author: George Rose Smith, Justice. John A. Fogleman, Justice,

text:
    Robert A. PURTLE, Individually and As Next Friend of Jerry Purtle, A Minor v. Kenneth SHELTON, Jr., and Kenneth SHELTON
    5-5705
    474 S.W. 2d 123
    Opinion delivered December 6, 1971
    [Rehearing denied January 10, 1972.]

      Brown, Compton ir Prewett, for appellant.

      Richard H. Mays, for appellees.
   George Rose Smith, Justice.

This is an action for personal injuries suffered by Jerry Purtle, a sixteen-year-old minor, in a hunting accident during the 1969 deer hunting season. The defendants are Kenneth Shelton and his son, Kenneth, Jr., who was seventeen at the time of the accident. The jury attributed half the negligence to Jerry Purtle and half to young Shelton, so there was no recovery. For reversal the appellant, Jerry’s father and next friend, contends that the trial court erred in its instructions defining the standard of care to be observed by a minor while hunting deer with a high-powered rifle.

There were some conflicts in the testimony, but the salient facts are not really in dispute. Jerry and young Kenneth had spent the night at the home of L. D. McMullen, who owned a deer camp in Union county. Early the next morning, before daylight, McMullen took the two youths (and a third lad not involved in the case) to the area where they were to hunt. Kenneth’s deer stand was next to the road, but Jerry had to walk a short distance through the woods to his stand. McMullen had cautioned both boys to make their presence known when they were walking in the woods and not to shoot at anything without knowing it to be a deer.

Jerry failed to find his stand immediately and actually walked toward Kenneth’s stand, without making his presence known. Kenneth thought he saw a deer and fired at it with his 30.06 rifle. The soft projectile apparently hit a tree, broke into shrapnel, and ricocheted toward Jerry, causing serious injuries to both his eyes.

The trial court submitted the case to the jury upon the theory that Kenneth was required to use that degree of care which a 17-year-old minor would use in the same circumstances. Specifically, the court gave AMI 301, defining negligence by reference to a reasonably careful person, AMI 304, defining reasonable care with respect to a minor as that degree of care which a reasonably careful minor of his age and intelligence would use in similar circumstances, AMI 305 (B), putting the duty on both persons to use reasonable care, and AMI 602 explaining the right of one person to assume that another person will use reasonable care.

The appellant first contends that the court should have instructed the jury that Kenneth, in using a high-powered rifle, was required to use the same degree of care that would be observed by an adult in like circumstances. In making that argument counsel cite our holding in Harrelson v. Whitehead, 236 Ark. 325, 365 S. W. 2d 868 (1963), where we adopted the general rule that a minor operating a motor vehicle must use the same degree of care as an adult would use. The appellant argues that motor vehicles and rifles are both dangerous and should therefore be treated alike as far as their use by a minor is concerned.

We cannot accept that argument. To begin with, the motor vehicle rule was not adopted, as our opinion in Harrelson reflects, solely because the driving of an automobile entails danger to others. There are other factors to be considered. A minor must be at least sixteen to operate a car by himself. Ark. Stat. Ann. § 75-309 (Supp. 1969). He must pass an examination to demonstrate his ability to operate the vehicle on the highways. Section 75-318. The rules governing the operation of motor vehicles are largely statutory and make no distinction, express or implied, between the degree of care to be exercised by a minor and that to be exercised by an adult. A measure of financial responsibility is required. Section 75-309. In view of all those factors, the cases in other jurisdictions, as we pointed out in Harrelson, have consistently held minors to the same degree of care as adults in driving upon the highways.

In the second place, we considered the subject anew in Jackson v. McCuiston, 247 Ark. 862, 448 S. W. 2d 33 (1969). There a farm boy almost fourteen years old was operating a tractor-propelled stalk cutter — a large piece of machinery having a dangerous cutting blade. In holding that minor to an adult standard of care we quoted from three authorities: The Restatement of Torts (2d), Prosser on Torts, and Harper & James on Torts. All three authorities recognize the identical rule, that if a minor is to be held to an adult standard of care he must be engaging in an activity that is (a) dangerous to others and (b) normally engaged in only by adults. In the course of that opinion we stated that the minor "was performing a job normally expected to be done by adults.”

We are unable to find any authority holding that a minor should be held to an adult standard of care merely because he engages in a dangerous activity. There is always the parallel requirement that the activity be one that is normally engaged in only by adults. So formulated, the rule is logical and sound, for when a youth is old enough to engage in adult activity there are strong policy reasons for holding him to an adult standard of care. In that situation there should be no magic in the attainment of the twenty-first birthday.

We have no doubt that deer hunting is a dangerous sport. We cannot say, however, either on the basis of the record before us or on the basis of common knowledge, that deer hunting is an activity normally engaged in by adults only. To the contrary, all the indications are the other way. A child may lawfully hunt without a hunting license at any age under sixteen. Arkansas Game & Fish Commission’s 1971-1972 Hunting Regulations, p. 4. We know, from common knowledge, that youngsters only six or eight years old frequently use .22 caliber rifles and other lethal firearms to hunt rabbits, birds, and other small game. We cannot conscientiously declare, without proof and on the basis of mere judicial notice, that only adults normally go deer hunting.

In refusing to apply an adult standard of care to a minor engaged in hunting deer, we do not imply that a statute to that effect would be unwise. Indeed, we express no opinion upon that question. As judges, we cannot lay down a rule with the precision and inflexibility of a statute drafted by the legislature. If we should declare that a minor hunting deer with a high-powered rifle must in all instances be held to an adult standard of care, we must be prepared to explain why the same rule should not apply to a minor hunting deer with a shotgun, to a minor hunting rabbits with a high-powered rifle, to a twelve-year-old shooting crows with a .22, and so on down to the six-year-old shooting at tin cans with an air rifle. Not to mention other dangerous activities, such as the swinging of a baseball bat, the explosion of firecrackers, or the operation of an electric train. All we mean to say in this case is that we are unwilling to lay down a brand-new rule of law, without precedent and without any logical or practical means of even surmising where the stopping point of the new rule might ultimately be reached.

In the other two points for reversal the appellant argues that the trial court should have instructed the jury not in terms of reasonable care (AMI 301, 304, 305 [B], and 602) but in terms of a high degree of care commensurate with the dangers involved in the use of a high-powered rifle. Counsel cite Manning v. Jones, 95 Ark. 359, 129 S. W. 791 (1910), a hunting accident case, but we do not read that opinion as requiring the trial judge to submit to the jury some standard of care exceeding that of reasonableness. In fact, we there said: “Here, as in other cases, the test of the liability of the defendant is whether, in what he did, he failed to exercise reasonable or ordinary care.” We think the correct rule of law to have been stated in the Comment to AMI 1301: “The Committee believes that the Bennett case is well reasoned and follows a rule which eliminates the exercise in semantics that results when the circumstances are judicially viewed as converting ordinary care to ‘a higher degree of care.’ Logically the duty enunciated in an instruction should be ordinary care under the circumstances, and the contention that the circumstances dictate a high degree of caution should be left to arguments of counsel.”

Affirmed.

Brown, J., concurs.

Harris, C. J., and Fogleman and Byrd, JJ., dissent.

John A. Fogleman, Justice,

dissenting. I disagree with the majority in one important particular. That difference means that I would reverse the judgment. I feel that the instruction requested by appellant which would have held young Shelton to the degree of care of an adult should have been given instead of AMI 304.

It is admitted that Bubba Shelton was hunting deer in the woods at Quinn Deer Club when he fired the shot from his .30’06 rifle by which Jerry Purtle was wounded. He told the investigating officer that he was using soft-point core-lock ammunition with 180 (108?) grains of powder. In this same statement he said that the incident occurred about 6:30 a.m. — just before daylight. Jerry Purtle said that it was pretty dark at the time. A gunsmith testified that:

The rifle being used by young Shelton ranked close to the top among high-powered rifles in velocity and killing power; the muzzle velocity with a 150 grains bullet is close to 3,000 feet per second, and a little slower; the average killing distance is 300 yards, although a fatal wound might be inflicted at a greater range, but accuracy would be affected by loss of velocity; the soft-nosed bullet mushrooms to two or three times its normal diameter immediately upon striking an animal of any size, but may disintegrate when it hits a tree or glances.

This was not a toy for child’s play in the deer woods. An engineer who platted the area described the woods and underbrush as so thick that it was necessary to cut one’s way through to the deer stands.

L. D. McMullan, 41, an agent for State Farm Insurance Company, who had been deer hunting for 15 years, was more or less in charge of the hunt. McMullan said that more care was necessary in deer hunting than squirrel hunting because more people were scattered in a fixed area. He was certain that it was a law violation to shoot a deer while it was still dark. See Arkansas Game and Fish Commission Code § 25.01, and Commission Order of April 14, 1969.

Bubba Shelton had been instructed in the skill of deer hunting by his grandfather, Melvin Tucker, a deer hunter for 30 years. Tucker testified that he had taken his grandson hunting ever since the boy was big enough to follow him in the woods with a dog, and before Bubba was big enough to carry a gun. Young Shelton, he said, had been carrying a gun ever since he was 12 or 13 years old. Tucker said that he taught the boy the safety rules of handling, shooting, loading and unloading a gun. He also taught Bubba what he called the inost important thing in hunting, in the woods — a certain knowledge of the identity of his target. Young Shelton, a high school senior, said that he had been deer hunting for about eight years. He had previously killed a deer. He also testified that McMullan had told all of the deer hunters at the camp to be sure to know what they were shooting at. At least five of those engaged in the hunt on the day young Purtle was shot were minors. On the preceding day there had been 13 minors, five of whom were under 18.

This court had no qualms about taking judicial notice of the hazards of automobile traffic, the frequency of accidents, often having catastrophic results, and the fact that immature individuals are no less prone to accidents than adults, in reaching tbe conclusion that the time had come to require a minor to observe the same standards of care as an adult when operating an automobile. I find no logical reason for not doing the same when the use of a high-powered rifle is the implement endangering the lives of all who now flock to the woods in the limited deer hunting season. Logic seems to dictate that an even higher standard be required when firearms are the death-dealing instrument than is expected when the potential danger arises from the negligent use of a motor vehicle.

We have never considered an automobile a dangerous instrumentality in keeping with the decided weight of authority. White v. Sims, 211 Ark. 499, 201 S. W. 2d 21; 60A C. J. S. 932, Motor Vehicles, § 428(1); 7 Am. Jur. 2d 896, Automobiles and Highway Traffic, § 350. It is commonly held that a loaded firearm (particularly a high-powered hunting rifle) is a dangerous instrumentality. Seabrook v. Taylor, 199 So. 2d 315 (Fla. 1967); American Ry. Express Co. v. Tait, 211 Ala. 348, 100 So. 328 (1924); Skinner v. Ochiltree, 148 Fla. 705, 5 So. 2d 605, 140 A. L. R. 410 (1941); Normand v. Normand, 65 So. 2d 914 (La. App. 1953); Huber v. Collins, 38 Ohio L. Abs. 551, 50 N. E. 2d 906 (1942); Gibson v. Payne, 79 Ore. 101, 154 P. 422 (1916); Edwards v. Johnson, 269 N. C. 30, 152 S. E. 2d 122, 25 A. L. R. 3d 502 (1967); Naegele v. Dollen, 158 Neb. 373, 63 N. W. 2d 165, 42 A. L. R. 2d 1099 (1954); Warner v. Santa Catalina Island Company, 44 Cal. 2d 310, 282 P. 2d 12 (1955). The matter has been said to be beyond question or well settled. Hart v. Lewis, 187 Okla. 394, 103 P. 2d 65 (1940); State v. Hedges, 8 Wash. 2d 652, 113 P. 2d 530 (1941); People v. Walls, 49 Cal. Rptr. 82 (1966). It has also been held that firearms are more than ordinarily dangerous or inherently dangerous. Rudd v. Byrnes, 156 Cal. 636, 105 P. 957, 26 L. R. A. (n.s.) 134; 20 Ann. Cas. 124 (1909); Fowler v. Monteleone, 153 So. 490 (La. App. 1934); Fabre v. Lumbermen’s Casualty Co., 167 So. 2d 448 (La. App. 1964); Yusko v. Remizon, 199 Misc. 1116, 106 N. Y. S. 2d 285 (1951), rev’d on other grounds, 280 App. Div. 637, 116 N. Y. S. 2d 922 (1952). While we have not specifically so held, we certainly gave recognition to the hazards involved in Manning v. Jones, 95 Ark. 359, 129 S. W. 791, when we said that a hunter using firearms is governed by the principle that he who does what is more than ordinarily dangerous is bound to use more than ordinary care. We have even held that it was proper for a jury to find, as a matter of fact, that an air rifle is a dangerous instrumentality, relying upon cases from other jurisdictions wherein it was held that an air rifle was such an instrument. Williams v. Davidson, 241 Ark. 699, 409 S. W. 2d 311.

The majority finds distinctions between this case and the rule stated in Harrelson v. Whitehead, 236 Ark. 325, 365 S. W. 2d 868, that seem to me of questionable validity. The fact that an unrestricted driver’s license is not granted to minors under 16, or that an examination is required before the license is issued seems of little consequence. No distinction was made in Harrelson between licensed and unlicensed minors, those who passed the driver examination and those who failed, or those 16 and over and those under 16. Certainly the court would not say that an unlicensed minor was held to a lower standard of care than one licensed. The significance of the statutory requirement of financial responsibility escapes me. Our act only comes into play after an accident. Liability exists whether or not there is insurance coverage or financial responsibility. The fact that there are no exceptions for minors in statutory rules of the road may be the most persuasive argument for the majority position, but I find none in those statutes we have pertaining to firearms and their use. Ark. Stat. Ann. §§ 47-301G (Repl. 1964), 41-507 par. 4 (Repl. 1964), 47-408 (Repl. 1964), 41-4507 — 45-4517 (Repl. 1964), 41-4501 (Repl. 1964), 41-507.5 (Repl. 1964), 41-3109 (Supp. 1969), 59-316 (Supp. 1969), 41-4001 (Repl. 1964). The act prohibiting the negligent discharge of firearms while hunting deer in such circumstances as to endanger the person or property of another does not make any such exception. Ark. Stat. Ann. § 47-535 (Supp. 1969). I have been unable to find any exceptions for minors in Arkansas Game and Fish Commission Code, except for licensing requirements, from which a nonresident minor is not exempt after he kills a deer. See Arkansas Game and Fish Commission Code § 40.01. There are no such exceptions in those regulations governing use of firearms. See Arkansas Game and Fish Commission Code §§ 15.01, 30.01 — 30.05, 40.01, 71.01, 100.01, 100.03.

Still the reasoning of the majority opinion furnished no impediment to the extension of this adult standard of care to a youthful tractor driver in Jackson v. McCuiston, 247 Ark. 862, 448 S. W. 2d 33, although most of the distinctions applied here could have been made there. There the tractor driver was two years younger than the age required for driver licensing and three years younger than Bubba Shelton. Young McCuiston had been trained to operate tractors, Shelton to handle firearms. McCuiston had been operating tractors for two years, Shelton, firearms, for at least twice as long. The tractor-propelled stalk cutter operated by McCuiston was more dangerous than some types of farm equipment, less than others. The Shelton rifle was among the most deadly. No licensing or financial responsibility requirements existed for the tractor driver. But Harrelson v. Whitehead, supra, was deemed our nearest precedent for holding the minor tractor operator to adult standards. There we said:

In the case before us the adult defendants trained the minor defendant in the operation of a dangerous machine — dangerous particularly to third persons who found themselves in proximity during operation. Young McCuiston regularly operated all different types of farm tractors since he was twelve years of age. Unquestionably he was performing a job normally expected to be done by adults. Since he had been made proficient in the operation of the equipment it was his responsibility, and that of his masters, to see that he was apprised of those safeguards for others which would be possessed by an adult operator. If he is negligent in that important aspect of the operation then neither the minor operator nor his master should be permitted to invoke the aid of his minority. We therefore conclude that within the ambit of this case, the defendant operator should be held to the standard of care of a reasonably careful adult.

How can we say differently in this case? Many more people are exposed to the dangers of use of high-powered rifles by minors than can ever be expected to risk the hazards of minors operating farm equipment.

As stepping stones from Harrelson to Jackson the court used authorities illustrating the trend in the law, saying:

The trend in the law points to further relaxation of , the general rule.
“An exception [to the general rule] may arise where the child engages in an activity which is normally undertaken by adults, and for which aduh qualifications are required.” 2 Restatement of Torts 2d § 283 A c.
“There is more support for the proposition that whenever a child, whether as plaintiff or as defendant, engages in an activity which normally is one for adults only, such as driving an automobile or flying an airplane, the public interest and the public safety require that any consequences due to his Own incapacity shall fall upon him rather than the innocent victim, and that he must be held to the adult standard, without any allowance for his age.” Prosser Torts 3rd Ed. HB, p. 159.
“It is our conclusion that courts should and probably will (for the most part) hold the child defendant who is engaging in dangerous adult activities (such as driving a car) to the standard of the reasonably prudent adult.” 2 Harper & James Torts, p. 927.
The Minnesota court, citing Restatement, has extended the requirement of adult care to a minor when he is operating a motorboat. Dellwo v. Pearson, 107 N.W. 2d 859 (1961).

True enough, this court, and the Minnesota Court in Dellwo, found it unnecessary to adopt a rule as broad as stated by the above authorities, because it found it wiser to solve the problem as presented in the setting of a given case. If this case does not present a setting for an exception to the usual rule as to the standard of care required of a minor, we have found the stopping place troubling the majority. We should now never go further than the automobile and farm equipment relaxation, however dangerous the instrument or activity, regardless of whether we are able to rationalize distinctions. It will be much simpler that way, even if we may have trouble with airplanes and motorboats which the Minnesota court was unable to differentiate from automobiles in Dellwo. We will only have to remember motor vehicles and farm equipment as giving rise to the exceptions to the general rule, and not be troubled with cataloging classifications or resorting to logical reasoning.

The majority suggests that another distinction exists because it is unable to say that deer hunting is an activity normally engaged in by adults only. Neither is motor vehicle driving. Neither is the operation of' tractor-drawn stalk cutters or other such farm equipment. I am unaware of any evidence on the subject in either Harrelson or Jackson. Judicial notice that sees driving a motor vehicle as an activity normally engaged in by adults only and operation of tractor-drawn farm equipment a job normally expected to be done by adults only, but does not see hunting with a high-powered rifle loaded with soft-nosed bullets in dense woods and underbrush in the same category, is astigmatic indeed. The immense numbers of minor motor vehicle drivers and farm equipment operators are plainly visible. And the farm equipment operators are most often in a field alone where they hazard the lives of themselves only. Not nearly so many innocent and helpless people are subject to hazards created by them as are potential victims of a hunter under 21 years old equipped with one of the deadliest of all firearms.

The necessity of protection of minors against losses on account of immaturity and the desirability of compensating innocent persons injured through fault of another are conflicting considerations in a case such as this. Public interest and public safety should permit a lowering of the shield protecting the immature, whenever serious injuries are incurred through fault of a minor who knowingly uses a dangerous instrumentality in an adult’s activity in which the law requires more than ordinary care. It is time to recognize, and we have recognized in at least two cases, that arbitrary statutory age of legal maturity is not an adequate guide in such cases. In Harrelson, the court could see no valid distinction between the responsibility of a minor driving a motor vehicle and that of an unskilled or inexperienced or reckless adult driver, who is not excused from liability because of his inexperience and unskillfulness. What is the distinction here?

I would reverse and remand for a new trial, because I think that any differentiation as to standards of care should require that the standard applied in the case of a minor user of a deadly hunting weapon in dense woods and underbrush where many other hunters are to be expected should be at least as high as that required of the minor automobile or farm tractor driver.

I am authorized to state that Chief Justice Harris and Justice Byrd join in this dissent.

Conley Byrd, Justice, dissenting. I would reverse this case for the reasons stated by Justice Fogleman with respect to instruction No. 9. However I agree with the majority that the trial court did not err in instructing the jury in terms of reasonable care as defined in AMI 301, 304, 305 B and 602. However since I would grant a new trial, it appears that appellant, instead of his request relative to the “care” required of a hunter, would be entitled to an instruction relative to the “duty” of a deer hunter in firing a rifle in the woods. In Welch v. Durand, 36 Conn. 182 (1869), the court stated the matter in this language:

“. . . The injury was a battery within the strictest definition. It resulted to the person of the plaintiff from a ball put in motion by the agency of the defendant without due care. It is an immaterial fact that the injury was unintentional and that the ball glanced from the intended direction. Shooting at a mark is lawful, but not necessary, and may be dangerous, and the law requires extraordinary care to prevent injury to others; and if the act is done where there are objects from which the balls may glance and endanger others, the act is wanton, reckless, without due care, and grossly negligent. ...”

While appellant did not offer a correct instruction on “duty” and the trial court properly denied those offered for that reason, it appears to me that appellant was entitled to an instruction to the effect that:

“A loaded gun is a dangerous instrumentality and one deer hunting therewith has a duty to take precautions to control the weapon with a skill and standard of care proportionate to the danger created to prevent injury to others.”

Because a bullet fired from the gun by a minor is just as deadly as a bullet fired by an adult, I’m at a loss to understand why one with “buck fever” because of his minority is entitled to exercise any less care than, any one else deer hunting. One killed by a bullet so fired would be just as dead in one instance as the other and without any more warning.

For the reasons stated, I respectfully dissent.


source: Caselaw Access Project

author: Lyle Brown, Justice. John A. Fogleman, Justice,

license: Public Domain

text:
    Ruth Meyers SETTLE v. Ronald P. MEYERS
    5-5741
    473 S.W. 2d 434
    Opinion delivered December 6, 1971

      Franklin Wilder, for appellant.

      Hardin, Jesson if Dawson, for appellee.
   Lyle Brown, Justice.

This is a child custody case. Custody having previously been awarded the appelleefather, the appellant-mother filed her petition alleging a change in circumstances. The court held that no change in circumstances was shown. On appeal the mother contends that a substantial change in conditions was established, that the best interests of the child would be served by giving custody to the mother, and that the mother is entitled to custody of the five-year-old daughter under the equities in the case.

The father was awarded a divorce in September 1970. He was given custody of the child but the mother was to have possession of the child during week days. Four months later the father petitioned the court for modification of the custody and visitation order. He alleged that three days after the divorce the mother married her paramour. After hearing that petition the court gave the child to the father during week days and to the mother on week-ends. There was no appeal from that order which was entered January 5, 1971.

In April 1971 the mother filed the petition which is now before us. She alleged that the little girl slept in bed with the father; that she was not kept clean; and that the father worked long hours and left the child with a baby sitter. The mother averred that she had a good home, was financially able to support the child, and would devote full time to the care of the little girl. The mother is a nurse and at the time of trial was working full time but said she would quit her job if the requested custody rights were vested in her. After an extended hearing the court found no substantial change in conditions. The previous order, however, was modified by changing the mother’s visitation rights to two nights during the week and two weeks in the summer.

Nothing seriously critical can be said of the parents. Both are very fond of the child and the child is devoted and happy in the custody of either parent. However we do find two significant changes in circumstances which persuade us to believe that the welfare of the little girl dictates that she should be in the custody of the mother. The work hours of the father are not conducive to the best interest of the child. The child is taken to school at seven o’clock in the morning and the father is not avail-to her until five o’clock or after, depending on whether he works overtime. In February 1971 the father earned $102.60 at overtime; in March, $117.15; and in April, $222.75. Those figures indicate a considerable increase in overtime each succeeding month. The second essential change in conditions is the status of the mother. She is now financially able to quit a full time job as nurse and to devote complete attention to the rearing of the little girl.

The factors we have recited — the part-time presence of the father and the full time attention of the mother— become still more important when we consider the attitude of this court in choosing between the father and the mother for the rearing of a girl of tender years. “[TJhere is much wisdom in the view, expressed many times in our reports, that a mother is better fitted than a father to take care of a very young child — especially a girl.” McDaniel v. McDaniel, 224 Ark. 371, 273 S. W. 2d 406 (1954).

Custody is granted the mother subject to the right which we vest in the father to have the child visit him during week-ends.

Reversed and remanded.

Fogleman, J., dissents.

John A. Fogleman, Justice,

dissenting. 1 cannot agree to the reversal of this child custody decree. Appellate review of decrees in these cases should be no different from that in any other case, i. e., we should not reverse the chancellor’s findings unless we can say that they are clearly against the preponderance of the evidence. It is probably more important that we adhere to this rule in custody cases than in others. The superior ability of the chancellor to properly determine the critical issue (the best welfare of the child) is never more apparent than it is in awarding custody of a child, or in modifying a previous award. See Holt v.. Taylor, 242 Ark. 292, 413 S. W. 2d 52. There we said:

Our court has consistently been reluctant to deprive a child of tender years of the care and affection of its mother. Reynolds v. Tassin, 209 Ark. 890, 192 S. W. 2d 984 (1946). Yet the ultimate test is based on this fundamental principle so well stated in Kirby v., Kirby, 189 Ark. 937, 75 S. W. 2d 817 (1934):
“It is the well-settled doctrine in this State that the chancellor, in awarding the custody of an infant child or in modifying such award thereafter, must keep in view primarily the welfare of the child, and should confide its custody to the parent most suitable therefor, the right of each parent to its custody being of equal dignity.”
This same rule has been incorporated in our statutes since 1921. See Ark. Stat. Ann. § 57-106 (1947).
The preference given the mother who is morally fit to have custody of the child does not shock the basic rule of equal dignity of each parent with respect to custody rights. When the scales are equally balanced, motherly love and affection tip the scales in favor of the mother’s custody. Therefore, because it may be said, in a restricted sense, that the law favors the mother, we have most carefully examined the record to make reasonably certain that the chancellor’s award of custody to the father for nine months each year was correct.
In the decree, the chancellor mentioned the remarriage of each of the parties and their respective resi__ dences. He also mentioned the bitter feeling between the father and mother. The arguments between them, and between Mr. Holt and Mr. Taylor — all of which occurred over visitation rights with the child — are detailed in the record. The chancellor evidently perceived that these difficulties would affect the personality of the child and his attitude toward his parents.
# # *
For a court to choose, in a custody case, between the mother and father, the respective personalities of the parents are vital. It is in this realm that personal observation is of inestimable value. As was stated in Wilson v. Wilson, 228 Ark. 789, 310 S. W. 2d 500 (1958): “We know of no type of case wherein the personal observations of the court mean more than in a child custody case.” The chancellor’s experienees with these parents began in late 1962. In the succeeding years he entered at least ten orders touching on matters of divorce, child custody, and support money. These experiences afforded the chancellor opportunities to reach wise conclusions respecting the moral fiber of, these parents. We are certainly justified in assuming that the chancellor’s knowledge which he gained from the initial divorce proceedings, together with his four years’ experience with these people, supports his conclusions with respect to custody. In cases of this nature, particular weight is given to the findings of the chancellor, Cheek v. Cheek, 232 Ark. 1, 334 S. W. 2d 669 (1960).

We probably have not had any case since that decision to which application of its precepts would be more appropriate than this one. Rather than the usual appellate review and instead of following the sound doctrine of Holt v. Taylor, I respectfully submit the court has substituted its judgment for that of the chancellor as to whether there had been a change in circumstances between January 5, 1971, and the date of the hearing. 'The majority does not even say that the chancellor’s findings were clearly against the preponderance of the evidence. In my opinion, they clearly are not. These findings were that there had been no substantial change in the condition of the child or the parties since January 5, 1971.

The court refused to change the custody, but gave the mother visitation rights on two nights, per week. There was testimony that:

The father had an individual bedroom for this five-year-old child; the child had a good relationship with both parents and was happy with either; she attended kindergarten at a church five days per week and was registered in a Catholic school; she was left with her paternal grandmother when the father had to work overtime; the child was in good health; the father and daughter attended the Catholic church in Van Burén; the child is clean, happy and well-adjusted with the father; there was a feeling of hostility between the father and the mother’s newly acquired husband, and the latter had threatened the former.

Neighboring ladies testified that the child would be better off with her father. Perhaps the most telling bit of evidence — one which should tip the balance, if there is any doubt where the preponderance lies — was the testimony of the maternal grandfather, a Baptist preacher, that the child was better off remaining with her father. This testimony is of added weight because the stepfather chose not to appear or testify, and left the mother with only evidence of his general and credit reputation to speak for him. We recently and appropriately considered significant the failure of a new stepfather to appear and testify. See Jackson v. Smith, 250 Ark. 923, 467 S. W. 2d 704.

The chancellor in this case evidenced the same concern for the future as the chancellor in Holt v. Taylor. He requested the welfare department to keep abreast of the situation, directed the parties (including Mr. Settle) to seek counseling from a marriage counselor, and retained jurisdiction for further orders. The same judge granted the divorce and ordered a change in custody four months later, but subsequent to the mother’s remarriage. This presents a reasonable parallel to the chancellor’s superior position in Holt v. Taylor.

I humbly suggest that the court’s preaching in Holt v. Taylor far surpasses its practice here.

I would affirm the decree.


author: John A. Fogleman, Justice.

text:
    James Wayne BOGLE v. Brenda Gail BOGLE
    5-5659
    473 S.W. 2d 439
    Opinion delivered December 6, 1971

      Branscum, Schmidt ir Mazzanti, for appellant.

      Olmstead ir McSpadden, for appellee.
   John A. Fogleman, Justice.

This is another appeal from a chancellor’s holding in child custody litigation arising from the inability of the divorced parents to agree upon what will be for the best interests of their child. No useful purpose would be served by a detailed statement of the evidence or recitation of the governing authorities. We are unable to say that the determination made by the chancellor was clearly against the preponderance of the evidence in most particulars.

The mother and father came to a parting sometime in 1969, when the child concerned in this litigation was only two years of age. They then entered into a separation agreement on October 10, 1969. The husband agreed to pay the wife $120 per month for child support until the wife remarried. It was stipulated that appellant have custody of the child, a son, each weekend from Saturday morning to Sunday afternoon and for two and one-half months each summer, along with reasonable visitation privileges at special times such as Christmas. The divorce decree, entered April 13, 1970, followed the agreement except it eliminated the termination of child support payments by remarriage of appellee and limited summer visitation rights of appellant to six weeks, separated into two periods of three weeks each, divided by an interval of at least three weeks. Appellant was relieved of payments of support money to appellee while the child was in his custody.

On September 29, 1970, appellee filed her petition to modify the decree as to child custody. She alleged her remarriage on September 11 and her intention to establish a home with her new husband in Columbia, Missouri. Her petition specifically requested that the child not be subjected to a long journey each weekend. Appellant responded with the allegation that because any changes were of appellee’s own making, his rights of visitation should not be impaired. He also alleged that appellee’s misconduct had rendered her unfit to have custody. He asked that he be awarded custody of the child.

The chancellor expressed a reluctance to take a child of such tender years from his mother. He noted that some of appellee’s conduct with her second husband before their marriage was subject to criticism, but did not feel that the evidence justified a change of custody. He also pointed out that appellant had not shown where he would keep the child if awarded custody. The chancery court changed appellant’s visitation rights to one week every three months because of the distance and charged him with the expense of transporting the boy both ways. At the same time the court reduced child support to $100 per month.

Appellant testified that he was willing to pick the child up every weekend at Heber Springs where the mother was then living, but wanted full custody if she moved to Missouri. He felt that the child did not want to return to his mother after the weekend visits and expressed some dissatisfaction with the clothing provided for the boy by appellee.

The errors alleged by appellant are: (1) denial of his prayer for permanent custody; (2) limitation of appellant’s visitation rights; and (3) disregard of the child’s best interests.

The chancellor saw and heard these parties. Appellee’s conduct with her present husband, particularly immediately preceding their marriage, was properly subject to criticism, but we cannot say that there was error in' the chancellor’s finding that a change of custody because of this conduct was not warranted. Even if appellant had been able to show some of the things he suggests he might have if the scope of the testimony had not been limited, the evidence would not have justified depriving the mother of the custody of this child of such tender years. We do not know where or how appellant who lives alone in a two-bedroom apartment could have given the child the needed attention on a full-time basis. Appellant’s move for permanent custody appears to have been, to a great extent, a reaction to appellee’s proposal to take the child so far away and to the prospect of a severe limitation of his visitation rights rather than deep concern about the mother’s fitness.

The distance between Searcy, where appellant lives, and Columbia, Missouri, was given as 340 miles. No child of the age of this one should be subjected to such a long trip every weekend. The chancellor was justified in changing this visitation and eliminating the special holidays. He did not state, nor do we perceive, any reason for eliminating the two summer visits of three weeks each, however. The change ordered by the chancellor woúld have reduced the total time of the visits to about one-fourth of that allowed by the original decree. We find that this modification of the divorce decree was not justified. The change from weekend visits to visits of one week every three months is modified to apply only from the first day of September in each year to the first day of June in the following year, but the two three-week summer visits should continue as provided in the original decree.

The chancellor was justified in changing child support payments when consideration is given appellant’s additional expense of transportation, the child’s present needs, appellee’s admission that the compromise figure of $120 was partly attributable to appellant’s leniency, and the fact that some expenses of the maintenance of the home of appellee and her present husband for themselves will naturally redound to the benefit of the child. However, in view of the modification of the father’s visitation rights it seems to us that appellant should be relieved of these payments for two of the months in which the summer visits are made.

Although appellant complains that the court did not require appellee to give security for her performance of the modified decree before removing the child, we do not find where this question was raised in the chancery court.

With the modifications hereinabove mentioned, the decree is affirmed.


author: J. Fred Jones, Justice.

text:
    COMMERCIAL CREDIT CORPORATION v. NATIONAL CREDIT CORPORATION
    5-5661
    473 S.W. 2d 876
    Opinion delivered December 6, 1971

      Dickey, Dickey ir Drake, for appellant.

      Coleman, Gantt, Ramsay ir Cox, for appellee.
   J. Fred Jones, Justice.

A. D. Edgerson and Commercial Credit Corporation filed suit in the Jefferson County Chancery Court against National Credit Corporation alleging that Edgerson had purchased an automobile from Howard Mathews Motor Company and had executed a security agreement therefor; that the security agreement had been assigned to Commercial and that the sale to Edgerson passed good and merchantable title in the automobile free of all existing liens, if any, in favor of National Credit. The complaint further alleged that National Credit was in possession of the certificate of title to the automobile and had refused to deliver it to Edgerson or to Commercial Credit. Edgerson and Commercial Credit prayed for a mandatory injunction directing National Credit to deliver the certificate of title to Edgerson so that he could register same and Commercial could perfect its lien as provided by law.

National Credit filed an answer and cross-complaint denying the allegations of the complaint, but admitting that Howard Mathews Motor Company is a dealer in automobiles, and that National Credit is in possession of the certificate of title to the automobile described in the complaint. For its cross-complaint National Credit alleged that it holds, and is entitled to, the title certificate and that if Mathews had sold 'the automobile to Edgerson, any security agreement executed by Edgerson would represent proceeds from the sale of the automobile to which National Credit and not Commercial Credit would be entitled. National Credit alleged in its cross-complaint that it is the registered and legal holder of the title to the automobile described in the complaint, and is entitled to any promissory note and security agreement executed by Edgerson in the purchase of the automobile. National Credit prayed that the complaint be dismissed and that if any sale was found to have been made as set out in the complaint, that Commercial Credit be ordered and directed to deliver over to National Credit without warranty or recourse, the security agreement and promissory note of Edgerson, together with all amounts paid by Edgerson to Commercial Credit against his obligation thereon.

The chancellor found that both National Credit and Commercial Credit had a security interest in the automobile purchased by Edgerson but that neither of them had perfected their security interest as required by law. The chancellor further found that National Credit’s security interest attached to the automobile before the security interest of Commercial Credit attached, and that under the provisions of the Uniform Commercial Code, Ark. Stat. § 85-9-312 (5) (c) (Add. 1961), National Credit’s security interest took precedence over the security interest of Commercial Credit, and the chancellor held:

“[T]hat National Credit is entitled to all of the proceeds from the sale of the Edgerson vehicle in accordance with its contract with Mathews. A judgment will be entered in favor of National Credit against Commercial Credit for the amount that Commercial Credit has collected from Edgerson, and Edgerson will be ordered to make all future payments to National Credit.”

A decree was entered accordingly and on appeal to this court Commercial Credit relies on the following points:

“Appellee had no security interest in the vehicle after the sale by Howard Mathews Motor Company and appellant had priority in the proceeds under section 85-9-308 of the Arkansas Statutes.
Appellant is also entitled to priority under section 85-9-312 (5) (b) of the Arkansas Statutes.”

The facts as gathered from the testimony and exhibits appear as follows: Howard Mathews Motor Co., hereafter referred to as “Mathews,” was engaged in the business of selling used automobiles at retail in Pine Bluff, Arkansas. On December 8, 1969, Mathews signed and delivered to National, a promissory note agreeing that 90 days after date Mathews would pay to the order of National Credit Corporation the sum of $3,950 with interest from date at 10%. On the same date Mathews signed and delivered to National, a bill of sale form reciting that for and in consideration of $3,950 cash paid by National Credit Corporation, Mathews bargained, sold and conveyed to National and unto its successors and assigns a 1968 Ford Galaxie 500 — 2 door automobile. On the same date Mathews signed and delivered to National, a trust receipt agreeing to hold the automobile in trust for National and to deliver it back to National upon demand. The trust receipt then provides as follows:

“Trustee’s possession of said Merchandise hereunder is for the purpose of the sale thereof at retail, in the regular course of business. * # * Trustee shall deliver to Entruster from the proceeds of said sale, the amount of said minimum sale price. Until such delivery, Trustee shall hold the entire proceeds in trust for Entruster; separate from the funds and property of Trustee; if Trustee fails to sell said Merchandise within three months from the date thereof, or within any extended periods agreed upon in writing, or breaches this Trust Receipt, * * * Entruster may take possession of said Merchandise without notice or demand, and for such purpose, it or its representatives may enter any premises without legal process. In any event, Trustee’s interest in said Merchandise may be forfeited, at the election of Entruster and, Entruster and Trustee also shall have such other and further rights as may be provided by law.”

On December 27, 1969, the Ford Galaxie automobile was sold by Mathews to A. D. Edgerson. In this transaction Mr. Edgerson traded in a 1968 Ford Fairlane automobile which he had previously purchased from Mathews under a security interest contract which had been sold by Mathews to Commercial Credit. According to Mr. Edgerson’s testimony, when he entered into the new contract for the purchase of the Galaxie 500, he paid $275 difference between what he owed on the Fairlane and the amount he agreed to pay for the Galaxie. The extra $275 was to be paid over a period of several months and was included in his regular monthly payments of $84.67 he agreed to pay on the Galaxie. Under the sales contract of December 27, Mr. Edgerson agreed to pay a credit life insurance premium in the amount of $68.58, vehicle insurance in the amount of $406, and finance charge in the amount of $423.54, making a total he agreed to pay on his new contract for the purchase of the Galaxie in the amount of $3,593.12.

On December 30, 1969, Edgerson’s new contract with Mathews in the purchase of the Galaxie was sold by Mathews to Commercial Credit. As above stated, Commercial Credit had previously purchased the Edger-son contract on the Fairlane and when it purchased the contract on the Galaxie, the contract on the Fairlane was closed out on the books of Commercial Credit by transferring the amount still owed on the Fairlane to the new account on the Galaxie. In addition, Commercial Credit paid to Mathews $406, representing finance charge and premium on credit life insurance Edgerson had obtained in connection with his new obligation.

On February 10 or 11, 1970, National Credit checked the automobiles on Mathews’ premises and learned that Mathews had sold the automobile to Edgerson and had sold Edgerson’s contract to Commercial Credit. National then called Commercial by phone and advised of what it had learned from Mathews and inquired of Commercial concerning its transactions with Mathews on the Galaxie automobile. After checking the records pertaining to the Galaxie automobile, Commercial advised National that Mathews had indeed sold the automobile to Edgerson under a security interest contract and that Commercial had purchased Edgerson’s contract from Mathews. Commercial demanded the title certificate held by National. National refused to deliver the certificate to Commercial but demanded from Commercial Edgerson’s contract of purchase and the amounts paid thereon.

Mathews purchased the Galaxie from a used automobile dealer in Memphis, Tennessee and had obtained a Tennessee certificate bearing a notation of transfer from the individual owner, Donald A. Yates, to the Memphis dealer. The title certificate was not signed in blank by the Tennessee dealer, but apparently Mathews obtained an additional bill of sale which was not made an exhibit in the record. Upon delivery of the note, as above stated, Mathews also delivered to National the Tennessee title certificate, on the automobile. On February 26, 1970, National registered the automobile with the Motor Vehicle Division of the Department of Revenues in Arkansas. An Arkansas certificate of title was issued to National as owner and showing that the automobile was purchased from Donald A. Yates of Memphis, Tennessee. National paid the Arkansas sales tax in the amount of $30.00.

The evidence indicates that National knew Mathews was selling its retail contracts to Commercial. The evidence also indicates that Commercial knew that Mathews was doing some of its wholesale financing (floor-planning) with National, but did not know, until advised by National on February 10 or 11, 1970, that the Galaxie automobile sold to Edgerson was included in Mathews’ financing plan with National.

We agree with the chancellor that neither Commercial nor National perfected a security interest in the automobile as provided by statute. National did, on February 26, 1970, register the automobile and obtain a certificate of title in its name as above stated, but no liens were indicated on this certificate. In any event, Mathews had sold the vehicle to Edgerson under National’s authority and with its consent, and had sold Edgerson’s contract to Commercial 30 days before the title certificate was issued to National. The parties agree, and the chancellor so found, that Mr. Edgerson is entitled to the possession of the automobile involved, and that he is entitled to a clear title to the automobile when he has paid the amounts he has agreed to pay.

So when the litigation was commenced in this case, Edgerson had possession of the automobile and was entitled thereto. National had the title certificate to the automobile registered in its name as owner. Commercial had Edgerson’s contract it had purchased from Mathews and Mathews had the proceeds from the sale of the automobile, including the cash paid by Commercial for Edgerson’s contract as well as the Fairlane automobile traded in by Edgerson on the purchase price of the Galaxie. So the contest between Commercial and National is not actually which of them has a prior security interest in the automobile; the actual contest between National and Commercial is which of them is entitled to the payments made and to be made by Mr. Edgerson on the purchase price of the automobile under his contract. Commercial’s security interest in the automobile is not questioned, but National contends that it also has a security interest in the automobile and that since its security attached first, it is paramount to Commercial’s security interest. We do not agree with this contention. Priorities between National and Commercial as to security interests in the automobile are not important to our decision in this case because National lost whatever security interest it may have had in the automobile when it permitted Mathews to sell the automobile in the regular course of Mathews’ business, which was the business of selling automobiles at retail.

Under Art. 9 of the Uniform Commercial Code (Ark. Stat. Ann. § 85-9-306 (2) [Add. 1961]) is found the following:

“Except where this Article [chapter] otherwise provides, a security interest continues in collateral notwithstanding sale, exchange or other disposition thereof by the debtor unless his action was authorized by the secured party in the security agreement or otherwise, and also continues in an identifiable proceeds including collections received by the debtor.” (Emphasis supplied).

Under Art. 1-201 (9) of the Uniform Commercial Code (Ark. Stat. Ann. § 85-1-201 (9) [Add. 1961]) is found the following:

“ ‘Buyer in ordinary course of business’ means a person who in good faith and without knowledge that the sale to him is in violation of the ownership rights or security interest of a third party in the goods buys in ordinary course from a person in the business of selling goods of that kind. . .”

Article 9-307 (1) of the Uniform Commercial Code (Ark. Stat. Ann. § 85-9-307 (1) [Add. 1961]) provides:

“A buyer in ordinary course of business (subsection (9) of Section 1-201 [§ 85-1-201]) . . . takes free of a security interest created by his seller even though the security interest is perfected and even though the buyer knows of its existence.”

Article 9-308 of the Uniform Commercial Code (Ark. Stat. Ann. § 85-9-308 [Add. 1961]) provides as follows:

“A purchaser of chattel paper or. a non-negotiable instrument who gives new value and takes possession of it in the ordinary course of his business and without knowledge that the specific paper or instrument is subject to a security interest has priority over a security interest which is perfected under Section 9-304 [§ 85-9-304] (permissive filing and temporary perfection). A purchaser of chattel paper who gives new value and takes possession of it in the ordinary course of his business has priority over a security interest in chattel paper which is claimed merely as proceeds of inventory subject to a security interest (Section 9-306 [§ 85-9-306]), even though he knows that the specific paper is subject to the security interest.”

Article 9-311 of the Uniform Commercial Code (Ark. Stat. Ann. § 85-9-311 [Add. 1961]) provides as follows:

“The debtor’s rights in collateral may be voluntarily or involuntarily transferred (by way of sale, creation of a security interest, attachment, levy, garnishment or other judicial process) notwithstanding a provision in the security agreement prohibiting any transfer or making the transfer constitute a default.”

Even if National had perfected its security interest in the automobile, under the trust receipt signed by Mathews he was authorized by National to sell the automobile involved in this case. It would thus appear that when Mathews sold the automobile to Edgerson under this authority, National’s security interest would no longer have followed the automobile but would have only continued in the “proceeds” of the sale going to Mathews. The proceeds of the sale going to Mathews included the conditional sales contract executed by Edgerson, as well as the Fairlane automobile traded in payment for the Galaxie automobile, while such proceeds were in the possession of Mathews. Mathews sold Edger-son’s contract to Commercial within three days after he obtained it from Edgerson, and after Mathews sold Edgerson’s contract to Commercial, National’s security interest would not have followed the chattel paper into the hands of Commercial, but would have continued in the proceeds Mathews received from Commercial in the sale of the chattel paper (contract). Ark. Stat. Ann. § 85-9-306 (Add. 1961) supra. See also UCC comments to this section and Spivack at page 100, et seq. of his work on Secured Transactions Under the Uniform Commercial Code prepared for the joint committee on continuing legal education of the American Law Institute and the American Bar Association for September, 1960. The example recited by Mr. Spivack at page 106 of his work is so much in point with the situation in this case, we quote his comment as follows:

“Under certain circumstances it is possible for more than one security interest to exist in the same proceeds. For example, a debtor whose inventory is subject to a security interest may sell an item from that inventory to a consumer buyer who executes an installment sale contract evidencing his promise to pay all or part of the purchase price. The sale to the consumer divests the inventory security interest but the secured party now has a security interest in the installment sale contract or chattel paper proceed. If the secured party does not take possession of the chattel paper proceed and the seller transfers and assigns it to a third party, who is entitled to the proceed, the third party transferee or the holder of the security interest in the inventory? The answer to this question is found in Section 9-308. This Section provides that where a purchaser of chattel ^ paper gives new value and takes possession of it in the ordinary course of his , business, he has priority over a security interest in the chattel paper which is claimed as proceeds of inventory. This is true even though the purchaser knows that the specific paper is subject to a security interest in favor of an inventory secured party.”

We are of the opinion, therefore, that the decree of the chancellor must be reversed and this cause remanded with instructions to enter a decree directing National to deliver the title certificate on the vehicle involved to the appellant, Commercial Credit, so that it may deliver same to A. D. Edgerson with its security interest endorsed thereon. National is entitled to recover from Mr. Edgerson the $30.00 it paid for sales tax on the automobile.

Reversed and remanded for entry of a decree not inconsistent with this opinion.

Harris, C. J., not participating.


text:
    STATE of Arkansas v. James R. HOWARD
    5-5670
    473 S.W. 2d 443
    Opinion delivered December 6, 1971

      James Guy Tucker, Prosecuting Attorney; Robert J. Brown, Asst. Pros. Atty., for petitioner.

      Dale Price, for respondent.
   J. Fred Jones, Justice.

This is an original proceeding brought in this court by James Guy Tucker, Prosecuting Attorney of the Sixth Judicial District of Arkansas, contending that the respondent, James R. Howard, was improperly and unconstitutionally elected as Special Judge of the Fourth Division of the Circuit Court of Pulaski County.

We granted a petition for certiorari on the allegations set out in the petition that the election of James R. Howard was illegal and void, in that the election was held without notice to the Prosecuting Attorney or members of the Bar in general; and that James R. Howard was attempting to assume the duties of circuit judge under special election without having taken the oath of office.

In his abstract and brief filed with this court the petitioner reiterates, by affidavit of Chief Deputy Prosecuting Attorney Robert J. Brown, that he was an attorney m attendance on the court and that no notice of special election was given to him. The petitioner prays that the election of James R. Howard as Special Judge be quashed and all proceedings of said Division of the circuit court held while James R. Howard was presiding be held void. The petitioner concludes his petition as follows:

“This Court should quash the election of James R. Howard as special judge, void all proceedings had and held by him, and promulgate rules to control such elections in the future. Ark. Const. Art. 7, § 4 (1874).”

The trial court record is now before us and the entire record consists of what appears to be docket entries on the circuit court record for Thursday, October 28, 1971. The entire record is as follows:

“PULASKI CIRCUIT COURT, FOURTH DIVISION SEPTEMBER TERM 1971
THURSDAY, OCTOBER 28,, 1971
IN RE: ELECTION SPECIAL JUDGE:
On this day the Court notified the Clerk that he would be unable to preside in this Court on the afternoon of Thursday, October 28, 1971 and to elect a Special Judge, and members of the bar present were given notice of an election for Special Judge, set for 1:00 P.M., October 28th, 1971 who shall serve on said day and until he is lawfully succeeded.
Ordered that Court adjourn until 1:00 P.M. October 28, 1971, Thursday afternoon.
THURSDAY, OCTOBER 28, 1971
Thursday afternoon, October 28th, 1971 at 1:00 P.M., a regular day of the September Term of this Court, Hon. Richard B. Adkisson, presiding Judge of this Court being unable to preside over this Court at this time, and had so notified the Clerk, and the Clerk gave all members of the bar in attendance on said Court notice that an election for a Special Judge would at this time be held, and at 1:00 P. M. the said Clerk held said election in the Court house, at which election all the regular members of the bar present voted and James R. Howard, Esq., a regular member of the bar of this Court, having received the nomination for election for Special Judge and after receiving all the votes cast at said election and after a motion for election by unanimous vote, was by the Clerk declared carried, and James R. Howard, Esq., was by the Clerk declared unanimously elected Special Judge, and he takes the oath of office.
PULASKI CIRCUIT COURT FOURTH DIVISION SEPTEMBER TERM 1971
THURSDAY, OCTOBER 28, 1971
STATE OF ARKANSAS)
SS
COUNTY OF PULASKI)
I, James R. Howard, do solemnly swear that I will support the Constitution of the United States and the Constitution of the State of Arkansas, and that I will faithfully discharge the duties of the office of Special Judge of Pulaski Circuit Court, Fourth Division, upon which I am about to enter.
/%/ James R. Howard
SPECIAL CIRCUIT JUDGE
PULÁSKI CIRCUIT COURT, FOURTH Div.
Subscribed and sworn to before me this 28th day of October, 1971.
ROGER McNAIR
CIRCUIT CLERK
By: /s/ James T. Reeder, Jr.
James T. Reeder, Jr.
Deputy Clerk
CLERK’S CERTIFICATE
STATE OF ARKANSAS)
SS
COUNTY OF PULASKI)
I, Roger McNair, Clerk of the Circuit Court, within and for the County and State aforesaid, hereby certify that the foregoing transcript contains a true and correct copy of the record entries in the election of Special Judge James R. Howard, on October 28, 1971.
IN TESTIMONY WHEREOF, I have hereunto set my hand and affixed the seal of said Court this 10th day of November, 1971.
ROGER McNAIR,
CIRCUIT CLERK
By: /s/ James T. Reeder, Jr.
James T. Reeder, Jr.
Deputy Clerk”

Article 7, § 21 of the Arkansas Constitution provides as follows:

“Whenever the office of judge of the circuit court of any county is vacant at the commencement of a term of such court, or the judge of said court shall fail to attend, the regular practicing attorneys in attendance on said court may meet at 10 o’clock a.m. on the second day of the term, and elect a judge to preside at such court, or until the regular judge shall appear; and if the judge of said court shall become sick or die or unable to continue to hold such court after its term shall have commenced, or shall from any cause be disqualified from presiding at the trial of any cause then pending therein, then the regular practicing attorneys in attendance on said court may in like manner, on notice from the judge or clerk of said court, elect a judge to preside at such court or to try said causes, and the attorney so elected shall have the same power and authority in said court as the regular judge would have had if present and presiding; but this authority shall cease at the close of the term at which the election shall be made. The proceedings shall be entered at large upon the record. The special judge shall be learned in law and a resident of the State.” (Emphasis supplied).

This court recognizes its constitutional responsibilities under Art. 7, § 4 of the Arkansas Constitution, as referred to by petitioner; that is the reason we granted the petition for certiorari. See Fulks v. Walker, 224 Ark. 639, 275 S. W. 2d 873. The facts, as alleged in the petition, are not sustaind by the record now before us; consequently, we are unable to say, as a matter of law, that the constitutional provision for the election of a Special Judge was not complied with in this case. If the record does not speak the truth, the remedy is by amendment. Arkadelphia Lumber Co. v. Asman, 72 Ark. 320, 79 S. W. 1060.

The petition is denied and dismissed.


author: Conley Byrd, Justice. Carleton Harris, Chief Justice,

text:
    Thelma WILLIAMS et al v. Bob W. DOUGLAS
    5-5646
    473 S.W. 2d 896
    Opinion delivered December 6, 1971
    [Rehearing denied January 10, 1972.]

      Walker, Kaplan, Lavey & Mays, {or appellant.

      Ned A. Stewart, Jr. and Arnold it Arnold, for appellee.
   Conley Byrd, Justice.

The issue on this appeal is whether Art. 5 § 10, Arkansas Constitution, prohibits a Senator during his term of office from being elected and serving as a member of the board of directors of a school district. The Chancellor ruled upon a motion for summary judgment that appellee, Bob W. Douglas, Senator from the Eighth Senatorial District, could be so elected and serve. The appellants Thelma Williams, et al, taxpayers, appeal.

Article 5 § 10 of the Arkansas Constitution upon which appellants rely provides:

“No Senator or Representative shall, during the term for which he shall have been elected, be appointed or elected to any civil office under this State.”

Appellee in his motion for summary judgment relies upon his election as a school director at the March 10, 1970, election. It was admitted that the election occurred during the term for which he was elected as a Senator. In support of the trial court’s action appellee suggests that the office of school director is not a “civil office” within the meaning of Art. 5 § 10 and, in the alternative, that school directors were excepted from the ban of Art. 5 § 10 by the provisions of Art. 5 § 7 which provides:

“No judge of the supreme, circuit or inferior courts of law or equity, Secretary of State, Attorney General for the State, Auditor or Treasurer, recorder, or Clerk of any court of record, sheriff, coroner, member of Congress, nor any other person holding any lucrative office under the United States or this State (militia officers, justices of the peace, postmasters, officers of public schools and notaries excepted) shall be eligible to a seat in either house of the General Assembly.”

We find no merit in the suggestion that the office of school director is not a “civil office.” In the first place the Constitution Art. 14 § 4 provides:

‘The supervision of public schools and the execution of the laws regulating the same shall be vested in and confided to such officers as may be provided for by the General Assembly.”

Also Constitutional Amendment 40 provides:

“The Board of Directors of each school district shall prepare, approve and make public. . . a proposed budget. ...”

In both Reiff v. Redfield School Board, 126 Ark. 474, 191 S. W. 16 (1916), and A. H. Andrews Co. v. Delight Special School District, 95 Ark. 26, 128 S. W. 361 (1910), we held that school directors were public officers. In so doing we pointed out that the rules respecting their powers are the same as those that are applicable to the powers of public officers generally. Other States generally hold that school directors are public officers, State ex rel McKittrick v. Whittle, 333 Mo. 705, 63 S. W. 2d 100, 88 A. L. R. 1099 (1933); Barton v. Haight, 169 Okla. 481, 37 P. 2d 968 (1934); Norton v. Letton, 271 Ky. 353, 111 S. W. 2d 1053 (1937); and State ex rel Barnhill v. Thompson, 122 N. C. 493, 29 S. W. 720 (1898); and that as such a school director is a “civil officer”. In re Election of School Committee of City of Woonsocket, 28 R. I. 629, 72 A. 417 (1903). It was pointed out in Starnes v. Sadler, 237 Ark. 325, 372 S. W. 2d 585 (1963), that emoluments or pay was not a criterion for determining that an office was a civil office pursuant to Art. 5 § 10. Thus we conclude that the office of school director is a civil office pursuant to Art. 5 § 10, supra.

One of the fundamental principles or rules in the construction of a constitution is that effect must be given to every part and that, unless there is some clear reason to the contrary, no portion of the fundamental law should be treated as superfluous, meaningless or inoperative.

When the issue under consideration is studied with the view that no constitutional provision enjoys a preference and that none should suffer subordination or deletion, it at once becomes apparent that the two provisions here can be construed according to their plain language and without conflict. In the Legislative Article (Article 5), the framers in Art. 5 § 7 dealt in terms of who was ineligible to a seat in either house of the General Assembly. In stating that “No judge of the supreme. . . court. . . member of congress, nor any other person holding any lucrative office under. . . this State. . . shall be ELIGIBLE to a seat. . .,” the framers made an exception- in favor of militia officers, justices of the peace, officers of public schools and notaries. In doing so the framers apparently recognized that each house of the General Assembly must take the excepted officers as they found them for seating purposes and that those members could simultaneously hold both offices for there is no prohibition to the contrary. However in Art. 5 § 10 the framers took up the eligibility of a member, once he was seated, to accept by appointment or election a civil office during his term of office, and here the PROHIBITION is that no member “. . .' shall. . . be APPOINTED or ELECTED to any civil office under this State.” The framers made no exception to the PROHIBITION in favor of militia officers, justices of the peace, postmasters, officers of public schools and notaries. Thus, it follows that when Art. 5 § 7 is read with reference to the ELIGIBILITY of persons entitled to a SEAT in the General Assembly and that when Art. 5 § 10 is read as a PROHIBITION upon a member after he is seated, there is no apparent conflict betwéen the plain meaning of the two sections. Having determined that the office of school director is a civil office within the meaning of Art. 5 § 10, it follows that the Chancellor erred in granting summary judgment in favor of appellee based upon the March 1970 election.

It has been suggested that if it is permissible for a school board director to be seated as a member of the General Assembly and thereafter serve in both capacities, it is illogical to hold that the offices are incompatible when a member of the General Assembly runs for re-election to the office of school director. To this argument, we only point out that Art. 5 Sec. 10 does not deal in terms of “incompatability.” The people in creating the offices of Representative and Senator had the right to assure unto themselves that a person so elected would use the office for purposes of representing the people rather than for self promotion such as seeking an election or appointment to office.

That the PROHIBITION in Art. 5 § 10 was not intended to be restricted by the exception in Art. 5 § 7 can be seen from similar provisions in prior constitutions. In Article IV of the 1856 Constitution we find the following provisions:

“§ 10. No judge of the supreme, circuit or inferior courts of law or equity, secretary of state, attorney for the state, state auditor or treasurer, register or recorder, clerk of any court of record, sheriff, coroner, member of Congress, nor any other person holding any lucrative office under the United States or this State (militia officers, justices of the peace, postmasters and judges of the county court excepted), shall be eligible to a seat in either house of the General Assembly.”
“§ 14. No senator or representative shall, during the term for which he shall have been elected, be appointed to any civil office under this State which shall have been created or the emoluments of which shall have been increased during his continuance of office, except to such office as shall be filled by the elect:on of the people.”

In Article IV of the 1861 Constitution the subject matter here involved was set forth as follows:

“§ 10. Militia officers, justices of the peace, and postmasters, are declared to be eligible to either branch of the General Assembly; but no person who now is, or who shall hereafter be a collector or holder of public money, shall be eligible to either branch of the General Assembly, nor to any office of profit or trust, until he shall have accounted for and paid over all sums for which he may be liable; and no person holding any office of trust or profit under the Confederate States (except postmasters) shall be eligible to any office of trust or profit belonging to either of the three departments of this State.”
“§ 13. No member of the General Assembly shall be elected or appointed to any civil office in this State, which shall have been created, or the emoluments of which shall have been increased, whilst he was a member thereof, except he be elected to such office by a vote of the people, and that no member of the General Assembly shall be elected to any office within the gift of the General Assembly during the term for which he shall have been elected.”

The 1864 Constitution treáted the subject in Article IV in this language:

“§ 10. No judge of the Supreme, Circuit or inferior courts of law or equity, Secretary of State, Attorney-General of the State, District Attorneys, State Auditor or Treasurer, Coroner or member of Congress, nor any other person holding any lucrative office under the United States or this State (militia officers, Justices of the Peace, postmasters and judges of the County Courts excepted), shall be eligible to a seat in either House of the General Assembly.”
§ 14. No Senator or Representative shall, during the term for which he shall have been elected, be appointed to any civil office under this State which shall have been created, or the emoluments of which shall have been increased, during his continuance in office, except to such office as shall be filled by the election of the people.”

The “Carpet-bag” Constitution of 1868 (Article V) contained only the following provision:

“§ 11. No person holding any office under the United States, or this State, or any county office, except postmasters, notaries public, officers, of the militia and township officers shall be eligible to or have a seat in either branch of the General Assembly, and all votes given for any such pérson shall be void.”

The experiences of this State with the “carpet-baggers” and the Brooks-Baxter War are history but it was after those experiences that the people enacted the'PROHIBITION set forth in Art. 5 § 10. This historical review rather amply demonstrates that, in the enactment of the PROHIBITION, the people were attempting to correct something more than that which is referred to as “incompatibility”, and that the PROHIBITION is not affected or diluted by the exception set forth in Article 5 §7.

Appellants hereby request that we grant their motion in the trial court for summary judgment and that the Miller County Board of Election Commissioners be directed to hold a special election as soon as possible. The latter request obviously cannot be granted because the Election Commissioners are not parties. On the summary judgment request, we note that appellants did. not completely abstract their request therefor and upon the abstract and briefs before us it is impossible to say that their motion should be granted. Instead, we only reverse the order of the court granting appellee’s summary, judgment and remand for proceedings not inconsistent with this opinion.

Reversed and remanded.

Harris, C. J. and Holt, J., dissent.

Carleton Harris, Chief Justice,

dissenting. While, philosophically speaking, I have never favored public officials holding more than one public office, I cannot agree that appellee is illegally serving on the Board of Directors of the Texarkana School District Number 7, in Miller County.

We have here two provisions, Article 5, § 7, and Article 5, § 10, which appear to conflict. The two provisions, in reaching a proper construction, must be read together. Little Rock v. North Little Rock, 72 Ark. 195, 79 S. W. 785. Also, we have said that “Where general terms or expressions in one part of a statute are inconsistent with more specific or particular provisions in another part, the particular provisions will be given effect as clearer and more definite expressions of the legislative will.” Scott v. Greer, 229 Ark. 1043, 320 S. W. 2d 262. We have also said that the rules of construction applicable to statutes ordinarily apply with equal force to Constitutions or amendments thereof. Shepherd v. Little Rock, 183 Ark. 244, 35 S. W. 2d 361. Under these rules, Article 5, § 7 would be controlling since the two sections are inconsistent and § 7 does deal more specifically and more particularly with school board members than § 10. Though the majority quote Article 5, § 7, permit me to again quote that section in full.

“Officers ineligible. — No judge of the supreme, circuit or inferior courts of law or equity, Secretary of State, Attorney General for the State, Auditor or Treasurer, recorder, or clerk of any court of record, sheriff, coroner, member of Congress nor any other person holding any lucrative office under the United States or this State (militia officers, justices of the peace, postmasters, officers of public schools and notaries public excepted), shall be eligible to a seat in either house of the General Assembly.”

The provision, “# * * nor any other person holding any lucrative office * * clearly covers members of the General Assembly; just as clearly, the holders of offices within the parenthesis are eligible to a seat in either the House or Senate, and the majority agree that this is true. But the next conclusion reached by the court is, in my opinion, wholly impractical, and I can see no rhyme nor reason in the interpretation reached by the majority. Bear in mind that the majority agree that a school director is eligible to a seat in the General Assembly, and if elected, can continue to hold both positions until his term as school director expires. They state however, that he is prohibited from serving an additional term on the school board; in other words, if he were already a member of the school board when elected to the General Assembly, he can continue to serve the remainder of his school board term, but cannot serve if re-elected to the board* after becoming a legislator. The basis, of course, for a prohibition against legislators serving in other offices is incompatibility of the offices, i. e., a conflict of interest between the two positions. School board directors, depending upon where the directors are located and the size of the school board, are elected to terms varying from three years to five years. Let me give an example that, I think, demonstrates the complete lack of logic in the majority position. An individual is elected as a school board director for a term of five years in March 1972. In November of the same year, he is elected to the General Assembly. He is sworn in in January of 1973, and can serve both as a legislator and a school board member. This individual can legally serve all of 1972, 1973, 1974, 1975, and 1976, and through most of the session of 1977. Now, the majority, by their opinion, agree that this is entirely legal. In other words, under the majority opinion, this school board member could legally serve a full term in the Senate, or two terms in the House. If he did not desire but one term in the Senate, or two terms in the House, under the view expressed by the majority, he could hold, and serve, in both offices at the same time with complete impunity. He would only be prohibited from serving an additional term on the school board.

It appears to me that the majority have decided that it is perfectly all right for a person to serve for “a while” as both a legislator and a school board member but that, after the passage of time, the offices suddenly become incompatible. I cannot believe that the framers of the Constitution, in writing Article 5, § 7, intended any such peculiar or unsound result. If it is in the interest of good government to prohibit a legislator from seeking re-election, and serving, as a school board director after he has served several years in both capacities, it is equally in the interest of good government to prohibit one sworn into the General Assembly from serving any time whatsoever as school board director. To state it another way, if the principle of good government demands that a legislator not serve as a school board director, the same principle also demands that a school board director not be permitted to serve as a legislator. I do not see ho*w the logic of this position can be successfully refuted, and all the framers had to do to prevent an individual from holding both the office of Senator (or Representative) and school board member, was simply to leave out the exceptions in Article 5, § 7. Instead of that, thg court majority have the framers taking a circuitous route to permit a legislator, during his tenure as such, to legally serve as a school director part of the time — but illegally the rest of the time.

There are related matters which reinforce my conviction that the majority have reached an erroneous conclusion. Bear in mind that the majority holding will also prevent a legislator (if an attack is made) from obtaining a commission as a notary public, or a commission in the military service. There are at least 17 members of the current legislature who hold commissions as notaries public (probably more) and several hold commissions in the National Guard. Do the majority really feel that the framers of the Constitution intended to bar a legislator from appointment to these positions? To me, it is obvious that the exceptions set out in Article 5, § 7, were set out because the framers felt there was no conflict in serving in these positions and also serving as a legislator.

While not really pertinent to a decision in this case, it is interesting to note that the proposed Arkansas Constitution of 1970, likewise included the exceptions here under discussion. Article XI, § 4 provides:

“No person shall hold more than one office in the same branch of government at the same time, except that members of the armed forces of the State, officers of the public schools, and notaries public may serve in any public office to which they may be chosen.”

I reiterate that, in my view, the holding of the court in this case bypasses logic, and reaches a conclusion never dreamed of by the framers of the Constitution of 1874.

I therefore respectfully dissent.

I’m authorized to state that Holt, J. joins in this dissent.

      The annual school election is held on the second Tuesday in March. Ark. Stat. Ann. § 80-301 (Supp. 1969).


author: Frank Holt, Justice.

text:
    Johnnie E. GAY et al v. Dave BROOKS et al
    5-5669
    473 S.W. 2d 441
    Opinion delivered December 6, 1971

      Delector Tiller, for appellants.

      Navada C. Roberts and Charles A. Wales, Jr¿, for appellees.
   Frank Holt, Justice.

The appellants and appellees are rival groups for the city offices of Allport, Arkansas. In the November 1970 general election the appellees were elected to fill the various city offices. The appellants were the defeated candidates. The appellees were duly certified as being elected and were sworn into their respective offices. On January 4, 1971, or a few days after appellees took their oaths of office, the appellants filed their complaint alleging that appellees were ineligible to hold the various city offices because they had not paid the $1.00 ballot fee to the city, as required by law, for the purpose of having their respective names printed on the general election ballot. Because of this asserted ineligibility of the appellees to hold the public offices, and therefore being usurpers, the appellants alleged that pursuant to Article 19 § 5 to our State Constitution they (except Dan C. Thomas and Ray Williams, Jr.) would “continue to hold over until their successors are elected and qualified, or until this court rules otherwise.” Appellants sought a “judgment of ouster against [appellees] for title to the respective offices, excluding Theola Williams.

In their answer the appellees asserted, inter alia, that appellants’ complaint should be dismissed because it is, in effect, an election contest and barred by the statute of limitations. The appellees reserved the right to plead further if their motion to dismiss was refused.

After a hearing on the pleadings, the court dismissed appellants’ complaint, finding that the complaint on its face shows that no action was taken by the appellees until January 4, 1971, following the November 1970 general election; that the proper remedy would have been for the appellants to have instituted their action before the election to prevent appellees’ names being placed on the ballot or that following the election the appellants should have initiated a contest of the election within the statutory time to show any misconduct in the election; that the appellants had done neither; that any effect upon the eligibility of the appellees due to nonpayment of the $1.00 ballot fee was waived by the appellants; and further that the appellants are not now eligible to hold the offices in dispute. From the order dismissing appellants’ complaint comes this appeal.

For reversal appellants contend that the court erred in dismissing their complaint without giving them an opportunity to amend their complaint or submit any evidence. We find no merit in this contention. From a review of the record it is apparent that appellants and their counsel were present at the hearing on the pleadings. We do not find where the appellants ever requested that they be permitted to amend their complaint or offer any evidence in support of their allegations.

We agree with the trial court that the pleadings, in effect, constitute an election contest and that the appellants’ complaint shows on its face that it was not filed within the statutory time (20 days) following certification of election. Ark. Stat. Ann. § 3-1001 (Supp. 1969). Therefore, appellants’ complaint was deficient and subject to appellees’ motion to dismiss. We have said that a motion to dismiss a complaint is tantamount to a general demurrer. Meeks v. Arkansas Light & Power Co., 147 Ark. 232, 227 S. W. 405 (1921).

Furthermore, even if the $1.00 ballot fee to the city officials was not paid by the appellees, this fact cannot now be a valid issue since the appellants admit that appellees received a plurality of the votes cast. Thereafter the appellees were duly certified and sworn into their respective offices. No citation of authority is necessary to the effect that compliance with such pre-election requirements is mandatory before an election and becomes directory afterwards.

It follows that since the court properly dismissed appellants’ complaint, the court did not err in ordering the appellants to deliver to the appellees certain records, books, and equipment belonging to the City of Allport. We deem it unnecessary to discuss any other contention made by appellants.

Affirmed.


text:
    TRI-STATE INSURANCE CO. v. Mary BUSBY et al
    5-5686
    473 S.W. 2d 893
    Opinion delivered December 6, 1971
    [Rehearing denied January 10, 1972.]

      Wright, Lindsey ir Jennings, for appellant.

      Spears ir Sloan, for appellees.
   Frank Holt, Justice.

This is an action to recover damages in excess of the insured’s policy limits. The appellant issued to appellee Ethel Louise Nelson (Mrs. W. P.) an automobile liability insurance policy with coverage limited to $10,000 as to any one claim. On July 10, 1964, as appellee Nelson drove her car away from a curb she struck and injured appellee Mary Busby as she stepped into the street. A jury awarded Mrs. Busby $20,000 damages and her husband, appellee Bruce Busby, $5,000. The jury also found Mrs. Nelson 65% negligent and Mrs. Busby 35%. After appropriate deductions for Mrs. Busby’s contributory negligence, the court reduced the awards to $13,000 for Mrs. Busby and $3,250 for her husband, making a total of $16,250. We affirmed this judgment. Nelson et al v. Busby et al, 246 Ark. 247, 437 S. W. 2d 799 (1969). Thereupon the appellant paid only the $10,000 policy limit with interest. The present action was brought by the Busbys against the appellant to recover the excess judgment. Appellee Nelson and her guardian, Mrs. Littlefield, joined in the complaint for the use and benefit of the Busbys.

Appellees alleged that the appellant was negligent and acted in bad faith in failing to settle, within the policy limits, the Busbys’ personal injury suit. Appellees asked that they be awarded $6,250, together with interest thereon from May 28, 1968, the date of the original judgment; that a 12% penalty be assessed; and a reasonable attorney’s fee be awarded. The trial court, sitting as a jury, awarded the Busbys $6,250, together with interest only from the date of this judgment. Appellant appeals from this judgment. Appellees cross-appeal from the court’s refusal to award the 12% penalty, reasonable attorney’s fee, and interest on the excess judgment from the date of the original judgment in May 1968.

For reversal appellant contends that the trial court erred in holding that the legal test for determining whether appellant would be liable to appellees for the excess judgment was whether or not appellant exercised “bad judgment.” We think the appellant is correct. It is well established in our State that an insurer is liable to its insured for any judgment in excess of the insured’s policy limits if the insurer’s failure to settle the claim was due to fraud, bad faith, or negligence. Southern Farm Mutual Cas. Ins. Co. v. Parker, 232 Ark. 841, 341 S. W. 2d 36 (1960); Home Indemnity Co. v. Snowden, 223 Ark. 64, 264 S. W. 2d 642 (1954); McChristian v. State Farm Mutual Auto. Ins. Co., 304 F. Supp. 748 (W. D. Ark. 1969); State Farm Mutual Auto. Ins. Co. v. Jackson, 346 F. 2d 484 (8th Cir. 1965); Great American Ins. Co. v. Ratliff & Holland, 242 F. Supp. 983 (E. D. Ark. 1965).

In the case at bar the court, in its findings, noted that it had heard the original case tried and after listening to the trial of this case, it was the court’s opinion that: “Counsel for defendant [appellant] and the other agents, servants and employees of the insurance company which had to do with this claim and this case, exercised bad judgment and not bad faith; I’m not willing to call it that at all; I don’t think anybody exercised bad faith in this case at all, some have called it bad faith and I think it is a mistake.” As to negligence, the court stated: “I don’t know whether you would call it negligent conduct or not.” Later the court said: “You can say it amounts to negligence if you want to, but to me it is purely the proposition of being mistaken in your judgment of the evaluation of the case and I think the insurance company and all of them were mistaken in the evaluation of this case.”

It appears that the issue before this court is to decide whether “bad judgment” is equivalent to “negligence.” Appellees present the argument that the finding of the trial court that appellant exercised “bad judgment” is actually more serious than finding negligent conduct. Appellees cite to us dictionary definitions of the words “bad” and “judgment” in support of their argument that this amounts to negligence or more than negligence. No case authority is cited that “bad judgment” is equated with “negligence.” Nor do we so construe the finding of the court. It appears to us that the finding of the court on the issue of negligence was not clear and conclusive. This being true, we are of the view that the judgment should be reversed and the cause remanded for a retrial upon all of appellees’ allegations and a more definitive ruling with respect to the issues in accordance with our established decisions.

Appellant next contends that as a matter of law there was no substantial evidence to support a finding that appellant was guilty of negligence or acted in bad faith in failing to settle the Busbys’ personal injury claim within the Nelson policy limits. We cannot agree. The insured, Mrs. Nelson, an elderly woman, had stopped her car at a street curb at the local post office and as she moved forward she struck Mrs. Busby, a pedestrian. Mrs. Nelson’s car skidded 21 feet, allegedly dragging Mrs. Busby this distance, and stopped with Mrs. Busby underneath one of the wheels. Mrs. Busby suffered extensive personal injuries consisting of numerous bruises and lacerations on her back and head with cinders in her wounds; a broken right shoulder blade which has never properly healed and grates upon movement which is a permanent condition; one of her vertebrae was “squashed down” or flattened with resulting degeneration; and a 15 to 25% permanent partial disability to the body as a whole. Her special damages were $2,665.10. Admittedly, neither Mrs. Nelson nor her sister, 90 years of age and a passenger in the Nelson car, ever saw Mrs. Busby. Mrs. Nelson, about 82 years of age, was known in the community as being a fast and imprudent driver. She had experienced “several run-ins” and two accidents; she had a bad reputation as a driver, to the extent that “there had been a move underfoot to take her license away from her.” It appears that sometime before the original trial, because of senility it was necessary to appoint a guardian fqr her. All of these facts were known to the appellant-insurer. The policy issued to her by appellant was substandard.

Preceding the original trial, the Busbys had offered to settle their claim for $9,950. The appellant authorized a $5,000 “working authority” and then limited its offer to $4,000 which was refused. During the trial the Busbys renewed their offer to settle the case for $9,995 (also recommended by appellee Nelson) which appellant refused. In doing so, the appellant took the position there was no liability on the part of its insured. In the case at bar appellant presented two attorneys who testified that they had reviewed appellant’s files, together with the trial transcript and the evidence pertaining to the original trial, and were of the view that appellant had exercised reasonable judgment and had acted in good faith in its settlement negotiations. They were of the view, as was appellant, that the appellees’ case was fairly weak as to liability and there was a high degree of contributory negligence on the part of appellee, Mrs. Busby. An attorney for Mrs. Nelson testified that from his knowledge of the case the appellant had exercised extremely poor judgment in evaluating the case. A letter from him to appellant’s attorney, after the original trial, advised that: “It is Mrs. Nelson’s position, as you have been repeatedly advised, that the insurance company acted in bad faith in not settling this lawsuit within the coverage when given ample opportunity to do so.”

In the circumstances, it is our view that a fact question was presented to the jury as to whether appellant was negligent or failed to act in good faith in refusing to reach a settlement within the limits of the policy. It will be noted that in court chambers, in the absence of the jury, the appellant unconditionally refused appellees’ final settlement offer of $9,995 by stating there was no liability.

On cross-appeal the appellees assert that the court erred in failing to award them 12% damages on the amount of the judgment, a reasonable attorney’s fee, and interest on the excess judgment from May 13, 1968, the date of the original judgment, until paid. This statutory penalty for damages and attorney fees is provided for in Ark. Stat. Ann. § 66-3238 (Repl. 1966). In the case at bar the appellant has paid the full $10,000 limits of the policy and the present judgment is for the $6,250 in excess of the policy limits. An action to recover damages in excess of the policy limits sounds in tort. Southern Farm Bureau Cas. Ins. Co. v. Hardin, 233 Ark. 1011, 351 S. W. 2d 153 (1961). There a suit to recover a judgment in excess of the policy limits was brought by the insured against his insurer for failing to accept art offer to settle a lawsuit against the insured within the limits of the liability coverage. There we said: “[T]he action is one in tort and interest should be allowed only from the date of the judgment in the case at bar.” See, also, Zumwalt v. Utilities Ins. Co., 228 S. W. 2d 750 (Mo. 1950).

Since appellees’ action sounds in tort, and is not ex contractu, we hold that the court was correct in refusing the 12% penalty, reasonable attorney’s fee, as well as interest from the date of the original judgment.

Neither can we agree with appellees’ assertion that the court should adopt the rule of strict liability. We adhere to our previous rulings that an insurer is liable only upon proper proof of fraud, bad faith, or negligence in its refusal to settle claims within the policy limits.

Reversed and remanded on direct appeal; affirmed on cross-appeal.