text:
    Cheek v. Cheek.
    5-2103
    334 S. W. 2d 669
    Opinion delivered April 11, 1960.

      J. Allen Eades, for appellant.

      Switzer & Switzer, for appellee.
   Carleton Harris, Chief Justice.

This appeal involves the custody of a minor child, and the award granted for his support. Loretta Cheek was granted a divorce from Harold Cheek in the Ashley County Chancery Court on June 2, 1958. By the terms of the decree, she was given custody of the minor son, Bicky, then five years of age, and the court awarded $20 per week for the child’s support., , The decree provided that Mr. Cheek should have custody of the child for “two periods of two months each twelve months until the child starts to school in September, 1959, at which time temporary custody period shall be reduced to three months during the summer vacation; * * The support payments, of course, were only required during the time that Ricky was in the custody of his mother.

On July 8, 1959, appellant filed a motion to amend the decree and reduce the support payment, and appellee subsequently petitioned the court, seeking a contempt citation for appellant’s alleged failure to comply with the decree of June 2nd. In response to this petition, appellant further pleaded that appellee was not a fit person to have the custody of the child, and asked that he (appellant) be granted custody of Ricky. Following a hearing on September 15, 1959, the court modified the original decree of June 2nd, 1958, by reducing the $20 per week payments to the sum of $70 per month; giving the mother the right to move the child out of the state (subject to visitation rights of the father as set out in the original decree), and requiring- appellee to file with the court a bond in the amount of $500, conditioned upon her compliance with further orders of the court. Judgment was rendered against appellant for $720, representing Cheek’s arrearage in child support payments. From such judgment comes this appeal.

Appellant first contends that the trial court erred in the amount for which judgment was awarded for arrearage. This contention is based upon the argument that Mr. Cheek was entitled to custody of Ricky for four months in 1958, and four months in 1959, a total of eight months, even though there was only a fifteen month interval between the granting of the decree and the order for modification. We are unable to understand the basis for this argument. The provision of the decree relative to custody of the child, heretofore set out, provides that appellant shall have custody for four months of each twelve months — not four months during each calendar year. The record reflects that the child was in the possession of appellant for sixteen weeks, the approximate four months, and the petition for modification was filed thirteen months after the original decree. It appears therefore, that appellant had possession of the child for the approximate period of time granted him under the decree. However, the court apparently miscalculated the amount of arrearage by $100, and this is admitted by appellee. The proper amount of judgment should have been $620.

Appellant next contends that the amount awarded per month for the support of the child is excessive and entirely beyond his ability to pay. The record reflects that Cheek earned $5,226 in 1958. In 1959, Cheek worked from the first of the year until March 4th, at which time he was laid off. He returned to work June 15th, and was working at the time of the trial. His total wages at the time of the hearing amounted to $2,328.15. In addition, he had drawn unemployment compensation at the rate of $26 per week during the period that he was off from work (three months, ten days). Of course, there still remained approximately three and one-half months in the year. The court arrived at its maintenance figure for the child on the following basis: $30 per month for food, $10 per month for clothing, school expenses, $8 per month; medical expenses, $10 per month; insurance, $4 per month; and $10 miscellaneous. This totals $72 per month, and the figure for support was fixed at $70 for each monthly period. Appellant argues that the total award should not exceed $40 per month. We do not agree that the amount awarded is excessive, nor do we feel that it is out of line with appellant’s earnings. It is true, that because of the lay-off from work, he may have earned some less in 1959 than in 1958, but, as previously stated, he was working regularly at the time of the trial. Perhaps we would be more impressed with this argument if Mr. Cheek had fully complied with the court’s order during the period of time he was regularly employed. Prom June 2, 1958, through December 31, 1958, appellant contributed $100 for the support of Ricky; from January 1, 1959, through March 4, 1959 (at which time he ceased work, Mr. Cheek contributed $80 for child support. The total amount paid from the date of the divorce until the date of the hearing was $400. Be that as it may, we cannot say that this award is excessive. This Court has many times held that the amount of support is a matter within the sound discretion of the trial court under the facts of each case. See Robbins v. Robbins, 231 Ark. 184, 328 S. W. 2d 498, and cases cited therein.

Appellant contends that appellee is not the proper person to have the custody of Ricky, and that custody should be given to the father. We do not agree. In Perkins v. Perkins, 226 Ark. 765, 293 S. W. 2d 889, this Court said:

“. . . It is a matter of common knowledge that usually there is no love like a mother’s love, this is a law of nature that is almost invariable, and unless there are compelling reasons for giving someone other than the mother custody of a small child, it should not be done. ’ ’

Certainly, no compelling reason appears in the instant case for changing custody. There are no allegations, or proof, of lewdness of drunkenness — or staying away from home — or improper treatment of the child — or neglect in any manner. In fact, appellant’s evidence of unfitness was rather strained. This proof relates to the fact that appellee would not let Cheek have the child on one or two occasions, and her use of a credit card, made out to appellant, to obtain gasoline, wherein she signed her name “Mrs. Harold Cheek” after she had remarried a man named Zeagler. The total gas bill was $39.15, though it is not entirely clear that appellee purchased all of this gas, since only two tickets are in the record. Mrs. Cheek (Zeagler) testified that the child was staying with appellant in Fort Smith; that she called and asked that he bring the boy home, but he replied that she would have to come after Ricky. She stated he told her it was all right to use the credit card, and that, though the gas was charged to him, she actually paid the bill. At any rate, we do not consider this act so grievous as to merit a change of custody of the child, particularly when appellant, at the time of the occurrence (October llth-12th) was several weeks behind in his payments.

The findings of the Chancellor carry particular weight in a case of this nature. As we stated in Wilson v. Wilson, 228 Ark. 789, 310 S. W. 2d 500:

“We know of no type of case wherein the personal observations of the court mean more than in a child custody case. The trial judge had an opportunity that we do not have, i.e., to observe these litigants and determine from their manner, as well as their testimony, their apparent interest and affection, or lack of affection for the child.”

The decree is modified to the extent that the judgment for $720 is reduced to $620, and is, in all other respects, affirmed. Attorney for appellee is awarded an additional attorney’s fee of $150.00. Costs of this case shall go against appellant.

       Emphasis supplied.


source: Caselaw Access Project

author: J. Seaborn Holt, Associate Justice.

license: Public Domain

text:
    Back v. J. C. Penney Co.
    5-2109
    334 S. W. 2d 672
    Opinion delivered April 11, 1960.

      Rose, Meelt, House, Barron $ Nash, for appellant.

      Wright, Harrison, Lindsey & Upton, for appellee.
   J. Seaborn Holt, Associate Justice.

This appeal involves the construction and interpretation of the provisions of a lease. Appellants, Edward S. Back, Phillip G. Back and William S. Back as trustees, had leased to appellee, J. O. Penney Company, for a number of years a retail store building at 505 Main Street, Little Rock, Arkansas, which appellants owned. On April 9, 1952, the parties entered into a continuation lease on the property beginning June 1, 1952, for a period of ten (10) years, ending May 31, 1962. The building under lease was to be used by Penney for the sale of ready-to-wear clothing and similar lines of merchandise. The lease provided for a rental which would be three percent (3%) of the monthly net sales of the Penney Store. However, in no event was the rent in any one year to be less than $13,500.00. The lease provided that the Penney Company could, at its option, install a freight elevator and air conditioning to make the building more suitable. Penney, under the terms of the lease, would pay the initial cost and would recoup this capital outlay (or cost), which amount was admitted to be $76,698.75, by deducting one-tenth (l/10th) of the rentals each year in excess of $48,000.00. Penney elected to install the above mentioned items and proceeded to recoup its outlay according to lease provisions. Penney, on January 25, 1958, vacated the premises and continued to pay rent on the basis of "$63,216.93, the yearly average, less the sum of $7,669.88 [being one-tenth the cost of improvements]. The contention of appellants, Back trustees, is that Penney should not be allowed to deduct $7,669.88 now that it has quit the premises and the trustees filed suit to recover this amount. The lower court dismissed appellants’ complaint and this appeal followed.

For reversal, appellants rely on two points. (1) Upon vacating the leased premises, the J. C. Penney Company was obligated under the lease to pay a sum in lieu of percentage rentals, and the formula for the computation of said sum did not provide for a deduction for the cost of elevator, air conditioning, or other improvements. (2) Any language in the lease intimating that J. C. Penney Company had the right to withhold for improvements from the sum paid in lieu of percentage rentals after it vacated the premises is in conflict with the formula previously mentioned, and any ambiguity so created should be construed against Penney since its employees prepared the lease.

We do not agree with either of these contentions. They are so related that we will consider them together. The lease, under IMPROVEMENTS, relating to Penney’s right to deduct one-tenth (l/10th) of the cost of the air conditioning system and the freight elevator, provides: “If, as, and when Tenant shall complete installation of air conditioning and/or a freight elevator, and if the cost thereof shall be determined to be less than the aforesaid sum of Ninety Thousand Dollars ($90,000.00) that Landlord has agreed to contribute towards the cost thereof, then there shall be an adjustment of the amount to be withheld each lease year out of said percentage rentals as aforesaid, to the end that Tenant shall withhold or recover one-tenth (l/10th) of the actual amount so expended by Tenant for each lease year of the term hereof as aforesaid, provided always, however, that Tenant shall, in no event, recover or withhold an amount in excess of the sum actually expended by Tenant in connection with the installation of air conditioning system and/or a freight elevator, or the sum of Ninety Thousand Dollars ($90,000.00), whichever shall be the lesser of the two.”

We think there could be no question, therefore, but that the parties clearly intended that Penney be fully reimbursed for the cost of the air conditioning and elevator if percentage rentals due in excess of $48,000.00 annually permitted recoupment, and it is undisputed that the percentage rentals averaging $63,216.93 annually from June 1, 1952 through January 25, 1958 have been paid by Penney to appellant and were sufficiently in excess of $48,000.00 per year to permit recoupment of $7,669.88 annually by Penney.

Appellants made no complaint about deductions under the lease until after Penney vacated the building on January 25, 1958. Prom that date they complain about further deductions, or recoupments. After Penney vacated the building, Penney contended that it had the right, under the plain terms of the lease, to continue to deduct $7,669.88 out of its average annual payments of $63,216.93 due to the Backs until it had been fully repaid for the $76,698.75 it had advanced and expended in installing the air conditioning and freight elevator. The lease provided that if Penney vacated the building, the percentage rental formerly used up to the vacation date [January 25, 1958] would not apply but instead the lease provided that the rental should be: “An amount each month until the end of the term . . . equal to the average of the amounts actually received each month by the Landlord under the foregoing provision for rentals during the period between the beginning of the term of the lease and the time when the Tenant ceases to use the demised premises for its business.” Clearly, then, under the above language, appellants [Backs] were entitled to receive for the remainder of their lease term what is admittedly being paid to them, namely $55,547.05 cash, which represents the average of $63,216.93 paid to them annually during the period that Penney occupied the building before vacating it, less the amount $7,669.88 deduction provided for. This lease appears to have been carefully drawn and agreed upon by the parties. Its meaning is clear and unambiguous. Under its plain terms we hold, as indicated, that Penney was clearly entitled to the annual recoupment of $7,669.88 until fully reimbursed in the amount of $76,698.75 for the improvements. Appellants will continue to receive, from May 28, 1958 until May 31, 1962, an annual cash rental of $55,547.05 and further will be allowed to retain valuable improvements on their property amounting to $76,698.75, all under a lease which contained a minimum guarantee rental of only $13,500.00 per year.

On the whole case, finding no error, the judgment is affirmed.

George Rose Smith, J., not participating.


author: Ed. F. McFaddin, Associate Justice.

text:
    Marques v. Marques.
    5-2067
    334 S. W. 2d 674
    Opinion delivered April 11, 1960.

      John F. Gibson, for appellant.

      William H. Brew, for appellee.
   Ed. F. McFaddin, Associate Justice.

The Chancery Court awarded appellee (husband) a divorce from appellant (wife); and this appeal challenges the correctness of that decree.

At the outset, we have a procedural question to decide. The case was heard on oral testimony, and the Chancellor delivered an opinion which is twenty-two transcribed pages. The decree was filed on April 27, 1959; notice of appeal on May 15th; designation of entire record on May 15th; extension granted on July 24th; and on October 22nd additional extension granted “until seven months from April 27, 1959”. On October 22, 1959 appellant filed a “petition and affidavit”, stating that she had no money with which to pay for the transcription of testimony and that the entire record should be furnished her without charge, under the provisions of Section 8 of Act No. 244 of 1957. This petition was denied at a hearing on October 30, 1959. It was shown that the Court Reporter had taken the testimony by the use of a recording machine; and the Court suggested that' appellant might make a condensed statement in narrative form from the recordings which the Court Reporter was directed to furnish her.

In accordance with the Court’s suggestion about a condensed statement in narrative form, the appellant filed with the Clerk of the Chancery Court on November 17, 1959, an unverified, uncertified, unagreed-to 46 page instrument purporting to be a condensed statement in narrative form of the testimony of all the witnesses in the case; but neither the appellee nor his attorney was ever notified of such filing, and no copy was ever furnished appellee or his counsel. On November 18, 1959 the appeal was filed in this Court; and the record contained only the pleadings, the Court orders, and the said narrative statement. Upon learning of the appeal, the appellee filed in this Court a motion to strike said condensed statement in narrative form, and such motion was passed until consideration of the case on its merits. "We gave either party permission to file a duly certified copy of the Chancellor’s opinion, as previously mentioned; and the appellee has filed the same with us.

The motion to strike the narrative statement must be sustained. Our statute allowing testimony to be supplied in narrative form is Section 10 of Act. No. 555 of 1953, as now found in § 27-2127.4, Ark. Stats., and reads:

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

It is instantly apparent that if the appellant had wanted to file a “condensed statement in narrative form”, such should have been prepared and filed when the record was designated on May 15, 1959, and not on November 17, 1959. Tbe purpose of tbe condensed statement in narrative form is to afford tbe parties a possibility of saving tbe additional expense of tbe questions and answers of various witnesses. But, even so, when such statement is served on tbe opposite party, be may, if dissatisfied, “require testimony in question and answer form”. In tbe ease at bar, even if we bypass tbe fact that tbe condensed statement in narrative form was not filed with tbe appellant’s designation of tbe record, still we cannot overlook tbe point, made by tbe appellee, that tbe condensed statement in narrative form was never served on tbe appellee or bis counsel, so that be could require tbe testimony to be furnished in question and answer form — as be states be would have done. So tbe narrative statement must be stricken as filed out of time and filed without ample notice to appellee.

With tbe narrative statement stricken, there is no showing of error, and tbe decree must be affirmed. However, it is fair to all parties to say that we have carefully read and studied tbe said narrative statement, and also tbe Chancellor’s opinion; and, even after considering tbe narrative statement, we would have affirmed tbe decree of tbe Chancery Court awarding a divorce to appellee. Since this is a divorce case, we adjudge that tbe husband shall pay tbe costs of this appeal.

Affirmed.

       This petition by appellant, filed on October 22,1959, was the first suggestion that the appellant was without funds. She never asked the Court to require appellee, as her former husband, to bear any part of the cost of the furnishing of the record.

       This comes to tts from Rule 75 (e) of the Federal Rules.

       Appellant made no effort to prepare the kind of statement referred to under Section 19 of Act No. 555 of 1953, which may be found in § 27-2127.11 Ark. Stats.


author: George Rose Smith, J.

text:
    Brown v. Keaton.
    5-2051
    334 S. W. 2d 676
    Opinion delivered April 11, 1960.

      Donald Poe, Hardin, Barton, Hardin <& Garner, for appellant.

      Harper, Harper, You/ng <& Durden, George P. Edwardes, for appellee.
   George Rose Smith, J.

This suit for personal injuries and property damages arose from a collision between two vehicles. One was a truck owned by the plaintiff McEntire and being driven by his fourteen-year-old grandson, the plaintiff Clifton Brown, Jr., who was traveling upon a mission of his own. The second vehicle was a tractor-trailer owned or leased by the defendant Keaton and being driven by tbe defendant Welch. This vehicle was also occupied by a relief driver, the defendant Boseberry, who was asleep at the time of the collision.

McEntire and his grandson alleged in their complaint that Welch and Boseberry were employees of Keaton and that the accident was due to Welch’s negligence in crossing the center line of the highway. By answer and cross complaint against the plaintiffs the defendants asserted that Welch was an independent contractor and that it was yonng Brown who was on the wrong side of the road. In response to special interrogatories the jury attributed the total negligence to Welch and Brown, 50 per cent each, and found that Welch was an independent contractor. The only recoveries were a $500 verdict against Welch for McEntire’s property damage, a $3,142.16 verdict against Brown for Keaton’s property damage, and a $7,500 verdict against Brown for Boseberry’s personal injuries. The plaintiffs have appealed, and Welch has cross appealed.

The appellants argue two points for reversal. First, it is contended that the court erred in excluding paragraph 8 of a written contract by which Keaton, who owned the trailer, had leased the tractor from Welch. To show the relation between Keaton and Welch their attorney offered in evidence, and the court admitted, a copy of the lease contract from which paragraph 8 had been deleted. This contract, which is perfectly intelligible without the omitted paragraph, sets out the terms upon which Keaton leased Welch’s tractor for a year.

Thereafter counsel for the plaintiffs offered the omitted paragraph, which provides in part that liability insurance “will be carried by Keaton at the expense of Welch, at the rate of 5%, to be deducted from each weekly check of Lessor.” It is now insisted that this provision was admissible to show that Keaton exercised a measure of control over Welch and so might have been found to be his employer.

We agree that the contractual provision for liability insurance, though not admissible for all purposes, might have been considered by the jury as bearing upon Welch’s status as an employee or independent contractor. Delamar v. Ward, 184 Ark. 82, 41 S. W. 2d 760; Pollock Stores Co. v. Chatwell, 192 Ark. 83, 90 8. W. 2d 213. But both those cases point out that the jury should be instructed to consider the insurance arrangement only with respect to the narrow issue upon which it is admissible. It was therefore incumbent upon the plaintiffs, in offering proof not admissible for all purposes, to request the court to admit it for the limited purpose only. No such request was made, however, and it is settled that in the absence of such a request the exclusion of the evidence is not reversible error. Kansas City So. Ry. Co. v. Leslie, 112 Ark. 305, 167 S. W. 83, Ann. Cas. 1915B, 834; Thacker v. Hicks, 215 Ark. 898, 224 S. W. 2d 1.

Secondly, the jury’s original answers to the special interrogatories were incomplete and conflicting. It is contended by the appellants that the trial judge erred in his successful efforts to elicit from the jury a set of harmonious answers, but we have concluded that no error was committed.

The first three interrogatories and the jury’s original answers were, in substance, as follows: 1. Do you find that Welch was negligent? “No.” 2. Do you find that Brown was negligent? “No.” 3. If your answers to 1 and 2 are “Yes,” then using 100% to represent the total negligence state what per cent you attribute to the following persons: Welch -; Brown -. The jury inserted “50%” in each of these blanks. Interrogatories 4 and 5 contained blank spaces for the insertion of the monetary damage suffered by each of the five litigants, but the jury did not originally fill in any of those blanks.

When Judge Wolfe examined the verdicts he first asked the jury how it was that in response to interrogatories 1 and 2 they found no negligence, but in the third interrogatory they divided the negligence 50-50. The jurors replied that by their answers to 1 and 2 they meant that neither Welch nor Brown was 100% negligent. The court explained that interrogatories 1 and 2 were merely intended to find out whether Welch and Brown were guilty of any negligence. With this explanation in mind the jurors returned to the jury room and corrected their answers to 1 and 2 to read “Yes.” Up to this point the appellants make no complaint about the trial court’s action, which was manifestly correct. The jury undoubtedly intended all along to find that Welch and Brown were both negligent, in equal degree.

The court next discussed with the jury the matter of fixing the pecuniary damages suffered by the various parties. In the course of this discussion the foreman of the jury remarked: “We are jiist assuming that by putting that 50-50 nobody would get anything.” In view of this statement plaintiffs ’ counsel asked the court to inquire if the jury intended that no one should recover anything, but the court refused to put this question. Instead, the judge explained to the jury that the apportionment of fault and the fixing of damages are separate and independent matters. He pointed out that all the parties had stipulated that McEntire’s property damage was $500 and that Keaton’s was $3,142.16; there was at least an intimation that the jurors were bound by the stipulations. After this discussion the jury again retired and fixed the property damages at the stipulated sums and Boseberry’s personal injuries at $7,500.

The appellants argue that Judge Wolfe made two errors in his efforts to assist the jury in arriving at the various litigants’ recoverable damages. It is contended, first, that the court’s intimation that the jury was bound by the stipulations amounted to a comment on the evidence, and, second, that the court should have asked the jurors if they really intended for no one to recover anything at all.

We think the court was right in both instances. On the first point the jurors were bound by the stipulations. When the evidence is wholly undisputed the court may and should take that issue from the jury. Pacific Mut. Life Ins. Co. v. Walker, 67 Ark. 147, 53 S. W. 675; El Dorado & Bastrop R. Co. v. Whatley, 88 Ark. 20, 114 S. W. 234, 129 A. S. R. 93. A stipulation is the equivalent of undisputed proof; it leaves nothing for the jury to decide. Hence there was no need for the court even to submit to the jury the question of McEntire’s and Keaton’s property damages. The court might properly have submitted only the apportionment of fault, since that was the single missing factor that the court needed for the entry of a judgment in accordance with the stipulations.

On the second point the court’s refusal to ask the jurors whether they meant to allow no one to recover was based upon a correct understanding of the comparative negligence statute. Ark. Stats. 1947, §§ 27-1730.1 and 27-1730.2. It is true that in returning a general verdict the jury may make findings that are not consistent or in harmony with either party’s theory of the case. See, for example, Fulbright v. Phipps, 176 Ark. 356, 3 S. W. 2d 49. But such results can hardly come about when the issues of comparative negligence are submitted on special interrogatories. In the present case McEntire’s damages, for instance, were conceded to be $500, and the jury found that his adversary Welch was negligent, while McEntire was not. Upon these findings there is simply no way to prevent McEntire from recovering from Welch, who was the joint tortfeasor that McEntire elected to sue. Thus the appellants’ second point really narrows down to an insistence that the trial court should have permitted the return of a general verdict, but we find no abuse of discretion in the court’s submission of the case on special interrogatories. Robertson v. Universal C. I. T. Credit Corp., 224 Ark. 293, 272 S. W. 2d 825; St. Louis S. W. Ry. Co. v. Robinson, 228 Ark. 418, 308 S. W. 2d 282.

By cross appeal Welch complains of the court’s action in directing a verdict in favor of McEntire upon Welch’s cross complaint. It does not appear from the abstracts of the record, nor even from the record itself, that any sufficient objection to the peremptory instruction was made prior to the filing of Welch’s motion for a new trial. It was then too late for the objection to be made for the first time. De Queen & Eastern R. Co. v. Pigue, 135 Ark. 499, 205 S. W. 888.

Affirmed.


author: Paul Ward, Associate Justice.

text:
    Dunn v. Dauley.
    5-2066
    334 S. W. 2d 679
    Opinion delivered April 11, 1960.

      Robinson, Sullivan & Bosteck, By: Louis W. Bosteck, for appellant.

      Joseph C. Kemp and William M. Stocks, for appellee.
   Paul Ward, Associate Justice.

This litigation was instituted by appellant, Dollie K. Dunn, against the Manager and Board of Directors of the City of Little Rock to recover retirement pay in accordance with the provisions of City ordinances. The Circuit Judge, sitting as a jury, resolved the issue against appellant and this appeal follows.

Appellant’s Complaint, filed February 24, 1959, contained the following material allegations: She was in continuous employment of the City of Little Rock from May 19, 1946 to December 31, 1958; on or about the 16th day of December of 1958 she was ordered to quit work due to ill health by her personal physician, and she did quit three days later due to ill health; on or about December 20, 1958 and again on January 6, 1959 sbe gave notice for retirement under tbe provisions of City Ordinance No. 6775; on January 29, 1959 sbe received written notice that ber claim for disability retirement had been denied by tbe Board of Directors of tbe City of Little Bock; sbe was not present at tbe bearing before tbe Board of Directors, bad no notice of said bearing, and does not know why ber claim for disability retirement was denied; and, she was receiving a salary of $200.00 per month, and, under the provisions of tbe ordinances above mentioned, sbe is entitled to receive said salary for fifteen months or a total of $3,000.00. Tbe above Complaint was later amended to include City Ordinance No. 10783.

After tbe Circuit Court bad denied appellees’ Demurrer to tbe above Complaint they filed an Answer, containing a general denial.

Both sides introduced testimony to support their contentions, and tbe Trial Judge, sitting as a jury by agreement of tbe parties, found: that City Ordinances No. 6775 and No. 10783 do not “create a pension system for the City, but are only an announcement of policy by tbe City. That any disability benefits created under these ordinances is a mere gratuity and creates no vested right in City employees to any benefit whatever. That tbe plaintiff did not sustain the burden of proof in establishing injuries or disability claimed by ber or in showing that they were in any way related to or arising out of ber employment”. Thereupon the Court dismissed appellant’s Complaint with prejudice.

That portion of tbe above mentioned City ordinances which has any relevancy to tbe issue in this litigation is Section 8 of Ordinance No. 10783 which reads as follows:

“A. It shall be tbe policy of tbe City to continue to pay disabled employees of the non-uniformed group, retirement pay, as in tbe past; until such times as a better retirement plan is worked out, '
B. This shall include only, classified regular employees of the non-uniformed personnel who are compelled to retire from the City’s employ because of sickness or because of a permanent disability growing out of an injury incurred in line of duty.
C. The retired employee must furnish a certificate from his physician stating the reasons or cause for retirement request and submit to a complete examination by the City Health Director, who must approve the employee’s request for the disability retirement.
D. If request is granted the employee will be retained on the pay roll of the department by which he was last employed prior to retirement, for a period of months equal to the number of years for which said person had been employed by the City of Little Rock, and for a fractional period of a month to correspond with that fractional period of a year which he has been employed by the City of Little Rock. Upon death of employee payments shall cease.
E. The use of the masculine pronoun in the above shall include the feminine as well.
F. Members of. the Police and Fire departments are excluded from the above provisions, because at the present time they have pension and retirement provisions created under the State statutes.”

After careful consideration we have concluded that the judgment of the trial court must be affirmed on the ground that there is substantial evidence in the record to support the Trial Judge’s finding that “the plaintiff did not sustain the burden of proof in establishing . . . disability claimed by her . . .” In reaching this conclusion we understand that appellant is relying on ill health and not on a disability to establish her claim. We interpret the. ordinance to mean that ill health need not grow out of an injury incurred in the line of duty. Consequently, we do not pass upon the legal question whether the City Manager and the Board of Directors could arbitrarily refuse to make payments to appellant assuming the proof clearly showed she had to quit work because of her health.

Substantial Evidence. It is not disputed that appellant began working for the City of Little Rock on May 19, 1946 in the Women’s Detention Center; that she continued to work until about December 19, 1958 or that she had high blood pressure when she began working for the City. In support of appellant’s contention that she was forced to quit work because of ill health Dr. William A. Snodgrass, Jr. testified substantially as follows: I am a physician and surgeon and have been the family physician of appellant since August of 1946; I have treated her mainly for hypertension, high blood pressure due to arteriosclerosis; I had her in the hospital in April of 1958 and treated her for hypertension— she stayed in the hospital five days; on April 25, 1958 I wrote Dr. Lawson (the City Health Officer) advising him of her hypertension and recommending regular working hours; from April 25, 1958 to December 1, 1958 appellant made seven calls to my office mainly for hypertension; in November of 1958 she went into a mild congestive failure and her blood pressure dropped too rapidly; on December 16, 1958 I again wrote Dr. Lawson advising him that she had very high blood pressure and a mild congestive failure and told appellant to quit working immediately; and I saw her again on December 19, 1958 and her blood pressure was high and I ordered her to bed. I did not feel that she was able to work during the month of December and it is my opinion that she is unable to work now. On Cross-Examination the doctor stated that appellant’s blood pressure was high in 1946 being 170/100 and that in his opinion she could have done housework in 1958.

Appellant testified that she began work as matron of the Women’s Detention Center on May 19, 1946; that she alternated working days and nights; that after she came back to work in April of 1958 she worked until December 19, 1958 on which date she had a severe headache and the doctor ordered her to go to bed; she stated that she had dizzy spells while working but managed to keep on; that she received notice on December 18, 1958 that her job was discontinued and it was on December 19, 1958 during the lunch hour that she was forced to go home and go to bed. She made application for retirement on December 20, 1958 by a letter to Dr. Lawson and on January 29, 1959 she received notice that the Board of Directors had denied her application. On Cross-Examination she stated that she received a letter from the City Manager on December 18, 1958 and became ill at noon the next day and had to leave work with a severe headache; that she had had such severe headaches before; she further stated that she remained in bed three days after going home on December 19th and that her doctor told her on December 16th she would have to retire. Appellant admitted to hearing rumors that her job would be abolished.

Dr. Mason Lawson, Public Health Director of the City of Little Eock, testified in substance: Appellant was under my supervision as matron of the Detention Center; I considered her work not too strenuous; I examined appellant on April 22, 1959 and she did have hypertension but I only gave her a superficial examination — a clinical examination; according to appellant’s work record for the past ten years it is shown that she was off an average of 5.2 days per year which for a person of her age would indicate fairly good health; on the day I examined her I believe she could have worked. There had been some talk about closing the Detention Center and in November of 1958 it was definitely decided to do so and I believe I discussed this with appellant, however, I did not tell her in exact words that her job would be abolished. I believe that the letter to appellant stating that her job would be abolished might have caused emotional distress and the mild congestive failure, and might have caused her blood pressure to rise. On Cross-Examination, Dr. Lawson stated that he did not believe appellant’s work at the Detention Center was any harder than the work done by the average housewife and that he tried to give them every consideration. Her further stated that he did not know the condition of appellant from November of 1958 to December of 1958 but that according to the records she was working during that period and never complained to him and never asked for relief. On Ee-Direct Examination the doctor stated that he passed upon appellant’s application for disability retirement but did not recommend that she receive disability retirement payments for the reason he thought she quit because she knew her job was going to be abolished.

Under the law and the peculiar facts of this case we must conclude that there is substantial evidence to support the findings and judgment of the trial court. Paragraph C of Section 8 of Ordinance No. 10783 sets out the things to be done by appellant before she would be entitled, under any circumstances, to retirement pay. First, she must furnish a certificate from her physician stating the reasons or cause for her retirement request, then she must submit to a complete examination by the City Health Officer, then the City Health Officer must approve her request. It is not contended here by appellant that the City Health Officer approved her request. It is also conceded, as shown by the record, that the Board of Directors denied appellant’s request for retirement pay. The established rule appears to be that the courts will not override the findings of a Board unless it is first shown that the Board’s action was fraudulent, arbitrary or capricious. Under the facts in this case we are unwilling to say that the Little Rock Board of Directors acted fraudulently, arbitrarily or capriciously. Such a principle has often been announced both by text writers and in judicial opinions. In Volume 3, pp. 561-562 of McQuillin, Municipal Corporations, you will find this statement:

“Unless the action of such officer or body is shown to have been fraudulent, arbitrary or capricious, usually it is held final, because the courts decline to substitute their judgment for that of the officer or body”.

To the same effect we find in 40 Am. Jur., pp. 992-993 under “Pensions”, Section 39, this statement:

“In an action by a city employee for a pension which had been denied to him by the pension governing body after a finding of facts by the body, which it was empowered by statute to make, that he was not entitled to the pension, it was held that in the absence of an allegation in his petition that the action of the governing body was arbitrary and capricious, it did not state a cause of action and that the action of the governing body was final and not reviewable by the courts”.

In the case of Herring v. Stannus, 169 Ark. 244, 275 S. W. 321, this Court in affirming the action of the City Council of Little Rock relative to a zoning situation made this statement: “The question is not what a member of the court might decide if the question were submitted to him as a matter of discretion, but rather is whether it can be said that the council abused its discretion, and we may not say that such was the case-unless that fact clearly appears”. Likewise in the case of McKinney v. City of Little Rock, 201 Ark. 618, 146 S. W. 2d 167, this Court, in upholding the action of the City Council relative to a zoning ordinance, and in approving the action of the trial court in sustaining the City Council, had this to say: “It was then tried by the chancery court, and it held that the classification was reasonable and the lower court’s decision was not against the preponderance of the evidence. Moreover to set aside the decree and the finding of the Council would be substituting our judgment for that of the zoning authorities who are primarily charged with the duty and responsibility of determining the question. This we should not do unless we can say from the evidence that the action of the Council and the decision of the court are unreasonable and arbitrary”.

We think the situations set forth in the above cited eases are somewhat similar to the situation in the case under consideration and that the rules above announced are applicable here. Also, the record shows that the City has no funds with which to make retirement payments in a case like this one. The administration of the entire program is in charge of the Health Officer, the City Manager and the Board of Directors. All of these have found that appellant was not entitled to retirement pay. The Circuit Judge, sitting as a jury, has approved the finding of the City authorities. We are unwilling to say that the findings of the trial court are not supported by substantial evidence or that the City officers acted arbitrarily. Consequently, the judgment of the trial court must be, and it is hereby, affirmed.

Affirmed.

Johnson, J., dissents.

Robinson, J., not participating.


author: Sam Robinson, Associate Justice.

text:
    New St. Mary’s Gin, Inc. v. Moore.
    5-2147
    334 S. W. 2d 683
    Opinion delivered April 11, 1960.

      Burke & Roscopf, for appellant.

      John L. Anderson, for appellee.
   Sam Robinson, Associate Justice.

The appellant, New St. Mary’s Gin, Inc., instituted this action to mandamus the assessor and members of the equalization board of Phillips County to assess appellant’s property in accordance with a manual published by the Assessment Coordination Division of the Public Service Commission. The complaint alleges that the property was appraised at a value of $48,000 by the assessing authorities, but that the appraised value would have been only $23,600 if the method of appraising as set out in the above mentioned manual had been used. The complaint further alleges that appellant by its attorney appeared before the equalization board and requested that appellant’s property be appraised in accordance with the method set out in the manual and that the equalization board refused to comply with such request. The complaint alleges that the Arkansas Appraisal Service Co., Inc., was employed by the County to appraise the property within the county for tax purposes; that the appraisal of appellant’s property was too high and that the appraisal value was adopted by the assessor and approved by the equalization board. In short, appellant seeks to reduce the appraised value by mandamus. Appellees demurred to the petition for mandamus. The trial court sustained the demurrer, and New St. Mary’s Gin, Inc., has appealed.

Appellant concedes that ordinarily the remedy in a situation where the equalization board refuses to lower the assessed values of property is by appeal to the county court, but contends that under the authority of Act 153 of 1955 as amended by Act 307 of 1957, the court erred in refusing to grant mandamus requiring appellees to use the valuation for assessment as set out in the manual prepared by the Assessment Coordination Division of the Public Service Commission. The Acts mentioned set forth the procedure to be followed by county assessors, county boards of equalization, the Public Service Commission, county judges, and quorum courts, in a complete program of re-appraisal of the property in this State. It appears from the complaint that pursuant to these provisions the Assessment Coordination Division prepared certain manuals which are to be used in the re-appraisal program. As also authorized, Phillips County employed a private concern to make appraisals of the property within the county. Appellant complains that the assessment of the property as made by the private concern is not in conformance with the valuation set out in the manual as required by the above enactments. The specific language relied on by appellants is as follows:

“ ‘Section 5 (A). It shall be the duty of the County Assessors and their deputies to use and follow the assessment Manuals and standards promulgated by the Assessment Coordination Department, and to use the forms prescribed and furnished by said Assessment Coordination Department in making such appraisal and assessment and to collect and record the date [data] thereby required. It shall also be the duty of the County Equalization Boards, in performing their duties, to recognize and follow such Manuals and standards, and the County Equalization Boards shall not change an assessment made by the County Assessor unless such change is necessary to provide uniformity in the assessment of similar classes of property. It shall also be the duty of the County Judgés, in hearing appeals from the County Equalization Boards, to recognize and follow such Manuals and standards, and a County Judge shall not change an assessment unless such change is necessary to provide uniformity in the assessment of similar classes of property.’ ”
“SECTION 13. All duties imposed by this Act on all state and county officers are hereby declared to be mandatory, and any officer who neglects, fails or refuses to perform any such duty shall be subject to removal from office and liable on his official bond for such neglect, failure, or refusal. Upon the refusal or failure of any state officer to perform any duty imposed upon him under the provisions of this Act, any citizen of the State may, and the Attorney General of the State of Arkansas shall, institute in the proper court mandamus proceedings to compel such state officer to perform his duties. Upon the refusal or failure of any county officer to perform any duty imposed upon him under the provisions of this Act, any citizen of the county may, and the Prosecuting Attorney of the district including such county shall, institute in the proper court mandamus proceedings to compel such county officer to perform his duties.”

It should be pointed out that the above language must be read in the light of the entire Act. Section 2 thereof contains the following expression:

“SECTION 2. The Arkansas Public Service Commission (in this Act hereinafter called the ‘Commission’) shall furnish guidance, instruction and assistance to the County Assessors in the performance of their duties under this Act. The Commission shall not have the authority to assess or re-assess any property now-required by law to be assessed by County Assessors, or to order the assessment of the property of any designated taxpayer at any specified amount. It is the intention of this Act that the Commission have and exercise the duty and responsibility of coordinating and supervising the work of the County Assessors and County Equalization Boards in such manner as to provide uniformity of methods, procedures and results in the several counties of the State.”

We have heretofore held that a taxpayer cannot enjoin an assessment where he has failed to exhaust his remedies of appeal from action or inaction by the county board of equalization. Jones v. Crouch, 231 Ark. 720, 332 S. W. 2d 238.

In the case of State v. Board of Directors, School Dist. of Ashdown, 122 Ark. 337, 183 S. W. 747, we said: “As early as Fitch v. McDiarmid, 26 Ark. 482, this court held that mandamus, with us, is not a writ of right, but is one within the judicial discretion of courts to issue or to withhold, and that a party, to be entitled to the writ must show that he has a clear legal right to the subject matter, and that he has no other adequate remedy. . . .

“In Fitch v. McDiarmid, supra, many authorities are cited, and among them the court quotes the following from The People v. Thompson, 25 Barb. 76 [N. Y.]: ‘The invariable test by which the right of a party, applying for a mandamus, is determined, is to inquire, first whether he has a clear legal right and if he has, then, secondly, whether there is any other adequate remedy to which he can resort to enforce his right; if there is, he can not have a mandamus. The writ only belongs to such as have legal rights to enforce and find themselves without an appropriate legal remedy.’ ”

To the same effect are Patterson v. Collison, 135 Ark. 105, 204 S. W. 753, and Snapp v. Coffman, 145 Ark. 1, 223 S. W. 360. Act 153 of 1955, § 13, does not authorize mandamus where there is an adequate remedy by appeal.

It appears to us that the type of conduct for which mandamus would lie under the Acts in question is not the kind complained of in this instance. Here the county assessor was engaged in a program of re-appraisal as prescribed by the Legislature. The alleged erroneous assessment was not the result of failure on his part to act, but arose out of the mechanics of going forward with the reassessment program. Appellant was provided with a method of appeal from the board of equalization. Ark. Stat. § 84-708. This he did not choose to do.

Affirmed.


author: Jim Johnson, Associate Justice.

text:
    M. F. A. Mutual Insurance Co. v. White.
    5-2048
    334 S. W. 2d 686
    Opinion delivered April 11, 1960.

      Hardin, Barton, Hardin & Garner, for appellant.

      Douglas O. Smith, Jr., Warner, Warner & Bagon, Donald L. Poe, for appellee.
   Jim Johnson, Associate Justice.

Appellant, M. F. A. Mntnal Insurance Company, as the insurer of George Hawkins on an automobile liability policy, instituted this suit for a declaratory judgment contending that George Hawkins’ failure to notify them of the pendency of a suit against him by Mary White (Scott Circuit Court Case No. 2767) relieved them from liability as insurers. Appellee, Mary White, upon becoming cognizant of Hawkins ’ failure to notify the insurance company of the pendency of suit No. 2767, filed an identical action as suit No. 2783 in the same court and later dismissed without prejudice suit No. 2767.

The pertinent parts of the insurance policy here in question, which was admittedly in full force and effect on the date of the accident, are as follows:

* # #

“If a claim is made or suit is brought against the insured, he shall immediately forward to MFA Mutual every demand, notice of summons received by him or his representative. If any suit or counterclaim is brought which may result in a claim under Coverage E, a copy of any pleadings filed shall be immediately forwarded to MFA Mutual.
* * *
“Action against MFA Mutual: No action shall lie against MFA Mutual, under any Coverage, until after full compliance with all the terms of this policy, nor, as respects Coverages A and B, until the amount of the insured’s obligation to pay shall have been finally determined either by judgment against the insured after actual trial or by written agreement of the insured, the claimant and MFA Mutual . . .”

From an adverse decree appellant appeals contending that: “Waiver, estoppel and res judicata are bars to Scott County Circuit Court Case No. 2783,” and “The failure of Hawkins to turn over the summons in Case No. 2767 relieves appellant of any liability because of the breach of the policy conditions.”

The material facts in this case are undisputed. Appellee, George Hawkins, was served with summons in action No. 2767 on June 16, 1958, and did not notify appellant of the service until some 28 days thereafter. This lapse of time admittedly exceeds the statutory answer time. If this were the only issue before the Court in the case at bar we would be inclined to agree with the contentions of appellant, but that is not the case. Here, Appellee White dismissed her action No. 2767 without prejudice, even though at the time of dismissal she was entitled to a default judgment by authority of § 29-401, Ark. Stats. The case was never finally submitted for a judgment and no judgment was obtained. Section 27-1405, Ark. Stats, is as follows:

“Dismissal of Actions — An action may be dismissed without prejudice to a future action:
“First. By the plaintiff before the final submission of the case to the jury, or to the court, where the trial is by the court.”

A dismissal without prejudice has been aptly described as being like a person blowing out a candle, which at his own pleasure may be lit again. We have held many times that if a plaintiff dismisses a suit before final submission, the order of dismissal is not res judicata in another suit involving the same parties and issues. See: Jordan v. McCabe, 209 Ark. 788, 192 S. W. 2d 538. Here another suit (action No. 2783) was filed involving the same parties and issues. Service was had on appellee Hawkins and it is not contended that he did not meet every requirement of his insurance policy. Nor is it contended that the policy was not in force at the time Miss White sustained her injuries complained of in action No. 2783.

Therefore, following the rule laid down in Southern Surety Company v. Puryear-Meyer Grocer Co., 151 Ark. 480, 236 S. W. 841, we find that the delay of Hawkins to notify appellant of the service of summons in action No. 2767 affords no defense in the present action, for that action was dismissed without prejudice. The purpose of the stipulation in the policy was to afford the insurance company an opportunity to control the litigation and interpose a defense against the claim on the merits of the case. Since the first action was dismissed without prejudice there was no judgment, no payment, and no liability against appellant was sought; hence, it is clear that there was no breach of the conditions of the policy by failure of appellee to give notice of the first suit.

Affirmed.


author: Carleton Harris, Chief Justice.

text:
    Daniel v. City of Clarksville.
    5-1204
    334 S. W. 2d 645
    Opinion delivered April 18, 1960.

      Frank H. Cox, for appellant.

      Edward H. Patterson, Townsend $ Townsend, for appellee.
   Carleton Harris, Chief Justice.

This appeal questions the validity of Act 180 of 1959. The title of that Act is “An Act to Enable Municipalities Owning and Operating Utility Plants to Issue Revenue Bonds for the Purpose of Securing and Developing Industry within or Near Said Municipalities, Said Bonds to he Paid by Rentals from Property Acquired by the Use of the Proceeds of Said Bonds and Any Additional Amount That May be Needed from the Net Revenues of Said Utility Plants; Declaring an Emergency; and for Other Purposes.” After reciting, in the preamble, the purpose of the legislation, the act provides that the legislative body of any municipality may issue revenue bonds, in the manner, and under the conditions set out in Section 3 of said act. The act then provides that the bonds are payable from the revenues derived from the property acquired with the proceeds of the bonds, and that surplus revenues derived from utilities owned by the municipality may be pledged. The legislation further provides that a statutory mortgage lien upon the property acquired by the proceeds of the bonds, shall be created in favor of the bond holders. Section 4, however, states that£ £ any pledge of rentals or revenue shall be subject to the restriction that the municipality shall never in any fiscal year be bound in an amount that would together with the other expenditures and contracts of the municipality, call for a payment or payments in that fiscal year in excess of the total revenue for such municipality for that fiscal year, so that the municipality shall never at any time by its contract or pledge of net revenues and rentals violate the provisions of Amendment No. 10 to the Constitution of the State of Arkansas. The bonds issued under this Act shall not in any event constitute an indebtedness of such municipality within the meaning of the constitutional provisions or limitations, and it shall be plainly stated on the face of each bond that the same has been issued under the provisions of this Act and does not constitute an indebtedness of such municipality within any constitutional or statutory limitation.”

Proceeding under this Act, the city council of Clarksville enacted a resolution on July 13, 1959, authorizing the publication of a notice of certificates of indebtedness to be sold under the authority of the aforementioned act. The notice of sale was duly published, and the city received a valid bid of par plus accrued interest for $25,000 of its proposed issue of certificates of indebtedness (the total proposed issue was $150,000), bearing interest at the rate of 4% per annum. Prior to issuance of these certificates, this suit was instituted by appellant as a citizen and taxpayer of the city of Clarksville. The suit questioned the validity of Act 180, and sought, through injunction, to prevent appellees from proceeding further with the proposed issue of the certificates. The court, on hearing, declared Act 180 to be valid and constitutional, and entered its decree dismissing the complaint. From such decree, appellant brings this appeal.

We are of the opinion that the question herein presented has now become moot, for the aforecited provisions of Act 180 have been superseded by the provisions of Act 9 of the First Extraordinary Session of the Sixty-second General Assembly, the validity of which is being upheld in an opinion handed down by the Court this day. Both Act 9 and Act 180 deal with the issuance of bonds for the purpose of securing and developing industry. Act 9 is a much more comprehensive statute, but embraces the entire subject matter covered by Act 180 as far as the bonds are concerned, i.e., both acts provide for the issuance of revenue bonds; both provide that the bonds are payable from the revenues derived from the property acquired by the proceeds of the bonds; both provide for the statutory mortgage lien upon the property acquired ; and both permit the pledging of surplus revenues derived from utilities owned by the municipality. Likewise, Act 9 has the almost identical requirement of Section 4 of Act 180, heretofore cited. Furthermore, both acts give practically the same definition of surplus revenues. In fact, relative to the issuance and payment of revenue bonds, the provisions of the two acts are substantially the same — with one exception. Section 3 of Act 180 is in direct conflict with Section 4 of Act 9. The former authorizes the legislative body of any municipality, upon its own determination, to issue the bonds, while the latter provides that “revenue bonds may be issued only with the approval of a majority of the qualified electors of the municipality or county voting at an election called for that purpose.” Following approval of the electors, the legislative body of the municipality is authorized to act. While Act 9 contains no repealing clause, and in fact, provides that it is intended to supplement existing constitutional and legislative provisions designed to secure industry, it is self-evident that the provisions (Section 3 of Act 180 and Section 4 of Act 9) are in irreconcilable conflict, for Act 9 is specific and definite in stating that the bonds may be issued only with the approval of a majority of the qualified electors. We recognize that repeals by implication are not, generally speaking, favored. Here, however, all the factors necessary to bring about a repeal by implication are present. As stated in Corpus Juris Secundum, Vol. 82, Sec. 291, page 489:

“Where two legislative acts are repugnant to, or in conflict with, each other, the one last passed, being the latest expression of the legislative will, will, although it contains no repealing clause, govern, control, or prevail, so as to supersede and impliedly repeal the earlier act to the extent of the repugnancy.”

In our own ease of C. R. I. & P. RR. Co. v. Cohen, 223 Ark. 621, 267 S. W. 2d 774, this Court quoted the rule stated in Coates v. Hill, 41 Ark. 149, concerning repeals by implication:

“Repeals by implication are not favored. To produce this result, the two acts must be upon the same subject and there must be a plain repugnancy between their provisions; in which case the latter act, without the repealing clause, operates to the extent of repugnancy, as a repeal of the first. Or, if the two acts are not in express terms repugnant, then this latter act must cover the whole subject of the first and embrace new provisions, plainly showing that it was intended as a substitute for the first.”

See also Curlin v. Watson, 187 Ark. 685, 61 S. W. 2d 701. Since Section 3 of Act 180 is in absolute conflict with Section 4 of Act 9, we hold the former to have been repealed. This results in Act 180 being inoperative insofar as it relates to revenue bonds for the purposes mentioned in the act, for Section 3 is the provision that authorizes the issuance of the bonds. No bonds have actually been issued by the city of Clarksville, so the question of impairing the obligation of a contract does not arise.

Summarizing, the manner of issuing revenue bonds for the securing and development of industry is controlled and regulated by Act 9 of the First Extraordinary Session of the Sixty-second General Assembly. This act supersedes Act 180 of 1959, and the city of Clarksville may not now further proceed with the issuance of bonds except in conformity with the provisions of Act 9.

It follows that the decree of the Chancery Court must be reversed. It is so ordered.

       This evidently refers to provisions dealing with other than this type of revenue bonds.


text:
    State ex rel., Arkansas State Highway Commission v. Ottinger.
    5-2113
    334 S. W. 2d 694
    Opinion delivered April 18, 1960.

      Neill Bohlinger, Dowell Anders, Daniel Parnell, for appellant.

      Wright, Harrison, Lindsey & Upton, for appellee.
   J. Seaborn Holt, Associate Justice.

This appeal comes from a decree of the Pulaski Chancery Court which granted appellee, E. C. Ottinger’s, d/b/a Ottinger Construction Company, prayer for cancellation of its bid for the construction of approximately eight (8) miles of highway in Arkansas, and also for cancellation of its bid bond in amount of $35,0000 which it had procured from appellee, Standard Accident Insurance Company.

The facts are to the following effect: Along with five (5) other contractors, appellee, Ottinger, submitted its sealed bid to appellant, Arkansas State Highway Commission, for construction of eight (8) miles of highway, at 10 o’clock A.M. on May 13,1959. The six (6) bids were opened formally by the Commission and Ottinger’s bid of $1,329,370.58 was announced to be the lowest. The second lowest bid, which was submitted by Reynolds and Williams, totaled $1,611,254.41, or approximately $281,-000.00 more than Ottinger’s bid. It also appears that the bid of Reynolds and Williams was only $147,000.00 lower than the highest bid of all, which amounted to $1,758,216.88. Ottinger’s bid had been submitted for it by its engineer, Ned B. Turner. When Turner heard over the radio the announcement of the various bids, he was convinced that such a disparity in the Ottinger bid and the others could only be due to some mistake. At 1:30 P.M. on May 13th, within three and one-half hours after the bids were opened, he, Turner, went to Ward Goodman, chief engineer of the Highway Department, and informed Goodman of the mistake claimed by Ottinger. Goodman referred Turner to the Highway Commission which was then in session. About three hours later, at approximately 4:30 P.M., Turner appeared before the Commission, informed it of a mistake in Ottinger’s bid and asked for permission to withdraw his employer’s bid. At this time no award of contract by the Commission had been made on the bid. Two days later, on May 15, 1959, Ottinger telegraphed the Commission requesting that his bid be disregarded on the ground that it had made a mistake in computing the bid and this telegram was confirmed by letter by Ottinger to the Commission on May 16th. On May 18th, five days after the bids were opened and after appellant had been informed of Ottinger’s request to withdraw its bid, appellant communicated to Ottinger by letter that the contract had been “tentatively” awarded to it, and within ten days of this notice, appellant, Commission, forwarded a contract to Ottinger which it refused to sign. Upon Ottinger’s refusal to accept the contract, it was immediately given to the second lowest bidder, Reynolds and Williams.

The chancellor found that: “The contractor’s mistake occurred when he overlooked this revision of the Special Provisions furnished by the State Highway Commission, which consisted of a single sheet revision of Sp-105 of Embankment Material. Through failure to observe this revision, which was an unnumbered single sheet among approximately 310 sheets embodying the Provisions applicable to this job, Ottinger bid 43^ per cubic yard for 753,050 yards of embankment material when he should have bid 83 ¡i per cubic yard therefor. In the haste and pressure of working up the detailed bid, this mistake amounted to an error in computation of $294,020.00. The result of the mistake made Ottinger’s bid approximately $300,000.00 lower than that of the next bidder.”

For reversal, appellant relies on two points. (1) If a mistake was made, the cause thereof was appellee’s own negligence, and equity will not relieve it of the consequences of a unilateral mistake caused by negligence. (2) The Arkansas State Highway Commission, by accepting’ Ottinger’s low bid, had the legal right to forfeit the proposal bond if Ottinger refused to enter into a contract to construct the road, and it was error for the court to restrain the Commission from forfeiting the said bond.

We are confronted here with the situation where a contractor makes a material mistake in the preparation of his bid and with the question whether, because of his unilateral mistake, he was entitled to rescind his bid. We think the trial court was correct in holding that he was entitled to rescind his bid.

It is undisputed here that immediately after discovery of the mistake, before any award of the contract and within a matter of hours after the bids were opened, Turner met with the Commission, explained the mistake, and asked that the bid be not considered. At this time, as indicated, Ottinger’s bid had not been accepted nor. had any of the other bids been rejected. Appellant had in no manner changed its position because of the mistake. The rule granting relief to a contractor for a unilateral mistake, in circumstances similar to what we have here, is announced by the annotator in 52 A. L. B. 2d at page 796. After reviewing a number of cases, he summarizes his findings in this language: “In the typical situation here presented, so firmly has the rule favoring equitable relief against unilateral mistake become established that no case has been discovered in which it has not been granted, by way of rescission or similar or appropriate relief, where there is proof of a combination of circumstances establishing remedial mistake and timely communication of knowledge to and assertion of the right to relief against the other party. ’ ’

In the case of Conduit & Foundation Corporation v. Atlantic City, 2 N. J. Super. 433, 64 A. 2d 382 (1949), under a fact situation similar, in effect, to the present case, the Superior Court of New Jersey, Chancery Division, used tliis language: “The essential conditions to such relief by way of rescission for mistake are (1) the mistake must be of so great a consequence that to enforce the contract as actually made would be unconscionable; (2) the matter as to which the mistake was made must relate to the material feature of the contract; (3) the mistake must have occurred notwithstanding the exercise of reasonable care by the party making the mistake, and (4) it must be able to get relief by way of rescission without serious prejudice to the other party, except for loss of his bargain. * * *

“It becomes important to determine whether the plaintiff promptly rescinded its option given to the defendant or, otherwise stated, whether it rescinded a unilateral contract, and whether the defendant’s conduct was conscionable. From the facts as above set forth, which are uncontroverted, it appears that before the defendant had accepted the offer of the plaintiff, the plaintiff apprised it of the error and withdrew its offer or option. This, in effect, was a rescission of the option. Both notice of the error and advice of the rescission were promptly given to the defendant prior to the awarding of the contract to the plaintiff. * * *

“Therefore, it is held that a unilateral mistake existed in the preparation of the plaintiff’s bid and that under the facts here present, such bid was promptly rescinded within time.

“ It is further held that under the facts here present the plaintiff is entitled to the return of the money deposited with its bid.”

In Williston, Contracts, Vol. 5, § 1573 (Rev. Ed.), the author says: “In two classes of cases mistake of one party only to a contract undoubtedly justifies affirmative relief as distinguished from a mere denial to enforce the contract specifically against him: (1) Where the mistake was known to the other party to the transaction * * *. The first of these rules is based on obvious justice;” and in § 1578, “As to other cases than those referred to in a preceding section, the expressions are numerous that mistake, in order to justify relief, must be mutual or the error of one party must be known to the other. That this is true of reformation is nowhere doubted; but some cases afford countenance for the doctrine that unilateral mistake, while the contract is still executory and the parties can be put in statu quo, may afford ground for rescission, and doubtless the discretionary remedy of specific performance may be denied. Rescission has been most frequently sought where a price was bid which because of erroneous arithmetical processes or by the omission of items was based on a mistake. Relief has been allowed in several cases of this and other kinds, though denied in others. In some of them at least, it would seem that the party not in error should have suspected the existence of a mistake in which case clearly rescission and restitution should be allowed. Where relief is allowed it is generally said to be essential that the party seeking it shall not have been guilty of negligence. ’ ’

We also hold that the trial court was correct in holding that Ottinger was excused from the forfeiture of its bid bond. In M. F. Kemper Construction Co. v. Los Angeles, 37 Cal. 2d 696, 235 P. 2d 7 (1951), wherein the facts are strikingly similar to the facts in the present case, that court, in holding that the contractor should be excused from forfeiture of his bid bond, used this language : “There is no merit in the city’s contention that, even assuming the company is entitled to cancellation of the bid and is not liable for breach of contract, the bid bond should nevertheless be enforced because the company failed to enter into a written contract. It is argued that forfeiture of the bond is provided for by charter and that equity cannot relieve from a statutory forfeiture. We do not agree however that the city charter should be construed as requiring forfeiture of bid bonds in situations where the bidder has a legal excuse for refusing to enter into a formal written contract. Under such circumstances the contingency which would give rise to a forfeiture has not occurred. * * * In line with the general policy of construing against forfeiture where ever possible, decisions from other jurisdictions permitting rescission of bids uniformly excuse the contractors from similar provisions relating to forfeiture of bid bonds or deposits.” (Citing many cases)

Finding no error, the decree is affirmed.


text:
    Equity Mutual Insurance Co. v. Southern Ice Co.
    4-2065
    334 S. W. 2d 688
    Opinion delivered April 18, 1960.

      Wood, Chesnutt & Smith, for appellant.

      James G. Cole, for Southern Ice Co. and John Duke, Lawson E. Clover, for Curtis Gober, Wright, Harrison, Lindsey é Upton, for The Borden Company.
   Ed. F. McFaddin, Associate Justice.

This is a declaratory judgment proceeding (§§ 34-2501 et seq. Ark. Stats.) brought by the appellant against Southern Ice Company, John Dulce, The Borden Company, Curtis Gober, and Bill Herron, all of whom are appellees herein. Each defendant counter-claimed against the plaintiff; and the Trial Court found for each such counter-claiming defendant. From such judgment, the appellant brings this appeal.

The present case was No. 4252 in the Hot Spring Circuit Court, and is the third in a series of three cases arising out of the same mishap. We will identify the cases by the number each had in the Circuit Court. In 1957 The Borden Company was engaged, inter alia, in the distribution of dairy products at Malvern, Arkansas. Curtis Gober was Borden’s agent; and he employed Bill Herron as a delivery truck driver. The Equity Mutual Insurance Company (sometimes hereinafter called “Equity Company”) issued its policy of automobile liability insurance, which covered The Borden Company, Curtis Gober, and Bill Herron; and under the policy the Equity Company was obligated: (1) “To pay on behalf of the insured all sums which the insured shall become legally obligated to pay as damages because of bodily injury . . . sustained by any person, caused by accident and arising out of the ownership, maintenance or use of the automobile”; and (2) to “. . . defend any suit against the insured alleging such injury, . . . and seeking damages on account thereof, even if such suit is groundless, false or fraudulent; . . .”

John Arnold, a 13-year-old boy, frequently rode with Bill Herron on the Borden delivery truck and helped with deliveries, and sometimes Herron gave the boy 50# or 60#. On August 27, 1957 (while Equity Company’s said policy was in force) Herron drove the truck to the Southern Ice Company in Malvern to get crushed ice to cover the dairy products in the truck. John Arnold accompanied Herron; and while John Duke, an employee of Southern Ice Company, was crushing the ice to put in the truck, the little 13-year-old Arnold boy put his hand in the crusher and received injuries which precipitated the three cases herein mentioned.

In November 1957 John Arnold, by his father and next friend, filed Case No. 4168 in the Circuit Court, seeking damages against Southern Ice Company and John Duke for the hand injury. In that said case, Southern Ice Company and John Duke filed a third party complaint against The Borden Company, Curtis Gober, and Bill Herron, alleging, inter alia:

‘ ‘ On August 27,1957, John Arnold was injured while, as said invitee and permittee of the third party defendants, he was engaged in the icing of the dairy truck at the defendants and third party plaintiffs’ place of business. . . .
“The third party defendants were guilty of negligence which caused or contributed to the injuries, if any, sustained by John Arnold in either or all of the following particulars, to-wit:
“ (a) In permitting and inviting a minor to assist in the operation of a dairy truck, under circumstances resulting in his injury, in violation of the law.
“(b) In failing to properly warn a minor under circumstances which resulted in his injuries.
“(c) In failing to properly instruct, guard, watch and supervise a minor’s activities under the circumstances which resulted in his injuries.
“(d) In allowing, under the circumstances of this ease, a dairy truck to become an attractive nuisance by inviting and permitting a minor to assist in the operation thereof when they knew or by the exercise of ordinary care should have known that said minor would be attracted thereto and was likely to be injured in the course of the operation thereof.
“(e) In allowing, permitting and inviting a minor to perform the normal and customary duties incident to the icing of the dairy truck under the circumstances which resulted in his injury. ’ ’

The Borden Company, Curtis Gober, and Bill Herron, requested Equity Mutual Insurance Company to defend the said third party complaint; but such request was refused because Equity Company contended that, ■“the policy did not cover the injuries suffered by John Arnold . . .” While Equity Company was denying to its insureds any duty to defend the litigation, Southern Ice Company and John Duke settled with John Arnold for the injuries to his hand, and obtained a full release for the total amount of $3,045.50.

Then Southern Ice Company and John Duke filed in the Hot Spring Circuit Court, Case No. 4210, naming as defendants The Borden Company, Curtis Gober, and Bill Herron, alleging that the Arnold claim had been settled for $3,045.50, and also making the same allegations as those contained in the third party complaint in Case No. 4168, as heretofore copied. The prayer of the complaint was, that the Southern Ice Company recover from the three named defendants the full amount of $3,045.50 and interest and costs. The Borden Company, Curtis Gober, and Bill Herron again called on Equity Company to defend the Case No. 4210; and, again, Equity Company refused for the same reasons it had assigned for refusing to defend the third party complaint in Case No. 4168. Thereupon, each of the defendants in Case No. 4210 undertook a separate defense. The Borden Company and Curtis Gober filed separate answers; and the case is still pending against those two parties. But a default judgment was rendered for Southern Ice Company and John Duke, against Bill Herron, in the sum of $3,045.50 and interest and costs. Execution against Bill Herron was returned nulla bona; and it is stated, and not denied, that he is insolvent. •

Finally, on October 13, 1958, Equity Company filed the present declaratory judgment proceeding, as Case No. 4252 in the Circuit Court, naming as defendants Southern lee Company, John Duke, The Borden Company, Curtis Gober, and Bill Herron, and made factual allegations substantially as hereinbefore stated. Each named defendant answered the declaratory judgment complaint and sought affirmative relief against Equity Company; and at the trial, from whence comes this appeal, the Circuit Court rendered judgments against Equity Company as follows: (a) in favor of Southern Ice Company and John Duke for $3,228.23 (being the $3,045.50 and interest) and 12% penalty, plus $500.00 attorney’s fee; (b) in favor of The Borden Company for $600.00 for attorney’s fee; (c) in favor of Curtis Gober for $600.00 for attorney’s fee; (d) in favor of Bill Herron for $200.00 for attorney’s fee. It is from these judgments that Equity Company brings this appeal, presenting the matters now to be discussed.

I. The Judgment In Favor Of Southern Ice Company And John Duke. The Trial Court refused to hear any evidence offered by Equity Company, and held that the default judgment against Bill Herron, together with the declaratory judgment complaint of Equity Company, entitled Southern Ice Company and John Duke to a summary judgment against Equity Company. Equity Company made proffer of its evidence, and it is before us. We hold that the Trial Court was in error in refusing to hear the evidence tendered by Equity Company for a finding of fact thereon. It is not for us to say what the finding of fact should have been; but we do hold that Equity Company had a right to present its evidence, and receive a factual finding.

As heretofore pointed out, the insurance policy issued by Equity Company was an obligation to pay on behalf of the insured (i.e., Bill Herron, as one such insured), “all sums which the insured shall become legally obligated to pay as damages because of bodily injuries . . . sustained by any person caused by accident, and arising out of the ownership, maintenance, or use of the automobile”. This is the “obligation to pay”, as distinct from “obligation to defend”, which will be later discussed. Equity Company claimed that the mishap to the Arnold boy did not arise within the insurance coverage, as above quoted. The taldng of the default judgment against Bill Herron did not determine whether the mishap was within the insurance coverage. Somewhere in the course of the litigation, Equity Company had a right to have determined whether it was obligated to pay the judgment against Herron; and it chose to file this declaratory judgment proceedings to have the question determined. It was certainly entitled to present its evidence and have the factual questions decided.

Our original declaratory judgment statute was Act No. 274 of 1953 34-2501 et seq. Ark. Stats.); and Section 2 of the 1953 Act omitted all reference to “contracts”. In Lumberman’s Mutual Casualty Co. v. Moses, 224 Ark. 67, 271 S. W. 2d 780 (decided in 1954), we held that our then existing statute did not authorize a declaratory judgment involving an insurance contract. But the Arkansas Legislature, by Act No. 35 of 1957, amended Section 2 of the 1953 Act so as to include “a written contract or other writings constituting a contract”. The 1957 amendment made Section 2 of our Declaratory Judgment Act read exactly like the Uniform Declaratory Judgment Act. Thus, insurance contracts now come within the purview of our declaratory judgment statute; and in U. S. F. & G. v. Downs, 230 Ark. 77, 320 S. W. 2d 765, we rendered a declaratory judgment in litigation involving insurance contracts.

There are many cases in which declaratory judgment proceedings (under the Uniform Law) have been invoked by insurers in similar or analogous situations. Some of them are: State Farm Mut. Auto Ins. Co. v. Skluzacek, 208 Minn. 443, 294 N. W. 413; Farm Bureau Mutual Auto Ins. Co. v. Houle, 118 Vt. 154, 102 Atl. 2d 326; Hartford Accident & Indem. Co. v. O’Connor-Regenwether Post No. 3633, 247 Iowa 168, 73 N. W. 2d 12; Standard Cas. Co. v. Boyd, 75 S. D. 617, 71 N. W. 2d 450; Penn. Cas. Co. v. Suburban Service Bus Co., Mo. App., 211 S. W. 2d 524; and State Farm Mut. Auto Ins. Co. v. Cardwell, 250 Ala. 682, 36 So. 2d 75. The Equity Company had a right to use the declaratory judgment proceedings in this case to have determined its duty to pay and/or defend, just as was done in the cases previously cited. The Equity Company alleged, inter alia-. (1) that the status of the Arnold boy made him an employee of The Borden Company; and (2) that the automobile insurance policy here involved specifically excluded employees. The factual issues required determination; and Equity Company was entitled to have the facts determined in the declaratory judgment proceedings.

If Southern Ice Company had proceeded against the Equity Company under the provisions of § 66-526 et seq. Ark. Stats., Equity Company, as the alleged insurer, could still have made the defense that the policy did not cover the situation out of which the injury arose. (Home Indemnity Co. v. Snowden, 223 Ark. 64, 264 S. W. 2d 642). The Trial Court should have heard the evidence offered by Equity Company insofar as regards Southern Ice Company and John Duke. For that error, the judgment in favor of Southern Ice Company and John Duke against Equity Company is reversed and the cause is remanded for a trial and factual determination.

II. The Judgments In Favor Of The Borden Company And Curtis Gober. These judgments were for the attorneys ’ fees expended by these two parties in defending the third party complaint in Case No. 4168; in defending the direct complaint in Case No. 4210; and in defending against Equity Company in the present case, which was No. 4252. These judgments are correct. No judgment has been rendered against these assureds, The Borden Company and Gober, in favor of Southern Ice Company, because these assureds have made their own defense; but they contend that Equity Company should have made the defense; and this brings us to the second part of the insurance policy coverage, which was to “. . . defend any suit against the insured alleging such policy injury . . . and seeking damages on account thereof, even if such suit is groundless, false, or fraudulent”. In Lee v. Aetna Cas. & Sur. Co. (2nd Circuit), 178 Fed. 2d 750, Judge Learned Hand clearly pointed out the obligation of the insurer as regards “the duty to defend”, even though there was no duty on the insurer “to pay”.

We hold that in the case at bar, Equity Company violated its obligation to defend these assureds. We have only to look at the allegations — previously copied — in the third party complaint (Case No. 4168) and the allegations against The Borden Company and Gober in Case No. 4210, to see that the Equity Company has breached its obligation to defend its insureds, as distinct from its duty to pay. The great weight of authority, in cases like this and involving the insurer’s duty to defend, is that the allegations in the pleadings against the insured determine the insurer’s duty to defend.i It is not what the insurance company may have gleaned from its outside investigation: it is the allegations made against the insured — however groundless, false, or fraudulent such allegations may be — that determine the duty of the insurer to defend the litigation against its insured. In Am. Jur. Vol. 5A page 122 “Automobile Insurance” § 119, the holdings are summarized: “As a general rule, the obligation of an automobile liability insurer under a policy provision requiring it to defend an action brought against the insured by a third party is to be determined by the allegations of the complaint in such action.”

In the case at bar, the allegations in the third party complaint against The Borden Company and Gober, were not mere legal conclusions, but were factual allegations; and Equity Company has breached its duty to defend. Very fortunately for Equity Company, no judgment has gone against The Borden Company or Gober; and Equity Company may, if it so desires, defend the Case No. 4210 still pending against The Borden Company and Gober; but Equity Company must pay the reasonable attorneys’ fees which its insureds have paid. The Trial Court heard testimony about these amounts and rendered judgments against Equity Company; and the evidence sustains the judgments rendered. On appeal, The Borden Company and Gober ask additional attorneys’ fees for services in this Court; and we find that they are entitled to such amounts and fix the same at a total of $250.00 for both The Borden Company and Gober.

III. The Judgment For Bill Eerron Against Equity Company. The Trial Court rendered judgment for $200.00 attorney’s fee and expenses incurred by Bill Herron in the case No. 4168 and the present case; and he has not cross appealed or filed any brief in this Court. The Trial Court’s judgment is affirmed as regards Bill Herron.

CONCLUSION

The judgment in favor of Southern Ice Company and John Duke against Equity Company is reversed; in all other respects the judgment is affirmed; and the entire cause is remanded to reinvest the Circuit Court with jurisdiction for further proceedings not inconsistent with this opinion.

       Here are the reasons Equity assigned for refusing to defend its insureds: “(a) That at the time and place the said John Arnold was injured, the said John Arnold was not engaged in loading or unloading the said milk truck operated by Bill Herron, (b) That the said loading of the milk truck with ice as contemplated by the terms of the policy would not begin until the crushed ice was properly sacked and ready for loading upon said truck, (c) That at the time and place the said John Arnold was injured, the ice and ice grinding machine were in the sole and exclusive custody of the said Southern Ice Company and John Duke, and that the ice had not been delivered to the said Bill Herron for loading until it had completed the grinding operation and was enclosed in a sack, (d) That the said John Arnold was an employee of the said Bill Herron and Curtis Gober, and was excluded from coverage under the policy.”

       The prayer of the complaint of Equity Company was, that the Court determine and adjudge: “1. That none of the Defendants is entitled to recover from the Plaintiff any sum for damages suffered or for expenses incurred. 2. That each of the Defendants be restrained from instituting any action or continuing any action now instituted against the Plaintiff for the recovery of any sums as damages or expenses incurred. 3. That there is no liability on the part of the Plaintiff under the provisions of the aforementioned policy to defend the action on behalf of any of the Defendants herein. 4. That there is no liability on behalf of the Plaintiff under the policy to pay any part or all of any damages that might be awarded against any of the Defendants herein as hereinbefore set out. 5. That the plaintiff recover its costs. 6. For all other proper relief to which the Plaintiff might be entitled.”

       For informative articles regarding declaratory judgment proceedings, we mention the following: Annotation in 13 A.L.R. 2d p. 777, entitled, “Jury trial in action for declaratory relief”; and annotation in 142 A.L.R. p. 8, entitled, “Application of declaratory judgment acts to questions in respect of insurance policies”.

         For informative articles on the duty of the insurer to defend, see: Annotation in 50 A.L.R. 2d p. 458, entitled: “Allegations in third person’s action against insured as determining liability insurer’s duty to defend”; annotation in 49 A.L.R. 2d p. 694, entitled: “Consequences of liability insurer’s refusal to assume defense of action against insured upon ground that claim upon which action is based is not within coverage of policy”; and article in 11 Ark. Law Review p. 26, entitled: “Obligations of insured and insurer under automobile liability policies”.


text:
    Davis v. Chemical Construction Co.
    5-2122
    334 S. W. 2d 697
    Opinion delivered April 18, 1960.

      Glint Huey, for appellant.

      Bill F. Doshier and Wright, Harrison, Lindsey & Upton, for appellee.
   George Rose Smith, J.

This is a workmen’s compensation claim by the appellant, for an injury to his foot. The commission denied the claim upon the single ground that the claimant, at the time of his injury, had completed his day’s work at the job site and therefore (we infer) was barred by the coming and going rule. The circuit court affirmed the commission.

The facts are undisputed, so that the issue is one of law. The claimant’s employer, Chemical Construction Company, was engaged in a construction job for Monsanto Chemical Company. To reach the job site upon Monsanto’s extensive premises the construction company employees had to pass through two gates. The first gate abutted the public highway and could be entered by anyone without special permission. The second gate, apparently a mile or more down a private road from the Highway gate, provided access to what is referred to as the critical area, which was surrounded by a high cyclone fence. Upon entering or leaving this security gate the construction company employees were required to show their identification cards. Monsanto maintained a parking area outside the security gate, where the construction employees were required to leave their cars.

The job site was deep within the critical area, a mile from the security gate. The claimant and his fellow employees were paid for a workday ending at 4:30, but Monsanto required that the critical area be cleared by that time. To this end a whistle was sounded at 4:12, which gave all the employees, some 250 in number, eighteen minutes in which to walk to the security gate and leave the critical area.

On the afternoon of Davis’s injury he quit work at 4:12 and started walking toward the security gate. On the way he and several other workmen caught a ride, which was not unusual, upon a truck belonging to an electrical subcontractor. At the security gate the several occup ants of the truck were duly identified and permitted to leave. (The commission held that compensation coverage ended at that point.) As the truck was traveling toward the parking lot Davis saw that his son, who was working for a subcontractor, had gotten the Davis car from the parking area and started toward the security gate to meet his father. Davis called to the driver of the truck to slow down so that Davis could alight. As he was getting off the truck Davis caught his foot and sustained the injury for which compensation is sought. It was not yet 4:30 when the accident happenód.

We think the injury to be compensable, for the case falls within the premises exception to the coming and going rule. This exception was discussed in Johnson v. Clark, 230 Ark. 275, 322 S. W. 2d 72, although there compensation was denied because the employee had actually left his employer’s premises. By this qualification of the coming and going rule it is recognized that an employee is entitled to a reasonable time to leave his employer’s premises and that an injury suffered within that interval may arise out of and in the course of the employment. The principle has often been applied in cases involving a parking lot maintained by the employer; the cases are collected in Schneider on Workmen’s Compensation (Permanent Ed.), § 1719.

We do not attach controlling importance to the fact that this parking lot was owned by Monsanto rather than by the claimant’s employer. The premises exception is not based solely upon the master’s opportunity to make his own property safe and thus minimize the possibility of injury to his employees; for negligence is not an essential factor in compensation cases. Of equal weight is the fact that the employee is upon the premises by reason of his job, so that his injury has the necessary causal connection with his employment. For a case in point see Downey v. Vanderlinde Elec. Corp., 276 App. Div. 1044, 95 N. Y. S. 2d 685. It does not seem to us that Davis should be held to have left his employer’s premises until lie had passed through the second gate and joined the general traveling public.

Reversed.