author: Paul Ward, Associate Justice.

text:
    Parkerson v. State.
    4933
    321 S. W. 2d 207
    Opinion delivered February 23, 1959.
    [Rehearing denied March 23,1959]

      Gordon Carlton and Shaver, Tackett S Jones, for appellant.

      Bruce Bennett, Atty. General and Thorp Thomas, Asst. Atty. General, for appellee.
   Paul Ward, Associate Justice.

We are concerned on this appeal with the interpretation of the last clause in Section 43-2324, Ark. Stats, which provides for the revocation of a suspended sentence. The facts are simple and undisputed.

On October 13, 1953, tbe appellant, Charles Parker-son, pleaded guilty in the Sevier County Circuit Court to tbe crime of selling intoxicating liquors a-nd was sentenced to serve 5 years (beginning on said date) in tbe state penitentiary. On the same day tbe court suspended tbe sentence “upon tbe good behavior of defendant, that defendant not violate any liquor laws or other laws of tbe state . . .”

Tbe statute mentioned above reads as follows:

“Whenever, in criminal trials in circuit court, a plea of guilty shall have been accepted or a verdict of guilty shall have been rendered, tbe judge trying tbe case shall have authority, if be shall deem it best for tbe defendant and not harmful to society, to postpone tbe pronouncement of final sentence and judgment upon such conditions as be shall deem proper and reasonable as to probation of tbe person convicted, the' restitution of tbe property involved, and tbe payment of tbe costs of tbe case. Such postponement shall be in tbe form of a suspended sentence for a definite number of years, running from tbe date of tbe plea or verdict of guilty and shall expire in like manner as if sentence bad been pronounced; provided however, the Court having jurisdiction may at anytime during the period of suspension revolee the same and order execution of the full sentence.” (Emphasis supplied.)

On September 3, 1958, (39 days before the end of tbe suspension period) tbe prosecuting attorney filed a petition in aforesaid court to revoke tbe suspended sentence. Tbe petition stated that on August 30, 1958, appellant unlawfully bad in bis possession in Sevier County two and one-fifth gallons of intoxicating liquors and that be unlawfully transported tbe same from one place to another in said county.

Appellant was arrested on September 4, 1958, and arraigned in open court, bond was arranged, and a bearing set for tbe 17th of tbe same month. On tbe latter date, appellant’s attorney filed a Motion for Continuance in which it was stated that appellant was admitted to a hospital in Texarkana two days previously for major surgery, and had actually undergone surgery on the 16th. Attached to the motion was a doctor’s statement confirming the above, and also stating that the appellant should be able to leave the hospital in ten days or two weeks but would have a recuperating period of four to ten weeks. Upon the above showing, the trial court entered an order passing the matter until the adjourned term of court on Monday, November 3, 1958. This date, of course, was some 20 days after the expiration of the suspension period.

On November 4, 1958, a hearing was held on the Petition to Revoke, at which time appellant contended the trial court had lost jurisdiction to revoke because “the five-year sentence entered on the 13th day of October, 1953, had expired.” After hearing testimony with reference to appellant’s violation of the liquor laws, the court entered its order revoking the suspended sentence, and committed appellant to the State Penitentiary to serve the original sentence. Appellant has appealed from the above order.

The very interesting and difficult question presented here is whether the trial court, under the above state of facts and under the aforementioned statute, had jurisdiction to revoke the suspended sentence and commit appellant to the State Penitentiary. This court has not heretofore passed upon this exact issue. In the case of Canard v. State, 225 Ark. 559, 283 S. W. 2d 685, we construed said Section 43-2324 and held that the trial court had no jurisdiction to revoke a suspended sentence after the expiration of the suspension date. The above decision is not decisive however of the issue here presented for the reason that no application to revoke was filed in the trial court until after the end of the suspension period. In the case under consideration it is not questioned that the trial court on September 3, 1958, when the petition was filed, acquired jurisdiction. The only question is whether jurisdiction was lost by the court in postponing the hearing at appellant’s request. We have reached the conclusion that jurisdiction was not lost.

We question the relevancy here of appellant’s argument, citing Holford v. State, 173 Ark. 989, 294 S. W. 33, that criminal statutes must be strictly construed, and that courts should not by construction create offenses. That this rule is usually applied to criminal statutes or penal statutes there can be no doubt. However, in construing the last portion of Section 43-2324 we are not dealing strictly with a penal law but just the opposite. Black’s Law Dictionary defines a penal law as one which imposes a penalty for the violation of it. The language of that part of the statute under consideration imposes no penalty but rather provides an escape therefrom. The only penalty imposed by Section 43-2324 is the one that is imposed upon a conviction or a plea of guilty. Since the trial court admittedly had jurisdiction on September 4, 1958, to revoke the suspension and impose sentence we are loath to say the court lost jurisdiction in the absence of any explicit statute to that effect, and there is none. It occurs to us that appellant’s rights under the statute became fixed on the date of the filing of the application to revoke, and that it was for his benefit and at his request a postponement was granted. If he could have shown later that he had not violated the conditions of the suspension he would have escaped punishment for the original offense. It would be approaching the ridiculous to hold that appellant should be allowed to ask for and accept the favor of the court and then later use that favor to deprive the court of jurisdiction over him.

In reaching the conclusion that the trial court did not lose jurisdiction in this case, we are sustained by the only case we have been able to find among the decisions of other states where the effective statute was like our own.

In People v. Hodges, 231 Mich. 656, 204 N. W. 801, the court in dealing with the same factual situation we have here construed Section 2029 et seq. of the Compiled Laws of Michigan, 1915. The pertinent part of the Michigan Statute reads: “At anytime during the period of probation the court may, upon report by a probation officer . . . revoke and terminate the same, and issue a warrant for the probationer.” In the cited case the probationer’s hearing was set for a date before the expiration of the suspension period, but upon a showing that the probation officer was ill and unable to appear in court the hearing was adjourned until after the suspension period had ended. It was stated in the opinion that the defendant did not object to the postponement. The Michigan court, in deciding against appellant’s contention here, and in construing the words “at anytime during the period of probation,” said: “But here the petition to revoke the probation was filed within the period of probation, and we think it must be held that the filing of this petition within the period of probation gave the court jurisdiction which was not lost by a reasonable delay incident to the hearing upon it. Had objection been made to an adjournment, the court could then have passed sentence and no question could have been raised to its validity.”

There are numerous decisions from other states with statutes similar to but not exactly like our own which hold that the trial court, under facts like those in this case, does not lose jurisdiction. See: State ex rel. Lee v. Coker, (Fla.) 80 So. 2d 462; Ex Parte Robert Louis Fennell, 162 Tex. Cr. R. 286, 284 S. W. 2d 527; Lovell v. State, 223 S. C. 112, 74 S. E. 2d 570; Ex Parte LuJan, 18 N. M. 310, 137 P. 587; Ex Parte Hart, 29 N. D. 38, 149 N. W. 568; Ex Parte Lucero, 23 N. M. 433, 168 P. 713, and; State Ex Rel Tingstad v. Starwick, 119 Wash. 561, 206 P. 29.

It follows from what we have said that judgment of the trial court must be, and it is hereby affirmed.

Robinson, J., dissents.


source: Caselaw Access Project

author: Sam Robinson, Associate Justice.

license: Public Domain

text:
    Hickman v. Westinghouse Electric Co.
    5-1748
    320 S. W. 2d 921
    Opinion delivered February 23, 1959.

      Tom Gentry and John K. Shamburger, for appellant.

      Ridclick Riff el, for appellee.
   Sam Robinson, Associate Justice.

This is a case arising under the Workmen’s Compensation Law. The claim of the appellant, Mrs. Ruby L. Hickman, for compensation was disallowed and she has appealed. Mrs. Hickman went to work for the Westinghouse Electric Company in May, 1950. She worked at night, her hours being from 11:30 p. m. to 8:00 a. m. She says that while working in the due course of her employment one night in July, 1950, she hurt her back while lifting a bulky box weighing about 40 pounds. She further states that on the 12th day of December, 1951, while working-on her job, she suffered a second injury to her back caused by an adjustable chair collapsing, the seat falling about six inches.

The overwhelming, in fact practically undisputed, evidence is that Mrs. Hickman has a 35% disability due to the condition of her back. Appellee concedes she is disabled to some extent, but contends that such disability was not sustained in the due course of her employment. There is substantial evidence that her condition is due to the injuries she received while in the due course of her employment. But, notwithstanding the fact that there is substantial evidence to sustain an award had one been granted, the issue here is whether there is substantial evidence to sustain the Commission in not making an award of compensation. Very likely in a majority of cases there is substantial evidence to sustain the Commission in either granting or not granting an award. But in the case at bar we have reached the conclusion that there is no substantial evidence to sustain the Commission in denying Mrs. Hickman’s claim for compensation. Since the case turns to the point of whether there is substantial evidence to sustain the Commission, it will be necessary to review the evidence in detail. At the time Mrs. Hickman went to work for Westinghouse in May, 1950, she was about 31 years of age and the mother of three children. With reference to the injury she claims to have received in July, 1950, she said: “I had a box on my knee to shove it up on this little platform, wooden platform, and I felt a catch and sharp pain in my back.” She packed approximately two more boxes and took a severe headache, and asked Mr. Floyd Dooley to fix her a heat lamp for her back. Mr. Dooley, a machinist, was the only man on the job that night. One of his duties was to see that the girls kept busy. Mr. Dooley testified that Mrs. Hickman told him she had hurt her back and that he fixed her a heat lamp to give her some relief. Mrs. Hickman says she went to the lounge, where the light was applied, and Miss Betty Kirtley, a fellow employee, rubbed her back. Mrs. Hickman did not realize that she was seriously injured. She continued to work, and first went to see a doctor in January, 1951. However, it appears conclusive that subsequent to the night in July when she says she hurt her back, she constantly complained of the condition of her back, and one of the other women employees exchanged jobs with her so that Mrs. Hickman would not have to do any lifting. The first doctor she went to was a chiropractor, but she got no relief. In fact, her back was so tender that the chiropractor could not give her the usual kind of massage. Finally, in March, 1951, she went to Dr. Vernon Newman, a well-known orthopedic surgeon. After applying many tests and observing Mrs. Hickman for a considerable time, Dr. Newman reached the conclusion that she had one or more ruptured discs in the lumbar region of her back. He therefore operated on her for that condition, but on exposing the spinal column it was found that the discs were not ruptured, hut they were soft, and since they had been exposed, Dr. Newman felt it advisable to remove the fourth and fifth lumbar discs, which he did. After the effects of the operation had healed, Mrs. Hickman returned to work in September, 1951, and was doing nicely. She stated: “Well, I had gained a lot of strength and had asked the doctor was it necessary to wear a brace and he told me no, and I asked him did he think I was physically able to work and he told me yes, and I went back to work and I managed to work and not miss any time. ’ ’

About eight or ten weeks after she returned to work, the chair collapsed with her. The fact that the chair did collapse is not controverted. Immediately following the collapse of the chair, she took a severe headache. Miss Morgan, the nurse at the place of employment, applied a heat lamp to her neck. This treatment lasted for about an hour and Mrs. Hickman returned to her work. And, although her condition grew gradually worse, she continued to work until the following April. The second injury had occurred in December, 1951. Following the second injury she returned to Dr. Newman for treatment, and he saw her during the .Christmas holidays. The upper part of her back was hurting her. He gave her diathermic treatment, vitamin shots and suggested a spinal brace. Mrs. Hickman began using the brace and it was still necessary for her to wear one at the time of the hearing. She wears it all the time. It doesn’t completely relieve the pain, but it helps some. However, she is not able to work.

Shortly after she was compelled to quit work in April, 1952, because of the condition of her back, she filed her claim with the Workmen’s Compensation Commission. In support of the claim there is a letter in the record from Dr. Vernon Newman dated May 9, 1952. Dr. Newman said that Mrs. Hickman came to him in March, 1951, and told him she was lifting some heavy-boxes some time during July of 1950, that she complained of a low back pain, pain down the left leg and also some cramping in both legs, and that this was of six months’ duration. Dr. Newman stated that Mrs. Hickman’s greatest pain began in December following the collapse of the chair. Following this accident she was fitted with a corset, which appeared to give her some relief.

Dr. F. Walter Carruthers and Dr. Richard M. Logue, both well-known orthopedic surgeons, examined Mrs. Hickman on September 11, 1952, and continued to treat her thereafter, and on December 22, 1954, Dr. Carruthers reported that in his opinion she was 35% disabled due to the injuries she had received in July, 1950, and December, 1951.

To sum up the evidence from which a reasonable inference can be drawn that Mrs. Hickman is partially disabled due to injuries she received in the due course of her employment: She says she was injured in July, 1950, while lifting a bulky box weighing about 40 pounds. ■ Of course, since she is a party to the case, her testimony does not have to be considered as undisputed. But, on the other hand, neither does it have to be disregarded. Mr. Floyd Dooley, apparently in charge of the women working at night at the defendant’s plant, states that Mrs. Hickman told him she had hurt her back and asked him to prepare a heat light to be applied to her back. Miss Betty Kirtley states that after the heat lamp was applied, she massaged Mrs. Hickman’s back and swapped jobs with her so that Mrs. Hickman would not have to do any heavy lifting. Other witnesses testified that Mrs. Hickman was constantly complaining with her back, but not one witness states that such complaints were ever made prior to the night in July when Mrs. Hickman says she hurt her back. According to the undisputed evidence she had returned to work and was doing nicely when the chair collapsed with her. This injury hurt her, and she reported it to Miss Morgan, the nurse at the place, and Miss Morgan applied a heat lamp. It was necessary that Mrs. Hickman again go to see Dr. Newman, and in addition to other treatment he advised a brace in the form of a corset, which she has had to wear continuously thereafter to get some sense of relief from the pain. There is no indication at all of malingering. Immediately following her alleged injuries Mrs. Hickman made no claim for compensation. In fact, she continued to work, thinking that nothing serious was wrong and that it would clear up. Even after the second injury, she continued to try to work for several months before making a claim for compensation.

Now, from the standpoint of appellee, and in support of the proposition that there is substantial evidence to sustain a finding that Mrs. Hickman’s disability is not due to injuries received in the due course of her employment, appellee relies on certain direct and circumstantial evidence. In the first place, appellee says: “No witness appeared in this case to testify that he saw any evidence of the injury to the claimant in July, 1950. On the contrary, two witnesses called by the appellant, who worked directly with her, denied any personal knowledge of any accidental injury.” Appellant makes no claim that the nature of the injury she received and the manner in which she received it was such that there would be evidence of the injury that fellow workers would observe. In fact, she testified that she herself did not realize that she was seriously injured. Appellee quotes from the testimony of Wanda Deese: “Q. Mrs. Deese, did Mrs. Hickman ever tell you what caused her back to hurt her? A. No, she complained about her back all the time. I didn’t pay any attention to it.” It seems that this testimony corroborates Mrs. Hickman in her contention that she hurt her back. There is nothing to indicate that she would likely complain of her back if it didn’t hurt; there is no indication that she was trying wrongfully to saddle any responsibility on her employer. Appellee argues that Mr. Floyd Dooley’s testimony is of no value in establishing an inference that Mrs. Hickman was injured. Appellee quotes from Mr. Dooley’s testimony: “A. Well, the only thing I do know about it is while I was working on my machine Mrs. Hickman came up to my back — my back was to them —and told me she had hurt her back and I got up of course, and I said, ‘Well, what shall we do about it?’ She said ‘Well, will you hook up a heat lamp? Maybe that will relieve some of the pain.’ I said ‘Sure, I’ll hook up a heat lamp,’ and I did so.” We cannot see how Mr. Dooley’s testimony can be said to amount to substantial evidence to prove that Mrs. Hickman received no injury. Actually, it has a tendency to prove just the contrary. When considered along with all the other evidence in the case, it indicates that she did receive an injury.

Appellee also argues that the fact that Mrs. Hickman made no report of the injury to her back to anyone except Mr. Dooley is circumstantial evidence of the fact that she received no injury. Such might be the effect of Mrs. Hickman’s failure to report the injury to others if there was anything in the record whatever to indicate that she was trying to perpetrate a fraud or that she is malingering. But there is not one shred of evidence of that kind. In connection with her failure to make a further report of the July, 1950, injury, she stated that when she went to see Dr. Newman in March she realized that something was wrong -with her back and that the injury she had received was the cause of it. She was asked: “Q. Why didn’t you bring it to the attention of the company then? A. Because I had insurance I thought wrould help me pull through on that.”

Now, as to the medical testimony produced by the appellee. Mrs. Hickman reported her injuries to the Workmen’s Compensation Commission in the spring of 1952. Apparently the first hearing was held before Commissioner Peel in December, 1952. The appellee never had Mrs. Hickman examined by any doctor until April, 1953, when Dr. Ehinehart made some X-rays, and he reported at that time there was a straightening of the cervical portions of the spine, a slight wedging of the last thoracic and lumbar vertebrae and evidences of hypertrophic changes, but nothing suggesting a recent injury. The X-rays were made by Dr. Ehinehart about three years after Mrs. Hickman received the first alleged injury and about a year and a half after she received the second alleged injury. There is no explanation of the term “recent injury.” It is not shown just what Dr. Rhinehart would consider a “recent injury.” Surely there must have been evidence that two inter-vertebral discs had been removed. In all probability Dr. Rhinehart would not consider evidence of an injury that occurred a year and a half previously, or three years previously, as “recent.” The next time appellee had Mrs. Hickman examined was by Dr. Samuel B. Thompson. He saw her one time, and that was on February 2, 1955, four and a half years after the first alleged injury occurred and three years after the occurrence of the second alleged injury. The report made by Dr. Thompson sheds absolutely no light whatever on whether Mrs. Hickman is disabled to any extent by reason of the first injury she is alleged to have received. Apparently Dr. Thompson merely examined Mrs. Hickman with the view of determining whether the second injury was the cause of her disability. He was asked, on direct examination: “Q. Now, considering your physical examination in connection with the X-ray examination which you have seen by way of the films, state whether or not in your opinion the fall of the chair on which this lady was sitting was the likely cause of her, or any disability she has now. A. In my opinion it was not.” It will be noticed that Dr. Thompson was referring only to the alleged 1951 injury, when the chair collapsed. His answer does not purport to apply to the July, 1950, injury.

Dr. Thompson further stated: “I examined the films made on September 8, 1952 by Drs. Carruthers and Logue, consisting of anteroposterior and lateral views of the thoracic spine including films centered over the region of the 11th thoracic vertebra. I also had anteroposterior and lateral views of the thoracic spine and anteroposterior, lateral and oblique views of the cervical spine made by Dr. Barton Rhinehart, at this visit. These films show a mild compression deformity of the body of the 11th thoracic vertebra with narrowing of the disc space between the 10th and 11th thoracic vertebrae and hypertrophic spurs on the 10th, 11th and 12th thoracic vertebrae. There is also a left scoliosis in the upper thoracic region . . . This patient has considerable pathology in her lower dorsal spine some pathology in her upper dorsal spine and some in her cervical spine as indicated by the X-ray appearance. I believe the X-ray findings are sufficient to explain the symptoms of which she complains and the objective findings noted on physical examination. The absent ankle jerk and the atrophy of the left thigh, of course, date back to the disc injury which she had had prior to this injury. Since, in my opinion, there are adequate findings to explain this patient’s symptoms- and to account for her disability, the chief question seems to be what relationship the injury incurred in December of 1951 (this was the time the chair collapsed) has to the present findings. From the history it is obvious that the ruptured disc in the lumbosacral region antedated the injury described since an operation had been performed for it prior to this injury.”

In addition, Dr. Thompson testified: “I felt first the source of disability — she had had an operation for three ruptured discs she told me and we found certain findings indicating she did have some residual there. She had changes in the neck; had changes in the upper dorsal spine, lower dorsal spine, and changes in the lumbar spine. I was questioned about the effects of a specific injury and confined my report to that. I did not attempt to accumulate data to estimate her total disability. I felt the lumbar portion was a result of the condition she had been operated on for before the injury occurred (obviously he was speaking of the December 12, 1951, injury, when the chair collapsed). The reason I did not attempt to come up with a disability rating as a whole, the reason I felt this was not the result of the injury in December of ’51, was first, the nature of the injury. The patient sat down on a chair that wasn’t there or it collapsed and hit the floor.” There is nothing whatever in Dr. Thompson’s testimony to indicate whether in his opinion Mrs. Hickman has a disability resulting from the alleged injury of July, 1950.

There is no issue in this case of whether proper notice of the injuries, as such, was given as provided by the "Workmen’s Compensation Law. Appellee frankly states: “The sole issue on this appeal is: Was there substantial evidence to support the finding of the Commission that the disability of appellant Mrs. Hickman was not the result of an accidental injury arising out of and in the course of her employment?”

There is no question about Mrs. Hickman’s being partially disabled with the condition of her back. There is substantial evidence to support her claim that she has a disability due to injuries she received while working on her job, and there is no substantial evidence to the contrary. It might be pointed out that although, of course, the appellee has great facilities for getting information and for discovering competent and material evidence, there is not a scintilla of evidence in this record that Mrs. Hickman ever suffered any injury to her back or ever made any complaint of having back trouble until the instance on the night in July, 1950, when she was working on her job.

Although Dr. Carruthers testified that he thought 30% of the disability was due to the second injury and 5% to the first injury, and Dr. Thompson thinks that none of the disability is due to the second injury, the fact remains that there is substantial evidence that Mrs. Hickman is partially disabled from injuries received on the job. In the recent case of Sparks Memorial Hosp. v. Walton, 229 Ark. 1014, 320 S. W. 2d 102, we said: “In contending that the order is not supported by any substantial evidence the employer stresses the fact that the many physicians who have examined the claimant have not been able to arrive at a positive medical explanation for her condition. Despite an extensive exploratory operation and a succession of examinations and treatments the doctors have not discovered an objective cause for the severe pain that Mrs. Walton has suffered in her side, abdomen, back, and right leg. The physicians’ uncertainty does not, in our opinion, compel the conclusion that the claim must be denied. ’ ’

The Commission based its finding that Mrs. Hickman is not entitled to compensation, on the theory that she did not prove she was injured in the course of her employment, and not on a finding that she is not partially disabled. Now that it is being held that appellant is entitled to compensation, the cause must go back to the Commission for that body to make a determination of the extent of the disability.

Reversed.


author: Jim Johnson, Associate Justice.

text:
    Murry v. Maner.
    5-1770
    320 S. W. 2d 940
    Opinion delivered February 23, 1959.

      Fred E. Briner and Shaver, Tackett & Jones, for petitioner.

      Joe E. Purcell, for respondent.
   Jim Johnson, Associate Justice.

Petitioners, Raymond Murry and Bill Pender, were on April 9, 1958, residents of Foreman, Little River County. They, along with Miller Calvin Burrow, were, on the 17th day of March, 1958, employees of the Henry Kaiser Engineering Company, which, was engaged in the construction of a cement plant in Foreman.

On the 9th day of April 1958, Miller Calvin Burrow filed a personal injury suit in the Circuit Court in Saline County against Raymond Murry and Bill Pender.

It is alleged in substance that the plaintiff was, at all times therein mentioned, a resident of Saline County, and that on or about the 17th day of March 1958, plaintiff, who was sick, in an injured condition, and unable to defend himself, was asleep in his room at a rooming house in Foreman when the defendants unlawfully and forcibly entered plaintiff’s room and attacked the plaintiff, causing alleged injuries.

On the 28th day of April, 1958, the defendants filed a motion to dismiss in the Circuit Court of Saline County, alleging, in substance, that they were specially appearing for the motion only and without entering their general appearance, and that plaintiff was residing at the time of the alleged assault in Foreman, Little River County, and had been for several months prior to said time and did reside in said county for approximately one month after the alleged assault occurred. That the court was without jurisdiction to try the cause because the venue was not in Saline County but was in Little River County. The motion prayed for dismissal of the complaint, and further, that if the court should deny the motion to dismiss that it be treated as a motion to transfer the cause to the Circuit Court of Little River County.

A hearing was held on the motion and facts disclosed were in substance as follows:

Plaintiff was, at the time he received the injuries complained of, temporarily working at Foreman in Little River County as a truck-foreman on the Kaiser Engineering Construction job. His home at the time was situated on 80 acres of land in Saline County, where he and his family had lived continuously since 1949. At the time of his injuries he had worked about five weeks on the construction job at Foreman, approximately 158 miles from his home in Saline County. Plaintiff would leave home Monday of each week at about three o’clock a. m. and drive to Foreman in Ms pickup truck, reporting to work at eight o’clock a. m. He carried with. Mm to Foreman only his work clothes and shaving articles, together with one change of dress clothes that were used for eating off the job. His work week in Foreman consisted of five days and he would leave for his home in Saline County on each Friday at four-thirty o’clock p. m. During the four nights that he remained in Foreman each week he rented a furnished room at the rental of $1.25 per night. His family was never with him at Foreman but remained at the family home in Saline County, where two of the children were in school. His wife laundered his clothes each weekend when he returned home. All of plaintiff’s tax receipts, including poll taxes, driver and automobile licenses, reflected that he was a resident of Saline County. Petitioners admit that he was domiciled in Saline County.

Prior to the construction job at Foreman, plaintiff had worked at the Jacksonville Air Force Base, at Bauxite, and at Arkadelphia on construction jobs.

The trial court overruled the motion to dismiss, and the plea to transfer, and granted petitioners twenty days to file an answer. A Petition for Writ of Prohibition was then filed in this Court, relying on one point for granting said writ.

“The Little River County Circuit Court rather than the Saline County Circuit Court has jurisdiction of this personal injury action.”

Section 1 of Act 314 of the Acts of 1939 (Ark. Stats. Sec. 27-610) provides that a plaintiff may file his suit for personal injuries either in the county where the injury occurred or in the county where he resided at the time of the injury. The only question before this Court is whether or not plaintiff, Miller Calvin Burrow, resided in Saline County within the meaning of Act 314 at the time he received the injuries complained of. The trial judge ruled that he did reside in Saline County within the meaning of Act 314.

It is a well settled rule of this Court that prohibition is not the proper remedy when the trial court’s jurisdiction depends upon a disputed question of fact. Capital Transportation Co. v. Strait, 213 Ark. 571, 211 S. W. 2d 889.

The ruling of the trial judge in the case at bar follows the rule announced by this Court in Burbridge, Trustee v. Redman, 211 Ark. 236, 200 S. W. 2d 492, wherein, in construing Act 314, we held that a construction worker injured in Pulaski County, who at the time of the injury was temporarily working on a construction job in Ouachita County, spending the week nights there in naval barracks near his work, but who owned a home in Conway County where his wife and two children lived and where a seven-year-old daughter was in school, could not maintain an action for personal injuries in Ouachita County because although he worked in Ouachita County and spent his week nights there near his work, he nevertheless did not reside in Ouachita County within the meaning of Act 314 but rather for the purpose of the venue statute he resided in Conway County where his home and family were located.

Factually, this case and Burbridge, Trustee v. Red-man, supra, are almost identical. We find that there is substantial evidence to support the ruling of the trial court. Accordingly, Writ of Prohibition is denied.


author: Carleton Harris, Chief Justice. Paul Ward, Associate Justice, Sam Robinson, Associate Justice.

text:
    Reed v. Marley.
    5-1758
    321 S. W. 2d 193
    Opinion delivered March 2, 1959.

      Rex W. Perkins and E. J. Ball, for appellant.

      Pearson dt Pearson, for appellee.
   Carleton Harris, Chief Justice.

This appeal involves the interpretation of Subsection (a), Ark. Stats. § 28-357 (Section 10. of Act 335 of 1953). The subsection reads as follows:

“In an action in which the mental or physical condition of a party is in controversy, the court in which the action is pending may order him to submit to a physical or mental examination by a physician selected by the petitioner. The order may be only on motion for good cause shown and upon notice to the party to be examined and to all other parties and shall specify the time, place, manner, conditions, and scope of the examination and the person or persons by whom it is to be made.”

The facts are as follows: Mozeal Reed, appellant herein, filed a personal injury action against appellee, John Marley, on February 26, 1958, seeking to recover damages for alleged permanent personal injuries arising from an automobile collision on August 30, 1957. On April 21, 1958, Marley filed a motion with the court, seeking an order requiring appellant to submit “to a medical and physical examination * * * the physical condition of the plaintiff is in controversy, and the defendant has good reason and cause to believe that the physical condition of plaintiff is not as serious as alleged in her complaint.” Appellant resisted the motion in a response which asserted that appellant had already been examined by a Fayetteville physician at the instance of the adjuster for appellee’s insurance company, and there was no statutory requirement for a second examination. On May 12th, the court entered an order requiring appellant to submit to such an examination by Dr. J. L. Richardson in Tulsa, Oklahoma, and required appellee to advance to her the sum of $35 to defray expenses for making the trip to Tulsa. Appellant objected and excepted to the order, and approximately two weeks later, filed a motion to set same aside “for the reason that no proof was offered in support of said motion.” Appellee responded as follows:

“That the attorney representing the plaintiff agreed in open Court to the entry of said order, had notice of the hearing and appeared in and before the Court and stated that he did not care or object to the entry of such order.”

Following a hearing upon the motion and response, the court, on June 16th, reaffirmed its earlier order by directing appellant to make the trip to' Tulsa for an examination by Dr. Richardson on June 27th, at 2 p.m. Upon appellant’s refusal to submit to the examination by Dr. Richardson, the complaint was dismissed by the court. From the order of May 12th ordering Mrs. Reed to appear before Dr. Richardson for the physical examination, and from the order dismissing her complaint, appellant brings this appeal. Three points are alleged for reversal.

“I. The Motion for Medical Examination Was Not in the Form Required by Ark. Stats. (1947) Section 28-357. The Trial Court Erred in Holding to the Contrary.
II. Marley Did Not Show ‘Good Cause’ in Support of His Motion For a Medical Examination As Required by Ark. Stats. (1947) Section 28-357. The Trial Court Erred in Holding to the Contrary.
III. The Trial Court Was Without Power to Require Appellee to Submit to a Medical Examination Before a Physician Outside the State of Arkansas. The Trial Court Erred in Holding to the Contrary.”

These, we will discuss, considering the last point first, and the other two together.

Before discussing these alleged errors, we think it well to mention a matter referred to in appellant’s pleadings, and testified about at the hearing on June 16th, though not emphasized in the brief. Mrs. Reed was injured while riding in a car with a Mrs. Summers. On the same day, appellant went to the office of Dr. Preston L. Hathcock, a Fayetteville physician, for an examination. Appellant asserts that this examination was made at the behest of the adjuster of appellee’s insurance company. Admittedly the adjuster talked with both Mrs. Reed and Mrs. Summers on the date of the collision, but the adjuster testified that the suggestion for the examination by Dr. Hathcock, came from Mrs. Summers to Mrs. Reed, Mrs. Summers being aware that Hathcock was appellant’s personal physician. This testimony was not denied, as neither Mrs. Reed nor Mrs. Summers testified, and accordingly, the record does not reflect that the examination was requested by the adjuster. Were it otherwise, appellee would not necessarily be precluded from obtaining another examination, since it would have been difficult, if not impossible, to ascertain the permanent nature of the injuries so soon after they were incurred.

Relative to point III, counsel point out that the court has no control over such physician, and if the doctor should find serious injuries, but refuse to appear and testify on behalf of Mrs. Reed, she could not compel him to do so. We deem the argument unsound, for it would also be true that appellee has no remedy to require the doctor to appear in Arkansas to testify, though the examination was made for his benefit. The order of examination is not for the benefit of appellant, is made only at the instance of appellee, and for his benefit; this is a hazard which should only concern the moving party. Of course, the doctor’s deposition could be taken, and for that matter, appellant is afforded sufficient protection by Subsection (2) of Subsection (b) of Section 28-359, Ark. Stats. Supp. We find no requirement in any of onr statutes which, would preclude such an examination simply because a plaintiff is required to go out of state. In the New York case of Hollister v. Robertson, 208 App. Div. 449, 203 N. Y. S. 514, in a per curiam by the Appellate Division of the Supreme Court, it was held that a resident plaintiff could not be examined outside the state, but this finding was based upon the New York Statute, which prohibited such an examination. The mere fact that one is required to go to an out of state physician, is not, standing alone, unreasonable. In fact, in many instances it may well be the most convenient and logical place for the examination. For instance, if one is hurt in Texarkana, Arkansas, would any inconvenience normally be suffered by a plaintiff directed to submit to an examination across the line, in Texarkana, Texas? Or, if one is hurt in West Memphis, Arkansas, would it not be reasonable to require an examination in Memphis, Tennessee? The same would be true in other sections of the state, where a plaintiff resides close to the border of a sister state. It would seem rather illogical to require a person to travel from Texarkana or West Memphis to, say, Little Rock (distances of approximately 150 and 170 miles) for such an examination, if the same purpose could be achieved by holding the examination at a nearer location, though in another state. So — we reach the conclusion that the mere fact Mrs. Reed was directed to go outside the state for the examination, is not, within itself, sufficient reason for holding that the trial court abused its discretion in entering the order.

It is alleged that the motion for medical examination is not in the form required by statute, and that proof of “good cause” for the order was not offered. Section 28-357 (heretofore quoted) is a copy of Subsection (a) of Rule 35 of the Federal Rules of Civil Procedure, U.S.C.A., except for one phrase which will be hereinafter discussed. At the outset, it is well to point out that the moving party does not have an absolute right to the order requiring the examination. The rule itself (and likewise onr statute), recites that the court in which the action is pending may order the physical or mental examination, and repeated decisions hold that the granting of the order lies within the sound discretion of the court. Bucher v. Krause, 200 F. 2d 576, Strasser v. Prudential Insurance Co. of America, 1 F.R.D. 125. "While the rule has been liberally construed, ‘ ‘ fishing expeditions” will not be allowed. The rule states that the order may be made ‘ ‘ only on motion for good cause shown.” As stated by the District Court in Leach v. Greif Bros. Cooperage Gorp., 2 F.R.D. 444:

“It is difficult to lay down a definition of good cause that would apply to every particular case. There is a wide latitude.” Of course, allegations that might constitute good cause in one instance might be insufficient in another, for the term is elastic, and must be considered in the light of the circumstances in each particular case. In referring to the rule, Barron & Holtzoff’s Federal Practice and Procedure, Sec. 822, recites:
“No official form for a motion under this rule was suggested by the Advisory Committee as is the case under other rules, but notice of the motion should be given in the usual form and subject to the usual provisions.” The motion is frequently supported by affidavit, as provided by Sub-section (d) of Rule 6. We are of the opinion, and it certainly seems established, that the motion, whether supported or unsupported by affidavit, should cite the reasons which allegedly entitle the moving party to the order.

Section 28-357 goes further than the Federal rule, in that our statute recites that the movant may select the physician to conduct the examination. However, we think the same interpretation applies as heretofore set out, i.e., the moving party does not have an absolute right to select a physician, for the matter rests within the discretion of the trial court. Of course, if the examination is to be made in the home town of plaintiff, or if a defendant should request a particular doctor, though located elsewhere, and there is no objection, the court would likely enter the desired order, but as we construe the statute, if there is timely objection upon the part of the party to be examined, the moving party is required to show good cause for the examination being made by the particular physician requested - — • and the greater the distance to he traveled — the stronger the cause that must he shown.

The transcript recites the following stipulation:

“It is stipulated that Dr. J. L. Richardson of Tulsa, Oklahoma, is a qualified, licensed and practicing orthopedic surgeon at 1916 South Utica, Tulsa, Oklahoma.
It is further agreed and stipulated that Dr. William Stanton of Fort Smith, Arkansas, Dr. Hoyt Kirkpatrick and Dr. William Knight, Fort Smith, Arkansas, are duly licensed, qualified and practicing orthopedic surgeons. It is further stipulated that Dr. Harold Martin, Veterans Administration Hospital, Fayetteville, Arkansas, is a regularly licensed, qualified and practicing orthopedic surgeon in Fayetteville, Arkansas.
It is further stipulated that Dr. William Carruthers, Dr. William Steele and Dr. Sam Thompson, are regularly licensed, qualified and practicing orthopedic surgeons in Little Rock, Arkansas.”

The evidence taken at the hearing on June 16th, reflects that Tulsa is a distance of 121 miles from Fayetteville. Fort Smith is approximately 62 miles, and Little Rock is about 200 miles. Since the qualifications of physicians at Fayetteville and Fort Smith were admitted, we are of the opinion that appellee was required to show a good and valid reason for sending appellant 121 miles away. Of course, we recognize the fact that various individuals daily make different choices in selecting their physician, though there are others as conveniently located, and who are admittedly qualified, but we do not think it was the intent of the legislature to give a moving party the right to have the examination made by his selected physician, without any limitation whatsoever. If such were the case, a movant could arbitrarily request that the examination be made by a physician in New York or California, though other physicians, more conveniently located, and fully as capable, were available. No one would seriously argue that such a right was intended. Of course, we can visualize possible occasions where an order requiring the injured party to go some distance for an examination by nationally known specialists, or nationally recognized clinics, might be in order. In accord with these views, we are of the opinion that a moving party has the right to have the injured person sent some distance away, particularly where unusual injuries or symptoms are alleged, if it be shown that a satisfactory examination by a competent ancl qualified physician cannot be had at a nearer locale. For that matter, a movant might not always be entitled to have the injured person examined by a physician of his own choice, even though such physician should reside in the same town as ■ the injured party. For instance, the plaintiff might show that personal animosity existed between the selected physician and himself, or give other reasons which would make it inadvisable, or unfair, for the requested doctor to make the examination. In line with this reasoning, and applying same to the case before us, it follows that there are two requirements which must be met before appellee is entitled to the order. First, good cause for the medical examination must be shown. Second, good cause must be shown why the examination should be made by Dr. Richardson. We are of the opinion that the assertion by appellant of permanent injuries is sufficient cause for the former. The remaining question is whether good cause was shown for requiring appellant to make the trip to Tulsa for examination by Dr. Richardson.

The motion for the examination is not in proper form, for it does not even name the physician who is to make the examination, let alone allege any reasons why this particular doctor should be appointed. However, the only objection in the response to the motion filed by appellant, is that Dr. Hathcock had already examined her and the statutes of the state of Arkansas do not require appellant to be examined by a physician on more than one occasion. Nor did appellant, in filing her motion to set aside the order, raise any objection to the form or content of the motion. She simply alleged that “no proof was offered in support of said motion.” Any deficiencies in the form, were therefore waived. While the transcript does not include any testimony that may have been offered on May 12th, the order reflects that respective attorneys for appellant and appellee were present, and recites “from the . oral and documentary evidence adduced, the court finds: that the defendant is entitled to have the plaintiff examined by a doctor of his own selection, at the expense of the defendant, * * and names Dr. Richardson. Of course, there being no evidence to the contrary, we accept the recitations of the order as being correct. The hearing on June 16th was largely devoted to an attempt to show that appellee’s insurance company, rather than appellee, was attempting to obtain the order, that appellant had already been examined by Dr. Hathcock at the suggestion of the company’s adjuster, and that Richardson could not be compelled to come to Fayetteville. At any rate, there was no showing that proof had not been offered at the May 12th hearing, and no evidence was offered by Mrs. Reed that the trip to Tulsa would occasion inconvenience or cause undue hardship. In her brief, appellant makes the statement that had she known Richardson was to be the proposed examining physician, she would have offered proof to the effect that in the past, he had been prejudiced in behalf of the person employing him, and would testify favorably for such person. Of course, at the time of the hearing on the motion to set aside the May 12th order, appellant did know by whom the proposed examination would be made, but no proof to substantiate her assertion is found in the record. Actually, it would appear that appellant’s principal objection was based upon the fact that she was required to go out of state. This is reflected by the following colloquy between appellant’s counsel and the court as the June 16th hearing concluded:

“Mr. Ball: * * * Mr. Pearson has tendered to us $35.00 for expenses to go to Tulsa. We have refused the tender.
The Court: Let the record show that this order here is in the record, in which I ordered her to go.
Mr. Ball: I’m saying he has tendered the $35.00, and we refused the tender because we do not believe the Court has the authority or the jurisdiction to order the plaintiff to go outside the state for examination.
Mr. Pearson: Would you also object to stating that plaintiff is refusing to comply?
Mr. Ball: Insofar as the order requires her to go outside the state of Arkansas for physical examination. ’ ’ As stated herein, this contention is without merit.

Accordingly, the trial court’s order requiring appellant to submit to the medical examination before Dr. Richardson in Tulsa is affirmed. The court dismissed appellant’s complaint because she refused to comply with this order. Inasmuch as this is a case of first impression, and the appeal seems to have been lodged for the purpose of obtaining a construction of Section 28-357, we feel that it would be unjust for appellant’s complaint to be dismissed with prejudice. The cause is therefore remanded with directions to give appellant opportunity to comply with the May 12th order. Further refusal will justify dismissal of the complaint with prejudice.

Ward, Robinson and Johnson, JJ., dissent.

Paul Ward, Associate Justice,

Dissenting. As I see it, the decisive question is whether the trial court abused its discretion in ordering appellant to go to Tulsa for a physical examination. This question is, I think, properly presented by the record.

Ark. Stats. § 28-357 contemplates that the moving party must show at least the following: (a) There is a controversy over the physical condition of the other party and (b) give the name of the doctor selected to make the examination. As stated by the majority, (b) was not complied with. In the case under consideration the said statute required that appellant be given notice of the hearing. But why give appellant notice if there is nothing she can do, and how could appellant intelligently object to a doctor when she did not even know his name

The obvious answers to the above question forces me to the conclusion that the trial court was obligated to take into consideration appellant’s side of the matter. In other words a situation was presented which called upon the court to exercise its discretion.

Appellant here was given a hearing, but only after the court had already named the doctor in Tulsa to make the examination. At this hearing it was developed that there was a doctor in Fayetteville who, by appellee’s admission, was qualified in every respect. Appellee may have had some good reason why he did not want to use the Fayetteville doctor but he did not so indicate to the court. He chose rather to rely solely on the strict letter of the statute. If appellant had this right then, of course, the hearing was a vain and idle thing.

In view of the record in this case, sending appellant more than a 100 miles to a doctor in another state against her will when the same result could have been obtained by sending her to a doctor in her own town was, in my opinion, an arbitrary act, not based on reasonable discretion, and against the spirit of the statute.

Johnson, J., joins in this dissent.

Sam Robinson, Associate Justice.

I dissent to that part of the opinion requiring Mrs. Reed to submit to an examination by the doctor at Tulsa. When the cause is dismissed without prejudice, the plaintiff has one year in which to file a new suit. When such new suit is filed, no orders made in the former suit are effective. The plaintiff should be állowed to start anew in every respect.

       Civil Practice Act, Section 300.

       The designation of record only calls for the testimony taken on June 16th.

       Emphasis supplied.


author: Carleton Harris, Chief Justice.

text:
    Crutchfield v. McLain.
    5-1676
    321 S. W. 2d 217
    Opinion delivered March 2, 1959.

      Kaneaster Hodges, for appellant.

      Fred M. Pickens, Jr., for appellee.
   Carleton Harris, Chief Justice.

Fred Crutchfield, appellant herein, instituted suit in the Jackson County Circuit Court against Clarence McLain, appellee, for property damage to his automobile in the sum of $725, allegedly damaged as a result of a collision which occurred on October 6, 1954, in Independence County. The complaint alleged that Crutchfield was a resident of Jackson County. McLain filed an answer and cross complaint, denying the material allegations, and alleging that any damage was the result of negligence and carelessness of appellant. The cross complaint sought damages in the amount of $1,150. A jury was impaneled, and the cause proceeded to trial. Appellant was the first witness, and his testimony resulting in placing his residence, at the time of the collision, in doubt. At the conclusion of his testimony, appellee moved that the complaint be dismissed because the testimony reflected that appellant was not a resident of Jackson County, Arkansas “at the time of the filing of the suit or at the time of the accident, and that the accident occurred in Independence County, Arkansas, and the defendant is a resident of Independence County, Arkansas. ’ ’ After permitting further examination of appellant by his counsel, the court granted the motion and dismissed the complaint, holding that “it has not been definitely established that the plaintiff is a resident of Jackson County.” From the judgment dismissing such complaint, appellant brings this appeal. For reversal, it is first urged that the evidence established appellant’s residence in Jackson County, Arkansas, and second, that appellee waived any improper venue. Under our view, hereinafter expressed, we consider the latter assertion to be controlling, and will accordingly confine our discussion to that point.

The court’s ruling was based on the provisions of Section 27-611, Arkansas Statutes (1947) Annotated (Act 317 of 1941, as amended by Act 182 of 1947), which provides as follows:

“Any action for damages to personal property by wrongful or negligent act may be brought either in the county where the accident occurred which caused the damage or in the county of the residence of the person who was the owner of the property at the time the cause of action arose.”

This is a venue statute, in contradistinction to a jurisdictional statute, and of course, venue can be waived, as we have many times held. As stated in Chapman & Dewey Lumber Co. v. Bryan, 183 Ark. 119, 35 S. W. 2d 80:

“It is familiar law that one may submit to a jurisdiction which could not otherwise be acquired, and that one does submit who, without questioning the jurisdiction, enters an appearance, and it has been many times decided by this court that any action on the part of the defendant, except to object to the jurisdiction, which recognizes the case as in court, will amount to a general appearance, and an appearance cannot be more completely entered than by filing an answer, and this, as we have said, the appellant company did without raising any question as to the jurisdiction of the court. ’ ’

A number of cases are then cited to substantiate this holding. This view is also stated in Corpus Juris Beeundum, Yol. 6, Sec. 18, Subsection (e), page 57:

“Unless there is a stipulation reserving to defendant the right to object to venue, the circumstances are such that no objection can properly be made to the venue at the time of the appearance, or the objection is properly raised when the appearance is first made, a general appearance by some act which goes to the merits, does not raise the objection and implies that the court has jurisdiction to proceed with the cause is ordinarily a waiver of the objection that the venue is wrong, whether it be because defendant is privileged to be sued only in the county or district of his domicile, or in a particular court; because defendant is sued in a different county or court, when the canse of action arose in another county than the one in which suit is brought, or because the action is brought in a county or district in which neither plaintiff nor defendant resides; and this is so although defendant subsequently seeks to withdraw his appearance. # * J J

Likewise, in American Jurisprudence, Yol. 56, Sec. 40, page 44:

“As a general rule, the failure to object specifically to a wrong venue before demurring or pleading to the merits constitutes a waiver of the objection. Clearly, a failure to raise the objection before trial that an action was instituted in the wrong county will operate as waiver of the objection. * #

Appellee argues that he accepted the statement appearing in the verified complaint that appellant was a resident, until, by appellant’s own evidence, it was proved that he was not a resident of Jackson County; that there was nothing on the face of the verified complaint to indicate any lack of venue or jurisdiction on the part of the circuit court, and that he moved to dismiss as soon as he learned that appellant actually had been a resident of Independence County at the time of the acts alleged in the complaint. Of course, such a situation as here exists would only infrequently arise, as ordinarily, the residence of a plaintiff is known by a defendant before he files any pleading. However, we are unable to see that appellant’s argument in this respect, can afford any relief. In the Chapman case, supra, an answer had been filed by the defendant, because this Court had previously upheld a statute, providing that service of summons upon a foreign corporation doing business in this state ‘‘ shall be sufficient service to give jurisdiction over such corporation to any of the courts of this State, whether the service was had upon said agent within the county where the suit is brought or not.” See Power Manufacturing Co. v. Saunders, 169 Ark. 748, 276 S. W. 599. On the same day this answer was filed, the Power case was reversed by the United States Supreme Court, which held that the statute was unreasonable and arbitrary, and in violation of the equal protection clause of the 14th Amendment to the Constitution of the United States as applied to foreign businesses doing business in the state; subsequently, the defendant company in the Chapman case filed a motion to withdraw the answer previously filed, and sought to dismiss the cause for want of jurisdiction. The motion was denied, and this Court sustained the action of the trial court in denying the motion, pointing out that appellant, though having the same privilege to question the jurisdiction of the trial court, as did the appellant in the Power case, had not done so, but instead, had filed a general appearance denying liability. So, we think it immaterial that appellee did not previously know the facts concerning appellant’s residence, and this would be true even though such facts could not have been ascertained by investigation prior to the filing of the answer. Of course, where one perpetrates a fraud, i. e., knowing full well that he is not a resident of a particular county, institutes his suit in that county simply because he wants the case tried there, a different issue would be presented. In the case before us, there is no indication in the record, nor is it argued, that the suit was brought with other than tona fide intent. Had his intent been otherwise, appellant’s testimony likely would not have raised the issue of residence in the first place.

Appellee recognizes that venue can be waived in a transitory action, but insists that this is not true in a transitory action localized by statute. It is true that the question of waiving the requirement as to the county in which the action should be brought is more limited in the latter type actions, but we think, under our cases, this mainly applies where the question of jurisdiction of the subject matter is involved. See Bruce v. Street, Executor, 206 Ark. 1013, 178 S. W. 2d 489. A like view is expressed in American Jurisprudence, Yol. 56, Sec. 39, page 43, we find:

“Waiver of an objection to the venue of a cause the subject matter of which is within the jurisdiction of the court confers upon the court complete jurisdiction of the cause. But many authorities are to he found laying down the broad general rule that a court cannot by waiver be given jurisdiction of a local action which properly should have been brought elsewhere, and this rule is not infrequently applied where the action is for damages for an injury to realty. This is certainly true if in making a decree the court would act directly upon realty situated outside of its territorial jurisdiction. So, where a statute specifically provides that actions for the recovery, partition, or determination of an interest or sale of real property must be brought in the county where the real property is situated, there can be no jurisdiction of the subject matter of such an action in any other county. If the court is asked to act on the person of the defendant the action may be tried in any county where the defendant may be served, and a lack of jurisdiction over him may be waived, but when the court is called on to act on real estate it is essential that the action shall be brought within the prescribed territorial jurisdiction, and if not brought there the court is without power to adjudicate the issues either with or without the consent of the parties. * * *”

In the matter before us, the court certainly had jurisdiction of the subject matter, and acquired jurisdiction of the parties when appellee, without preserving any objection to the venue, filed his answer.

The judgment is accordingly reversed, and the cause remanded to the circuit court with directions to proceed in a manner not inconsistent with this opinion.

       From the testimony:
      “Where did you live on October 15, 1954?
      A. I was staying with my father near Newark. Q. Where did you work? A. At Victor Metals. Q. Did you ever live at,Newport? A. I have. Q. On or about October 15, 1954? A. Afterwards. * * * Q. I believe you said that at the time of this accident you and your wife were living with your parents in Independence County? A. That’s right. Q. Did you move to Newport after that? A. Yes, we did. I was staying with my father and mother until the place got open, a place owned by Mrs. J. W. Younger, until the people moved out. Q. How long was it after that until you moved down here? A. It wasn’t too awful long, about a month or so. * * * Q. Where is the scene of this accident, was it in Independence County? A. It is in Independence County. * * * Q. Did you have a place in Newport? A. I had the rent paid. Q. Where „was that? A. 1505 McClain. Q. Did you eventually move there? A. Yes, sir. Q. When? A. Just as soon as the people could move out and she could clean up the place. Q. Did you remember how long after the accident it was? A. I had the rent paid for a month in advance; the people were moving out, it was 11 or 12 days after. Q. Did you move in then? A. Just as soon as she got it cleaned up. Q. Did you have the rent paid before the accident? A. Yes. I also had a poll tax in Jackson County. Q. At that time? A. Yes. * * * Q. If I understand you right, you say that on the evening the collision occurred you had plans to move to Jackson CountyJ A. Oh, yes. Q. But you had not done so yet? A. No,


author: J. Seaborn Holt, Associate Justice.

text:
    Phelan v. Webb.
    5-1781
    321 S. W. 2d 762
    Opinion delivered March 2, 1959.
    [Rehearing denied April 6,1959]

      Wendell O. Epperson, for appellant.

      Joe W. McCoy, for appellee.
   J. Seaborn Holt, Associate Justice.

Appellee, J. A. Webb, and appellant, Calvin Phelan, married sisters, Josephine and Nordelia respectively, the daughters of S. S. Nuesch. On August 12, 1949, S. S. Nuesch and wife conveyed to appellee, Webb, and wife, Josephine, as tenants by the entirety, a lot 110 x 300 feet in Malvern, Arkansas, adjoining the home of appellant and wife. Thereafter, on May 2, 1951, appellee and his wife borrowed $250.00 from W. P. Harper and wife, evidenced by a note secured by a mortgage on the lot. Sometime prior to January 1957 appellee and his wife separated and Josephine went to live at the home of appellant and wife (her sister). On February 22, 1957, Harper sold and assigned the note and mortgage to Phelan for the amount then due, including interest, in the sum of $265.00. On July 9, 1957, appellee, Webb, and his wife were divorced. A property settlement was had between them wherein appellee, Webb, deeded his interest in the lot here in question to his wife, Josephine Webb. This deed was recorded July 10, 1957 and provided that Josepliine was to assume the note and mortgage, “. . . now outstanding against said property by the grantee,” Josephine. Thereafter, on July 12, 1957, Josephine Webb conveyed by quitclaim deed'her interest in the property to appellant, Phelan, and wife for a consideration of $1,000.00, $500.00 of which was paid by Phelan, leaving a balance of $500.00 due and payable to Josephine Webb. On July 30, 1957, appellant, Phelan, brought the present suit against appellee, J. A. Webb, for alleged balance due of the indebtedness created by the note assigned to him by Harper in the amount of $290.00, principal and interest. Josephine was not made a defendant, nor was the mortgage given to secure the note in question mentioned in his complaint. After various pleadings had been filed and presented, the cause was transferred, on appellee’s motion, to Hot Spring Chancery Court, which, after hearing the case, entered a decree in favor of appellee, Webb, and dismissed appellant’s complaint for want of equity. The Chancellor’s findings contained these recitals: “In the sale of the lands from Josephine Webb to this plaintiff she received and is to receive more than the debt against her and this defendant and in that property right’s settlement she agreed to assume same and make the payment and is yet to receive from the sale $500.00, such part of which she can and should apply to said debt and receive credit for said sum, so deducted by Phelan.

“Without discussing what procedure would be necessary for this defendant, J. A. Webb, to pursue, the court is of the opinion and doth hold that should this defendant be required to pay this debt it would be a gross injustice. The court is of the opinion and doth find that the complaint of the plaintiff be and is hereby dismissed for want of equity for reasons set out and costs adjudged against the plaintiff.”

This appeal followed. For reversal, appellant relies primarily on his contention that, “The finding of the trial court was contrary to the evidence and equity. ’ ’

We do not agree. Material facts, as above set forth, appear not to be in dispute. It appears that Phelan (appellant) now lias in his hands, and is holding, $500.00 of Josephine Webb’s money from the sale of the lot here in question by Josephine Webb, its owner, to Phelan for $1,000.00. This $500.00 is more than enough to pay the full amount ($265.00) which Phelan claims to be due him,. and which amount Josephine agreed to assume and pay as part of the consideration in the deed to the lot made to her by her husband, Webb, in their property settlement. In order, therefore, to avoid circuity of actions and to end this litigation, we hold that appellant, Phelan, could and should in the circumstances, withhold from the money in his hands belonging to Josephine, an amount sufficient to satisfy his claim and that the trial court was correct in so holding in effect.

Affirmed.


author: Ed. F. McFaddin, Associate Justice. J. Seaborn Holt, Associate Justice,

text:
    Harkrider v. Cox.
    5-1705
    321 S. W. 2d 226
    Opinion delivered March 2, 1959.

      Shaver, TaeJcett & Jones, for appellant.

      Loohadoo, Gooch & Loohadoo, for appellee.
   Ed. F. McFaddin, Associate Justice.

This appeal stems from a traffic mishap. Appellee, Oma Lee Cox, was the plaintiff below; and appellant, G. W. Hark-rider, was defendant. We will refer to the parties as they were styled in the Trial Court.

The Cox family and the Harkrider family were friends and neighbors. On Saturday morning, November 16, 1957 Mr. Harkrider was driving his pickup truck from Curtis Junction to Arkadelphia, where he worked. Miss Oma Lee Cox (17 years of age and the daughter of his neighbor, J. C. Cox) also worked in Arkadelphia; and Mr. Harkrider, seeing her waiting for a bus, invited her to ride to Arkadelphia with him in the pickup truck. They necessarily had to travel on U. S. Highway No. 67, where the traffic was very heavy; also there was an extremely dense fog. Mr. Harkrider, in attempting to overtake and pass a cattle truck in front of him, got on his left side of the highway and had a collision with an oncoming vehicle. Miss Cox was seriously injured, and brought this action against Mr. Harkrider to recover damages. The jury verdict was for Miss Cox for an amount not here questioned; and from the judgment rendered on the verdict, there is this appeal. Seven points, all relating to instructions, are assigned as errors. We group and discuss the pertinent assignments in convenient topic headings.

I. Defendant’s Request For Instructed Verdict. Defendant stoutly insists that he was entitled to an instructed verdict because of our guest statute and the cases construing it. In his brief he says: “It is undisputed — in fact it is alleged and admitted by plaintiff— that Oma Lee Cox was injured while riding in the pickup truck as defendant’s guest. The most serious question presented is the sufficiency of the evidence to sustain wilful and wanton disregard.”

We are thus brought, face to face, with our guest statutes, which are Act No. 61 of 1935, and Act 179 of 1935, and may be found in § 75-913 and § 75-915 Ark. Stats. One of these Acts (No. 61) says that a guest can only recover when “. . . such vehicle was wilfully and wantonly operated in disregard of the rights of others.” The other Act (No. 179) prohibits recovery “. . . unless such injury shall have been caused by the wilful misconduct of such owner or operator.” Thus, it is conceded that before Miss Cox can recover against Mr. Harkrider, she must establish that he was guilty of wilful and wanton negligence in the operation of the truck at the time of her injury.

Defendant’s counsel have listed many of our cases involving the said guest statutes; but for us to discuss each of these cases in detail would be a work of supererogation and would serve no useful purpose; because, after all, it is a question in each case whether the particular facts therein made a jury question as to wilful and wanton negligence. In Scott v. Shairrick, 225 Ark. 59, 279 S. W. 2d 39, we said:

“It is clear from the evidence in this case that the trial court had no right to declare as a matter of law that appellant’s negligence was not of the degree described in the above statutes. The degree of appellant’s negligence was therefore a matter to be presented to the jury, as was done here. In McAllister, Administrator v. Calhoun, 212 Ark. 17, 205 S. W. 2d 40, we quoted with approval from Splawn, Administratrix v. Wright, 198 Ark. 197, 128 S. W. 2d 248: ‘Whether an automobile is being operated in such a manner as to amount to wanton and wilful conduct in disregard of the rights of others must be determined by the facts and circumstances of each individual case.’ ”

We proceed, therefore, to review the facts in the case at bar:

(a) Mr. Harkrider had been driving on Highway 67 from his home to Arkadelphia for.a number of years, so he knew that it was a busy highway.
(b) On the particular morning in question, the fog and mist were so heavy that visibility was limited to 50 or 100 feet. Mr. Harkrider was driving on a straight stretch of road, had been following a cattle truck for several mi]es, and had been unable to pass it because of the number of approaching vehicles.
(c) The cattle truck in front of Mr. Harkrider was fourteen feet long and was driving at a speed of 40 miles per hour; so to pass the cattle truck Mr. Harkrider would have been required to go at least 45 miles per hour. A car travelling 45 miles an hour goes 66 feet per second, so in passing the cattle truck Mr. Harkrider was on his wrong side of the road and travelling at a speed of 66 feet per second when he could only see from 50 to 100 feet in front of him. It would require some time for a car going 45 miles an hour to pass a car going 40 miles an hour; yet during all of that time, Mr. Harkrider could not see what was coming and was on the wrong side of the road! He did not get there accidentally: he got there intentionally and deliberately.
(d) The fog was so heavy that the cars had on either parking lights or full driving lights; and yet Mr. Harkrider deliberately undertook to drive .on the wrong side of the road in such perilous conditions of visibility. There were several vehicles going south. The first one saw Mr. Harkrider’s car just in time to take to the ditch and avoid a collision; but the second car was not so fortunate; and the collision resulted.
(e) The fact that the 17-year old girl (the plaintiff in this case) did not protest to Mr. Harkrider regarding his driving, and did not tell him how to drive the car, certainly, cannot be used against her as a matter of law. When did a child have to tell her father’s contemporary to be careful in his driving! Under the facts in this case, the effect of her failure to protest, was for the jury.

So much for the facts. It is admitted that Mr. Hark-rider was negligent: the question is, whether he was guilty of wilful and wanton negligence. Webster’s Dictionary says of wilful: “. . . self-determined, voluntary, intentional . . .” Webster’s Dictionary says of wanton: “. . . marked by or manifesting arrogant recklessness of justice, of the rights or feelings of others . . . .” Mr. Harkrider was certainly violating the rights of those approaching vehicles, and was certainly taking a desperate gamble when he deliberately and intentionally drove on the wrong side of the road at a speed of 66 feet per second under conditions which made it impossible for him to see more than 100 feet in front of him. In Froman v. J. R. Kelley Stave & Heading Co., 196 Ark. 808, 120 S. W. 2d 164, the late and beloved Justice Frank G. Smith said: “. . . the difference between gross negligence and willful and wanton misconduct is so narrow and indistinct that in many instances the question is one for the jury whether the negligence had become willful and wanton. The instant case is such a case.”

Who should decide whether Mr. Harkrider was guilty of wilful and wanton negligence under the facts in this case? It was for the jury to decide. The rule is, that when fair-minded men might differ, then the question is one for the jury. In Olin Mathieson Chem. Corp. v. Shirey, 226 Ark. 530, 291 S. W. 2d 250, we referred to the rule well established in Arkansas:

‘ ‘ The rule is well established that where fairminded men might honestly differ as to the conclusion to be drawn from facts, whether controverted or uncontroverted, the question should go to the jury. St. L. I. M. & S. Ry. Co. v. Fuqua, 114 Ark. 112, 169 S. W. 786. It is also well established that it is proper to direct a verdict for the defendant only when, under the evidence and all reasonable inferences deducible therefrom the plaintiff is not — under the law — entitled to recover. Wortz v. Ft. Smith Biscuit Co., 105 Ark. 526, 151 S. W. 691.”

Under the facts here shown, a jury question was made as to whether Mr. Harkrider was guilty of wilful and wanton negligence; and the Trial Court was correct in refusing to instruct a verdict for the defendant.

II. Erroneous Instruction. The Trial Court gave a series of instructions relating generally to what is sometimes called the “law of the road”: i.e., the law as to speed, lookout, control, passing an overtaken vehicle, etc. The defendant insists that each of these instructions should have pointed out that the violation of such “law of the road” was merely evidence of simple negligence, as distinguished from wilful and wanton negligence. Probably clarifying words to such effect should have preceded or followed these several instructions on the “law of the road”; but such can be accomplished in the event of a new trial which may result from the reversal we must make because of the error of the Court in giving the Court’s Instruction No. 14 over the specific objections that the defendant offered to it. The said instruction reads:

“No motor vehicle shall be driven at a speed which would not be reasonable and prudent under the circumstances then existing. In no event shall pick-up trucks be driven on the open highway at a speed greater than 55 miles an hour. . One driving at this speed or a lesser speed is not relieved from the duty to decrease speed when approaching and crossing an intersection, when approaching and going around a curve, when approaching a hill crest, when traveling upon any narrow or winding roadway, or when special hasard exists with respect to pedestrians or other traffic or by reasons of weather or highway conditions, and speed shall be decreased as may be necessary to avoid colliding with any person, vehicle or other conveyance on or entering the highway in compliance -with, the duty of all persons to use due care.” (Emphasis supplied.)

The defendant objected to this instruction, pointing out that in this case there was no evidence of (a) an intersection, (b) a curve, (c) a hill crest, or (d) hazards regarding pedestrians. As to these matters, the defendant insisted- — -and quite correctly — that the instruction was abstract. In Newell v. Arlington Hotel Co., 221 Ark. 215, 252 S. W. 2d 611, we gave the definition of an abstract instruction as found in Ballentine’s Law Dictionary :

“An instruction given by the court to the jury amounting to a mere abstract statement of the law. As the very purpose of instructions is to aid the jury in arriving at a proper verdict, the jury should he informed in clear, plain and concise terms as to the law which is applicable to the case at bar and it is erroneous to give instructions which are not applicable, hut are mere abstract statements of the law.”

As early as The State Bank v. McGuire (1854), 14 Ark. 530, this Court said:

“Some of the instructions given on motion of the defendants are certainly objectionable, as argued for the plaintiff; because two of them are mere statements of legal propositions, not purporting to apply to any supposed state of case made by the evidence . . . This mode of charging juries ought to be strongly condemned. ’ ’

In 53 Am. Jur. 451 et seq. “Trial” § 573 et seq., in the discussion of abstract instructions, this appears:

“Instructions merely stating abstract principles of law tend to confuse and mislead the jurors, and to draw their minds from the real facts in the case to something which they assume to exist, but cannot find in the record. They are subject to the further objection that no one can know how a jury would apply them to the case at hand ... No instruction should be given by the court either on its own motion or at the request of counsel which tenders an issue that is not presented by the pleadings or supported by the evidence, or which deviates therefrom in any material respect.”

The case of Coca-Cola Bottling Co. of Blytheville v. Bond, 189 Ark. 986, 76 S. W. 2d 87, arose from a traffic mishap. An instruction (No. 11) was requested in that case on the abstract “law of the road.” We held the Trial Court was correct in refusing the instruction, saying:

“As we have seen, the case did not involve an approach within fifty feet and a traverse of the intersection of the highways when the view of the driver was obstructed. There was no proof offered that the scene of the casualty was a business district within the meaning of the act.”

We have a number of cases in which judgments were reversed because the Trial Court gave to the jury abstract instructions or instructions on matters not at issue. Some such cases are: St. L. & S. F. Rd. v. Vaughan, 84 Ark. 311, 105 S. W. 573; El Dorado & Bastrop Rd. v. Whatley, 88 Ark. 20, 114 S. W. 234; Emerson v. Turner, 95 Ark. 597, 130 S. W. 538; and Bennett v. Bell, 176 Ark. 690, 3 S. W. 2d 996. In the casó at bar the defendant specifically objected to the portions of the instructions that were abstract, and the Trial Court should have omitted such abstract matter from the Instruction No. 14. They tended to confuse the jury and direct its attention away from the issues in the case.

For the error shown, the judgment is reversed and the cause is remanded.

Holt and George Bose Smith, JJ., dissent.

J. Seaborn Holt, Associate Justice,

dissenting. It is my view that this case should be reversed and dismissed for the reason that I find no substantial evidence in this record to support the verdict.

The record reflects that appellee, J. C. Cox, as father and next friend of his 16-year-old daughter, Oma Lee, and individually, sued appellant, G. W. Harkrider, to recover damages sustained by Oma Lee while she was riding as a guest in a pick-up truck operated by appellant. The complaint alleged that “the sole cause of the accident was due solely to the defendant’s wanton and willful negligence in driving the truck at a high and dangerous rate of speed at a time when it was so foggy that the visibility was only a short distance and attempting to pass the stock truck at a time when it was very dangerous to do so and he knew of the danger; . . . ” Punitive damages were not sought. Appellant answered with a general denial. Trial to a jury resulted in a verdict for damages to Oma Lee in the amount of $3,000 and from the judgment is this appeal.

The facts, considered in the light most favorable to appellee — as we must do, are to the following effect. Oma Lee Cox, a 16-year-old girl, had known appellant for some time and had frequently ridden with him as his guest in his truck to Arkadelphia where she was in school and employed in a store on Saturdays. On the morning of November 16, 1957, she got in appellant’s truck at Curtis Junction and they drove north on U. S. Highway 67 towards Arkadelphia. At a point about four miles south of Arkadelphia and two miles south of the collision point, L. G. Taylor drove a truck onto the highway in front of appellant and continued on towards Arkadelphia. A heavy fog enveloped the road, heavier in places than in others, and was so dense as to curtail visibility to less than 100 feet, requiring lights being used on vehicles on the highway. Appellant’s truck and others that he met before the mishap had their lights on. Appellant followed the Taylor truck for about one mile when he attempted to pass to his left, and upon observing approaching headlights returned to his previous position. He then continued to follow behind this truck for about another mile when he, again on attempting to pass the Taylor truck — and at a point where his front wheels were about even with the rear wheels of the truck and to his right, first observed the lights of an approaching car some 25 feet away, driven by Mr. Thomas and traveling from 40 to 45 miles per hour, and as this car pulled to his right he saw the dim lights of a second approaching car driven by Mr. Raines and at a speed of about 45 miles per hour. There was also a third approaching car driven by Mr. Driggers, which had been following the Raines car for about two miles. The first car (Thomas) passed appellant’s truck without mishap, but the left front of appellant’s truck collided with the left front of the second approaching car (Raines) and the third approaching car (Driggers) collided with appellant’s truck and Raines’ car.

In determining the correctness of the trial court’s refusal to instruct a verdict in favor of appellant here, we re-announced our rule in this language in McAllister, Adm. v. Calhoun, 212 Ark. 17, 205 S. W. 2d 40: “In determining on appeal the correctness of the trial court’s action in directing a verdict for either party, the rule is to take that view of the evidence that is most favorable to the party against whom the verdict is directed, and where there is any evidence tending to establish an issue in favor of the party against whom the verdict is directed, it is error to take the case from the jury. See also Scott v. Wisconsin & Ark. Lbr. Co., 148 Ark. 66, 229 S. W. 720.”

Harkrider had been driving automobiles since in 1923 and this was his first mishap. He had been driving along the highway in question for more than a year and was familiar with it. He was employed at a college in Arkadelphia, commuting back and forth from his home, which was three miles west of Curtis Junction. Miss Cox testified that she was a senior in high school and had been working on Saturdays for about two years. Harkrider is her friend and neighbor and she had ridden to Arkadelphia with him on about four other occasions (thus saving her bus fare). She considered him a careful driver, that she did not pay any attention to his driving but he never did anything to indicate he was reckless. There is absolutely no testimony that Miss Cox on the occasion that she was injured, or on any other trips with appellant, ever complained or ever had occasion to warn or admonish him about his driving. Our rule is well established in a long line of cases that before a guest may recover under our guest statutes, Sec. 75-913 Ark. Stats. 1947, there must be some substantial evidence showing that the operator of the vehicle was operating it willfully and wantonly in disregard of the rights of others. Sec. 75-913 Ark. Stats, provides: “No person transported as a guest in any automotive vehicle upon the public highways or in aircraft being flown in the air, or while upon the ground, shall have a cause of action against the owner or operator of such vehicle, or aircraft, for damage on account of any injury, death or loss occasioned by the operation of such automotive vehicle or aircraft unless such vehicle or aircraft was willfully and wantonly operated in disregard of the rights of the others.” In the very recent case of Steward, Adm. v. Thomas, 222 Ark. 849, 262 S. W. 2d 901, we said: “Willful misconduct, or to operate an automobile in willful and wanton disregard of the rights of others, means something more than gross negligence. Splawn, Adm. v. Wright, 198 Ark. 197, 128 S. W. 2d 248.” We also said in Splawn, Adm. v. Wright, 198 Ark. 197, 128 S. W. 2d 248: “Willful negligence means a failure to perform a manifest duty in reckless disregard of the consequences as affecting the life or property of another. Herein, we think, lies the distinction between gross and willful negligence as intended by the statute. Gross negligence falls short of being such reckless disregard of probable consequences as is equivalent to a willful and intentional wrong. . . . Willful negligence involves the element of conduct equivalent to a so-called constructive intent. . . . Cases will rarely arise in which it can be shown to a court’s satisfaction that collisions or upsets of automobiles, with resultant injury to guests, occur because of ‘willful misconduct’ of the operator. Those who operate automobiles should have (and when mentally normal, do have) a conscious desire to avert injury to themselves in such operation, at least co-extensive with that not to injure their guests; and since to operate a car in a willfully negligent manner offers a threat to security from injury as great to the operator as it does to the guest, evidence to prove that grade of negligence should be unusually strong and convincing before the operator can and will be convicted of such. ’ ’

In Cooper v. Calico, 214 Ark. 853, 218 S. W. 2d 723, where damages were denied to a guest under the provisions of our guest statute above, we used this language: “. . . we find this driver (accepting appellee’s testimony) suddenly on the paved highway, in the path of an oncoming car. No one could successfully deny that his conduct was careless. Certainly he was negligent in not stopping and looking in each direction before placing his Chevrolet and his passengers in a position of peril. But even gross negligence, under the guest statutes, is not enough. There must be a willfulness, a wantonness, an indifferent abandonment in respect of consequences, applicable alike to self and guests.”

So here, I think the most that can be said of appellant’s negligence, in the circumstances, is that it was gross, but there was no substantial evidence in this record that it was wanton and willful in the sense required by the statute supra, as we have construed it, in order to recover damages.

Justice George Bose Smith joins in this dissent.

       Miss Cox was a minor at the time of the filing of the action, and it was filed by her father as her next friend.

       Some of the cases are: Roberson v. Roberson, 193 Ark. 669, 101 S. W. 2d 961; Southern Kansas Stage Lines Co. v. Ruff Co., 193 Ark. 684, 101 S. W. 2d 968; Ward v. George, 195 Ark. 216, 112 S. W. 2d 30; Froman v. J. R. Kelley Stave Co., 196 Ark. 808, 120 S. W. 2d 164; Splawn v. Wright, 198 Ark. 197, 128 S. W. 2d 248; Edwards v. Jeffers, 204 Ark. 400, 162 S. W. 2d 472; Tilghman v. Rightor, 211 Ark. 229, 199 S. W. 2d 943; McAllister v. Calhoun, 212 Ark. 17, 205 S. W. 2d 40; Cooper v. Calico, 214 Ark. 853, 218 S. W. 2d 723; Steward v. Thomas, 222 Ark. 849, 262 S. W. 2d 901; Farish v. Ben M. Hogan & Co., 223 Ark. 600, 267 S. W. 2d 503; Scott v. Shairrick, 225 Ark. 59, 279 S. W. 2d 39; Haag v. Morgan, 225 Ark. 664, 284 S. W. 2d 866; and Callaway v. Cherry, 229 Ark. 297, 314 S. W. 2d 506.

       The witness, Jesse Thomas, said he could only see 50 to 75 feet in front of him. The witness, Raines, said: “. . . I didn’t attempt to pass anyone. It was too foggy and misty ... I knew it was risking too many lives to pass anybody on a morning like that.”

         Mr. Taylor, the driver of the cattle truck, estimated his speed at 40 miles per hour while Harkrider was trying to pass him.

       Jesse Thomas, who drove his car into the ditch to avoid a headon collision with Mr. Harkrider, estimated Harkrider's speed, while attempting to pass the cattle truck, to have been 45 miles per hour.

       In addition to other cases and texts cited by Mr. Justice Frank G. Smith in his opinion, the following may prove beneficial to those interested in the question here involved: Annotation in 42 A.L.R. 2d 350; “Rights of injured guest as affected by obscured vision from vehicle in which he was riding”; annotation in 21 A.L.R. 2d 209, entitled: “Driving motor vehicle without lights or with improper lights as gross negligence or the like warranting recovery by guest under guest statute or similar common law rule”; annotation in 47 A.L.R. 2d 6, entitled: “Negligence of motorist colliding with vehicle approaching in wrong lane”; annotation in 74 A.L.R. 1198, entitled: “What constitutes gross negligence or the like, within statute limiting liability of owner or operator of automobile for injury to guest.”

       In the case of Sioux City & Pac. RR. Co. v. Stout, 84 U.S. 657, 21 L. Ed. 745, there was the question of whether certain acts constituted negligence and who should determine the question; and Mr. Justice Hunt used this very beautiful language, which shows why a ease like the one at bar should be submitted to a jury, and which tells what a jury is:
      “Certain facts we may suppose to be clearly established from which one sensible, impartial man would infer that proper care had not been used, and that negligence existed; another man equally sensible and equally impartial would infer that proper care had been used, and that there was no negligence. It is this class of cases and those akin to it that the law commits to the decision of a jury. Twelve men of the average of the community, comprising men of education and men of little education, men of learning and men whose learning consists only in what they have themselves seen and heard, the merchant, the mechanic, the farmer, the laborer; these sit together, consult, and apply their separate experience of the affairs of life to the facts proven, and draw a unanimous conclusion. This average judgment thus given, it is the great effort of the law to obtain. It is assumed that twelve men know more of the common affairs of life than does one man; that they can draw wiser and safer conclusions from admitted facts thus occurring, than can a single judge.”

       The full objection of the defendant was as follows:
      “Defendant objects generally and excepts to the giving of Court’s Instruction No. 14, and specifically because this instruction fails to distinguish the difference between negligence and willful and wanton disregard, and by the giving of this instruction, the jury is led to believe, and plaintiff’s attorney will be afforded an opportunity to argue to the jury, that any failure on the part of the defendant to properly observe the rules of the road covered by this instruction that the plaintiff is entitled to recover.
      “This instruction should be amended by adding thereto a provision that even if the defendant be found by tire jury to be guilty of violating the involved rule of the highway, that plaintiff would not be allowed to recover unless the jury found that defendant was guilty of willful and wanton disregard for the consequences of his acts when so violating this rule of the road.
      “Defendant further specifically objects to the giving of Court’s Instruction No. 14 because there was no evidence that the defendant vehicle was being driven at a greater speed than provided by the rule of the road covered by this instruction; there was no intersection involved in this litigation; there was no curve involved in this litigation; there was no hill crest involved in this litigation; and there was no narrow or winding roadway or special hazard with respect to pedestrians. This instruction amounted to a statement of the law to the effect that one guilty of violating any of these rules of the road covered by this instruction constituted entitlement of the plaintiff to recover. Such instruction need be so stated as to specifically reveal to the jury that a simple violation of these involved rules of the road does not constitute willful and wanton disregard unless the defendant was so acting in willful and wanton disregard when violating the rules of the road, if the jury finds that he did.”


author: George Bose Smith, J.

text:
    Miller v. State.
    4925
    321 S. W. 2d 199
    Opinion delivered March 2, 1959.

      Ted McCastlain and Wm. M. Stocks, for appellant.

      Bruce Bennett, Atty. General, by Bill J. Davis, Asst. Atty. General, for appellee.
   George Bose Smith, J.

The appellant was convicted of grand larceny and sentenced to serve a year and a half in the penitentiary. The main issue is whether the testimony of Lewis Odem, an alleged accomplice, was sufficiently corroborated. Ark. Stats. 1947, § 43-2116.

The State proved that the stolen property, a surveyor’s transit, was taken from a locked tool shed at a construction project in Cotton Plant and was later sold to Paul Mathis by the accomplice, Odem. Miller was employed at the time as a bricklayer on the construction job. Odem testified that he and Miller drove to the tool shed in Odem’s car, broke the lock on the door, and took the transit. Odem is a confessed thief, with an extensive criminal record, and there was had feeling between him and Miller as a result of Odem’s having molested Miller’s wife.

Miller has steadfastly denied any connection with the crime. The only evidence, other than Odem’s testimony, that tends to implicate Miller is an admission assertedly made by him while he was awaiting trial. The police placed Odem’s son Leon, also a convicted felon, in a jail cell with Miller, with instructions to draw Miller into a discussion of the theft. Leon testified that he asked Miller “if he was with my father when this tripod was sold to Mathis, and he said he was not with him; that my father dropped him at his house, and from there it was a one-man deal.” A police officer, listening in the next room, remembered Miller’s answer as, “No, no, no; Lord, when I got out it was a one-man deal from there on.” Miller testified that his words were, “No, that was a one-man deal all the way through.”

Doubtless the jury accepted the version given by Leon and the officer, but even so the corroboration is legally insufficient. Miller’s statement is not an affirmative admission of complicity; at most it indirectly suggests that what ended as a one-man deal may have begun as a joint enterprise. A similar implication was considered in Bright v. State, 212 Ark. 852, 208 S. W. 2d 168, where thieves had taken $210 from a safe, but the loss was reported as having been $6,000. Upon being questioned, Bright asserted, “We didn’t get $6,000.” Although this statement might be construed as a concession that Bright and his accomplices had gotten some lesser amount, we held that it was not substantial corroboration of the accomplices’ testimony. That case controls this one.

One other matter should be mentioned, in case the State elects to retry the accused with the expectation of producing additional corroborative evidence. The conversation between Miller and Leon Odem was apparently preserved by means of a concealed tape recorder. Should the recording be offered in evidence upon a new trial, the appellant is correct in his contention that the jury should hear all relevant parts of the discussion rather than the single question and answer we have mentioned. Whitten v. State, 222 Ark. 426, 261 S. W. 2d 1. Needless to say, the recorded admission will not alone satisfy the State’s burden of producing corroboration.

Reversed.