author: Carleton Harris, Chief Justice.

text:
    Vaughan v. Sutton.
    5-2953
    365 S. W. 2d 863
    Opinion delivered March 25, 1963.

      Terral, Rawlings £ Matthews, for appellant.

      Catlett £ Henderson, for appellee.
   Carleton Harris, Chief Justice.

This suit involves the question of whether a certain deed should he can-celled. Stephen Vaughan was the owner of a certain 40 acres in Pulaski County, Arkansas. After the death of Vaughan, and through a division of this property by the exchange of deeds, a daughter, Lee Anna Vaughan, became the record owner of 10 acres (of the 40), which is the property in dispute in this litigation. Lee Anna died on February 5, 1951, leaving a son, Charles Lafayette (hereinafter called Lafayette), as her only heir. Lafayette, who, according to the testimony, drew Welfare benefits because of mental deficiency, sometimes worked at the Sutton Grocery, with which some of his relatives traded.

In the meantime, the property here involved had forfeited because of the non-payment of taxes, and Robert L. Kumpe purchased same at a Sheriff’s Tax Sale, and on January 7, 1950, received a deed to the property from the Pulaski County Clerk. After the death of Lee Anna Vaughan, Lafayette and other relatives learned of the sale of the 10 acres to Mr. Kumpe. Lafayette, together with Ollie Vaughan Fuller, a cousin, went to Mr. H. M. Sutton, Sr., and requested his aid in getting the property back. Sutton, according to the evidence, promised to help, and, thereafter, events admittedly occurred as follows:

About April 7,1951, Kumpe and wife, at the request of Sutton, executed a quitclaim deed, conveying the property to Lafayette; this deed was delivered to Sutton upon the latter’s paying to the grantors the sum of $50.00 in cash. The deed was not recorded. On April 27, 1951, Lafayette died intestate, leaving appellants as his heirs at law. Sutton refused to deliver to appellants the deed executed by Kumpe and wife, and refused to accept payment of the debt (occasioned by the payment of the money to Kumpe by Sutton on behalf of Lafayette at the time of the delivery of the deed). On May 7,1951, Kumpe and wife, at the request of Sutton, executed and delivered to the latter another quitclaim deed, conveying the same property to Sutton that Kumpe had previously deeded to Lafayette. This deed was recorded the following day.

On December 6, 1952, appellants, Stephen Vaughan, an uncle of Lafayette, William Vaughan, an uncle, and Ollie Vaughan Fuller, Aretha Harris Odom, Helen D. Harris, Elsie Harris Terry, and James Russell Harris, cousins of Lafayette, instituted suit against H. M. Sutton, Sr., and his son, H. M. Sutton, Jr., alleging that the defendants had fraudulently obtained a deed from R. L. Kumpe in the name of H. M. Sutton, Sr., in an effort to defraud appellants of their property; that they (appellants) had offered to pay the balance due on the property, but that the defendants had refused to accept same, and they prayed that, upon depositing into the registry of the court the amount found to be the balance due from Lafayette, H. M. Sutton, Sr. be ordered to execute his deed, conveying the property to them. On December 8, a notice Lis Penclens was filed by appellants, setting out that appellants were claiming the property under a deed executed by Kumpe to Sutton, Sr., and that Sutton was holding as a trustee for their benefit.

On December 20, H. M. Sutton, Jr., filed a separate answer, setting up that he had no personal knowledge of the transaction, had nothing to do with it in any manner, and asking that the complaint be dismissed as to him. H. M. Sutton, Sr., on the same date filed a motion to make the complaint more specific. After filing one amendment to their complaint, appellants, on April 10, 1953, filed a second amendment stating, in effect, that they had mistakenly sued H. M. Sutton, Jr., that he was in no way involved in the litigation; “that the party they intended to sue, and against whom they now adopt their original complaint, is H. M. Sutton, Sr.,” and relief was sought, as originally prayed, against this defendant. A new summons was issued, and the Return of the Sheriff of Pulaski County reflects that H. M. Sutton, Sr., was personally served on April 13, 1953. Prom that time to the day of trial, Sutton never filed any sort of pleading. On May 17, 1954, Sutton and wife conveyed the property to appellees, W. R. Davis and Lula M. Davis for a cash consideration of $1,500.00. Thereafter, in May, 1955, Davis and wife filed a motion alleging that they had purchased the property from Sutton, were the real parties in interest, and should be made parties defendant. On September 7, 1955, the motion was granted. The Davises then filed an answer, denying all material allegations of the complaint.

Appellants then further amended their complaint by asserting that Davis and wife had received the deed to the property “long after the suit had been filed and with notice thereof. ’ ’ The court was asked to cancel the deed from Sutton to these defendants. On June 21, 1962, the cause was tried, and at the conclusion thereof, the court dismissed the complaint for want of equity, and quieted and vested title in the appellees, W. H. Davis and Lula M. Davis. Prom the decree so entered, appellants bring this appeal.

We are firmly and unhesitatingly of the opinion that this decree should be reversed, and we think that appellants have established their case by evidence that is clear, cogent, and convincing. Lincoln Puller, who had married Ollie Vaughan, testified that Lafayette had worked for Sutton, and on learning of the forfeiture of the land, had asked Sutton for his help. Puller testified that he was present and heard Lafayette make the request for financial assistance in recovering the property, and heard Sutton agree to render the aid. Ollie Vaughan Puller testified that she later heard Sutton tell Lafayette that he had obtained the deed from Kumpe, and would turn it over to her cousin “when he finished paying him the money what he owed him. ’ ’ Robert L. Kumpe, a postal transportation clerk, testified that he bought the property in question at the tax sale, and subsequently received a deed from the clerk. Thereafter, he was contacted by Sutton who desired to purchase the property for Lafayette. Prom the record:

“Well, this fellow Lafayette, I don’t even remember whether that was his last name or first name, but anyway, it stuck in my memory because you know that French name for a colored fellow, I thought was kind of peculiar. * * * And Lafayette owed him some and he was — wanted me to make out the deed to Lafayette and he would act as his agent. ’ ’

The witness then testified that he and his wife signed a deed, conveying the property to Lafayette, and the Notary Public who took the acknowledgement, delivered it to Sutton. Kumpe stated that Sutton later called him again and advised that Lafayette had died,

“So because Lafayette owed, him some money, he wanted me to make out the deed to him, make another deed to him. * * * Well, it was kind of aggravating. It was against my policy. My policy was when I bought this land I let the people that owned it, I let them have it back for taxes and a little interest, but anyone else why I would appraise it you know and get some value out of it, but he was so insistent and I was kind of aggravated with him anyway and my wife was kind of sick, so I went against my policy and he had another deed made out. .* * I carried the deed over to him, Mr. Sutton, and he said he would dispose of the other deed.”

Kumpe was positive that at the time the first deed was given, Sutton had stated that he was acting for Lafayette, and it is totally undisputed that the first executed deed named Lafayette as the grantee.

Testimony on the part of appellants reflected that following the death of Lafayette, Sutton advised representatives of appelants,

“You will have to pay me $40.00 before you can get these papers.” Ollie Vaughan Fuller testified that when this amount of money was offered to Sutton, he refused it and stated that he would have to receive $60.00; that Sutton said,
“Don’t be in a hurry. We have plenty of time. What do you all want to be in a hurry for % ’ ’

Subsequently, Sutton refused the $60.00 when it was tendered to him.

Appellees first argue that there was no writing signed by Sutton to the effect that he would hold the deed and deliver same to Lafayette upon repayment, and that the agreement therefore was in violation of the Statute of Frauds. In answering this contention, we need go no further than to state that the Statute of Frauds was not pleaded, and we have held on numerous occasions that that statute is an affirmative defense which cannot be relied upon unless specifically pleaded. William v. Jones, Special Administrator, 208 Ark. 303, 186 S. W. 2d 160. S. H. Kress Co. v. Moscowitz, 105 Ark. 638, 152 S. W. 298, and cases therein cited.

Appellees then assert that neither a resulting trust, nor a constructive trust, was created for the reason that the misrepresentation that creates a trust of this character must be made before, or at the time, legal title is acquired by the promissor; appellees contend that the circumstances herein do not bring into being a constructive trust because the legal title (in the first deed) was actually placed in Lafayette, though that grantee paid no part of the consideration. From the brief:

“Here, H. M. Sutton, Sr., procured the execution of the first deed by Robert L. Kumpe conveying the property to Charles Lafayette, and H. M. Sutton, Sr., paid the full consideration for such conveyance and received and kept the deed. Charles Lafayette never paid any part of the consideration. After the death of Charles Lafayette, H. M. Sutton, Sr., received a new deed from Robert Kumpe conveying the lands to H. M. Sutton, Sr. There was no fraud, actual or otherwise, in the transaction.
“At the time Charles Lafayette allegedly entei'ed into negotiations with Sutton to assist him in acquiring Kumpe’s tax title to the property, neither Lafayette nor these Appellants had the slightest right, title or interest therein; the time for redemption from the tax sale having expired during the lifetime of Lee Anna Vaughan.”

Actually, it is not necessary, in determining this litigation to enter into a detailed discussion of whether either a resulting or constructive trust was created, for the evidence establishes unquestionably that Kumpe and wife executed the first deed to Charles Lafayette. This means that at the time of the second deed, Kumpe had no title to convey. Therefore, the second deed, naming Sutton as grantee was of no effect. Of course, since the deed was not recorded, a bona fide purchaser could have obtained a valid deed from Kumpe, but Sutton (having the deed in his possession) had full knowledge that Lafayette held the legal title. This actually disposes of the litigation, but we think also that a “trust ex maleficio” or constructive trust was raised under the circumstances of this csae. It is true that normally, when a constructive trust arises, legal title has been placed in one person, though the beneficial interest is to be enjoyed by another person, but we do not consider this an absolutely essential element. In Wofford v. Jackson, 194 Ark. 1049, 111 S. W. 2d 542, this court, quoting from Pomeroy’s Equity Jurisprudence, said:

“ ‘Constructive trusts include all those instances in which a trust is raised by the doctrines of equity for the purpose of working out justice in the most efficient manner, * * * They arise when the legal title to property is obtained by a person in violation, express or implied, of some duty owed to the one who is equitably entitled, and when the property thus obtained is held in hostility to his beneficial rights of ownership. ’ ’ ’

At any rate, equitable relief should not be refused because of technical distinctions, where the evidence firmly establishes that fraudulent acts have been committed, and equitable principles violated. Here, it is plain that Sutton advanced the money (which was paid to Kumpe) for the benefit of Lafayette, and was holding the deed as security for the repayment of the money; it even appears that Kumpe might not have sold the property except for the fact that it was being returned to the original owner.

According to the testimony of Lee Smith, a real estate salesman for 20 years in the city of Little Rock, the 10 acres involved in this litigation, if sold together with the other 30 acres, would be worth $1,000.00 per acre; if sold separately from the other 30 acres, the property would have a value of $750.00 per acre. The witness stated that in 1951, if sold with the 30 acres, the land would have been worth approximately $250.00 per acre, and if sold separately, should have brought $200.00 per acre. Sutton did not see fit to file an answer denying the allegations of the complaint, and we think the evidence clearly establishes that, upon learning of the death of Lafayette, he saw an opportunity to acquire the title for himself, and accordingly “put off” the appellants until a second deed could be acquired from Kumpe.

W. ft. Davis and Lula M. Davis, appellees herein, were not innocent purchasers, having purchased the property from Sutton on May 17,1954. This was a year and a half after the first suit was filed by appellants; a year and a half after the notice Lis Pendens, and over a year after the complaint was amended and a new summons served on Sutton. Davis testified that he bought the property through a realtor and “thought he was buying it from Vaughan.” He stated that he had bought a lot of property without an abstract, and was “gambling” on this property.

In accordance with the views herein expressed, the decree is reversed and the cause is remanded to the Chancery Court with directions to cancel the deed from Kumpe to Sutton, to cancel the deed from Sutton to the Davises, and to take the proper and necessary steps to invest title to the property here involved, in the heirs of Charles Lafayette, as prayed by appellants.

       There is no explanation in the record of why the case remained pending for 9 years after the second summons was served on H. M. Sutton, Sr., and 7 years after the motion filed by Davis.

       It is not clear from the record whether Sutton paid Kumpe $40.00 or $50.00 for the first deed.

       This statement had reference to the deed and a mortgage which appellants testified was given to Sutton by Lafayette to secure the money advanced by Sutton for the purchase from Kumpe, but the execution of the mortgage was not established by competent evidence.

       Definitions of a resulting trust and a construction trust are cited in Mulligan v. Payne, 232 Ark. 922, 341 S. W. 2d 53

       According to Bouvier’s Law Dictionary (3rd Revision) Vol. 1, “on account of misconduct.”

       It was stipulated between the parties that O. D. Burroughs possessed practically the same qualifications as those of Smith, and his testimony would be the same as that of Smith.


source: Caselaw Access Project

author: Ed. F. McFaddin, Associate Justice.

license: Public Domain

text:
    LaFayette Hotel Co. v. Gordon and Ferguson.
    5-2947
    365 S. W. 2d 857
    Opinion delivered March 25, 1963.

      House, Holmes, Butler ■& Jewell, By Philip E. Dixon, for appellant.

      Terral, Rawlings & Matthews, By Gail O. Matthews, for appellee.
   Ed. F. McFaddin, Associate Justice.

This is an action to recover for loss of property entrusted to one alleged to be a bailee. The plaintiff-owner is Gordon & Ferguson, Inc., and the defendant-alleged bailee is LaFayette Hotel Company.

Mr. Goldstein was a traveling salesman, and appellee’s samples were plainly visible in his car. Gold-stein registered as a guest at the LaFayette Hotel; the doorman took the car and contents for overnight parking; and was specifically instructed by Mr. Goldstein to carefully lock the car. The doorman of the hotel parked the Goldstein car in the basement of a garage near the hotel. The next morning, when Mr. Goldstein requested the doorman to bring the car, it was discovered that someone had broken the glass of the car and stolen the samples. The theft was reported to the police, but none of the stolen property was ever recovered. Gordon & Ferguson, Inc. brought this action, claiming that the hotel company, as bailee, was liable for the loss of the stolen samples. The cause was submitted to a jury, which returned a verdict for the plaintiff-owner; and on this appeal the hotel company urges two points, both relating to instructions.

I. Refusal To Give An Instructed Verdict For Appellant. It is vigorously insisted that all the doorman of the hotel did was to take the car across the street, park it, and return the keys to the hotel desk; and that no negligence was shown to have been committed by the hotel or its employees. Based on this line of argument appellant claimed below, and insists here, that an instructed verdict should have been given for appellant. But there was other evidence in the case which we consider vital and now mention, (a) The hotel advertised “convenient garage services at the door”; (b) the hotel would store cars for its guests at no place other than the storage facilities used in this instance; (c) the desk clerk admitted — at one place in his testimony — that Mr. Goldstein asked him if the car' and contents would be safe and the desk clerk assured him that they would be; (d) the doorman of the hotel selected the place to store the car in the basement of the garage; (e) Mr. Goldstein testified that after the theft he observed the place where the car was stored was very poorly lighted; and (f) the only precautions taken by the storage garage against such a theft was the use of a merchant watchman who “came around about three times a night.”

The foregoing testimony, along with the other facts as previously detailed, made a case for the jury: there was the delivery of a ear by a guest to the hotel for storage; the hotel was advised that there were articles in the car; the hotel was instructed to lock the car; the hotel assured the guest that the car and contents would be safe; there was a failure to return the contents; and there was evidence sufficient to go to the jury on the question of negligence of the bailee in storing the car at a poorly lighted place, and also as to the sufficiency of the precautions taken against such a theft. The Trial Court was correct in refusing an instructed verdict for the defendant.

II. Giving Of Plaintiff’s Instructions Nos. 1 and 3. Even though there was sufficient testimony to take the case to the jury, nevertheless some of the instructions offered by the plaintiff were fatally defective and require a reversal of the judgment. Over the general and specific objections of the defendant, the Court gave the plaintiff’s Instructions Nos. 1 and 3, and each of these instructions was erroneous. Here is Instruction No. 1, with the erroneous matter italicized:

“You are instructed that it is the burden of the plaintiff to prove the delivery of the automobile containing the articles of clothing, the acceptance by the defendant or its agents, notice of the contents to the defendant or its agents and the failure of the defendant to return the contents. If these matters are proved, the plaintiff has established a prima facie case of negligence and the burden devolves upon the defendant to explain the loss by showing that it used due care. If the plaintiff proves these matters and the defendant fails to explain the loss by shoiuing that it used due care, your verdict will be for the plaintiff.”

Here is Instruction No. 3, with the erroneous matter italicized:

“You are instructed that a theft by a third person is not a defense for the defendant’s failure to return the articles unless the defendant shows that the theft was not occasioned by its failure to use due care.”

It will be observed that in both of these instructions the Court told the jury that the burden was on the defendant to show due care for the property, rather than the burden being on the plaintiff to show that the defendant-bailee was negligent. Such was the error in each instruction. In James v. Orrell, 68 Ark. 284, 57 S. W. 931, the very point here in issue was decided; and the Court quoted from Storey on Bailments, 8th Ed. § 410: “ ‘ . . . it would seem that the burden of the proof of negligence is on the bailor, and proof merely of the loss is not sufficient to put the bailee on his defense.’ ” In Turner v. Weitzel, 136 Ark. 503, 207 S. W. 39, Chief Justice McCulloch quoted from an earlier case: ‘ ‘ 1 The mere loss of the property does not ordinarily fix a liability for the loss upon him (bailee), but it must be further shown that said loss arose by reason of his negligence.’ ” In Hornor Trans. Co. v. Abrams, 150 Ark. 8, 233 S. W. 825, the Trial Court gave an instruction which said that if goods were stored with a bailee for hire “. . . and they were lost while in the possession of the defendant company (bailee), then you will find for the plaintiff for the value of the goods, as shown by the evidence.” In holding such instruction to be erroneous, Chief Justice McCulloch, speaking for this Court, said that if the goods were not returned, “... it devolved upon them (bailees) to explain the loss before the plaintiff (bailor) could be put u,pon proof as to negligence.” (Emphasis our own.)

In Scott v. Columbia Compress Co., 157 Ark. 521, 249 S. W. 13, the opinion recites:

‘ ‘ The instructions given by the court told the jury in substance, that the burden of proof rested upon appellee (bailee) to account for the loss of the cotton, but that if it was shown that it was destroyed by fire, the burden was upon the appellant (bailor) to establish negligence on the part of the appellee or its servants in permitting the cotton to be thus destroyed. These instructions were in accordance with the repeated decisions of this court. ’ ’

In Hall v. Stover, 215 Ark. 485, 221 S. W. 2d 41, we said that the burden was on the bailor to prove that the bailee’s negligence was the cause of the damage to the property. There is nothing in National Garages, Inc. v. Barry, 217 Ark. 593, 232 S. W. 2d 655, which changes the holding of these cases. We there quoted from American Jurisprudence to the effect that when the bailor proves the bailment and a failure to return the property, the duty devolves on the bailee to “go forward”; but we added: “One who brings an action against a garage or livery stable keeper based upon tlie latter’s negligence ordinarily bas the burden of proving such negligence or want of due care on the defendant’s part.”

The plaintiff’s Instructions Nos. 1 and 3, given by the Court over the specific objection of the defendant, placed the burden on the defendant-bailee to prove itself free of negligence instead of placing the burden on the bailor to prove the negligence of the bailee. The question of negligence was a vital issue, involving storing the car in the place where it was stored, and also the watchman service. These were the claimed matters of negligence; and the burden was on the appellee-plaintiff to prove the negligence, rather than on the appellant-defendant to prove absence of negligence. We cannot escape the fact that the Instructions Nos. 1 and 3 were fatally defective; and by reason thereof the judgment is reversed and the cause is remanded.

Harris, C.J., and Ward, J., would reverse and dismiss.

         The samples consisted of wearing apparel and other articles, and the value of the stolen articles was stipulated to be $1,210.69.

       On the question of the liability of a garage man for theft or unauthorized use of an automobile, see Annotations in 131 A.L.R. 117B and 48 A.L.R. 2d 403. In 24 Am. Jur. 490, “Garages” etc. § 13, in discussing the liability of the garageman for theft, the text states the rule: “In any case, of course, the owner, in order to recover, must establish negligence on the part of the garage keeper.”


author: G-eorge Rose Smith, J.

text:
    Chicago Mill and Lumber Co. v. Directors of St. Francis Levee District.
    5-2926
    366 S. W. 2d 184
    Opinion delivered March 25, 1963.
    [Rehearing denied April 22, 1963.]

      Daggett & Daggett, By W. II. Daggett, for appellant.

      F. N. Burke, Jr. and Shaver & Shaver, for appellee.
   G-eorge Rose Smith, J.

This is a suit by the appellant to quiet its title to certain land in Lee County, subject to the levee right-of-way of the St. Francis Levee District. The ultimate question is whether the district, as the holder of the dominant easement, or the lumber company, as the owner of the servient estate, is entitled to the proceeds derived from the cutting and sale of mature timber within the right-of-way. The chancellor awarded these proceeds, amounting to $3,270.14, to the levee district.

This 70-year-old district maintains 158.6 miles of main levee along the Mississippi River. For some years the United States Engineers have been in charge of new construction, while the district has been responsible for furnishing the right-of-way and maintaining the levee system.

That portion of the right-of-way now in question was acquired by the district, partly by purchase and partly by condemnation, from the appellant’s predecessors in title, between 1904 and 1942. In 1957 the Engineers decided to enlarge this part of the levee and to that end directed the district to remove the timber growing in the borrow pits on the river side of the levee. After this suit was filed the lumber company and the levee district cooperated in removing the timber and put the proceeds in escrow, subject to the final decision in the case.

The district contends that for many years it has kept a strip of growing timber next to the levee, as a protection against the washing action of flood waters, and that the proceeds from the sale of this timber should go to the district. The landowner replies that the protecting role of the trees came to an end when they were cut down, so that the money from selling the logs belongs to the landowner. We are of the opinion that the district has the stronger side of the argument.

That the levee ought to be sheltered behind a line of woods is shown by the weight of the evidence. This is an earthen levee, about 25 feet high and tapering from a 200-foot base to a 25-foot crown. No trees are permitted upon the levee itself, which is kept as pastureland to hold its topsoil in place. The directors have found it best to leave the borrow pits on the river side of the levee, for their location behind the structure would tend to weaken it by seepage and boils.

Since about 1940 the levee board has consistently maintained a growth of trees, mostly cottonwood, in the borrow pits. When flood waters rise against the side of the levee the trunks and foliage of this timber tend to obstruct the wind-driven waves and protect the levee by reducing the washing action of the river. For more than twenty years the district has kept signs posted along the levee, giving notice that the timber is reserved for wash protection and is not to be cut. The directors have guarded the timber against trespassers and, when possible, have collected the value of trees wrongfully cut. The district’s chief engineer testified that no timber had ever been sold (before this controversy) except some that had been damaged by fire or by storm.

Upon these facts the district is entitled to prevail. Even though it owns only an easement, there is no inequity in the recognition of the district’s claim. Under our law it is firmly settled that when a permanent easement is taken by eminent domain, depriving the owner of the use of the property, the compensation must equal the full value of the land, as if a fee were being acquired. Railway v. Combs, 51 Ark. 324, 11 S. W. 418; State ex rel. Pub. & Parks Comm. v. Earl, 233 Ark. 348, 345 S. W. 2d 20. Hence, with respect to the easements obtained by condemnation, the district is not receiving an undeserved windfall. With respect to the easements that were purchased, the district’s grantors did not insert in their conveyance any reservation of timber rights.

Even in the case of a permanent ea.sement the landowner retains timber rights to the extent that their assertion is not inconsistent with the rights of the condemnor. Patterson Orchard Co. v. Southwest Ark. Utilities Corp., 179 Ark. 1029, 18 S. W. 2d 1028, 65 A.L.R. 1446. Here, however, the timber was unquestionably needed by the district in its long-term program of levee protection. Its engineer testified that the trees in dispute were grown for the purpose of wave wash protection and were being sold only on account of the levee enlargement. For more than two decades the district invested its funds in safeguarding this timber. Under the district’s longstanding policy it is faced with the expense of planting and maintaining a new strip of woodland in front of the section to be built by the U. S. Engineers. In the circumstances the district has demonstrable property rights in the timber it has nurtured for twenty years. To turn the harvest over to the landowner, leaving the district to bear the expense of undertaking its program anew, would clearly result in unjust enrichment to the owner of the servient estate.

The holding in Nicholson v. Board of Mississippi Levee Com’rs, 203 Miss. 71, 33 So. 2d 604, relied upon by the appellant, is not in point. There the court, in holding that the levee district had an easement rather than a fee, awarded the landowner the timber that was cut from the right-of-way. But the distinguishing factor is that in the Ncholson case, unlike the one at bar, there was no contention that the timber had ever been needed for levee purposes. To the contrary, the court said: “Indeed, the bill states and the demurrer admits, that, the timber which is the subject of this controversy, is not needed or useful in the construction or repair or maintenance of levees.”

Affirmed.

Bobinson, J., dissents.


author: Paul Ward, Associate Justice.

text:
    Harrelson v. Whitehead.
    5-2932
    365 S. W. 2d 868
    Opinion delivered March 25, 1963.

      Mehaffy, Smith & Williams, By William H. Sutton, for appellant.

      Cockrill, Laser, McGehee & Sharp, for appellee.
   Paul Ward, Associate Justice.

While Wayne Harrelson, age 15, was riding a motorcycle on Wright Avenue in Little Rock he collided with the automobile driven by appellee, Nathan A. Whitehead. The collision occurred about 7:30 p.m. Suit filed by Wayne’s father, in his own right and next friend of Wayne, resulted in a jury verdict in favor of the defendant, Nathan A. Whitehead.

On appeal, appellant relies only on alleged errors in the instructions. It is contended by appellant that the court erred in refusing to tell the jury (in effect) that: (a) Wayne (being a minor) should not be held to the same standard of care for his own safety as if he had been an adult; and (b) appellee owed Wayne a higher degree of care than he would have owed him had Wayne been an adult. There was a third assignment of error but, in view of the disposition hereafter made of the other two, there is no need to discuss it.

(a) Because appellee charged Wayne with contributory negligence appellant requested the court to instruct the jury that he should “not be held to the same standard of care for his own safety as a person of adult age ...” Appellant cites the following decisions to substantiate this request: St. Louis, Iron Mountain & Southern Railway Company v. Sparks, 81 Ark. 187, 99 S. W. 73; Garrison v. St. Louis, Iron Mountain & Southern Railway Company, 92 Ark. 437, 123 S. W. 657; St. Louis Southwestern Railway Company v. Adams, 98 Ark. 222, 135 S. W. 814; Nashville Lumber Company v. Busbee, 100 Ark. 76, 139 S. W. 301; and, Kansas City Southern Railway Company v. Teater, 124 Ark. 1, 186 S. W. 294. In the Sparks case supra, we said:

“It has been frequently held that a child is not required to exercise the same capacity of self-preservation and the same prudence that an adult should exercise under like circumstances.”

It is our opinion, however, that the above decisions are not in point, because none of them involve a minor who was riding a motorcycle or driving a vehicle on the public highway. In fact, it appears that the exact issue here raised is one of first impression in this state and that it has seldom been raised in other jurisdictions. There is a statement in 77 A.L.R., 930 relative to the care imposed by law on a minor in a case of this kind, which reads:

“It is believed that in many cases, especially those involving negligence or contributory negligence in the operation of motor vehicles, the point goes by default, all concerned acting under the assumption that an adult standard applies.”

We agree with the above mentioned assumption as being both sound and reasonable. A casual review of our statutes pertaining to safety on the highways discloses that no distinction, expressed or implied, is made between the degree of care to be exercised by a minor and an adult. Note the following sections in Ark. Stats.: § 75-302 defines a “vehicle” as any device not moved by human power; defines a “motor vehicle” as a vehicle self-propelled; § 75-303 defines a “person” as every natural person . . . ; § 75-601 says no “person” shall drive a “vehicle” on a highway at a speed greater than is reasonable and prudent . . . ; §§ 75-604 and 75-605 say no “person” shall drive in such and such a manner; and, §§ 75-609 and 75-610 refer to what a “driver” of a vehicle shall or shall not do. In none of these statutes is any distinction made between a minor and an adult.

As regards safety to the traveling public we see no valid distinction between a vehicle driven by a minor and one driven by an inexperienced or reckless adult. As to the duty imposed on the latter, this Court, in Hughey v. Lennox, 142 Ark. 593, 219 S. W. 323, had this to say:

“An unskilled or inexperienced driver is not to be excused from liability for injuries inflicted because of his inexperience and unskillfulness. On the contrary, he should not frequent places where injury is liable to result from inexperience or unskillfulness in handling a car. When a person operates an automobile along a public highway frequented by other travelers, he assumes the responsibility for injuries resulting from his own unskillfulness in the operation of the car. ’ ’

Courts of other jurisdictions which have considered the issue here presented have consistently held minors to the same degree of care as adults in driving on the highways. In Wilson v. Shumate, (Mo. 1956) 296 S. W. 2d 72, the Court in construing a statute essentially like § 75-601 mentioned previously, held “reversibly erroneous” the following instruction:

“ ‘You are further instructed that in considering whether or not plaintiff is guilty of contributory negligence, as defined in other instructions, you should take into consideration plaintiff’s age, her intelligence and discretion, and, if you find from the evidence that plaintiff did not possess the intelligence and discretion of an adult at the time of her injuries, then the jury may consider these facts in determining whether or not plaintiff was guilty of contributory negligence on the occasion in question.’ ”

After quoting the statute, the Court said:

“Plaintiff (a minor) in this case was the operator of a motor vehicle and the standard under which she was to operate that vehicle was fixed by law. Consequently, her ‘age, her intelligence and discretion’ and whether she did or did not ‘possess the intelligence and discretion of an adult’ were not proper matters for the jury to consider ...”

To the same effect is the holding in Dellwo v. Pearson, (Minn. 1961) 107 N. W. 2d 859, where we find this significant language:

“ ‘To give legal sanction to the operation of automobiles by teen-agers with less than ordinary care for the safety of others is impractical today, to say the least. We may take judicial notice of the hazards of automobile traffic, the frequency of accidents, the often catastrophic results of accidents, and the fact that immature individuals are no less prone to accidents than adults.’ ”

See also: Betzold v. Erickson, 35 Ill. App. 2d 203, 182 N. E. 2d 342 (Ill. 1962) and Elliot v. Jensen, 9 Cal. 642, 187 Cal. App. 2d 389.

(b). Appellant next contends tbe court erred in refusing to tell the jury, in effect, that appellee owed Wayne (because be was a minor) a greater degree of care than be would bave owed him bad be been an adult. This contention is refuted, we think, by tbe conclusion we bave already reached. If Wayne were obligated to exercise tbe same degree of care (for bis own safety) as an adult, then there is no logical reason to impose on appellee a higher degree of care merely because Wayne happened to be a minor.

Moreover, from tbe record it is clear that appellee did not and could not bave known a minor was riding the motorcycle. Tbe law very wisely does not require appellee to guard against a hazard of which be was not aware and could not bave been aware of by tbe exercise of due care. See: Smith v. Wittman, 227 Ark. 502, 300 S. W. 2d 600.

Affirmed.


author: Sam Robinson, Associate Justice. Ed. F. McFaddin, Associate Justice

text:
    Ferri v. Braun.
    5-2935
    366 S. W. 2d 286
    Opinion delivered March 25, 1963.
    [Rehearing denied April 29, 1963.]

      William H. Dreio, for appellant.

      John F. Gibson, for appellee.
   Sam Robinson, Associate Justice.

On June 14, 1962, appellees, Earl T. Braun and his wife, Marie, filed this suit against appellant, Joe Ferri, alleging damages to Earl in the amount of $3,500.00, and damages to Marie in the sum of $9,900.00, growing out of an automobile collision. Appellant, Ferri, failed to answer within the prescribed time, and on August 6, 1962, the Brauns were awarded judgment for the total amount asked in the complaint.

On September 1,1962, within the proper time, Ferri filed notice of appeal. He also filed a designation of the record on appeal, designating the entire record filed with the Clerk, and a narrative statement as follows: "On the 9th day of July 1962 this cause was called on the docket by the Honorable Gr. B. Colvin, Jr., Circuit Judge, Chicot County, Arkansas, and noted that the defendant, Joe Ferri, had not filed Answer herein. The Sheriff of Chicot County, John H. Biggs, thereupon called to the bar of this Court, the defendant, Joe Ferri, three times to appear, and who appeared not, and thereupon Avithout any testimony being presented, rendered judgment as prayed in the complaint filed by the plaintiffs, Earl T. Braun and Marie R. Braun. There was no testimony presented by the plaintiffs herein, nor any witnesses in behalf of plaintiffs.” Ark. Stats. 27-2127.4 provides: "A party may prepare and file Avith his designation a condensed statement in narrative form of all or- part of the testimony, and any other party to the appeal, if dissatisfied with the narartive statement, may require testimony in question and answer form to be submitted for all or part thereof.”

The judgment provides, inter alia, that evidence was adduced by the plaintiffs and that there was proof that Earl T. Braun had been damaged in the sum of $3,500.00, and proof that Marie R. Braun had been damaged in the sum of $9,900.00. The judgment was for the respective parties in the sums mentioned.

There must be evidence to support an award of damages in a default judgment. Greer v. Newbill, 89 Ark. 509, 117 S. W. 531; Greer v. Strozier, 90 Ark. 158, 118 S. W. 400. Here, the judgment recites that there was proof of damages. In the narrative statement appellant says: “There was no testimony presented by plaintiffs herein, nor any witnesses in behalf of plaintiffs.” The real question is whether the parties are bound by the recitation in the judgment that there was proof of damages, or can appellant show, in the manner attempted here, that there is no substantial evidence to sustain the judgment.

Although the defendant, appellant, failed to file an answer, he had the right to cross-examine witnesses giving testimony as to damages and he had the right to introduce testimony in mitigation of damages. In other words, he had the right to contest the element of damages ; it necessarily follows that he has the right to question on appeal the sufficiency of the evidence to support the amount of damages awarded. In Clark v. Collins, 213 Ark. 386, 210 S. W. 2d 505, the court said: “In the early cases of Thompson v. Haislip, 14 Ark. 220, and Mizzell, et al. v. McDonald, et al., 25 Ark. 38, this court laid down the rule that in a hearing to determine the amount of damages after default, a defendant has a right to cross-examine the plaintiff’s witnesses and to introduce evidence in mitigation of damages. In the last case cited Chief Justice Walker, speaking for the court, said: As regards the first question, the defendants, by failing to plead in bar, confessed the plaintiffs’ right to recover damages, but not the amount of damages claimed in the declaration; because, if such is the effect of a judgment by default, then there would be no necessity for calling a jury to inquire of damages, and judgment would, without the intervention of a jury, be rendered for the amount of damages set forth in the plaintiff’s declaration. It must therefore follow, that although the assumpsit to pay for the goods, averred to have been sold and delivered is admitted by the default, and no longer an open question for contest, such is not the case as regards the amount of damages to be recovered. In the case of Thompson v. Haislip, 14 Ark. 220, this court recognized this rule, and held that upon a writ of inquiry of damages, the defendant had a right to cross-examine a witness introduced by the plaintiff, and that it was error to refuse such, permission. And we think that, upon principle, the decision in that case is alike applicable to this. The open question before the jury was as to the amount of the damages to be assessed, and if the defendant be permitted (as we have held he should be) to cross-examine a witness introduced by the plaintiff, for the purpose of reducing the amount of damages, we think, for the same reason and upon principle, he should be permitted to introduce evidence for the purpose.’ ”

In his narrative statement of the evidence, served on counsel for appellee along with the notice of appeal, appellant says there was no evidence of damages. This was just another way of saying there was no substantial evidence to support the judgment. In these circumstances, the appellee had the right to require that the evidence be supplied in question and answer form. But appellees did not avail themselves of the opportunity to make such evidence, if any, a part of the record; therefore, the record contains no substantial evidence to support the judgment.

Since the question of damages was apparently not fully developed, the cause will not be dismissed, but is reversed and remanded for new trial on the issue of damages.

McFaddin, J., dissents.

Ed. F. McFaddin, Associate Justice

(dissenting). I maintain the appeal in this case should be dismissed without prejudice to the appellant’s right to file a motion in the Trial Court for correction of the record.

According to the transcript before us, the Circuit Court of Chicot County, on July 9, 1962, entered this judgment in this case:

‘ ‘ ON this day this cause comes on to be heard, being the day regularly set therefor, plaintiffs appearing in person and through their attorney, JOHN F. GIBSON, and defendant, although called three (3) times at the bar of this Court, failed to appear though summoned in the time and manner provided by law. The cause is submitted to the Court on the Complaint and on the summons showing service personally on defendant more than twenty (20) days prior, and the evidence adduced by the plaintiff, from all of which the Court finds:
“I. THE Court has jurisdiction of the parties and the subject matter herein.
“II. DEFENDANT, by failing to file an Answer in the time and manner provided by law, has waived a right to trial by jury on the issue of damages.
“III. PROOF has been shown that the plaintiff, EARL T. BRAUN, has been damages in the sum of THIRTY-FIVE HUNDRED ($3,500.00) DOLLARS, as a direct result of the negligence of the defendant, JOE FERRI.
“IV. PROOF has been shown that the plaintiff, MARIE R. BRAUN, has been damaged in the sum of NINETY-NINE HUNDRED ($9,900.00) DOLLARS, as a direct result of the negligence of the defendant, JOE FERRI.
“IT IS, THEREFORE, ORDERED AND ADJUDGED that the plaintiff, EARL T. BRAUN, do have and recover of and from the defendant, JOE FERRI, the sum of THIRTY-FIVE HUNDRED ($3,500.00) DOLLARS, together with costs herein, for which execution may issue.
“IT IS FURTHER ORDERED AND ADJUDGED that the plaintiff, MARIE R. BRAUN, do have and recover of and from the defendant, JOE FERRI, the sum of NINETY-NINE HUNDRED ($9,900.00) DOLLARS, together with costs herein for which execution may issue.
“DATED THIS July 9,1962 “ (Signed)
G. B. Colvin, Jr.
Circuit Judge.”

The judgment recites that there was “evidence adduced by the plaintiff ’ ’; and in stating the amount of damages awarded the judgment recites in two instances, ‘ proof has been shown ...” The photographic copy of the judgment in the record before us bears the manual signature of the Circuit Judge. To impeach the above solemn recitations in the judgment, the appellant here offers a “narrative statement” which, in its entirety, reads:

“NARRATIVE STATEMENT
“On the 9th day of July, 1962 this cause was called on the docket by the Honorable G-. B. Colvin, Jr., Circuit Judge, Chicot County, Arkansas, and noted that the defendant, Joe Ferri, had not filed Answer herein. The Sheriff of Chicot County, John H. Biggs, thereupon called to the bar of this Court, the defendant, Joe Ferri, three times to appear, and who appeared not, and thereupon without any testimony being presented, rendered judgment as prayed in the complaint filed by the plaintiffs, Earl T. Braun and Marie R. Braun. There was no testimony presented by the plaintiffs herein, nor any witnesses in behalf of plaintiffs.
“(Signed) "William H. Drew, Attorney for Defendant.”

This narrative statement was evidently prepared in supposed keeping with § 27-2127.4 Ark. Stats., which reads:

“A party may prepare and file with his designation a condensed statement in narrative form of all or part of the testimony, and any other party to the appeal, if dissatisfied with the narrative statement, may recpiire testimony in question and answer form to be submitted for all or part thereof.”

I maintain that the “narrative statement” here offered by appellant does not comply with the statute which says it is to be “a condensed statement in narrative form of all or a part of the testimony.” The so-called “narrative statement” in this ease does not purport to be a statement of “all or part of the testimony”: rather, it says that there was no testimony taken. The sole purpose of the narrative statement in this case is to impeach the recitals of the judgment signed by the Judge; and that is not the purpose of a narrative statement. The solemn recitals in the judgment cannot he impeached in any such manner. The “narrative statement” is a successor to the former hill of exceptions; and in Arkadelphia Lbr. Co. v. Asman, 79 Ark. 284, 95 S. W. 134, we said of an earlier case:

“This court held that the record, showing that the regular judge presided, could not he attacked hy recitals of the hill of exceptions, and dismissed the appeal. Arkadelphia Lumber Company v. Asman, 72 Ark. 320. The court held that if the record failed to speak the truth in that respect the remedy was to procure an amendment. ’ ’

If a hill of exceptions could not he used to impeach the recitals of a judgment, then certainly a narrative statement cannot he used to impeach the recitals of a judgment; and I give this case of Arkadelphia Lumber Company v. Asman, supra, as my authority for saying that appeal herein should he dismissed without prejudice to the plaintiff’s right to apply to the Trial Court for correction of the record. Our cases show that such can he done. In Schofield v. Rankin, 86 Ark. 86, 109 S. W. 1161, Chief Justice McCulloch said:

“It can not be regarded otherwise than as well settled now that a court of record has plenary and continuing powers over its own records for the purpose of amendment, so as to make the records speak the truth concerning its proceedings. Bobo v. State, 40 Ark. 224; Ward v. Magness, 75 Ark. 12; Groton Bridge Co. v. Clark Press Brick Co., 68 C.C.A. 577. An appeal from a judgment or decree does not deprive the court which rendered it of control over its records or of jurisdiction to amend them. ’ ’

And in Poole v. Oliver, 89 Ark. 85, 115 S. W. 952, the Court said:

“If the appellant’s contention is right, that the cause was not disposed of at the July term of court, and a decree was entered as of that date in vacation, the decree would be void. Biffle v. Jackson, 71 Ark. 226; Boynton v. Ashabranner, 75 Ark. 415. That is a matter, however, which this court can not consider upon this record. This record shows a decree of the July term of the Calhoun Chancery Court. If in fact the record is wrong, it must he amended, and the appellant has an appropriate remedy to cause the record to speak the truth.”

So I maintain that appellant should have applied to the Circuit Court to correct the record if, in fact, no evidence was heard on the matter of damages; and that appellant cannot use the “narrative statement” to impeach the judgment, any more than he could have used the former hill of exceptions to impeach the recitals of the Circuit Court judgment.

For these reasons, I dissent from the Majority Opinion, which reverses the judgment in this ease.


author: Jim Johnson, Associate Justice.

text:
    Pennsylvania Millers Mutual Ins. Co. v. Walton.
    5-2925
    365 S. W. 2d 859
    Opinion delivered March 25, 1963.

      Wright, Lindsey, Jenmngs, Lester & Shults, for appellant.

      Wooton, Land & Matthews, for appellee.
   Jim Johnson, Associate Justice.

This is an appeal from an order dismissing a cross-complaint against an insurance agent hy the insurer seeking indemnity from the agent for a loss.

For some years Mrs. H. A. Eoss had purchased residence insurance from appellee W. I. Walton, an agent for appellant, Pennsylvania Millers Mutual Insurance Company. In 1958, appellee wrote Mrs. Ross about a new policy on residence and contents known as the homeowner’s policy. Pursuant to the letter Mrs. Ross went to appellee’s office and discussed the new policy with appellee Mrs. Mildred Cagle, an employee of appellee Walton. On one side of a printed brochure which was enclosed in the letter to Mrs. Ross were two columns, one for listing present coverages and the other for coverages available under the homeowner’s policy. On the other side of the brochure were pictures of common hazards, including water escape damage. Mrs. Cagle filled in the two columns, showing all coverages listed as being included in the new policy recommended to Mrs. Ross, and Mrs. Ross then purchased the policy. Mrs. Ross kept the brochure and apparently did not read the policy when she received it.

When Mrs. Cagle issued the policy, the testimony indicates, she knew there were three different types of homeowner’s policies, but did not know that water escape damage was not covered by the Type A policy issued to Mrs. Ross (but was covered under Types B and C, more extensive policies), nor did appellee Walton, who checked the form of the policy before signing it, appear to know of the lack of coverage.

On March 2, 1961, Mrs. Ross’ home suffered water escape damage. In reply to a call, appellee Walton advised that the loss was covered. It is undisputed that the Type A policy does not cover water escape damage.

When appellant denied liability under the Type A policy, Mrs. Ross brought suit against the company seeking reformation of the policy on the ground of mutual mistake on her part and that of the company’s agent. Appellant answered, denying coverage, and cross-complained against appellees alleging that if appellee’s agency had been guilty of a mistake, error or omission permitting reformation, then appellant, as principal, was entitled to indemnity from the agent guilty of the error or omission. Mrs. Ross then amended her complaint to seek relief jointly and alternatively from appellant and appellees.

Following a trial on the merits, the Chancellor held that the policy should he reformed because of the mutual mistake and the omission, through error, to issue a policy covering water escape damage-; that Mrs. Boss was entitled to judgment against appellant less the difference in the premium paid on policy A and that due under policy B, and that appellees were not liable to appellant for the error or mistake of appellee Cagle.

For reversal, appellant contends that since the liability to the policy holder of appellant was, under the undisputed evidence, caused by a mistake, error or omission of appellees,-appellant’s agents, and moreover, since the trial court expressly so held, the trial court erred in denying to appellant its prayer for indemnity from its agents.

Following the reformation of the insurance contract, which decree is not appealed from, the only issue which faces us now is the liability, if any, of appellees, as agents, to appellant, as principal. This resolves the question to one of agency law generally. Appellant argues forcefully that the Chancellor found as a fact that appellees made a mistake, which appellant urges resulted in the loss sued upon here. This is a non sequitur. It does not follow, in the absence of a showing of collusion or bad faith, that appellees are liable to appellant for a loss occasioned on an insurance contract which appellees had full power and express authority to make on behalf of appellant.

Assuming, without deciding, that appellant’s conclusion is correct that the mistake by appellees was negligence per se, the relationship of that mistake to the pertinent facts must be kept in mind. What did the mistake relate to? It relates to the mistaken belief of appellees that Policy A contained the coverage of Policy B. Appellees had full power to bind appellant to Policy A, to Policy B, and Policy C, the latter having no bearing-on the case at bar. Had there been no mistake and had appellees issued Policy B in the beginning, no liability could be laid at appellees’ feet. Appellee issued Policy A and that policy, coupled with other writing, induced the Chancellor to reform Policy A into Policy B. Under this set of facts the only claim appellant could have on appellees would be for the difference in the cost of Policy A and the cost of Policy B. Had the Chancellor not correctly assessed that difference in cost to the insured, appellees would have been liable to appellant for that amount (and the insured in turn would have been liable to appellees for the difference).

In its brief, appellant states that there is an abundance of well-established precedent to support its contention and complains that it has been “whipsawed” by the trial court. Appellant fails to point to any of these precedents and we have diligently searched the case law of this state and find no case directly in point. However, the case most nearly in point appears to be Phoenix Ins. Co. v. Banks & Co., 114 Ark. 18, 169 S. W. 233, which is against appellant’s contention. Cases from other jurisdictions relating to insurance generally are of little help. While not directly in point with reference to the facts here, we think State Insurance Co. v. Richmond, 71 Iowa 519, 32 N. W. 496, presents an apt simile on the agency matter here involved.

“It is a very important consideration that the company was not drawn into a contract of insurance against a risk which it does not insure against. . .

“If a merchant’s clerk should sell goods on credit,, which he is employed to sell in that way, and to a person to whom he might properly sell, but for a price less than he was expressly required to obtain, the measure of the merchant’s recovery against the clerk in an action for damages would unquestionably not be greater than the difference between the two prices, and that, too, even if the buyer should become insolvent, and not pay anything. If, on the other hand, the clerk should sell property of his employer of a kind which he was not employed to sell at all, he probably would be held responsible for the whole value . . .

“Having, then, reached the conclusion that the risk assumed was within the appellant’s business, and that it was only a question of rates, the appellant should have shown, before it could recover more than nominal damages, that it was damaged in the matter of rates. With this view, the judgment must be affirmed. ’ ’

Affirmed.


author: Frank Holt, Associate Justice. Jim Johnson, Associate Justice

text:
    Superior Forwarding Co. v. Garner.
    5-2869
    366 S. W. 2d 290
    Opinion delivered March 25, 1963.
    [Rehearing denied April 29, 1963.]

      Reid S Burge, Frierson, Walker S Snellgrove, J. F. Sloan, III, for appellant.

      Pollard and Hastings, By Odell Pollard, Barrett, Wheatley, Smith S Deacon, By J. C. Deacon, for appellee.
   Frank Holt, Associate Justice.

This is an action for the recovery of damages arising out of an accident involving three vehicles and resulting in the deaths of three persons. The appellee, William Francis Garner, administrator of the estate of Mrs. Mavis Jean Smith, sued Superior Forwarding Company, Inc., and Johnny Hunt, the appellants, and the estate of Richard L. Palmer to recover damages for the benefit of Mrs. Smith’s estate and her three minor children.

The appellee alleged in his complaint that the death of Mrs. Smith was a result of the concurring negligence of Johnny Hunt, the employee of Superior Forwarding Company, Inc., and Richard L. Palmer. The appellants filed their joint answer denying any negligence on their part and alleged, among other things, that the cause of the accident was the concurring negligence of Edward M. Spurlock, Mrs. Smith, and Richard L. Palmer. Various other pleadings were filed in this action. Upon a trial judgment for the appellee was rendered for $44,005.00. The jury apportioned the degrees of negligence at 50% to the Spurlock estate, 25% to the ..Palmer estate, and 25% to the appellants, Hunt and Superior Forwarding Company, Inc. The appellants made timely motions for a directed verdict which were overruled by the court.

On appeal appellants rely on several points for reversal, one being the point that the trial court should have directed a verdict for appellants, Superior Forwarding Company, Inc., and Johnny Hunt. Since we agree with the appellants on this point it is unnecessary to discuss the others.

The rule is well settled in our state that if there is any substantial evidence, when viewed in the light most favorable to the plaintiff and given its highest probative value, the question must be submitted to the jury. Glidewell v. Arkhola Sand & Gravel Co., 212 Ark. 838, 208 S. W. 2d 4. We thus proceed to examine the evidence in this case.

This tragic accident, taking the lives of Mrs. Smith, Spurlock and Palmer, occurred on State Highway No. 63 four miles east of Hoxie, Arkansas at about 12:55 A.M. on December 24, 1960. Mrs. Smith, a widow, was a passenger in a 1957 Chevrolet hardtop automobile owned and operated by Spurlock. Palmer was alone, driving a 1955 Chevrolet convertible automobile. Hunt was the driver of a 1958 International trailer-truck owned by his employer, Superior Forwarding Company, Inc. The appellee alleged in his complaint that Mrs. Smith and Spur-lock were traveling west in the direction of Hoxie and were being followed by Hunt; that Palmer was driving east and was meeting Spurlock and Hunt when his car veered over the center line of the highway and collided with the Spurlock automobile and then Hunt’s trailer-truck simultaneously collided with these two passenger cars.

During the trial, the court permitted the appellee to amend his complaint to conform to the proof and allege that he was entitled to recover regardless of what direction the Spurlock car was traveling. It could not be determined with any certainty from the testimony or physical evidence in which direction the Spurlock and Palmer vehicles were traveling. Hunt testified at the trial that he could not say which one of the vehicles he was following. He had previously given two written statements to the contrary. In fact, the court instructed the jury, without any objection, that as a matter of law, the vehicle being followed by the truck was free of negligence. This instruction reads as follows:

“You are instructed that the driver of the automobile proceeding on the highway toward Hoxie, Arkansas, under the undisputed evidence in this case is not guilty of any act of negligence and is not liable to any party in this action.”

In spite of this instruction the jury found the drivers of both passenger cars negligent. It could be that the jury was unable to determine which of the two passenger vehicles preceded the truck. The court offered to have the jury consider further its failure to follow this instruction. The appellants objected. The court ruled the appellants could not later complain and overuled their motion for a new trial.

Palmer, 23 years of age, was a ministerial student at Bob Jones University at Greenville, South Carolina and had been visiting in the home of his financee’s parents at Fort White, Florida. He left there early on the morning of December 23,1960, en route to his home in Kansas City, Missouri for Christmas.

Mrs. Smith, a widow 34 years of age with three minor children, on the night of December 23rd left her home between 8 and 8:30 P.M. in the company of Spur-lock after making arrangements for the proper care of her children. Both Spurlock and Mrs. Smith were residents of Jonesboro, Arkansas. There is no evidence as to where the couple was going or at what time Mrs. Smith would return to the Smith home.

Hunt, the driver of the trailer-truck, was a resident of Little Rock, Arkansas, and an employee of Superior for about nine years. Since Mrs. Smith, Spurlock and Palmer were killed in this accident, Hunt is the only surviving eyewitness. Hunt testfied that he left Little Rock about 8 P.M. on the evening of December 23rd to make his regular round-trip to Jonesboro; that he left Jonesboro about 12:05 A.M., December 24th, to return to Little Rock; that he was proceeding west in the direction of Hoxie at about 50 miles per hour when he came up behind a car traveling in the same direction as himself and proceeding at a speed which Hunt estimated at about 40 miles per hour. He further testified that he was approaching the front vehicle for the purpose of passing when he saw the lights of an oncoming vehicle about a mile distant coming at what appeared to be a high rate of speed; that he slowed down his speed to that of the car preceding him and maintained a distance of 80 to 100 feet behind this car without ever attempting to pass it; that the highway was straight and level and when the oncoming car about 75 to 100 feet up the road from the other passenger car, its right wheels went of the pavement a foot or so onto the shoulder of the highway while still traveling at a fast rate of speed and then came back onto the pavement and crossed into the wrong lane running into the car preceding Hunt; that the vehicles collided with a “splattering” impact, like an egg dropped on the floor, about 90 to 100 feet in front of him, the force of the Jonesboro bound car pushing both ears back toward Hunt’s truck, spinning clockwise together down Ms travel lane and hitting the front of his track in only a second or “just seconds”, causing the truck to jackknife and stop in such position with the trailer and most of the tractor in his proper traffic lane.

Hunt testified there wasn’t much damage to his track except from the fire. He testified that the first impact with his truck was not severe and did not jolt him very hard and the rest of the impact was at the drive axle. The front end of the Spurlock vehicle was found wedged under the right side of the tractor of Hunt’s vehicle. Most of the rear section, or the main wreckage of Spur-lock’s car was found approximately 75 to 90 feet back of the trailer toward Jonesboro in the Hoxie traffic lane. The bodies of Spurlock and Mrs. Smith were at a point east of this main wreckage of the Spurlock car or about 100 feet from the rear of the trailer. Hunt further testified that while following the unknown vehicle he had taken his foot off the accelerator and had his foot on the brake but could not say that he did or did not apply his brakes at any time before the impact with his vehicle. There were no skid marks found from any of the vehicles.

The Palmer car came to rest on the north shoulder of the Hoxie bound traffic lane with its rear end near the edge of the highway, the front end pointed toward the northeast, or the ditch on the north side of the highway. The rear portion was about even with the front end of the trailer with a distance of about 8 or 10 feet between the trailer and the car. There was damage to the left front part of the car which would indicate a head-on collision. The right front door was damaged from a heavy blow. The rear portion was undamaged. Palmer’s body was removed from his car.

The truck, the Palmer car and the front section of the Spurlock vehicle burned with portions of the asphalt road damaged by fire. Wreckage was strewn and scattered and it cannot be ascertained from the position of the vehicles which passenger car had been proceeding-in which direction. Dirt, glass and debris were found on the highway from a point even with the tractor for a distance of approximately 125 feet to the rear of the trailer. The only visible evidence of any cut or mark on the highway was approximately 75 to 100 feet east of the rear of the trailer. Appellee contends that the only logical explanation of the position of the impact with Hunt’s truck is that it occurred somewhere in the vicinity of the main wreckage of Spurlock’s car. However, there was no evidence indicating a dragging of the wreckage by the tractor. A state policeman testified that he investigated the accident immediately afterwards and on two other occasions that day but was unable to find ‘ ‘ any evidence where the impact occurred.”

According to Hunt, he experienced no ice or hazardous driving conditions before the accident. He first noticed some ice on a portion of the road after he got out of the truck and walked a few steps following the accident. Two drivers who traveled Hunt’s route, coming up on the scene of the accident shortly thereafter, testified they had encountered no ice or hazardous driving-conditions before they arrived. Another witness, who lives about “one-half of a quarter” from the scene of the accident, testified that upon being awakened by explosions from the gasoline and tires he walked to the scene and never observed any ice or slippery walking-conditions. According to some witnesses, weather conditions were causing ice to form, moving from the north or Hoxie toward the scene of the accident. No witness testified that before the accident occurred there existed any ice or other hazardous road conditions between Jonesboro and the scene of the accident.

The specific acts of negligence attributed to Johnny Hunt on which appellee relies are: (1) Failed to keep a proper lookout, (2) was driving at a fast, reckless and unreasonable rate of speed for the then existing conditions, (3) failed to reduce his speed commensurate with existing road conditions, (4) failed to keep his vehicle under control, (5) was following too close, and (6) was carelessly attempting to overtake and pass the vehicle in front of him.

According to the evidence in this case, Hunt was keeping a proper lookout inasmuch as he observed the oncoming car and thereupon stayed in his proper lane of traffic awaiting the approaching car to pass him. He also slowed his vehicle to a speed of approximately 40 miles per hour and maintained a distance of 80 to 100 feet behind the car preceding him without attempting to pass this vehicle. There is no proof there was any ice or hazardous driving conditions between Jonesboro and the scene of the accident.

The court instructed the jury properly, and without objection, that the maximum speed limit was 60 miles per hour. There is no evidence in this case that at any time Hunt failed to keep his vehicle under control. What more could Hunt, or any driver under the circumstances then existing, have done when this oncoming vehicle, moving at a high rate of speed, suddenly veered across the highway and crashed into the vehicle preceeding Hunt 1 Shearman Concrete Pipe Co. v. Wooldridge, 218 Ark. 216, 234 S. W. 2d 382. There is no proof that Hunt was traveling other than in his own proper lane, where he should have been, at all times before and after this accident. Under the provisions of Ark. Stats. Anno., 75-614, Hunt had a right to follow the preceding vehicle at a reasonable and prudent, distance for the purpose of overtaking and passing it. Hunt denies, and there is no proof to the contrary, that he ever attempted to pass the vehicle in front of him. There are no physical facts in this record that Hunt’s vehicle was ever out of its proper lane of traffic. In fact, when Hunt’s vehicle came to rest the trailer was wholly within the proper traffic lane with the tractor in a jackknife position and the front end across the center line.

On the basis of the record presented to us in this case we are of the opinion that the trial court should have directed a verdict as requested by the appellants. As we view the evidence in this case, appellee’s cause is based on inferences, speculation and conjecture. We do not find any substantial evidence to support any of the allegations of the appellants’ alleged acts of negligence in this case. The burden was upon the appellee to produce some substantial evidence from which the jury might find some act or omission constituting negligence by the appellants as alleged in appellee’s complaint. Such evidence can be established either by direct or circumstantial evidence but the appellee cannot rely upon inferences based on conjecture or speculation in order to establish proof of negligence.

In Kapp v. Sullivan Chev. Co., 234 Ark. 415, 353 S. W. 2d 5, Mrs. Kapp was injured in a three-car collision in which her car seat belt broke. She brought suit against the appellee alleging that her injuries resulted from a defective seat belt. This court held that a directed verdict in favor of the defendant-appellee was proper and in doing so stated:

“ * * * Several possible causes of the break are argued, but in truth, they are only possibilities, and do not reach the status of probabilities. Negligence cannot be established by guess work. As stated in Henry H. Cross Co. v. Simmons, 96 F. 2d 482, a decision under Arkansas law:

‘ To submit to a jury a choice of possibilities is but to permit the jury to conjecture or guess, and where the evidence presents no more than such choice it is not substantial, and where proven facts give equal support to each of two inconsistent inferences, neither of them can be said to be established by substantial evidence and judgment must go against the party upon whom rests the burden of sustaining one of the inferences as against the other. ’ ’ ’

In Glidewell v. Arkhola Sand & Gravel Co., 212 Ark. 838, 208 S. W. 2d 4, this court said:

* * * Conjecture and speculation, however plausible, cannot be permitted to supply the place of proof, * * * ”.

In Moran v. State, 179 Ark. 3, 13 S. W. 2d 828, we said:

* * It is not allowable, under the rules of evidence, to draw one inference from another, or to indulge presumption upon presumption to establish a fact. Seasonable inferences may be drawn from positive or circumstantial evidence, but to allow inferences to be drawn from other inferences, or presumptions to be indulged from other presumptions, would carry the deduction into the realm of speculation and conjecture.”

See also Martin v. Arkansas Power & Light Co., 204 Ark. 41, 161 S. W. 2d 383; 20 Am. Jur. § 165, p. 169.

It is true that since Hunt is a party-defendant his testimony is presumed to be disputed and contradicted. Either rejecting Hunt’s testimony altogether or considering it in the light most favorable to appellee, there is still lacking any substantial evidence to support a verdict in favor of the appellee. In Bennett v. Wood, (CA 8) 271 F 2d 349, the court said:

“The rejection of Bennett’s testimony relating to the facts surrounding the accident does not aid the plaintiff in establishing her case. The burden is upon the plaintiff to prove negligence which proximately caused the injuries claimed. Defendants do not have the burden of proving freedom from negligence. Glidewell v. Arkhola Sand & Gravel Co., supra, 208 S. W. 2d at page 8; Kisor v. Tulsa Rendering Co., DCWD Ark., 113 F. Supp. 10, 16.”

Assuming we found sufficient evidence of negligence to constitute a jury question in this case, even then the verdict in favor of the plaintiff-appellee could not be permitted to stand. The appellee had the burden of proof to establish not only negligence on the part of the defendants-appellants, but also that such negligence was a proximate cause of Mrs. Smith’s death. In Kapp v. Sullivan, supra, we said:

“ * * * Negligence alone is not sufficient. It must be established that such negligence was a proximate cause of the damages suffered.”

Hunt described the collision between the Spurlock and Palmer cars as a “splattering impact,” somewhat like dropping an egg on the floor, resulting in it splattering and breaking into several pieces. The condition of Mrs. Smith’s body was such that it appears her death was instantaneous. The oncoming vehicle, whether driven by Spurlock or Palmer, was traveling at a high rate of speed when it collided with the other passenger car [either Spurlock’s or Palmer’s] which latter vehicle Hunt estimated to be traveling at approximately 40 miles per hour. Thus, the two vehicles collided at a combined speed which produced the described splattering result. According to Hunt he was approximately 100 feet behind the first impact and the two cars spun clockwise and collided with him after he had traveled about one-half the distance to the first collision.

According to the evidence in this case it is only by conjecture and speculation that it can be said in which direction the Spurlock and Palmer vehicles were proceeding at the time of the accident. Apparently the jury could not or refused to so find. It is only by conjecture or speculation that a jury could determine why the oncoming vehicle approaching at a high rate of speed swerved across the road and collided with the vehicle preceding Hunt; that this “splattering” impact did or did not instantly cause Mrs. Smith’s death; that Mrs. Smith was or was not propelled from the vehicle in which she was a passenger at the time of this impact; that Mrs. Smith was or was not in the wreckage when it collided with Hunt’s vehicle; that she was or was not dead when this impact occurred; that Hunt was negligent in any manner or that any negligence of his was a proximate cause for the damages sought herein.

"We do not mean to say that a disinterested or non-party eyewitness is necessary. Physical facts can supply the required evidence. However, in this case the physical facts are in such hopeless conflict that they lead only to conjecture and speculation. Verdicts cannot stand on such evidence.

We stated the rule in Turner v. Hot Springs Street Ry. Co.. 189 Ark. 894, 75 S. W. 2d 675:

“ * * * juries are not permitted to guess or speculate as to the proximate cause of an alleged injury, the burden resting upon [plaintiff] to show by a preponderanee of the evidence that her injuries were caused by some negligent act or omission of [defendant].”

See also Bennett v. Wood, supra.

The burden was on the plaintiff to prove not only the appellants were negligent, but such negligence was a proximate cause of the damages suffered. This causal connection cannot be proved by conjecture and speculation. This proximate cause must be proved by direct or circumstantial evidence as a fact. In this case there are insufficient proven facts, connected and related to each other, from which it can be reasonably inferred that any negligence on the part of appellants was a proximate cause of the accident.

It is our opinion that there was no substantial evidence of negligence or proximate causation to make a question for the jury. Therefore, we must reverse this judgment and dismiss this case. It is so ordered.

Johnson, J., dissents.

Jim Johnson, Associate Justice

(dissenting). I do not agree with the majority view. In addition to the rule requiring that appelant Johnny Hunt’s testimony be considered as disputed and controverted, there is a stronger rule applicable to this case which is set out in Penny v. Gulf Refining Co., 217 Ark. 805, 233 S. W. 2d 372, as follows:

“A directed verdict for the defendant is proper only when there is no substantial evidence from which the jurors as reasonable men could possibly find the issues for the plaintiff. In such circumstances, the trial judge must give to the plaintiff’s evidence its highest probative value, taking into account all reasonable inferences that may sensibly be deduced from it, and may grant the motion only if the evidence viewed in that light would be so insubstantial as to require him to set aside a verdict for the plaintiff should such a verdict be returned bv the jury.”

Viewing the evidence according to the rules of this court, I find in appellant’s own abstract the following testimony of a disinterested witness:

“My name is John Newton White and I live approximately 3% miles east of Hoxie on Highway 63. I went to the scene of the accident on Highway 63 last December 24th. 1 was concerned for fear my daughter was in it. I was in bed, but was awake, waiting on my daughter to get home. She should have been in and I was concerned about her. The road was slick at the time, not real bad but dangerous. About dark that night I had been out seeing about the stock and it had been raining and getting freezing weather. I heard the crash, looked out the window and saw the fire. I had heard a car pass my house before making a noise like it had a leaky muffler. I just heard one crash. I got up and called the ambulance and police and then walked to the scene. I had to walk careful to keep from sliding.”

This witness whose home is located in dose proximity to the crash testified positively that he heard only one crash. Certainly this is substantial evidence from which the jury could have found that this was a simultaneous collision.

From the severity of the collision with appellant’s truck as indicated by the physical facts as established by the testimony and photographs in the record, a jury could have found that appellant’s truck contributed to causing the death of Mrs. Smith. .

It is settled law that once a plaintiff has shown a defendant’s negligence concurred with the negligence of another in producing an injury he is entitled to recover unless the defendant shows that the negligence of the other party would'have produced the injury independently of his own negligence. Oviatt v. Garretson, 205 Ark. 792, 171 S. W. 2d 287; Lydon v. Dean, 222 Ark. 367, 260 S. W. 2d 465; 38 Am. Jur., Negligence, § 63, p. 715. In my view appellant completely failed to make such a showing.

Was there any substantial evidence from which reasonable men could possibly have found that appellant was negligent? The jury heard the testimony of appellant Johnny Hunt who admitted to making the 155-mile trip from Little Rock to Jonesboro while driving a huge transport truck on this rainy night of the accident in less than four hours and after making business stops at Searcy and Newport, and after taking more than 30 minutes to eat a steak in Newport. The jury further heard the evidence developed at trial which showed that Johnny Hunt, driver of the Superior truck, gave a written and signed statement a few hours after the wreck to the manager of the Superior Forwarding Company terminal at Jonesboro and to the insurance adjustor for Superior which stated that the vehicle proceeding down the highway toward Hoxie in front of him was occupied by two persons and that the vehicle meeting them was a convertible.

Five days after the accident when he was in Little Rock, the evidence showed Hunt gave another written and signed statement, with the consent of his employer, to a representative for the Spurlock estate and within that statement again stated that the car he had been following was a Chevrolet hardtop and that the vehicle meeting him was a Chevrolet convertible.

Hunt testified at the trial he really didn’t know which vehicle was in front of him and which vehicle he was meeting. In addition to this impeachment the jury was asked by appellants to believe that appellant could accurately describe the speed and control of an oncoming vehicle at a considerable distance when he couldn’t testify on the witness stand as to which car he had been following. This is the same witness who after suffering comparatively slight injuries admittedly failed to check on the welfare of the occupants of the other vehicles, one of which apparently burned to death. It is true that Johnny Hunt was the only surviving eye witness to this collision but as stated above his testimony is disputed as a matter of law and from the verdict rendered by the jury it is evident that they chose not to believe him as a matter of fact, which of course they had a perfect right to do. On appeal this court in the majority opinion chooses to disagree with the jury and relies almost completely for its finding of no substanial evidence upon the testimony of Hunt.

Wliat was the evidence as to the weather conditions ? The witness John Newton White testified as set out above concerning the weather conditions both before and after the collision. Johnny Hunt testified that he noticed ice on the road immediately after he got out of his truck. Witness John W. Troutt, Jr., City Editor and photographer for the Jonesboro Evening Sun, testified that he arrived at the scene not later than 1:30 A.M., which was not more than 30 minutes after the wreck had occurred, and that as he was driving west from Jonesboro to the scene of the wreck he encountered ice at the town of Sedgwick on west to where the wreck occurred. He also testified that he slowed his speed down considerably after going Avest from SedgAvick. Witness Robert F. Warden testified that he arrived at the scene at about 1:10 A.M., which Avould have been not more than 15 minutes after the wreck, and that in going to the scene he traveled the highway on Avhich the wreck occurred and that the highway Avas icy and very slick. Witness Charles White, a fireman from Walnut Ridge, testified that the roads were icy and very slick. Witness Alvin Taylor testified that he was the first motorist to arrive on the east side of the scene of the accident and that he arrived there some time between 12:00 and 1:00 A.M. and that when he got out of his car he noticed that there was ice on the highway. Appellant admitted he was driving his heavy tractor and trailer at a speed of 50 miles per hour. It is my view that reasonable minds could differ as to whether 50 miles per hour was an excessive speed for a big tractor and trailer to have been driven on an icy highway at night.

Appellaht admitted that he was following the automobile in front of him at a speed of 50 miles an hour. He estimated the speed of the preceding automobile to be 40 miles per hour. He said he was following within 80 to 100 feet of the vehicle in front of him. Such a distance is barely more than the combined length of his tractor and trailer. His trailer alone was 40 feet in length. He admitted that he ordinarily would not follow another vehicle any closer than three to four hundred feet. However, he tried to justify the fact that he was within 80 to 100 feet of the vehicle in front of him by stating that he had overtaken the vehicle in front of him and started to pass but saw another automobile approaching from the opposite direction at a distance of one mile or more away. "When he saw the approaching automobile, he discontinued his effort to pass. Although he realized that the approaching automobile was traveling at a terrifically high rate of speed when he first saw it a mile or more away, and, nevertheless, he remained within 80 to 100 feet behind the car in front of him. Even though he felt that three to four hundred feet was a safe distance for him to follow another vehicle, he did not adjust his speed so as to get a safe distance back, in spite of the fact that he knew he was going to meet a vehicle which he described as traveling at a terrifically excessive rate of speed. Once he abandoned his effort to pass, he could not escape the duty imposed upon him by Sec. 75-614 of the Arkansas Statutes Annotated, which provides that a driver of a motor vehicle shall not follow another closer than is reasonable and prudent, particularly in view of the fact that he had more than ample time to get a prudent distance back.

A reasonable and prudent distance for appellant Johnny Hunt to follow another vehicle would certainly be more than 80 to 100 feet and under the existing circumstances, a jury might well find that a prudent distance would be even more than the three to four hundred feet which he testified he ordinarily considered to be a safe distance for him to follow another vehicle.

There was further evidence relative to Hunt’s driving, such as failure to swerve his vehicle and failure to apply brakes, from which a jury could have found that Hunt was negligent in failing to keep a proper lookout and failing to exercise ordinary care.

From the whole case it is my view that appellee need not have proved by direct evidence that Mrs. Smith’s death was caused by the sole negligence of Johnny Hunt. I believe it is sufficient if the facts proved are of such a nature, and are so connected and related to each other, that the conclusion therefrom may be fairly inferred. In the case of Biddle v. Jacobs, 116 Ark. 82, 172 S. W. 258, this court in ruling on the sufficiency of the evidence as to whether defendant’s negligence was the proximate cause of the deceased’s death, said:

“In actions for damages on account of negligence, plaintiff is bound to prove, not only the negligence, but that it was the cause of the damage. This causal connection must be proved by evidence as a fact, and not be left to mere speculation and conjecture. The rule does not require, however, that there must be direct proof of the fact itself. This would often be impossible. It will be sufficient if the facts proved are of such a nature, and are so connected and related to each other that the conclusion therefrom may be fairly inferred.” [Emphasis mine.]

For the reasons stated above, I respectfully dissent.


text:
    Benton County Motors v. Felder.
    5-2937
    366 S. W. 2d 721
    Opinion delivered April 1, 1963.
    [Rehearing denied May 6, 1963.]

      Scott & Davidson, for appellant.

      Jeff Duty, for appellee.
   Carleton Harris, Chief Justice.

This is a Replevin action wherein all facts were stipulated hy counsel, and submitted to the Benton County Circuit Court for determination as a matter of law. The admitted facts, as set forth in the stipulation and pleadings, are as follows:

Stafford McCumber, a resident of Amite County, Mississippi, on June 10,1961, purchased from the Frazier Automobile Supply Company of McComb, Mississippi, a certain Plymouth automobile, under a conditional sales contract. This contract was sold and assigned to Fred Felder d/b/a Felder Finance Company of McComb on the same date. The conditional sales contract was not, and has never been, filed for record in the chattel mortgage records in the office of the Chancery Clerk of Amite County, Mississippi.

Thereafter, MeCumber brought the automobile to Benton County, Arkansas, and on December 21,1961, sold the car to Benton County Motors, Inc., appellant herein. This automobile was purchased by the company from Me-Cumber as a trade-in, without notice of any defect of title, in the ordinary course of trade, and as a tona ficle purchaser for value without notice. The conditional sales contract had not been filed within the State of Arkansas, nor has it ever been filed in this state. At the time of the institution of the suit by appellee, MeCumber was in default under the terms of the contract, and remained in default as of the time of the trial. After argument and the submission of briefs, the court, in addition to facts already enumerated, made the following findings:

That said title retaining note at the time of its execution to the present time constitutes a security interest between the maker, Stafford MeCumber and the Frazier Auto Supply Company, or its assignees.

That permission was not given to Stafford MeCumber by Frazier Auto Supply Company or its assignees to remove said automobile from the state of Mississippi.

That the plaintiff, Fred Felder, holds the title retaining note to the above-described automobile and as such holder is entitled to immediate possession thereof and that the title retaining note of plaintiff is superior to title certificate issued to defendant by the Commissioner of Revenue of the State of Arkansas.

That the certificate of title issued to the above described automobile by the Commissioner of Revenues of the State of Arkansas, should be and is hereby cancelled and set aside.”

Judgment was entered in accordance with these findings, and from such judgment comes this appeal.

We are of the opinion that the court erred in holding that Felder was entitled to the possession of the automobile, and that his title-retaining note was superior to the title held by appellant. Subsection 6 of Section 8075-01 {a part of the Motor Vehicle Sales Finance Act of Mississippi) M. V. S. F. provides as follows:

s* ‘Retail installment contract’ or ‘contract’ means an agreement, entered into in this state, pursuant to which the title to, or a lien upon the motor vehicle, which is the subject matter of a retail installation transaction, is retained or taken by a retail seller from a retail buyer as security, for the buyer’s obligation. The term includes a chattel mortgage, a conditional sales contract and a contract for the bailment or leasing of a motor vehicle by which the bailee or lessee contracts to pay as compensation for its use a sum substantially equivalent to or in excess of its value and by which it is agreed that the bailee or lessee is bound to become, or has the option of becoming, the owner of the contract. No such retail installment contract shall be valid and binding against subsequent lien holders or purchasers for value without notice unless the same shall be filed for recording in the chattel mortgage records in the office of the chancery clerk of the county of the residence of the retail buyer within ten (10) days after the date of said retail installment contract.”

Admittedly, this contract was not filed for recording.

Section 75-160, Ark. Stats. Anno., 1961 Supp., provides as follows:

“ (a) No conditional sale contract, conditional lease, chattel mortgage, or other lien or encumbrance or title retention instrument upon a registered vehicle, other than a lien dependent upon possession, is valid as against the creditors of an owner acquiring a lien by levy or attachment or subsequent purchasers or encumbrances with or without notice until the requirements of this article [§§ 75-160, 75-161] have been complied with.
(b) There shall be deposited with the department a copy of the instrument creating and evidencing such lien or encumbrance, which instrument is executed in the manner required by the laws of this State with an attached or indorsed certificate of a notary public stating that the same is a true and correct copy of the original and accompanied by the certificate of title last issued for such vehicle.
(c) If a vehicle is subject to a security interest when brought into this State, the validity of the security interest is determined by the law of the jurisdiction where the vehicle toas when the security interest attached, subject to the following:

1. If the parties understood at the time the security interest attached that the vehicle would be kept in this State and it was brought into this State within thirty (30) days thereafter for purposes other than transportation through this State, the validity of the security interest in this State is determined by the law of this State.

2. If the security interest was perfected under the law of the jurisdiction where the vehicle was when the security interest attached, the following rules apply:

(A) If the name of the lien holder is shown on an existing certificate of title issued hy that jurisdiction, his security interest continues perfected in this State.

(B) If the name of the lien holder is not shown on an existing certificate of title issued by that jurisdiction the security interest continues perfected in this State for four (4) months after a first certificate of title of the vehicle is issued in this State, and also, thereafter if, within the four (4) month period, it is perfected in this State. The security interest may also be perfected in this State after the expiration of the four (4) month period; in that case perfection dates from the time of perfection in this State.

3. If the security interest was not perfected under th e law of the jurisdiction tohere the vehicle was when the security interest attached, it may be perfected in this State; in that case, perfection dates from the time of perfection in this State.”

The italicized provisions determine the law in this litigation. According to Webster’s Third New International Dictionary, the word ‘ ‘ perfect ’ ’ means to ‘ finish; to complete or put in final form in conformity Avith law. ’ ’ Admittedly, this lien \Ams neither perfected under the laAV of Mississippi nor the laAV of Arkansas, and appellant Avas admittedly a bona ficle purchaser.

Appellee argues that the Mississippi recording and filing requirement does not affect the transaction between appellant and McCumber which occurred in Arkansas, asserting that the filing statute only protects bona fide purchasers dealing with the property within the state of Mississippi. Citations are given from authorities on conflict of laws. (Appellee then states that the law of the state to which the chattel was removed, and is situated at the time of the transaction, controls the effect of the subsequent transaction upon the title.) With this statement we agree, for we deem the Arkansas law controlling. However, appellee contends that Section 75-160 (heretofore quoted) has no effect upon this particular transaction because the Act only requires that conitional sales contracts on registered vehicles be filed. We do not consider this contention to be sound, for we are firmly of the opinion that the legislative purpose in enacting the legislation found in 75-160 was to protect bona fide purchasers. Certainly, the legislature did not intend to give to one, who complies neither with the statute requiring registration nor the statute requiring the filing of the conditional sales contract, a greater right than that given to one who complies only with the registration provision. A reading of the entire chapter (Title 75, Motor Vehicles) and amendatory acts seems to make clear that Section 75-160 has reference to all vehicles which are required to be registered. For that matter, though such fact is not included in the stipulation, the vehicle here in question was registered ; this we know by the fact that the court ordered the registration cancelled. The record does not reflect when the act of registration occurred, and, of course, the burden was upon appellee, as plaintiff, to establish his case.

In accordance with the views herein expressed, the judgment is reversed and the cause remanded with directions to enter judgment for the appellant.

       Emphasis supplied.

         Emphasis supplied.

       Both parties have gone out of the record on this point. Appellee states that the appellant registered the vehicle “and secured a title after McCumber had sold it to appellant.” Appellant states that the vehicle in question was first registered in Mississippi to McCumber, and that after the car was brought to Arkansas, “application for Arkansas registration was made by McCumber, the Mississippi evidences surrendered to the proper Arkansas authorities and a certificate of title first issued to McCumber in Arkansas.” Appellant also asserts that this point is advanced here for the first time on appeal. We, of course, do not consider either version since the record does not reflect which is correct.