lie down “like a dog,” — and all of these actions had only occurred since the stroke. Her mother testified that Mrs. Flaherty had an ‘ ‘ awful appetite ’ ’ and would become angry when she felt she had not had enough to eat, would throw dishes around, and when her mother left the house, would go out and pull up the flowers in the yard. This was entirely contrary to her actions prior to the stroke.

On the other hand, a Camden banker and a Camden attorney, who witnessed the execution of a will by Mrs. Flaherty on March 19, 1951, testified that at that time she appeared competent. The attorney, who prepared the will, testified that she seemed to have a clear understanding of the property she owned, and what she wanted to do with it. However, he stated that he had never seen Mrs. Flaherty except on two occasions, including this particular instance. Dr. Perry Dalton of Camden testi fied that from his observations of Mrs. Flaherty between 1948 and the time of the second stroke, nothing was noted in her mental behavior that would have necessitated a guardian; however, he stated he did not know her before the stroke, and assuming that she was the type of person described in. the hypothetical question, would say that there was more change in her reactions than he had observed and possibly more brain damage than, he had observed. Dr. John P. McAlister, who treated Mrs. Flaherty for diabetes for approximately two weeks in July of 1952, and also saw her on September 29, 1952, testified that, in his opinion, she was generally competent. He stated that she was aware of her surroundings and knew time, place, and person. He had not known Mrs. Flaherty before being called to attend her. Dr. McAlister stated that he did not believe she had the same mental aptness with regard to making decisions that she would have had, except for the stroke. He testified that he did not think she could make out the grocery list for the day, and doubted if she could think what had to be done in the house the next day, or could plan too much in the future, but at a given instant, she.was competent. He stated that she was going through periods of melancholy. In his words, “In fact, I believe that most of the time she was very unhappy, but I will not put the stigma of insanity upon this woman.” He further testified that he did not know, from his observation, as to whether she had sufficient mental competence to understand what property she owned. Joe Coan, cashier at the Merchant and Planters. Bank, testified that, at the time of the re-issuance of the bonds to include the name of appellant as co-owner, he had no doubts concerning Mrs. Flaherty’s competence or ability to understand what she was-doing.' He'stated that he asked her that question, and she “flared up” at being asked, and said, “Yes, it is certainly my intentions, and I know exactly what I want doné. ” ■

Appellant testified that Mrs. Flaherty and the members of her family did not getalón*g well, that she (appellant) visited Mrs. Flaherty three times a day while she was in the hospital in 1953; that she had frequently given Mrs. Flaherty shots for her diabetes; that she often, after the stroke, would go by and carry Mrs. Flaherty riding in her car; that Mrs. Flaherty and her daughter: frequently had words, and that the .two would throw things at each other and would slap each other that Mrs. Flaherty ’s son, when young, lived with appellant and appellee (during their married life) for about three years. The evident point for this testimony was to show a reason for Mrs. Flaherty’s alleged gift to appellant. In her words, “ * ‘ * * So she told me one day she wanted to give me the bonds, is what she wanted to do, and T said, £ Oh, law, Mable, I don’t know anything about something like that, I don’t know anything about it at all, ’ and she said, ‘ Well, how can you do it?’ and I said, ‘Well, the only thing I know to do is just go see á lawyer, the only thing I know to do.’ * * * Q. Did you ever at any time render any service to Mable Flaherty-with the expectation of being rewarded for it or paid for it? A. Not one bit. Q.-In reference to the particular bonds that are in controversy in this action, the bonds in which the original issue was cashed out in February of 1952 at Merchants and Planters Bank, at the time, you testified about when Mable Flaherty gave the bonds to you, would you. state to thé court every expression that she said at the time she gave you those bonds? A. These bonds, were in my box and.after she had made, well, she had made the will before that, and she told me at this time, said ‘Arlene, I want to give you these bonds.’ And I said,' ‘Well, O. K.’ So we went up there and she got them. I got the envelope out of the lock box, and she took the bonds out of there, and she signed them and she gave them to me. She said, ‘Now I want you to have them and you can do whatever you want to with them.’ She says, ‘Now I want to give them to you. You can do whatever you want to with them.’ So that’s what she did.” With reference to the ring:

“Q. Did you ever have any discussions with Mable Flaherty, other than the ones you have mentioned here about the bonds, pertaining to any other properties that Mable Flaherty owned or had possession off

A. Well, yes, she, back in I guess ’49 or ’50 she gave me her ring, and she gave it to me one day, and she said, ‘I want you to have it; I won’t wear it any more; but now you know the mounting is worn and you can’t wear it until it is fixed.’ But she said, ‘You can have it fixed and wear it.’ And of course I didn’t get it fixed right then, I just kept it and finally one day she said, ‘Why don’t you go ahead and get the ring fixed and go ahead and wear itf ’ And so I had it remounted, and then I have been wearing it ever since. And she told me she wanted me to have it, to keep it just as long as I lived. ’ ’

Appellant does not contend that any part of the monies in the bank were given to her, but states that such sums expended were used entirely for the benefit of Mrs. Flaherty. However, no statements or bills which she had paid on behalf of the latter were placed in evidence.

After a careful study of the testimony in this cause, we are unable to say that the Chancellor’s findings are against the preponderance of the evidence. It is noteworthy that appellee’s witnesses were, on the whole, much better acquainted with Mrs. Flaherty than the witnesses on behalf of appellant; likewise, they had better opportunity to observe her actions, and according to the evidence, did, much more often, see and talk with her. It must also be remembered that neither of the physicians knew Mrs. Flaherty before being called in attendance.

To summarize, the question as to whether Mrs. Flaherty was competent or incompetent from the period after October 7, 1948, resolves itself into purely a question as to what evidence made the most profound impression on the court. The Chancellor heard the case, had the opportunity to observe the demeanor of the witnesses, apparently gave close study to the testimony, and the contentions of each litigant. The rule, so many times reiterated, is to the effect that while this Court tries Chancery cases de novo, still it will not reverse a Chancellor’s decree unless his findings are against the weight of the evidence. Lupton v. Lupton, 210 Ark. 140, 194 S. W. 2d 686 (1946). We are unable to make such a finding in this cause.

This determination makes unnecessary any discussion of the court’s finding that none of the transactions constituted a valid legal gift.* 12**

The judgment of the chancery court is affirmed in its entirety.

       Mrs. Flaherty died subsequent to the trial of.'this cause, and her estate is being administered by the guardian under the provisions of Section 231 of Act 140 of 1949.

       The will left $10 to Mrs. Flaherty’s daughter, $10 to her son, and the rest of her estate to appellant.

       The following hypothetical question was propounded: “Q. Doctor, based upon your experience in the medical profession, if a woman who has been described by her neighbors, friends, and family as a quiet, reserved, intelligent person, who sought to improve her mind, who had worked continuously in secretarial capacity for a number of years, had been frugal in saving her money, had done nothing so far as her family and friends could observe that would be classed as abnormal or out of the way in any way; in other words, a person who is described as above average intelligence; if that person suffered a cerebral hemorrhage causing brain damage, temporary or permanent-, or with or without healing, but anyway there was a cerebral hemorrhage, after that time, according to her- family, neighbors, and friends, she was different in almost every respect, that she was subject t.o violent emotions, which she had never been subject to before,' she had a hysterical giggle which occurred on many occasions when something was not funny, when she would go out in the yard and lie down in the sun like a dog, when she was unable to carry on any ordinary conversation that she had been able to carry on prior to that stroke, and taking all of those things into consideration,.- Doctor, would, you say that such a person ’would be competent to handle her business affairs?” ...

         These alleged difficulties between mother and daughter occurred before the stroke.

       This finding was based upon the fact that since Mrs. Flaherty remained a co-owner of the bonds, and upon gaining possession, could have cashed them at any time herself, no absolute gift was made.


text:
    Robertson v. Griffin.
    5-1270
    302 S. W. 2d 773
    Opinion delivered June 10, 1957.

      T. O. Abbott, for appellant.

      Mahony & Yocum, S. E. Gilliam, A. D. Pope, and Melvin E. Mayfield, for appellee.
   Carleton Harris, Chief Justice.

G. L. Robertson, now deceased, was,, on May .29,' 1920, the'owner in fee' simple of certain, lands situated in Union County.'On, said' date, Robertson, .and his wife, Nanna Robertson, appellant., herein, executed to J. D. Trimble, trustee, two deeds' of trust, covering said lands, to secure an indebtedness of $3,450 plus interest. On April 20,1922, Robertson and his said wife, executed and delivered to J. O. 'Kiilard, a mineral deed conveying to the grantee an undivided one-half interest in the mineral rights to a portion of said lands; likewise, on May 11,1922, Robertson and wife executed to John A. Cobb an undivided one-half interest in the mineral' rights of other portions’; .likewise, on June 14, 1922, Robertson and wife executed a similar deed to A. G. Griffin. At all times heretofore mentioned, Nanna Robertson had only an inchoate dower interest in said lands,'though' she joined as a granting party in the granting clause and as a warranting party in the clause warranting the title. Subsequent thereto, G. L. Robertson died, and Nanna Robertson was appointed executrix of the estate. Suit was instituted by the mortgagee and trustee to foreclose the mortgages heretofore mentioned, and same were foreclosed under decree dated January 10, 1925. None of the claimants under the mineral deeds were made parties to the foreclosure- suit or were served with summons, and none intervened in said suit. On February 24, 1925, the Commissioner in Chancery sold the, lands, at public sale to H. V. Betts, trustee. Betts conveyed- the lands to George M. LeCroy, on May T5, 1925, and on the same date, LeCroy and wife conveyed an undivided one-third interest in the lands to Mattie Robertson, a child of the deceased G. L. Robertson and Nanna Robertson; and conveyed to appellant an undivided two-thirds interest in said lands. Mattie Robertson later conveyed her one-third interest to one Decimus Cates. Appellant and others instituted suit in the Chancery Court against appellees, setting up that the various mineral owners had not redeemed from the foreclosure sale, that such right of redemption was then barred, and asking that title to the mineral rights in the above lands be quieted and confirmed as against appellees. The Chancellor held that the after-acquired title of Nanna Robertson inured to the benefit of Cobb, Kinard and Griffin, and those holding title under and through them, and entered a decree confirming title to the mineral interests involved, in appellees. From such holding comes this appeal.

For reversal, appellant urges that the court erred in failing to consider the complaint amended to conform to the proof made in the case, under which proof she contends the Court should have reformed the three mineral deeds executed by Robertson and appellant, to show the true intention of the parties (claiming that it was only the intent of appellant to release and relinquish to said grantees the only interest she then owned, her inchoate dower interest). Appellant further contends that the trial court erred in holding that the law of after-acquired title applies to her since she only owned a dower interest at the time of the execution of the conveyance.

Section 50-404, Ark. Stats. (1947) Anno., provides as follows:

“If any person shall convey any real estate by deed purporting to convey the same in fee simple absolute, or any less estate, and shall not at the time of such conveyance have the legal, estate in such lands, but shall afterwards acquire the same, the legal or equitable estate afterwards acquired, shall immediately pass to the grantee, and such conveyance shall be as valid as if such legal or equitable estate had been in the grantor at the time of the conveyance.”

This statute has been upheld in numerous cases by this Court. Sheppard v. Zeppa, Trustee, 199 Ark. 1, 133 S. W. 2d 860. Hayes v. Coats, 218 Ark. 678, 238 S. W. 2d 935. It is therefore clear that appellant cannot prevail unless the deeds are reformed so as to eliminate her as a grantor. Appellant testified that at the time of executing the mineral deeds, she claimed no interest in the property and signed the deeds purely because her husband asked her to. There is no evidence that fraud was practiced upon appellant, nor evidence of any questionable conduct on the part of either appellant’s husband or the grantees. When asked as to whether or not she remembered signing the deeds, appellant testified:

“A. I certainly do, but at the time I figured he would make me a living and I did not even question him.

Q. You just signed because he asked you to?

A. That’s right.”

Certainly this is not evidence of a mutual mistake; and this Court has held that to reform a written instrument upon the grounds of mistake, it must be shown that the mistake was mutual. Kromray v. Stobaugh, 212 Ark. 377, 206 S. W. 2d 171. Accordingly, no grounds for reforming the deeds have been established. It might also be stated that while this complaint was filed in 1941, and the decree entered in 1956, no pleading was ever filed in the trial court asking for reformation of the deeds, and this relief is sought for the first time here on appeal.

Finding no error, the cause is affirmed.

       LeCroy represented appellant in the foreclosure action.

       Cates was a party plaintiff in this cause, and the.court upheld his one-third'interest in said lands, cancelling said mineral deeds insofar, as they affected his interest. No appeal has been taken therefrom. •

       Appellees had acquired their mineral rights either by direct or mesne conveyance from the grantees of Robertson and appellant.

       Referring to her husband.


author: J. Seaborn Holt, Associate Justice.

text:
    Cummings v. Lord’s Art Galleries.
    5-1296
    302 S. W. 2d 792
    Opinion delivered June 10, 1957.
    [Rehearing denied July 1, 1957]

      B. W. Thomas and Richard W. Hobbs, for appellant.

      R. Julian Glover and D. D. Panich, for appellee.
   J. Seaborn Holt, Associate Justice.

This litigation involves an auction sale of a diamond ring. Appellant, Cummings, a non-resident, while a visitor in Hot Springs, Arkansas [on July 1, 1954] and attending an auction of appellee’s, made a hid of $900 on a ring which contained a 2.28 carat diamond surrounded by four smaller diamonds “weighing 10 points”. His hid of $900 was the highest and the auctioneer closed the sale to appellant for this amount. [Federal excise tax and state sales tax when added to the sale price made a total of $1,008.] Following the sale, Cummings paid $50 cash and gave his personal check for $158, on which he later stopped payment, and refused to pay the balance. On November 29, 1955 he filed suit against appellee alleging, in effect, that at the time he purchased the ring appellee represented to the plaintiff that the said diamond ring was a part of and came from the estate of the late Fanny Brice; that the Chase National Bank of New York City, at the instance of the executors of the Brice Estate, had appraised the ring at $5,250; that appellee knew that such representations and warranties were fraudulent when made, were made with the intent that appellant should rely thereon and that he purchased the ring in reliance on said representations and warranties. He further alleged that “upon learning that said warranties and representations were not true, he rescinded the sale and demanded a return ” of $50 cash which he had paid on the purchase price. He further alleged that ‘ ‘ the said false and fraudulent representations were made knowingly, were willful and made with malice for the purpose of deceiving and defrauding this plaintiff.”

Appellant prayed “that the purchase price of the ring One Thousand Eight Hollars, ($1,008.00), less the Fifty Dollars ($50.00) now in the hands of the defendant, its agents, servants or employees, return of which has been refused, be deducted from the value of said ring as warranted and that he have judgment against the defendant for the sum of Four Thousand Two Hundred Ninety Two Dollars ($4,292.00) ...” and that he be awarded also $10,000 as punitive damages. Appellees answered with a general denial. On the day of trial appellee tendered into court the $50 paid by appellant, and at the close of all the testimony asked for an instructed verdict in favor of appellee, which the.court refused to give. The jury returned a verdict in appellant’s favor for $51 actual damages and $2,000 punitive damages. This appeal followed.

For reversal appellant first contends that: “The court erred in granting defendant’s motion for judgment notwithstanding the verdict.”

The record reflects that on- November 17, 1956, appellee filed a motion in which it prayed that the trial court set aside its judgment previously entered on the jury’s verdict and enter a judgment in appellee’s favor notwithstanding the jury’s verdict. Thereafter, on December 5, 1956, the trial court granted this motion of appellee. The court’s order granting this motion contains this recital: “The court erred in failing to sustain the motion or motions for directed verdict for the defendants, [appellees] The evidence before the court is clear and convincing that plaintiff [appellant] breached his contract by stopping payment on his check in the sum of $158.00, given as a down payment, for the diamond ring mentioned in the complaint. The evidence shows plaintiff, at the time he breached his contract, had ho knowledge of the value of the said ring, had no knowledge of its market value or anything else concerning said ring, since the ring had never been in his possession. The contract was executory rather than executed.”

We have concluded that the court was correct in sustaining this motion. The evidence, in addition to that stated above, tends to show that after the ring had been sold to appellant, as above indicated, he left his seat in the auction gallery, went to the rear of the room where he paid $50 in cash to appellee, and gave his personal check for $158 on the purchase price, and agreed to pay the balance within two weeks and receive the ring. The parties were strangers to each other and were dealing at arm’s length. Following the sale the diamond ring was placed in an envelope and sealed, in the presence of appellant Cummings. The envelope bore a duplicate tag showing , the same number, as was on the envelope, in which the diamond was placed, and there was marked on the duplicate ticket, which was delivered to appellant,, the price of the ring, the amount deposited and balance due. The ring was then put in appellee’s safe. The next morning appellant returned. He testified: ‘‘ So the. next day I went back down and told him that I didn’t know anyone in Hot Springs; that I knew one of the vice presidents in the First National Bank in Shreveport appraised all the diamonds for the bank and I would like for Mm to mail it down there to them for appraisal, that I would be there about twenty days longer. As soon as the aupraisal came back, if it met the value, or anything like the value he had stated it had, that I would give him a cheek for the balance due. But he wouldn’t do it. He said, ‘No. You go ahead and buy the ring. You can have anybody appraise it you want to.’ ” Appellant further testified that when appellee refused to allow him to send the ring out of the state for appraisal he became suspicious and immediately stopped payment on the $158 check.

We find no evidence in the record that it was a part of appellee’s agreement with appellant that appellant would be given possession of the ring with permission to send it out of the state for appraisal before appellant paid the purchase price. Appellee does not deny that it represented to appellant that he could have the ring appraised by anyone of his own choosing, anywhere, after he had paid the purchase price. This identical ring was sold by appellee to another party on August 7, 1954, for $900.

We think the undisputed evidence shows that when appellant stopped payment on the $158 check above, he breached his contract with appellee and, therefore, that appellee was justified in treating the contract as rescinded by appellant. “The failure of one party to a contract to comply with its terms releases the other party from compliance with it.” Grayling Lumber Co. v. Hemingway, 128 Ark. 535, 194 S. W. 508. Also see Ford Hardwood Lbr. Co. v. Clement, 97 Ark. 522, 135 S. W. 343.

Next appellant argues: “That the lower court erred in failing to grant plaintiff’s motion for judgment by default and in allowing defendant to file its answer after more than 20 days subsequent to the service of summons without proper application having been made by the defendant for an extension of the time within which to file an answer within the 20-day period. ’ ’ In connection with this contention, the record shows that the order of the filing of pleadings in this case is correctly summarized and stated by the trial court in his ‘ ‘ Memorandum Opinion” on September 4, 1956, as follows: “The defendant [appellee] filed a motion requesting the plaintiff to make his complaint more definite and certain and reserving the right to plead further. This motion was filed with the Clerk on December 27,1955; however, the Clerk has filed an affidavit to the effect that his office was closed from December 22, 1955 until December 27, 1955, and that all pleadings received by his office during that time were marked filed on December 27, 1955. The defendant has also filed the affidavit of one Lucille Steele to the effect that she was the secretary of D. D. Panich, Attorney, for the defendant, and that on the 22nd day of December, 1955 she placed in the United States Mail the motion to make more definite and certain above referred to, a copy of which motion was mailed to counsel for the plaintiff on December 22, 1955. The plaintiff, in his memorandum brief, makes the following statement: ‘Plaintiff will ignore defendant’s contention that he mailed the said motion to the Clerk of the Court on the 22nd day of December.’ On January 9, 1956, the defendant filed an answer to the complaint. On the following day, January 10, 1956, the plaintiff filed a motion for default judgment for the reason that the defendant had not filed an answer within the statutory time . . . The court holds that the motion filed by the defendant to make the complaint more definite and certain was filed within the twenty-day period after the service of summons, and that the motion tolled the running of the statute as to judgment by default . . . The motion of the plaintiff for judgment by default is overruled ...”

The court then found from the above pleadings that the motion filed by appellee was, in effect, to make appellant’s complaint more definite and certain and that same was filed within the 20-day period after the service of summons and thereby tolled the running of the statute as to judgment by default, [Act 49 of 1955, now § 27-1135 Ark. Stats. 1947] and overruled appellant’s motion for judgment by default. We think the action of the court in the circumstances was correct.

As indicated, appellee’s motion, the record shows, was mailed from attorney Panich’s office in Little Rock by his secretary on December 22, 1955, and she on the same date forwarded by mail to Mr. Thomas, appellant’s attorney, a copy of said motion. In due course these motions so mailed should have reached the office of the Clerk of G-arland County, and appellant’s attorney, on December 23, the following day after posting. Since the clerk testified that his office was closed from December 22 to December 27 [Christmas holidays] and he did not file the motion in question until December 27, in the circumstances, we hold that but for what amounted to an unavoidable casualty or misfortune the motion would have reached the clerk in due course on the 23rd, and, therefore, the trial court correctly held that the motion must be considered as having been filed within the 20-day period after the service of summons and that the appellee, by filing this motion and pleading put him in court and entered his general appearance for all purposes, and preserved appellee’s right to file his answer January 9, 1956, setting up any defense that he might have. “Any action on the part of defendant, except to object to the jurisdiction which recognizes the case as in court will amount to a general appearance. 3 Cyc. 504. Any taking part in proceedings will constitute a general appearance.” Sager v. Jung & Sons, Co., 143 Ark. 506, 220 S. W. 801.

Finding no error, the judgment is affirmed.


author: Ed. F. McFaddin, Associate Justice.

text:
    Robertson v. Robertson.
    5-1282
    302 S. W. 2d 810
    Opinion delivered June 10, 1957.

      Eugene M. Hunger, St. Louis, Mo., and Langston <& Walker and Wayne Foster, for appellant.

      George H. Booth and John L. Bledsoe, for appellee.
   Ed. F. McFaddin, Associate Justice.

This is an appeal by the plaintiff from a decree in which the Trial Court, sua sponte, dismissed the entire case without hearing any evidence.

On July 27,1956, the complaint was filed in the Chancery Court. The plaintiffs were (a) M. O. Robertson, individually, and (b) Mary Etta Robertson, a minor, by M. O. Robertson, her father and next friend. The defendant was Opal Robertson, who is the divorced wife of M. O. Robertson and who is the mother of Mary Etta Robertson. The complaint attempted to state three separate causes of action, to-wit: (1) Mary Etta Robertson, a minor, acting by her father and next friend, M. O. Robertson, joined him in asking that the Court set aside a deed that M. O. Robertson had executed in 1947 to Mary Etta Robertson and Opal Robertson, her mother, in which was conveyed forty acres of land in Craighead County; (2) Mary Etta Robertson, by her father and next friend, sought to have a Receiver appointed for the said forty acres of land and have an accounting from Opal Robertson for Mary Etta Robertson’s half of all rents and revenues collected by Opal Robertson from the entire forty acres of land from 1947 to 1956; and (3) M. O. Robertson individually sought to set aside the said deed that he had executed to Opal Robertson in 1947, conveying the said forty acres.

As aforesaid, the Chancery Court, sua sponte, dismissed all three causes of action, without hearing any evidence. The correctness of the dismissal will be considered regarding each cause of action.

I. The First Cause of Action. The first cause of action was that of Mary Etta Robertson, acting by her father and next friend, M. O. Robertson, to cancel and set aside the deed that M. O. Robertson had executed in 1947 in which the grantees were Mary Etta Robertson and Opal Robertson. The Chancery Court was absolutely correct in refusing to allow M. O. Robertson to act as next friend for Mary Etta Robertson in this cause of action, because the complaint showed on its face that M. O. Robertson’s interests were adverse to those of Mary Etta Robertson. He had executed a deed conveying to Mary Etta Robertson an undivided one-half interest in the land for love and affection to his said daughter. She is still a minor and her father has her custody and control. Thus, the complaint affirmatively showed that setting aside the said deed would not be for the best interest of the said minor. Section 27-823 Ark. Stats, says:

“The action of an infant must be brought by his guardian or his next friend. Any person may bring the action of an infant as his next friend; but the court has power to dismiss it if it is not for the benefit of the infant, or to substitute the guardian of the infant, or another person, as the next friend. (Civil Code, § 46; C. & M. Dig., § 1111; Pope’s Dig., § 1327).” (Italics our own.)

In Wood v. Claiborne, 82 Ark. 514, 102 S. W. 219, in considering this Statute, we said:

“Our Statute provides that ‘any person may bring the action of an infant as his next friend; but the court has power to dismiss it if it is not for the benefit of the infant, or to substitute the guardian of the infant, or another person, as the next friend.’ ”

See also 27 Am. Jur. 839. As to setting aside the deed, M. O. Robertson’s personal interests were hostile and adverse to the interests of Mary Etta Robertson because he had made the deed to her for love and affection. There was no money consideration to be recovered: setting aside the deed would merely deprive her of one-half interest in the forty acres of land. The Trial Court could have appointed some other person to act as next friend, or could —as it did in view of the other causes of action in the complaint — dismiss the attempt by M. O. Robertson to act as next friend of Mary Etta Robertson in any effort to set aside the deed.

Therefore, as to the effort of M. O. Robertson to act as next friend of Mary Etta Robertson in an attempt to set aside the deed, the Trial Court was correct in dismissing the said first cause of action.

II. The Second Cause of Action. Mary Etta Robertson, by her father and next friend, M. O. Robertson, sought an accounting from Opal Robertson for Mary Etta Robertson’s half of all the rents and revenues collected by Opal Robertson for the forty acres of land from 1947 to 1956. The complaint alleged that M. O. Robertson had the custody and control of his said daughter, Mary Etta Robertson, a minor; and the complaint also alleged:

“Seventh: And comes M. O. Robertson, as father, next friend, and natural guardian of the above named minor and states and alleges for and on behalf of said minor that immediately upon the execution of said deed, the Defendant Opal Robertson took possession of said real estate and continuously since has exercised exclusive proprietorship thereof; and that she has failed, refused, and neglected to account to the minor, Mary Etta Robertson, for any part of the income, rents or profits therefrom ; that during the years 1947, 1948, and 1949 this defendant collected for each year approximately $850.00, said land being rented for crop rent; that for the year 1950, she rented the same for $1,000.00 in cash; for each of the years 1951 and 1952 the sum of $1,200.00 cash and for the years 1953, 1954, 1955, and 1956 each the sum of $1,000.00, a total in rents collected by said Defendant of $9,950.00, which far exceeds the value of the real estate.

“Eighth: The plaintiffs allege that the Defendant is a non-resident of the State of Arkansas . . .

“Ninth: Plaintiffs allege that the non-resident Defendant is insolvent; that matters and things herein involved require accounting; that they have no proper and adequate remedy at law.

“Tenth: Plaintiffs further allege that the Defendant has rented said lands to one Gerald Nall for the crop year, 1956, and possibly for future years, for which said tenant has agreed to pay the sum of $1,000.00; that a receiver should be appointed forthwith to collect said rents, and to manage, rent, pay taxes, and do such other things as may become necessary during the pendency hereof. ’

The Chancery Court was in error in dismissing this second cause of action. Equity has jurisdiction of matters of account that are intricate or complicated. Trapnall v. Hill, 31 Ark. 345; State v. Churchill, 48 Ark. 426, 3 S. W. 352-880; Rogers v. Yarnell, 51 Ark. 198, 10 S. W. 622; and Ferguson v. Rogers, 129 Ark. 197, 195 S. W. 22. If the Chancery Court concluded that the accounting desired in this case was not sufficiently intricate or complicated to justify equity jurisdiction, then the Court should have transferred the cause of action to law. (Section 27-208 Ark. Stats.; Grooms v. Bartlett, 123 Ark. 255, 185 S. W. 282; and Simmons v. Turner, 171 Ark. 96, 283 S. W. 47.) At all events, the cause of action should not have been dismissed since the complaint did not show on its face — and there was no other showing, to so indicate— that M. O. Robertson was acting other than bona fide as next friend of Mary Etta Robertson in this matter of accounting.

"■ In view of the foregoing,-we hold that the Chancery Court was in error in dismissing sua sponte the cause of action relating to the accounting. The decree involving that phase of the case is .reversed and the cause is rer manded, with directions to reinstate the suit for account-ting and proceed in a manner not inconsistent with this opinion.

III. The Third Cause of Action. M. O. Robertson, as an individual, sued Opal Robertson and sought to set aside the deed he had executed in 1947 wherein he conveyed to Opal Robertson an undivided one-half interest in the forty acres of land. He alleged that he had executed the deed to settle the property rights between himself and his wife, Opal Robertson. The complaint also alleged:

“Fifth: Plaintiff, M. O. Robertson, alleges that his marriage to the Defendant was null, void and of no effect; as well as later purported marriage contracted at Paragould, Arkansas, on November 17, 1951; that at the time of contracting marriages with Plaintiff M. O. Robertson, Defendant was in fact the wife of one Cachwend, a living husband, a fact which said Defendant well knew but concealed from said Plaintiff and which he did not know until long after execution of said deed and remarriage of the parties. The execution of deed as before alleged, by way of property settlement, constituted fraud on the Plaintiff M. O. Robertson, was without consideration, and said deed should be set aside. ’ ’

To this complaint Opal Robertson filed several defensive pleadings, consisting of a general denial and also pleas of limitation, laches, and estoppel; but when the case came for trial, the Chancery Court refused to hear any evidence, saying:

“The Court is holding that the major facts involved in allegations'of the complaint are not denied by the De-, fendant and that by reason of the state of the pleadings the only question involved in this litigation at this point is a question of law, therefore, the Court will not entertain the admission of testimony or other evidence.”

Thus, the Chancery Court, acting sua sponte, sustained a demurrer to that part of the complaint which sought cancellation of the deed, and then dismissed the complaint as failing to state a cause of action. If the Cliancery Court was of the opinion that the complaint failed to state a cause of action for cancellation, then the Court could have sustained a demurrer, but should have given Robertson additional time to amend his complaint before dismissing it. See § 27-1117 Ark. Stats.; Dickerson v. Hamby & Haynie, 96 Ark. 163, 131 S. W. 674; and Bradley v. Mo. Pac. Rd. Co., 144 Ark. 604, 223 S. W. 35.

Therefore, in the state of the record before us, the decree dismissing this third cause of action is reversed and the cause is remanded, with directions to give M. O. Robertson a reasonable time to amend his complaint; and then the Court will proceed in a manner not inconsistent with this opinion.

       The complaint was filed on July 27, 1956; and on August 13, 1956 the Chancery Court, by written stipulation and agreement of the parties, appointed a Receiver to take charge of the land. The order appointing the Receiver reads as follows: “On this 13th day of August, 1956, the same being a regular adjourned day of the above styled Court, came on for hearing Petition of Plaintiffs for the Appointment of a Receiver herein, and came the Plaintiffs by their attorneys, Eugene M. Hunger and Denver L. Dudley, and came the Defendant by her attorney,_ George M. Booth; and by written stipulation and agreement of the parties filed in open Court, and the Court being well and sufficiently advised in the premises: IT IS CONSIDERED AND ORDERED that Ned Fraser be and he is hereby appointed Receiver herein to take charge of any proceeds that may be due either of the parties from the lands described in the complaint herein, to issue his receipt therefor, and to keep same until the further order of this Court; and the said Ned Fraser is further ordered and directed and he is hereby empowered to do all such things as may become necessary as such Receiver, including the payment of taxes, and the renting of said lands, subject to the approval of this Court.”

       In finally dismissing the case, the Court said: “This is an action in which the Plaintiff seeks to set aside a deed to a tract of land which he formerly conveyed to a woman to whom he believed himself to be married at the time of the conveyance and to the child of that marriage if any marriage existed . . . Next, we consider the status of the deed of September 5,1947, as it relates to the adult Plaintiff and the Defendant. The deed states upon its face that it was issued in consideration of $1.00 in money and in consideration of love and affection which the grantor bore at the time to the grantees. This deed is an instrument under seal and would be set aside by this Court only if it were proved, first of all if it were alleged and satisfactorily proved that the instrument was procured through fraud. The Court finds one allegation in the complaint containing the word ‘fraud’ to this effect, ‘The execution of a deed as before alleged, by way of a property settlement, constituted fraud on the part of the Plaintiff, M. O. Robertson, was without consideration, and said deed should be set aside.’ The Court holds said allegation to be completely and entirely a conclusion of law and not reinforced by the complaint by a single allegation of a fraudulent act. For the reasons stated and any other which the Court doesn’t find necessary to state, the complaint will be dismissed for want of equity at the cost of the Plaintiff, M. O. Robertson.”

       The record reflects most clearly that the defendant, Opal Robertson, wanted to try the case on her pleas because she offered various documents as going to sustain her pleas. The Court made a record of these, but refused to consider them; and summarily dismissed the complaint; without (a) giving M. O. Robertson time to amend his complaint; or (b) giving Opal Robertson a hearing on her pleas.


author: Minor W. Millwee, Associate Justice.

text:
    McFall v. Farmers Tractor & Truck Co.
    5-1294
    302 S. W. 2d 801
    Opinion delivered June 10, 1957.
    [Rehearing denied July 1, 1957]

      McCourtney, Brinton, Gibbons & Segars, for appellant.

      Kirsch, Cathey >& Brown, for appellee.
   Minor W. Millwee, Associate Justice.

This is a workmen’s compensation case in which denials of appellant’s claim by a referee and the full Commission were affirmed by the Circuit Court.

The following statement by the Commission contains a fair summation of the evidence: ‘ ‘ On the morning of May 4, 1955, claimant was effecting repairs to a tractor at his employer’s place of business in Manila, Arkansas. The weather was hot, a high of 89 degrees having been recorded in Blytheville that day, and the work involved occasional heavy lifting. The work was being done in a modern repair shop equipped with several electric fans. At about 11 A. M., after claimant had been at work some four hours, claimant became ill, went to the bathroom on the employer’s premises and vomited, and then returned to his labors. Shortly thereafter claimant went home for lunch, and while at home suffered a seizure which rendered him unconscious. Claimant was hospitalized, received medical treatment, and returned to work the latter part of May 1955. Claimant worked about a week and a half, and then entered a hospital in Memphis, Tennessee, after suffering a second seizure'while sitting in his car. Claimant was operated upon during his stay in the hospital in Memphis, and some three or four weeks after entering the hospital he again returned to work, worked about three weeks, and then was' dismissed, because, according to claimant ‘ I was off wo’rk too much on account of this trouble I was having.’

“The record discloses that claimant had a policy of insurance with the Equitable Assurance Society which provided coverage in case of illness or accident not covered by workmen’s compensation insurance, and claimant received the benefits provided for in that policy after filing a claim application wherein it was stated that claimant did not intend to present a claim for workmen’s compensation benefits.

“The medical evidence is to the effect that the true reason for claimant’s seizure is unknown, but there is a suspicion of epilepsy, as well'as possible brain tumor, or subarachnoid hemoirhage ...”

Upon consideration of such evidence the Commission found that appellant had not discharged the burden of proving the occurrence of an accidental injury arising out of and in the course of his employment. In so finding the Commission concluded: “We have many times held that if one’s breakdown is attributable to the work he was doing, or to the conditions under which the work was being done, then there is an accidental injury as defined by the Workmen’s Compensation Law. The evidence in the- case now before us falls short of connecting claimant’s seizures with the work he was doing, or with the conditions under which the work was being done. ’ ’

■So the issue here is whether the Commission’s conclusion, that appellant failed to. establish a causal relation between the employment and his disabling seizures or illness, is. supported by substantial evidence. '

As appellant suggests and appellees concede, this court is committed to the proposition that the Workmen’s Compensation Law should be given a liberal construction and doubtful cases resolved in favor of a claimant in determining whether a disabling condition arose out of the employment. But this rule of liberal construction does not relieve a claimant of the burden of showing a causal relation between his injury and the employment. In discussing the proper construction to be given the statute on this point we have frequently approved the following-statement from Cudahy Packing Co. v. Parramore, 263 U. S. 418, 44 S. Ct. 153, 68 L. Ed. 366, 30 A. L. R. 532; “The liability is based, not upon any act or omission of the employer, but upon the existence of the relationship which the employee bears to the employment because of and in the course of which he has been injured. And this is not to impose liability upon one person for an injury sustained by another with which the former has no connection; but it is to say, that it is enough if there be a causal connection between the injury and the business in which he employs the latter — a connection substantially contributory, though it need not be the sole or proximate cause.” Hunter v. Summerville, 205 Ark. 463, 169 S. W. 2d 579; McGregor & Pickett v. Arrington, 206 Ark. 921, 175 S. W. 2d 210; Scobey, Administratrix v. Southern Lumber Company, 218 Ark. 671, 238 S. W. 2d 640.

While there is some circumstantial evidence to the contrary, we cannot say the Commission’s finding that appellant failed to show a causal connection between his seizures and his employment is without' substantial evidence to support it. As the Commission indicated, none of the three doctors whose reports were introduced in support of appellant’s claim would say there was any causal connection between his condition and his work although one was of the opinion that there “could have been”. Neither doctor saw appellant have a seizure and their opinions were based on the history 1m gave plus various tests and examinations which revealed “nothing significant of a pathological nature”.

The judgment is affirmed.