author: Jim Johnson, Associate Justice.

text:
    Kapp v. Bob Sullivan Chevrolet Co.
    5-2132
    335 S. W. 2d 819
    Opinion delivered May 23, 1960.

      James M. Roy and Elsijane Trimble Roy, for appellant.

      Gardner S SteinsieTc, Reid $ Burge and Charles M. Love, for appellee.
   Jim Johnson, Associate Justice.

This case involves the question of whether bringing an action for tortious conduct (negligence and misrepresentation) growing out of a particular set of facts will bar the bringing of a later suit on implied and express warranty, also based on the same set of facts.

Appellants, C. W. Kapp and Mrs. Nancy B. Kapp, are residents of Blytheville, and appellee, Bob Sullivan Chevrolet Company, has its place of business there. Appellee sold and installed a set of seat belts on the Kapp automobile in December 1956. While wearing one of the seat belts during an automobile collision near Amarillo, Texas, on October 12, 1957, Mrs. Kapp received severe and permanent injuries as a consequence of the belt webbing breaking. Appellants first filed suit No. 5133 for personal injury damages against appellee in the Civil Division of the Chickasawba District, Mississippi County Circuit Court, on December 6, 1958, alleging liability in negligence. Upon refusal of the trial court to permit joinder of warranty claims with the original negligence action in said suit No. 5133, appellants on September 12, 1959, filed the present suit No. 5221 in the same court against the same parties for personal injury damages grounded in breach of warranty. Upon appellee’s motion on November 21, 1959, the trial court dismissed appellants’ separate warranty action holding as follows:

“After hearing the argument of counsel, the court finds from the face of the pleadings, as a matter of law, that the plaintiffs have made an election of remedy, by reason of which this present action sounding in warranty should be dismissed.”

From such ruling comes this appeal.

For reversal appellant contends that the trial court erred in holding plaintiffs ’-appellants ’ prior personal injury suit based in negligence was an election of remedies barring a subsequent personal injury suit based in warranty.

Ark. Stats., § 27-1301 sets out what causes of action may be joined. The trial court was correct in its refusal to permit the joinder of the warranty claim with the original negligence action since this Court has repeatedly held in the application of this statute that an action for the recovery for damages for tort cannot be joined in an action on contract. See: Harris v. True-blood, 124 Ark. 308, 186 S. W. 836; Unionaid Life Ins. Co. v. Crutchfield, 182 Ark. 825, 32 S. W. 2d 806. However, we have been unable to find where this Court has interpreted the statute to mean that an action in tort and an action in contract are necessarily, under all circumstances, inconsistent. In the two cases mentioned, the appellant alleges, in effect that the appellee intentionally misrepresented the quality of the belts and that he negligently selected them, and that he was charged with knowledge that they were not sufficient for the job he sold them for, and that he should be held liable for:

(1) Negligently selecting inferior materials for a given purpose and misrepresenting that they were sufficient when he knew, or by the use of reasonable care could have known they were not sufficient.

(2) That defendant expressly promised (warranted) that they were “the best” and would hold in a collision as well as any belt made.

(3) That even if he didn’t make express representations, that he selected and recommended two belts for the job of preventing persons from being tossed around in a collision and that his implied warranty of fitness for the job intended was breached.

As we view these actions, the facts that would support (1) would support recovery under (2) and (3), and the facts developed to support (2) would support recovery under (3). (1) and (2) require proof of express statements, (1) with intent to defraud and with knowledge of the actual untruth; and (2) requiring only that appellee made the representations and appellant relied upon them. Finally (3) requires only that seller sold the goods for a given purpose and that he held them out as being fit for that purpose and purchaser relied upon this.

Therefore, from the facts in this case, we cannot say that the remedies sought by appellants are inconsistent. The doctrine of election does not apply to two actions, one upon a contract and the other for fraud on its procurement, when both depend upon an affirmance of the contract. See: Dilley v. Simmons National Bank, 108 Ark. 342, 158 S. W. 144.

As was held in Davis v. Lawhon, 186 Ark. 51, 52 S. W. 2d 887, it is only in cases where the causes of action are inconsistent that the prosecution of one suit bars the other. Where the two remedies are cumulative and not inconsistent, both suits may be prosecuted at the same time. Also see: Sturdivant v. Reese, 86 Ark. 452, 111 S. W. 261; Craig v. Meriwether, 84 Ark. 298, 105 S. W. 585.

The Court in the Lawhon case, supra, quoting a Florida decision, American Process Co. v. Florida Pressed Brick Co., 56 Fla. 116, 47 So. 942, 16 Ann. Cas. 1054, very clearly stated the rule as follows:

“Where the law affords several distinct but not inconsistent remedies for the enforcement of a right, the mere election or choice to pursue one of such remedies does not operate as a waiver of the right to pursue the other remedies. In order to operate as a waiver or estoppel, the election must be between coexistent and inconsistent remedies. To determine whether coexistent remedies are inconsistent, the relation of the parties with reference to the right sought to be enforced as asserted by the pleadings should be considered. If more than one remedy exists, but they are not inconsistent, only a full satisfaction of the right asserted will estop the plaintiff from pursuing other consistent remedies. All consistent remedies may in general be pursued concurrently even to final adjudication; but the satisfaction of the claim by one remedy puts an end to the other remedies.”

From what we have said above, the judgment of the trial court dismissing the warranty action is reversed and since the causes of action are of a like nature growing out of the same accident and are pending before the same court involving the same litigants, we have been unable to find a valid reason to prevent, on proper motion, the consolidation of the causes for trial under the terms of Ark. Stats., § 27-1305, and proper determination under special interrogatory. See: Waters-Pierce Oil Co. v. Van Elderen, 84 Ark. 555, 106 S. W. 947.

Reversed and remanded.

McFaddin, J., concurs.


source: Caselaw Access Project

author: Carleton Harris, Chief Justice. Ed. F. McFaddin, Associate Justice,

license: Public Domain

text:
    Ford Motor Co. v. Fish.
    5-2141
    335 S. W. 2d 713
    Opinion delivered May 30, 1960.

      Wright, Harrison, Lindsey & Upton, for appellant.

      Talbot Feild, Jr., O. Wendell Hall, Jr., Mehaffy, Smith & Williams, Robert V. Light, for appellee.
   Carleton Harris, Chief Justice.

This is an appeal from a judgment for $12,000 entered by the Saline Circuit Court in favor of appellee against appellant. The jury found Ford Motor Company guilty of negligence in the manufacture of a certain Ford truck, subsequently purchased and driven by appellee, and that such negligence was the cause of injuries sustained by Fish.

About April 12, 1956, Fisb, employed by the State Game and Fish Commission as a game refuge commissioner in Lafayette County, purchased the Ford pickup truck from the Ford dealer in Stamps, L. D. Galloway, Jr. Five days later, while traveling highway 67 out of Little Bock, going toward Benton, the truck left the right side of the highway, turned over twice, and Fish was injured. This occurred shortly after 2 p.m., and the testimony establishes that the truck had been driven a total of approximately 550 miles at the time of the occurrence.

On January 9,1958, Fish instituted suit in the Saline Circuit Court against the Ford Motor Company and Milton Green, d/b/a Stamps Auto Company, alleging the purchase of the Ford pickup truck from Stamps Auto Company. Appellee averred that he drove the truck for five days in a careful manner, and had allowed no one else to drive the vehicle; that it had been driven 550 miles; that he had not in any way tampered with, altered, or disturbed, the braking assembly or mechanism, nor allowed any other person to do so; that such mechanical parts and assemblies were sealed, and locked by the Ford Motor Company in the process of manufacture, by means of screws, bolts, rivets, and pins, and “were at the time of the injury to plaintiff hereinafter described in the same condition, position and alignment as they were when this vehicle left defendant Ford Motor Company’s factory except for whatever changes, if any, to condition, position and alignment as may have been caused by approximately 550 miles of careful operation of the vehicle.” Paragraph four alleged “that on April 17, 1956, plaintiff was driving this vehicle at a speed of approximately 45 miles per hour on U. S. Highway 67-70 in Saline County, Arkansas, at which point said highway is a smooth, level, unobstructed concrete public roadway, when the right front wheel of the truck suddenly ‘grabbed’ twice in rapid succession and immediately thereafter that wheel ‘locked’ causing the vehicle to overturn, and causing the injuries and damages to plaintiff hereinafter described.” The complaint further charged, insofar as Ford Motor Company was concerned, that the company negligently failed to exercise the degree of care owed by a manufacturer of a vehicle to the vendee and public “in the manufacture, testing, inspection, design and engineering of its product” and as a result of this failure, placed this vehicle in the channels of trade for sale with mechanical defects which caused, or contributed to cause, the injuries and damages to plaintiff. Further allegations were that the defective parts “were closed up, sealed and locked by defendant Ford Motor Company by means of screws, bolts, rivets and pins and thus continued to be in the exclusive control of this defendant until the time of the injuries to the plaintiff, and therefore their nature is within the exclusive knowledge of this defendant. All of the foregoing defects would have been discoverable by this defendant in the exercise of reasonable inspection and testing.” The complaint sought damages in the amount of $64,844.10. After the filing of various motions and interrogatories, both the Ford Motor Company and L. D. Calloway filed separate answers, denying liability and asserting that if appellee sustained any injuries or damages, such injuries or damages were proximately caused or contributed to by negligence or carelessness on the part of appellee. The case was heard on October 15, 1959, at which time the jury found the defendant, L. X). Calloway, d/b/a Stamps Auto Company, guilty of no negligence, found Charlie Fish guilty of no negligence, but found the Ford Motor Company guilty of the entire and total negligence, or 100%. Verdict was returned in the amount of $12,000.

For reversal, appellant urges three points, as follows :

“I.

The evidence was insufficient to sustain a verdict against appellant, and the trial court should have directed a verdict in appellant’s favor.

II.

The Court erred in admitting, over the objection of appellant, certain incompetent testimony offered on behalf of appellee.

III.

The Court erred in giving, over the general and specific objections of appellant, plaintiff’s instructions numbered 1, 4, 5, and 6.”

We proceed to a discussion of these contentions, though not under separate headings.

The evidence reflected that appellee had been in possession of the truck five days, and had driven it 551 miles. Fish testified that no one else had driven the truck, and that he had not inspected or tampered with the mechanical parts in any way. Appellee is a game refuge keeper in Lafayette County, and on April 17th, he drove the vehicle to Little Rock for the purpose of having a two-way radio installed, leaving Bradley (a distance of 163 miles from Little Rock) about 1 or 1:30 a.m., and arriving in Little Rock between 6 and 6:30 a.m. Installation of the radio was completed around 12:30, and appellee started back to Bradley, taking highway 67 out of Little Rock. He passed a heavily loaded truck, while traveling at a speed of 40 or 45 miles per hour, and after getting back on his own side of the highway, noticed that his right front wheel was pulling to the right. “It grabbed two or three little short grabs, and then it grabbed and held, and pulled me to the right.” The car left the highway and turned over twice; the right door came open, and appellee, in sliding down, had both legs pinned to the ground by the running board. The radio was on, and Fish called the Came and Fish office, and asked that help be sent. According to the witness, no traffic was approaching at the time the mishap occurred. In the meantime, William Rider, a state policeman, arrived, and with the help of bystanders, removed Fish from the wreckage. Appellee testified that, while being carried away, he observed two or three short, black marks, three or four feet in length, some thirty or forty feet back of where the truck left the highway. Appellee’s contention is that these marks were left by the right front wheel, and show that the wheel did lock. Both Aubrey Fowler, Chief Enforcement Officer for the Game & Fish Commission, and Eider testified that they observed the skid mark, though they testified that it was a single (rather than two or three short marks), black, straight, mark, that ran straight for a few feet, and then veered, at first gradually, and then sharply, to the right. Fowler stated that he drove the truck back to the Game & Fish Commission Building in Little Bóck, a distance of approximately 15 miles, at a speed of 12 to 15 miles per hour. He observed nothing wrong with the operation of the vehicle, though he testified that he did not apply the brakes at all before stopping at the Game & Fish Building.

In endeavoring to establish liability on the part of the Ford Motor Company, appellee relied, to some extent, on the doctrine of res ipsa loquitur. This Latin phrase is generally interpreted to mean “the thing itself speaks” or “the transaction speaks for itself”, and is a concise way of stating that circumstances attending an accident are of themselves of such character as to justify an inference of negligence on the part of one having control over such circumstances. Interesting discussions of this doctrine are found in various legal volumes, and it is evident that all jurisdictions are not in accord in determining what fact situations properly come under the doctrine. However, in those states which recognize the doctrine, certain conditions are necessary before res ipsa loquitur may be applied. As stated in Corpus Juris Secundum, Yol. 65,para. 220 (4),page 999:

“There are several conditions, aside from those directly pertaining to the nature and happening of the accident or injury as such, which are generally recognized as essential to make the doctrine of res ipsa loquitur applicable to a given case and to lay the foundation for the presumption or inference arising therefrom. These conditions or essential elements include superior knowledge on the part of defendant as to the cause of the accident, * * * the absence or unavailability of direct evidence of negligence, * * * the existence of a sufficient duty on the part of defendant to use due care, * * * and proof of the accident or injury and defendant’s relation thereto.
In order that the doctrine of res ipsa loquitur may apply, plaintiff must first present sufficient proof of the existence of the elements necessary to bring the doctrine into operation; the inference arising from the rule does not supply the foundation facts from which the rule arises, and the application of the doctrine to a particular state of facts cannot be based on speculation alone.”

In paragraph 220 (6):

“Although, * * * the doctrine of res ipsa loquitur provides a substitute for direct proof of negligence, the rule is nevertheless one of necessity to be invoked only when, under the circumstances involved, direct evidence is absent and not readily available. ’ ’

In Words and Phrases, Vol. 37, page 484:

“For application of doctrine of ‘res ipsa loquitur’ accident must be of a kind which ordinarily does not occur in the absence of some one’s negligence, it must be caused by an agency or instrumentality within defendant’s exclusive control, and it must not have been due to any voluntary action or contribution on part of plaintiff. ’ ’

Further, on page 488, paragraph 5:

“The mere happening of accident does not justify recourse to ‘res ipsa loquitur’ rule in personal injury suit, but accident must further appear to be without explanation in light of ordinary experience, except on theory of defendant’s negligence to render rule applicable.” Still further, paragraph 12 :
“The ‘res ipsa loquitur’ doctrine applies only when the damage caused, which is the basis of the action, is of such a nature that it can be said that according to common experience the event which caused the damage would not have occurred without some fault on the part of the persons sought to be held responsible.”

Finally, in 7A Blashfield, Automobile Law and Practice, 217, Sec. 4818, it is stated:

‘ ‘ The mere occurrence of an accident resulting in injuries to the buyer of an automobile or other third person does not raise a presumption that the manufacturer or dealer was negligent, or that the vehicle had a latent defect, and plaintiff must prove that the alleged manufacturer was such, and he has the burden of proving that the manufacturer was negligent in the manufacture of the automobile. * * *
However, the doctrine of res ipsa loquitur may be applied in a proper case, as, for example, in the case of an explosion of a solvent used for the tune-up of automobile motors.”

Through the testimony of Artie Bearden, an automobile mechanic of Benton, and W. C. “Dutch” Mayer, a garage operator in Little Rock, appellee sought to prove that the right brake was defective. Mayer testified, ‘‘ The brake was binding”, and he took it to Cook’s Machine Shop to see “if the drum was out of round”. He stated that the drum was placed on a machine which could be used for determining whether the drum was out of round. Mayer testified that “it was an eighth of an inch off”. The witness stated that, based on his experience as an automobile mechanic, if a drum is an eighth of an inch out of round and the brakes are applied, or if the brakes are set too tight, the vehicle will be thrown to one side. He testified this would not happen every time, but that if the drum is out of round and it happens to revolve at the proper point, it would cause it to “lock up”. Mayer further stated that a brake could also be caused to lock by brake fluid or grease on the brake lining, or that it could be caused by a rough lining. However, on cross examination, the witness testified that if a drum is as much as an eighth of an inch out of round, the driver of the vehicle would feel this defect by pressure on the brake pedal; that the pedal would work backward and forward, and the driver could easily tell that something was wrong; also, if the car had been driven for 550 miles, a “hot spot” would be created at the high point, and that this “hot spot” would be visible by looking at the brake drum; however, his examination revealed no “hot spot” on this particular drum. Mayer found no foreign matter of any nature on the brake lining, and in fact, found nothing wrong with either the brake shoes or the brake lining except ‘ ‘ that the lining was scored a little bit”. Mr. Mayer testified that the brake linings “shouldn’t score within four to five thousand miles”.

Counsel for appellee propounded to the witness Bearden the following hypothetical question:

“Assume that a buyer purchased a new 1956 model Ford pick-up truck and drove it for four days and on the fifth day, at a time when he had about 550 miles on that pick-up truck, and at a time when no other driver but him had driven it since he bought it, and at a time when he had not tampered with any of the mechanical parts of that vehicle, nor had permitted anyone to, and at a time when he had had no mechanical difficulty with the pick-up truck, that he was driving down a straight, level, concrete highway, under favorable weather conditions, it was a pretty day, the pavement was dry, and, as he would describe it in his layman’s language, the right front brake grabbed one, two or three times in rapid succession, and releasing each time, and then it grabbed and locked, resulting in the vehicle making a single black skid mark on the pavement for a short distance in a straight line, then veering off gradually to the right shoulder, then more sharply to the right across the shoulder and off the highway, resulting in the vehicle turning over, I believe, twice; now, assuming that state of facts, do you have an opinion as to what might have caused that reaction? . . . Assume one further fact — that during this four days that the vehicle had been driven, that it had been driven on some paved roads, some gravel roads, some dirt roads; and, assume one further fact — that the driver of that vehicle had arisen on the morning of the incident so as to leave his home at approximately 1:30 in the morning, and consequently had been up all morning and the incident occurred approximately 2:00 o’clock in the afternoon, and he had not slept during that period of time and had had approximately 5 hours of sleep the night before; now, then, do you have an opinion, under those circumstances, as to what might have caused this incident?”

To this question, objected to by appellant, the witness replied that he had an opinion, the opinion being “it could be caused by foreign matter in the wheel or a bearing”. Bearden explained that by foreign matter, he meant something that was not supposed to be there, i.e., in this instance, grease or brake fluid on the brake lining. One addition was then made to the hypothetical set of facts, and the witness was asked, “Assume that some application was made on the brake pedal, would there be any change or do you have an opinion as to what might happen in this instance?” To this question, Mr. Bear-den replied, “It would lock the wheel.” Appellant continued with his objections to the question and answer.

Appellant offered the testimony of Robert Riding, an engineer and employee of Ford Motor Company for 19 years. Riding testified that á drum cannot be tested properly in the manner testified to by Mayer, and that the use of the spindle is not an accurate way to test a drum for “out of round”. The witness stated that the “run out” on the drum was measured at seven thousandths; and that the manufacturer’s permissible tolerance is five thousandths; that a run out of up to five thousandths is considered perfect; however, he testified that a run out of seven thousandths would not be noticed in the operation of the drum. The witness testified that if a drum were one-eighth of an inch out of round, one could not get a brake adjustment, and the pedal would bounce up and down; further, that under such a condition, the brake would not have lasted 500 miles; that a “hot spot” would have been evident, and he found no evidence that heat had ever been applied to the drum, nor did he notice any unusual scoring or wear on the linings. Of course, we are not here concerned with the conflict in evidence, for conflicts are resolved by juries. We are only concerned with whether the court committed error in permitting the case to go to jury on the theory advanced.

We have reached the conclusion that, under the evidence offered, the doctrine of res ipsa loquitur was inapplicable. Appellees rely heavily upon Coca-Cola Bottling Co. of Ft. Smith v. Hicks, 215 Ark. 803, 223 S. W. 2d 762 (1949) and Coca-Cola Bottling Co. of Helena v. Mattice, 219 Ark. 428, 243 S. W. 2d 15 (1951). Both of those cases involved the explosion of a bottle of coca-cola, and we held that the mere fact that a bottle explodes raises a presumption of negligence in bottling, since reasonable men know that when bottles are properly manufactured and filled, they do not blow up. Appellee considers these cases analogous to the one before us, for he argues that the evidence reflects that appellant had exclusive control over the brake assembly up until the time of the accident. It is at once apparent that there is a vast difference between the handling of a coca-cola bottle and the driving of an automobile. There is much room for mishandling in operating a ear; in fact, we think it can be safely said that automobiles ordinarily depart the road through negligence of the operator, rather than through negligence of the manufacturer. There is still another clear distinction. After the bottle explodes, there is little that can be done by the injured person to determine the cause of the explosion. The bottle cannot be reassembled, and checked for defects. The cited cases would be more similar if the motor of a ear exploded, or a wheel suddenly disintegrated. In such event, a determination of the exact cause would be extremely difficult; however, brakes are not a complicated mechanism. The average auto repairman can determine the exact nature of the malfunction of brakes, — and all parts of the brake mechanism were available for inspection. In General Motors Corporation v. John son, 137 F. 2d 320 (1943) and Hupp Motor Car Corporation v. Wadsworth, 113 F. 2d 827 (1940), cited by appellee, direct proof of negligence in tbe manufacturer of automobiles was found, and the doctrine of res ipsa loquitur was not relied upon. A case which seems to be somewhat similar to the case at bar is Haas v. Buick Motor Division of General Motors Corporation, 20 Ill. App. 2d 448, 156 N. E. 2d 263. There, a new automobile had been driven about 1,300 miles when smoke began coming from under the dashboard. When an attempt was made to turn off the ignition, the key would not turn. The fire melted the dashboard, and windows were smoked. A verdict was directed for the manufacturer, and this action was sustained by the Appellate Court of Illinois (Second District, Second Division). Although the suit was brought on express warranties, we feel that the logic is applicable to the present case. The Court said, inter alia:

" The mere fact that an occurrence resulting in damage to property has happened does not authorize any presumption or inference that the defendant was at fault. Rotche v. Buick Motor Co., 1934, 358 Ill. 507, 193 N. E. 529, Huff v. Illinois C. R. R. Co., 1935, 362 Ill. 95, 199 N. E. 116. The mere fact that a fire evidently occurred here, resulting in damage to the property, does not authorize any presumption or inference that the defendant was responsible therefor — the burden was on the plaintiff to prove, among other things, that there was some material defect in materials or workmanship. * * * This is not a case for the application of some doctrine analogous to that of res ipsa loquitur.”

In line with the definitions and authorities herein cited, we conclude that the facts do not make a proper case for the application of res ipsa loquitur. There was evidence that the car left the highway without fault of the driver. There was evidence that the brake mechanism was sealed and locked by the motor company, thus in their exclusive control, and that this mechanism had not been disturbed. Of course, it cannot be said that the accident (leaving the highway) was without explanation in the light of ordinary experience; however, be that as it may, the alleged defective mechanism was not destroyed, was available to the injured party for inspection and examination, was examined, and the testimony reflected that specific defects were found.

Appellant complains that appellee was permitted to testify that the right front wheel of his truck caused the marks on the highway. Appellant states that this was an unsupported conclusion or opinion, and violates the rules of evidence which exclude conclusions or opinions of all witnesses except experts. We do not agree. This was not a matter of a witness coming to the scene after the occurrence was over, viewing the skid mark and then testifying that it was caused by the right front wheel. Appellee’s testimony was based on the “feel” of the drag in the front wheel, through steering, as the car went to the right.

We think the court committed error in permitting the answer of the witness Bearden, in response to the hypothetical question, to be considered by the jury. Mr. Bearden’s testimony amounted to a suggestion that there was the possibility that grease or brake fluid within the braking assembly could have caused the accident. Yet, all witnesses were unanimous in stating that no such foreign matter was found within the assembly. The jury was told by the court that the witness had given his opinion as an expert “as to what might have happened, and the jury will consider it in that manner.” Since there was absolutely no evidence upon which to base this possibility, the answer should not have been considered, as it afforded the opportunity for speculation on the part of the jury.

We are also of the opinion that the court erred in giving Plaintiff’s Instructions 4 and 5. Without going into detail, it suffices to say that these instructions, in effect, permitted the jury to apply the doctrine of res ipsa loquitur, which we have held inapplicable under the facts developed at the trial. Objections to other instructions are held without merit.

There was evidence of specific negligence, though not of the strongest nature. For instance, the witness Mayer testified that the brake was binding, which occasioned his taking it to Cook’s Machine Shop to see if the drum was out of round; there was the evidence of the skid mark, the evidence of Fish himself as to the pull to the right; the testimony that the mechanism had not been disturbed and had remained sealed, and that the drum was an eighth of an inch out of round.

In accordance with the reasons set forth in this Opinion, the judgment is reversed, and the cause remanded.

McFaddin, J., dissents in part.

Ed. F. McFaddin, Associate Justice,

dissenting in part. My dissent is because I am of the opinion that the rule of res ipsa loquitur applies in this case. As I see matters, the majority opinion means that we now have one rule for the use of res ipsa loquitur as regards bottled drinks, and another rule for the use of res ipsa loquitur as regards automobiles. This seems entirely irregular as far as I am concerned. The rule of res ipsa loquitur should apply uniformly.

       Subsequently, service of summons upon Green was quashed, and the complaint amended naming L. D. Galloway as the defendant owner of Stamps Auto Company rather than Green.

       The excessiveness of the verdict is not questioned.

       Rider testified that Fish told him that the reason he (Fish) did not pull to the left, .was because of oncoming traffic.

         “Out oí round” means when the center point is not where it should be, and “run out” means a wobbling of the drum.


author: J. Seaborn Holt, Associate Justice.

text:
    McKinnon, Admx. v. Southern Farm Bureau Casualty Ins. Co.
    5-2150
    335 S. W. 2d 709
    Opinion delivered May 30, 1960.

      Denman & Denman, for appellant.

      Shaver, Tackett & Jones, for appellee.
   J. Seaborn Holt, Associate Justice.

Appellant, Mrs. Clyda McKinnon, Administratrix of the Estate of Harvey McKinnon, Deceased, brings this appeal from a judgment in favor of appellee, Southern Farm Bureau Casualty Insurance Company, on a claim of appellant against appellee for $5,000.00 under the terms of one of appellee’s policies. The insurance policy named as the insured: “Kenneth McKinnon and/or Harvey McKinnon” and covered bodily injury liability, property damage liability, medical payments, comprehensive damages and collision damages. The present appeal deals only with the extent of the medical coverage.

Harvey McKinnon was killed in an automobile accident while riding in an automobile owned and operated by his son, Kenneth, and insured by appellee casualty insurance company. Kenneth was a minor when he purchased the car and when it was first insured on his initial application. This original policy was renewed from time to time, each time in the name of “Kenneth McKinnon and/or Harvey McKinnon” (his father) and even after Kenneth reached his majority, the policy (the one here involved) continued the name of “Kenneth McKinnon and/or Harvey McKinnon.” Appellant alleged in her complaint: “That the defendant issued their policy number A280601 to ‘Kenneth McKinnon &/or Harvey McKinnon.’ That among the provisions of said policy there was a ‘Medical payment’ coverage known as ‘Coverage C’ that this coverage was paid for and applicable to this policy and to this insured. ¶ That the said ‘Medical Payment — Coverage C’ in said policy reads as follows: ‘II. Medical Payments — Coverage C: To pay all reasonable expenses incurred within one year from the date of accident for necessary ambulance, hospital, professional nursing and funeral services to or for: Division 1 (a) The named insured and, while residents of the same household, his spouse and any relative of either, who sustains bodily injury, caused by accident while in or upon entering or alighting from, or through being struck by any automobile; (b) in the event of the death of the first individual named as insured caused by accident while in or upon, entering or alighting from, or through' being struck by any automobile, the sum of $5,000.00 less any payments otherwise made hereunder on account of such injury. * * * ¶[ That ‘Medical Payment-Coverage C’ Division 1 (b) section of said-policy and by reason of the clause naming the insured ‘Kenneth McKinnon &/or Harvey McKinnon,’ the defendant is liable to pay, because of the death of Harvey McKinnon, the sum of $5,000.00, as provided for in said policy.” (Emphasis ours) Appellee answered with a general denial. Trial was had by agreement before the court and as indicated, there was a judgment in favor of appellee, casualty company.

For reversal, appellant contends: “The appellee by using ‘&/or’ in naming the insured created an ambiguity, and said ambiguity must be construed most strictly against the appellee insurer; that the phrase ‘&/or’ is typed and the phrase ‘first individual named’ is printed, — under well settled rules of construction the written phrase takes precedence over the printed phrase ; The effect of the appellee’s theory is that the appellee intended to and did, perform a nullity by placing Harvey McKinnon’s name in the clause naming the insured in this policy, because under the appellee’s theory the placing of Harvey McKinnon’s name in the clause naming the insured did nothing more than was done by the printed policy.”

It thus appears that one clause in the policy refers to the named insured and another clause to the first individual named as insured. Both clauses were correctly set out in appellant’s complaint above. Appellant’s counsel insists that since the phrase “&/or” is used, this means that either of the persons named can be chosen as the first named insured. It is further argued that the phrase “&/or” is susceptible of more than one meaning and creates an ambiguity which under our long established rule of strict construction against the company, the appellant should prevail. While it is true that we resort to such rule of construction when there is ambiguity, our rule is equally well established that where no ambiguity exists, we are not required to use a forced construction which is plainly outside the language of the policy. Here, we think, the policy is clearly susceptible to but one construction under its term, “in the event of the death of the first individual named as insured caused by accident * * which are definite and certain and the language used unmistakably insured the life of Kenneth Mc-Kinnon only, the first individual named as insured. Plainer language could not have been used.

Appellant’s further contention “that the phrase ‘&/ or’ is typed and the phrase ‘first individual named’ is printed; under well settled rules of construction the written phrase takes precedence over the printed phrase we hold to be without merit. It is only where the written (or typed) and printed words are so contradictory that an ambiguity arises that one must yield to the other. As indicated, we find no ambiguity or contradiction here. The controlling rule is clearly announced in 29 Am. Jur. Insurance No. 161: Variance — Between Written and Printed Matter: It is the rule with reference to insurance policies, as well as other contracts, that the written portion of an insurance policy must be taken as more immediately expressive of tbe intention of the parties than the printed portion, if there is any repugnancy or conflict between them, and that in such case the written portion prevails. This rule however, applies only where the written and printed words so contradict each other that the one must yield to the other; where they do not, the policy must be so construed as to give effect to every part of it, and the writing and the print are to be construed so that both can stand, if possible,” and in Insurance Law and Practice, Appleman, § 7522, we find: “In construing an insurance policy or certificate, all parts, both printed and written, should be given effect, if possible. In construing insurance contracts, the court must take the policy as it finds it, and where it is in printed form with written parts introduced into it, must take the whole together, both written and printed. Wherever possible, the courts will harmonize such clauses if they can be reconciled by any reasonable construction, since it cannot be assumed that the parties intended to insert inconsistent provisions. ¶[ Of course printed parts of a policy may be modified by written endorsement. And the general rule is that while written and printed portions of a policy will be reconciled, if possible, if they are definitely repugnant, the written clauses will be given effect over the printed. Accordingly, where written and printed portions of the policy are inconsistent, the written clauses will prevail. The same preference is given to a typewritten expression as to one in writing . . .”

We said in State Farm Mutual Automobile Insurance Company v. Belshe, 195 Ark. 460, 112 S. W. 2d 954: “ ‘It will not be questioned that the parties can make any contract of insurance not prohibited by law, and there appears to be good reason why an indemnity company would not be willing to assume the risk for damages resulting from cars being driven or operated by persons under sixteen years of age.’ (Citing authorities.) We think the foregoing quotation is a well-considered expression of opinion, sound from every viewpoint; that the insurance company may make use of such language as it may please to express the conditions upon which it is willing to issue its policy. The insured, by acceptance, approves such policy with all the conditions therein contained, so long as they- are reasonable and not contrary to public policy. Our attention has been called by appellant to an opinion in which we find well stated the same principle; but, * * * contracts of insurance, like other contracts, are to be construed according to the sense and meaning of the terms which the parties have used, and if they are clear and unambiguous, their terms are to be taken and understood in their plain, ordinary and popular sense. * * * ¶ The distinction we think these authorities make is one that is found in the construction or meaning of a policy as written. The courts have made no effort in any of the cases to fix or determine liability not contracted for; and only in those cases wherein there is ambiguity has the court found reason to resort to a construction most strongly against the insurance company.”

Finally, appellant’s argument that if the life of Harvey McKinnon were not insured, his name as an insured served no beneficial purpose whatever to him or his estate. We do not agree. Under the plain terms of the policy here, Harvey McKinnon and his wife were clearly afforded the following benefits: “(1) Bodily Injury and (2) Property Damage Liability while using the insured vehicle without the consent of Kenneth * * * (3) Comprehensive and (4) Collision Damages and Losses to the insured car while using same without the consent of Kenneth or while the insured vehicle was being used by any other person with their consent, * * * (5) Bail Bonds required because of accident or traffic law violations while using the insured vehicle without the consent of Kenneth and to release any other vehicle being used by them not owned by a member of their household; (7) Emergency Road Service, including first aid, delivery of gasoline, oil, battery and tires, and towing of car while using insured vehicle without Kenneth’s consent * * * (8) Medical, Hospital, and Funeral expenses incurred by or for them because of accidental injury while in or upon entering or alighting from, or through being struck by ANY AUTOMOBILE, even though Kenneth not be a member of their household.”

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

Ed. F. McFaddin, Associate Justice concurring. The purpose of this concurrence is to give my views for affirmance of the judgment of the Trial Court.

The appellant insists that the words and symbols, “and/or”, created an ambiguity. Even if we admit that an ambiguity was so created, then the effect of the ambiguity would be to admit testimony to explain it. This case was tried before the Circuit Court without a jury and testimony was introduced which had the effect of explaining the ambiguity.

The Circuit Judge found for the appellee, and that finding has the force and effect of a jury verdict. So, as I see it, the only way the appellant could prevail now would be to contend that she was entitled to an instructed verdict even with the testimony introduced. I cannot support that contention, even if made. The insistence that there was an ambiguity falls far short of the claim for an instructed verdict.


author: Ed. F. McFaddin, Associate Justice.

text:
    Coley v. Green.
    5-2142
    335 S. W. 2d 720
    Opinion delivered May 30, 1960.

      William II. Drew, for appellant.

      Spitzberg, Bonner, Mitchell S Hays, for appellee.
   Ed. F. McFaddin, Associate Justice.

This litigation is for the proceeds of insurance money, and arises because a fire damaged the mortgaged premises. Green and wife, as mortgagors, were plaintiffs; and Coley and wife, as mortgagees, were defendants. The Trial Court rendered a decree in favor of the Greens and the Coleys prosecute this appeal.

O. T. Coley and wife owned a combination restaurant, truck stop, filling station, and motel, called “Twin City Diner”, and located near Dermott. In March 1958 Coley sold the entire property and all furnishings to Green. The unpaid balance of the purchase price was $63,000.00, payable monthly for a number of years, and secured by a first mortgage on the real estate. Green was required to maintain fire insurance policies on the buildings, with loss payable clause in favor of Coley; and this requirement was performed by having policies in four insurance companies, being United States Fidelity & Guaranty Company, Federal Insurance Company, Hartford Fire Insurance Company, and Great American Insurance Company.

In September 1958 a fire materially damaged the two-story building called the “diner”. The four insurance companies agreed that the total amount to be paid for the fire damage was $12,600.00. Coley then agreed with Green that the entire insurance money “. . . would be paid over to Mr. Green in the event the property was restored to as good a condition as it was prior to the fire”. The four insurance companies issued and delivered drafts totalling $12,600.00 payable to Coley. Green undertook the repair work and after he had completed it to his own satisfaction he asked Coley to endorse and deliver the four insurance drafts. Coley refused, claiming that such repair work as Green had done did not restore the building as to as good a condition as it was before the fire.

Thereupon Green and wife instituted this suit against Coley and wife and the four insurance companies. The complaint was entitled, “Petition for Declaratory Judgment”. The four insurance companies claimed that they were mere stake-holders and paid the $12,600.00 into the registry of the Court by interpleader (% 27-816 Ark. Stats.) and they were discharged with attorneys’ fees and costs. Trial in the Chancery Court resulted in a finding that Green was entitled to all of the $12,600.00 insurance money; and from that decree Mr. and Mrs. Coley prosecute this appeal, presenting the issues here discussed.

I. Venue. Appellants raise two points on venue. First, they claim that the Chancery Court did not have venue because of the provisions of Section 301 of Act 148 of 1959 (as now found in § 66-3234 Ark. Stats.). This case was filed in April 1959 and the decree from which comes this appeal was entered on October 26, 1959. Section 697 of Act 148 of 1959 provides that in certain situations, as here, the said Act did not go into effect until January 1, 1960. So there is no merit to this contention of the appellant.

The other phase of the venue claim of the appellants is an attempt to invoke § 27-615 Ark. Stats., which provides that when a defendant is summoned to appear in an action outside his own county and the action is dismissed against co-defendants resident of the county in which the action is pending, then, upon proper objection, no judgment can be rendered against the defendant non-resident of the county. The appellants state that the action was filed in Pulaski County; that the Coleys were residents of White County; that when the insurance companies paid the money into the Court they ceased to be parties defendant; and, therefore, the action should have been dismissed as to the Coleys. But the answer to the appellants’ contention rests on two facts: (a) the insurance companies were not real defendants but were mere stake holders and any objection as to venue should have been made before answering; and (b) the answer did not raise the question of venue so the appellants have waived it. The complaint was filed on April 7,1959. On April 30,1959 Mr. and Mrs. Coley filed an answer denying all allegations in the complaint and praying, “. . . that the Court order the proceeds herein paid as prescribed in Paragraph 8 of the complaint filed herein . . . and for all other relief to which the proof may show defendants to be entitled”. There was no objection as to venue in the said answer. It was not until May 26, 1959 — nearly a month later — that the Coleys first raised any question of venue. The case of Murdock Acceptance Corp. v. Spear, 225 Ark. 948, 286 S. W. 2d 485, is ruling here. In a long line of cases this Court has held that a general appearance will subject the defendant to the Court’s jurisdiction, even though the suit is in the wrong venue.

II. The Merits Of The Case. Coley agreed that Green could have all of the insurance money of $12,600.00 if Green restored the building to as good condition as it was before the fire. Whether the repair work done by Green reached such prescribed requirement is the real issue in this case. To state in detail the testimony of each witness would unduly prolong this opinion. The contractor making the repairs used only a small portion of the timbers and rafters that he had listed as necessary when he made the estimate for the insurance companies. He never removed the charred timbers between the first and second floors. Pictures made shortly before the trial clearly indicate that after the repair work was made, there remained holes and visible cracks in many places; and no claim is made that these defects existed before the fire. A careful review of the record convinces us that, while Green made some repairs to the premises, he spent not in excess of $8,000.00 toward making the prescribed repairs, and that he is entitled to only that amount of the insurance money.

We come then to the difficult question as to the power of this Court to apportion the insurance proceeds on the basis of the repairs made. The older cases hold that, when a special contract had been performed only in part, then there could be no recovery on a quantum meruit basis. Simpson v. McDonald, 2 Ark. 370; Manuel v. Campbell, 3 Ark. 324. But over the years there has been a constant tendency to find a way to prevent the working party from losing his entire outlay. In Selig v. Botts, 128 Ark. 167, 193 S. W. 534, the Court in effect, divided the contract, and allowed recovery for the part that was performed; and in Mitchell v. Caplinger, 97 Ark. 278, 133 S. W. 1032, a contractor was allowed part recovery even though the owner had to make further expenditures to complete the building. The present litigation is in equity, and on appeal we try the case de novo on the record. The rules regarding restitution and unjust enrichment apply to the situation here. In 12 Am. Jur. 916 et seq., “Contracts” § 352 et seq., the text, in discussing acceptance of performance as basis for implied promise, reads:

“Under some circumstances, a quasi contract arises independent of the intention of the parties where a special contract has been partly performed, and such quasi contract is founded upon the doctrine of unjust enrichment. The basis of liability under a quasi contract resulting from part performance of a special contract is the benefit conferred upon a defendant by the part performance of a special contract, and not the detriment incurred by the plaintiff ... In some cases language may be found to the effect that even though the contract has not been completed or has not been completed in accordance with its terms, the law implies a promise by the opposite party to pay if he has been benefited by such partial or insufficient performance . . . Under the strict common-law rule where a party failed to comply with an unapportionable agreement, he could not recover for what had been done. This rule has been so far modified that where anything has been done from which the other party has received a substantial benefit which he has appropriated, a recovery may be had based upon such benefit. The basis of this recovery is not the original contract, but a new implied agreement deducible from the delivery and acceptance of some valuable service or thing.”

Coley allowed Green to undertake the restoration or repair, and has accepted the benefits of such as Green made. Green expended up to $8,000.00 in restoration or repairs and has accomplished that much benefit to the mortgaged premises. But Green’s other expenditures were for matters such as pavement, additional bathroom, or other items which were not matters of repair or restoration. Green certainly could not use Coley’s insurance money to make these other improvements; but, under the rules regarding restitution and unjust enrichment, Green is entitled to $8,000.00 of the insurance money, less all costs and expenses of this proceeding in both courts, and this includes the attorneys ’ fees paid for the interpleading by the insurance companies.

When Green makes proof that all labor and material items used in repairing the premises have been paid, so that there is no lien possible on the mortgaged premises, then Green will be entitled to the amount of money previously stated. The remaining $4,600.00 of the insurance money should be paid to Coley and applied on the mortgage indebtedness. This $4,600.00 is to be applied now on the final amount due, and Green’s regular payments will be made each month until the balance of the indebtedness is fully discharged. The Chancery decree is reversed and the cause remanded, with directions to enter a decree and have further proceedings, as indicated in this opinion.


author: George Rose Smith, J.

text:
    Raney v. Villines.
    5-2155
    335 S. W. 2d 725
    Opinion delivered May 30, 1960.

      Virgil D. Willis, for appellant.

      J. Nelson Truitt, for appellee.
   George Rose Smith, J.

This is a contempt proceeding in which the appellants caused the appellee to be cited for an alleged violation of a chancery decree that was entered on October 14, 1959. After hearing the appellants’ evidence the chancellor dismissed the contempt citation on the ground that the complainants had not made a prima facie showing that the earlier decree had been violated. In appealing from the order of dismissal the appellants contend that the chancellor erred in finding their proof to be insufficient.

The parties are adjoining landowners, the appellee owning a forty-acre tract just east of the appellants’ eighty acres. By the original decree the chancellor found (a) that the plaintiffs (appellants) were the owners of the East Half of the Northwest Quarter of a certain section, (b) that the defendant (appellee) was the owner of the Northwest Quarter of the Northeast Quarter of the same section, and (c) that the defendant had an easement for a roadway “consisting of a strip 20 feet wide along the east side of the above described lands of the plaintiffs. ’ ’ The decree confirmed the defendant’s right to the easement, which was described by metes and bounds as the east 20 feet of the eighty-acre tract, and restrained the defendant from trespassing upon other land of the plaintiffs.

The appellants, in asking that the appellee be punished for contempt of court, insist that the appellee has overstepped the 20-foot limitation fixed by the October decree and has actually been using a roadway about 27 feet wide. To prove this assertion the appellants introduced testimony to show that for about 75 years a fence has been recognized as the boundary between the two tracts and, further, that the appellee is using a roadway that extends about 27 feet west of the fence. The appellants failed, however, to prove that the fence is in fact situated upon the true east line of their eighty acres, as that line would be determined by the governmental survey of this particular section. The appellants did not offer any qualified surveyor as a witness. A layman was permitted to describe his efforts to find the boundary line in question, but his testimony is deficient in that he readily admitted that he did not know whether he used the true corner as a starting point. See DuPriest v. Anthony, 226 Ark. 894, 294 S. W. 2d 769. During the trial the chancellor indicated several times that the controlling issue was the location of the true boundary line, and his dismissal of the citation was based upon the complainants ’ failure to supply that proof.

The chancellor’s decision was right. The appellants rely upon cases such as Gregory v. Jones, 212 Ark. 443, 206 S. W. 2d 18, holding that a division fence, even though it is incorrectly located, may become the boundary line as a result of long acquiescence on the part of the adjoining landowners. Those decisions, however, do not govern the case as it now stands. The record before us does not include the proof upon which the original decree was based. That testimony might or might not have supported a finding that the fence line had become the boundary by acquiescence. But even if the appellants were originally entitled to such a finding, the point is that the decree as entered made no reference whatever to the fence that is now shown to separate the properties. The decree simply recited that the present appellants were the owners of the East Half of the Northwest Quarter and that the appellee was entitled to an easement along the east 20 feet of that tract. This language of the decree cannot simultaneously refer to two conflicting boundary lines; it cannot be taken to mean both the fence line and the true line according to the governmental survey. The decree describes the boundary only by reference to governmental subdivisions, and hence the original surveyed line must be regarded as controlling. Desha v. Erwin, 168 Ark. 555, 270 S. W. 965. If the parties really intended to establish the boundary line in accordance with a fence that varied from the true line, that fact should have been stated in the decree. In the absence of such a statement in the original decree the appellants’ proof in the present proceeding must be considered insufficient to support a finding that the appellee is in contempt of court.

Affirmed.


text:
    Connelly v. State.
    4970
    335 S. W. 2d 723
    Opinion delivered May 30, 1960.

      Q. W. Lookadoo, Holt, Park & Holt, for appellant.

      Bruce Bennett, Atty. General by Bussell J. Wools, Asst. Atty. General, for appellee.
   George Rose Smith, J.

On tbe afternoon of April 28, 1959, the appellant shot and killed her husband, Joseph E. Connelly, from whom she had been separated for several months. Charged with murder in the first degree the appellant was convicted of second degree murder and was sentenced to fourteen years imprisonment. We find it necessary to discuss only one of the points relied upon for reversal, an asserted error in the admission of incompetent evidence.

The prosecution, presumably for the purpose of showing that the deceased was unarmed, introduced a number of articles found upon his person, such as a wallet, a cigarette lighter, cards, pictures, a bunch of keys, a ring, etc. These items are conceded to have been admissible, but the appellant complains of the court’s action in permitting the State to introduce an unsigned letter, apparently written by the decedent to his estranged wife and also found upon his person, which read as follows:

“I have every right to hurt you — but to hurt you I have to hurt someone very dear to me. You have depended upon that for some many years. You thought you had me under some kind of trance. But there has been only one reason you got by, by treating me as you did. If you had loved Bonnie Jo [the couple’s only child] half as much as I we would still be together. You have only thought of yourself and had only one thing in mind to destroy the two persons in your life — the two that lived in hell to be with you. I know you are very proud of yourself. It is too bad you can’t hear what some of the ones you know say. By sending you this money in your name — I’m losing what little self respect I have left — if I have any at all, that you left me.” (The reference to “this money” seems to have meant a check for $20, drawn by the decedent in favor of the appellant, which was also found upon Connelly’s person, though it had been torn in two.)

This letter, unsworn and not subject to cross-examination, was manifestly not competent proof of the truth of the statements contained in it. Indeed the State does not suggest in its brief that the document was admissible; it is argued only that no objection was made by the defense. As we read the record, however, there was a sufficient objection, as reflected by this excerpt from the transcript:

“Mr. Holt: We object on the ground it is incompetent, irrelevant, and immaterial.
“The Court: Let me see it, Mr. Hebert.
“Mr. Hebert: It is what they found on his body, it is in his handwriting.
“The Court: Overrule the objection. It will be admitted.
“Mr. Holt: Note my exceptions.”

The point that has given us concern is whether the letter, even though incompetent, can be said to have been prejudicial to the accused. The note certainly suggests that there had been discord between Connelly and his wife, but there is much other evidence to this effect, including the testimony of the appellant herself. If the existence of marital disharmony were the only inference to be drawn from the letter then we might say with confidence that it could not have had any prejudicial effect upon the jury.

There are, however, other conclusions that may be derived from the language of this note. The statement that Mrs. Connelly meant to destroy the two persons in her life might be taken in retrospect to support the charge of premeditated murder. Much more important is the letter’s positive implication that it was the appellant who had mistreated her husband, rather than the other way around. This implication stands almost alone as the State’s contradiction of the testimony of the appellant and her daughter, who both say that Connelly struck and bruised his wife upon a number of occasions. Thus the letter had a direct bearing upon the appellant’s credibility and at least an indirect bearing upon her insistence that she acted in self-defense. In criminal cases in the absence “of an affirmative showing to the contrary” we must presume that incompetent testimony was prejudicial to the accused. Doles v. State, 166 Ark. 37, 265 S. W. 663. In the case at bar we are left in doubt, which means that the presumption of prejudice has not been completely rebutted.

Eeversed and remanded for a new trial.

Holt, J., not participating.


author: Paul Ward, Associate Justice.

text:
    Wootton v. State.
    4975
    337 S. W. 2d 651
    Opinion delivered May 30, 1960.
    [Rehearing denied September 12, 1960]

      W. S. Atkins, R. L. Searcy, Jr., for appellant.

      Bruce Bennett, Atty. General by Ancil M. Reed, Asst. Atty. General, for appellee.
   Paul Ward, Associate Justice.

Richard Wootton, appellant herein, was convicted of murder in the second degree and sentenced to 15 years in the State Penitentiary allegedly for killing one Ulice Miller in the late evening of October 17, 1959.

About noon on the above mentioned date appellant and the deceased, after completing a business transaction, planned to have a fish fry that evening at a designated site. It was also mentioned that others might be invited. Pursuant to this plan the deceased and one Dow-ell Clark went by appellant’s home around 3 o’clock that afternoon and loaded appellant’s boat on Clark’s pickup truck and then returned to the home of the deceased. Appellant purchased the necessary groceries and drove by deceased’s home about 4 o’clock when the three white men decided to send three negro men ahead to the “water hole” in Clark’s truck to make preparation for the fish fry. The three white men had some liquor, or one of them had some liquor, when they left the home of the deceased for the fish fry, and on the way they bought and drank some more liquor, arriving at the designated site around 5 o’clock. Appellant took along a .351 caliber rifle, Clark took a .22 caliber rifle, and the deceased took a 12-gauge shotgun. Later, around 8:30 o’clock while supper was being served appellant and Clark engaged in a controversy, and presently in a fight, over a cup of coffee. It seems that one of the negro men filled appellant’s cup too full of coffee after being told to only partially fill it. After this difficulty was apparently settled temporarily appellant and Clark engaged in one or two more fights in which the deceased intervened in behalf of Clark for the alleged reason that Clark was physically handicapped. The outcome of these difficulties was that appellant shot the deceased twice with his .351 rifle.

On appeal appellant relies on four designated grounds for a reversal of the judgment of the trial court. One challenges the sufficiency of the evidence, and relates to an Instruction refused by the trial court. The other three grounds challenge Instructions given by the court.

One. We cannot agree with appellant’s contentions that the evidence is insufficient to support the conviction of murder in the second degree. Appellant’s main point, in this connection, is that there is no evidence from which the jury could find the necessary element of malice. It is pointed out that the three white men involved had been the very best of friends up until the time this unfortunate occurrence took place. We agree that malice is a necessary element to constitute murder in the second degree. In Ballentine v. State, 198 Ark. 1037, 132 S. W. 2d 384 (at page 1039 of the Arkansas Reports) this Court said: “Malice, however, is a necessary element of murder, either in the first or second degree, and it must be either express or implied.”

The testimony relied on by appellant in his brief is substantially as hereafter set out. One of the negro men, known as “Sundown”, testified: We were all sitting around eating and I started to pour Mr. Wootton a cup of coffee; lie said lie just wanted a half a cup and I had it a little fuller than he wanted — he squeezed the paper cup a little too tight and some of the coffee ran out on his hand; I started pouring him some coffee in a glass cup and Mr. Clark spoke up and said “He don’t want no whole cup”; appellant looked around to Mr. Clark and asked what he had to do with it; they talked around a little bit but I don’t know just what they said; I looked around when appellant reached up and snatched Mr. Clark off the bumper of his truck and Mr. Clark just lay there with his legs crossed; the deceased said “You all quit that”; then the deceased pulled appellant off of Mr. Clark, and they started back to eating. Later while I was standing with my back to them I looked around and saw that appellant had Mr. Clark down again; the deceased walked up and said “You boys stop this, we want to have a good time”; the deceased caught Mr. Wootton in the back of his shirt collar and said “Get up off of that boy, Richard” (meaning the appellant); we started eating again when appellant reached for Mr. Clark again and the deceased ran up to stop him and the next thing I knew appellant and the deceased were “tussling” around; the deceased walked toward the fire and appellant walked between the trucks — he took a gun out of a scabbard and said “I am going to kill both of you s — of—h—.” I saw Mr. Miller as he was falling and he didn’t have anything in his hands. Howell Clark’s testimony was substantially as follows: We were eating and “Sundown” was pouring coffee; the cup he poured for appellant was too full and he said “I told you to pour me a half a cup”; “Sundown” got a glass cup and poured appellant coffee in it — I told him to pour a half a cup and appellant jerked me down; the deceased talked to appellant and got him to get up; I got up and appellant ran into me and knocked me down and the deceased helped me up; the deceased got between us and he and appellant scuffled; the deceased got up and started walking toward the fire, and appellant got up and went to his truck and pulled the rifle out and said “I am going to kill both of you s— of-b------.” One of the negro men named Easter testified in substance: Appellant told “Sundown” to get some coffee — he didn’t want a full cup; from then on I don’t know what happened until I saw appellant on Mr. Clark; and I didn’t pay much attention; in a little while I saw appellant had Mr. Clark down again and about that time the deceased got on appellant; the next thing that came to my attention was appellant taking a gun out of a scabbard and when I heard the shooting I was gone. The other negro man, Anthony Herron, testified: It seemed like Clark hit appellant on the head with something and then appellant grabbed him around the leg and they went down — the deceased wasn’t in it then but he got up and pulled appellant off of Clark and said “Don’t fight that crippled man”; the deceased got appellant loose from Clark, but they all continued fighting again; while they were out there I heard a gun fire and I left • — ■ later I heard two shots. Appellant testified substantially as follows: About 8:30 o’clock we had just finished eating and a negro poured a cup of coffee — I reached and got my cup; I reached and got the one mug of coffee and Clark said: “I want that cup” and I said your wife ought to have fixed you a cup if you wanted one and the next thing I knew he hit me with a bottle, I just reached and knocked his feet out from under him and we piled up there — we were all three fighting; we fought over an area as big’ as 10 or 15 feet and when I knew anything Clark had got to his pickup and fired a shot; I broke loose from Miller and made for my pickup and Miller ran around to where Clark was — and I came to my truck and opened the door and drug my rifle out and said “S — o—b------ put your guns down and come out” and they said “You put yours down and come out.” I said “No, it’s two against one”. They didn’t say a word and when I knowed anything Miller came around within 50 feet and that is when I shot — it was dark; I fired two shots although I had more cartridges in my gun; I quit shooting because I saw Miller fall. I had known the deceased six or seven years and we were friends; when I first saw the man that I shot he was between the trees and he squared himself with a shotgun; I couldn’t tell in the dim light who it was; I fired the shot at the man I shot to save my life; I saw the gnn and when he fell I quit shooting.

From the above it will be seen that there are some conflicts in the testimony of the eyewitnesses who were present. In the case of Higgins v. State, 204 Ark. 233, 161 S. W. 2d 400, this Court said: “It is a well settled rule that the evidence admitted at the trial will, on appeal, be viewed in the light most favorable to the appellee, and if there is any substantial evidence to support the verdict of the jury, it will be sustained”, citing-cases. Viewed in that light we are unable to say there is no substantial evidence to support the verdict of the court in this instance.

While malice is a necessary element of the crime for which appellant was convicted it is well settled by the decisions of this Court that malice may be implied from the facts and circumstances in the case, and it is our opinion that the facts and circumstances in this case justify an implication of malice on the part of appellant. In the case of Clardy v. State, 96 Ark. 52, 131 S. W. 46, we find this statement: “The law will imply malice where there is a homicide with a deadly weapon and no circumstances of mitigation, justification or excuse appear ; and proof of a homicide under such circumstances will warrant a conviction of murder in the second degree. The passion that will reduce a homicide from murder to manslaughter may consist of anger or sudden resentment, or of fear or terror; but the passion springing from any of these causes will not alone reduce the grade of the homicide. There must also be a provocation which induced the passion, and which the law deems adequate to make the passion irresistible.” We find nothing in the testimony to force the conclusion that appellant was faced with such provocation that it induced in him a sudden and irresistible passion such as would be necessary to reduce the crime of second degree murder to that of voluntary manslaughter.

In view of what we have heretofore said we cannot, of course, agree with appellant’s contention that the court committed reversible error in refusing to give the Requested Instruction No. 2. This Instruction reads: “You are instructed to find the defendant not guilty of murder in the second degree.”

Two. It is here insisted that the trial court erred in giving its Instruction No. 1. This is a very lengthy general Instruction covering the different degrees of homicide and it would serve no useful purpose to set it out in full. Appellant’s principal contention is that the instruction was argumentative and placed special emphasis on murder in the second degree. We are unable to agree with this contention. In this Instruction the court first told the jury that “Under the indictment it is competent for you, if you think the evidence justifies it, to convict the defendant of murder in the first degree, murder in the second degree, or of manslaughter, or to acquit him outright.” Appellant cannot complain that he was convicted of a lower degree of crime when he could have been, under the Instruction, convicted of a higher degree. See Bone v. State, 200 Ark. 592, 140 S. W. 2d 140. We have read the Instruction carefully and cannot agree with appellant that the Instruction places special emphasis on the crime of murder in the second degree.

In addition to the above it is pointed out that appellant made no proper objection and exception to the above mentioned Instruction. Before any of the court’s Instructions, consisting of sixteen in number, were given but after they had been discussed with the court appellant offered “a general objection to all of the Instructions to be given by the court.” This being a general objection en masse it does not properly present a question for the decision of this Court if any one of the Instructions is good. Some of the sixteen are not challenged. See Neal et al v. Peevey, 39 Ark. 337 and Jones v. State, 226 Ark. 566, 291 S. W. 2d 501. In addition to the form of the objection referred to above we fail to find that appellant saved his exceptions to the giving of the Instruction. This was necessary. See Yarbrough v. State, 206 Ark. 549, 176 S. W. 2d 702, and the cases cited therein.

Three. It is insisted by appellant that the conrt erred in giving its Instruction No. 7 regarding the law of self-defense, to parts of which he had a proper objection and exception. In this Instruction, among other things, the court said: “If there was no danger, and his belief in the existence thereof be imputable to negligence, he is not excused, however honest the belief may be.” We find, however, that this same language was approved in the case of Smith v. State, 59 Ark. 132, 26 S. W. 712.

It was insisted by appellant that Instruction No. 7 was erroneous in that it permitted the jury to find that appellant provoked or invited the deceased to make the attack on him. Again we are unable to agree with appellant’s contentions. As pointed out above, and taking the evidence in the light most favorable to the State, there was testimony, we think, from which the jury might have reached that conclusion.

Four. Finally, appellant insists that the court erred in giving its Instruction No. 11 regarding reasonable doubt. We have read this Instruction carefully and in our opinion it is a correct statement of the law. It is also pointed out that the objection to this Instruction was the same as that made to Instruction No. 1 heretofore discussed, and that likewise no exception was saved to the giving of the Instruction. Therefore, as heretofore pointed out, no question is properly presented for this Court’s consideration.

In addition to the above appellant brought forward a number of alleged errors in Ms motion for a new trial, many of which relate to instructions given and refused by the court. In most instances we find no proper objections were made and no exceptions saved, however, we have carefully examined each of these assignments and find in them no reversible error.

It is our conclusion, therefore, that the judgment of the trial court must be, and it is hereby, affirmed.

Affirmed.

Johnson, J., dissents.


author: Sam Robinson, Associate Justice.

text:
    Mabry v. Covington.
    5-2134
    337 S. W. 2d 643
    Opinion delivered May 30, 1960.
    [Rehearing denied September 12, 1960]

      C. Van Hayes, for appellant.

      J. B. Milfoam, for appellee.
   Sam Robinson, Associate Justice.

The appellant Geraldine Mabry is the daughter of appellee, J. W. Covington. This suit was filed by Covington, contending that he is the owner of Lots 1 and 4, Block 2, North Benton Addition to Benton, Arkansas; that he bought the lots May 22, 1950; paid the down payment of $1,180; and had the property conveyed to his daughter, Geraldine Mabry, under an oral agreement with her that she was to pay the balance of the purchase price in monthly installments of $33.70 each, and that Covington and his wife would have the right to occupy the premises for the remainder of their natural lives. Covington also alleges that in June, 1957, Mrs. Mabry took possession of the real estate and, without his knowledge or consent, moved his household furnishings out of the house and converted them to her own use. He prayed that the title to the property be vested in him and for damages for the conversion of the personal property.

Mrs. Mabry denied the allegations of the complaint and by way of cross complaint contended that her father is indebted to her for something over $9,000. Of this amount she claims as damages the sum of $1,950, alleging that the house has a monthly rental value of $75.00 and that it remained vacant for 26 months because of threats made by her father that he would “burn out” any renters. Her cross appeal is only from the failure of the chancellor to give her judgment for the alleged rental value. Covington testified in support of the allegations in the complaint, but there is very little corroborating evidence. The chancellor found that he had made three monthly payments of $33.70 each and that all of the remaining payments on the property, from the time it was purchased in 1950, had been made by Mrs. Mabry, who is a school teacher. Covington occupied the property for about seven years. Mrs. Covington died in January, 1957.

The chancellor found that Mrs. Mabry owned the real property and had not converted the household furnishings of her father but had merely moved them out of her own house, which she had a right to do. She offered to return this property to Mr. Covington, and the court ordered her to do so. In addition, the court gave Covington a judgment for $101.10, covering the three monthly installments he had paid on the place. We do not find a preponderance of the evidence shows that the house remained vacant because of threats made by Mr. Covington. Mrs. Mabry testified that she and her father were not on good terms but that she bought the property to give her mother a comfortable place to live the balance of her life. The parties were before the chancellor, who had a better opportunity than this Court to judge the veracity of the witnesses. We cannot say that the chancellor’s decree is against the preponderance of the evidence.

Affirmed both on appeal and on cross appeal.


text:
    Gude v. Wright.
    5-2127
    335 S. W. 2d 727
    Opinion delivered May 30, 1960

      Frank G. Douglas, for appellant.

      Taylor <& Sudbury by Graham Sudbury, for appellee.
   Jim Johnson, Associate Justice.

This case involves a claim for damages arising out of a breach of warranty.

In 1958, appellee, Harold B. Wright, purchased five lots in Block One of Wilson’s Third Addition to the City of Blytheville, from appellants, Joe Gude and Yelma Gude, his wife, and Orval Gude and Margaret Evelyn Gude, his wife, for a total consideration of $10,000. The conveyance was made by warranty deed and upon execution and delivery of the same appellee paid appellants $1,000 of the purchase money and executed three notes for the balance. These notes were secured by a deed of trust on the property sold.

On October 3, 1958, appellee filed suit alleging that after he started his foundation for a building, Drainage District No. 17 gave him notice to remove part of this foundation extending south on part of the drainage district easement for right-of-way for Ditch 37; that said easement extends onto these lots a distance of 34 feet, and appellee asked for damages by reason of breach of warranty. He secured a restraining order to prevent the appellants from disposing of the three notes.

Appellants denied the claim of appellee for damages, and alleged that the appellee was familiar with the location of the drainage ditch and purchased with full knowledge of the conditions; that the easement for right-of-way was a matter of record, and the appellee is charged with such record. When the appellee’s suit was filed, the appellants filed cross-complaint making their grantors, Mrs. Molly Sternberg, and Blytheville Development Company, parties. Mrs. Sternberg then made her grantor, the Georges, parties to the suit.

The cause was submitted and heard upon the pleadings, exhibits, records, testimony of several witnesses taken in open court, and stipulations of counsel placed in the record; from all of which the learned chancellor decreed as follows:

“1. That the plaintiff, Harold B. Wright, do have and recover of and from the defendants, Joe Gude and Yelma Gude, his wife, and Orval Gude and Margaret Evelyn Gude, his wife, the sum of $1,416.66, for breach of warranty; that said amount is adjudged to be a set-off against the $9,000 balance of the purchase prices of the lots involved, leaving a balance as of September 12, 1958, of $7,583.34 due said defendants, plus interest thereon from said date until paid and judgment is hereby rendered against the said plaintiff in favor of said defendants for said sum, plus six per cent interest from September 12, 1958, until paid.
“2. The plaintiff is hereby given 30 days from the date of the entry of this decree in which to pay the amount of said judgment; and if said amount is not paid to the defendants or into the treasury of this Court, the defendants may apply to the Court for decree of foreclosure under their purchase money deed of trust. Payment into court will stop interest on said money. The plaintiff to have judgment for his cost herein expended, ■which, may also apply as a credit on the judgment in favor of the defendants.
“3. That the temporary restraining order issued herein was proper but there is no longer any need for same because the defendants Crude have brought into Court the notes given for the balance of the purchase price of the said property in the amount of $9,000 and therefore same have not been negotiated or sold; and the surety on the bond for restraining order obtained by the plaintiff, Harold B. Wright, be and is hereby discharged and exonerated together with the principal upon said bond from any liability by reason thereof.
“4. Any and all issues between the defendants and the cross-defendants are reserved for further consideration and determination by the Court upon application of the said parties.”

From such decree comes this appeal.

On trial de novo we find the record reveals that the lots here in question join one another and make as a complete whole one lot 160 feet by 600 feet: That the lots were bought for business purposes because of the 160 feet of frontage on U. S. Highway No. 61: That the drainage ditch is located on the section line and the invisible easement for right-of-way is 100 feet — 50 feet on each side of the center of the ditch: That the easement on the north side of the ditch does extend 34 feet over on the south side of the lots here involved; That no part of the ditch is located on the lots: That the extension of the drainage district right-of-way for said ditch, being in existence at the time of platting and selling of the lots involved, the existence of which failing to appear on the recorded plat from which appellee purchased, is a breach of the covenants of warranty contained in the deed from appellants to appellee: That appellee has been legally evicted to the extent of the easement : That the south 34 feet of appellee’s property was useless for his purposes since he planned to construct buildings on his property fronting on U. S. Highway 61: That in addition to appellee’s estimate of damages sustained in the amount of $2,100 or $2,200, there was ample competent evidence adduced from an experienced realtor to sustain the amount of damages found by the Chancellor.

It is a well settled rule of law that covenants of warranty are taken for protection and indemnity against known and unknown encumbrances or defects in title. Knowledge or notice, however full, of an encumbrance, or of a paramount title, does not impair the right of recovery upon covenants of warranty. See: Magee v. Robinson, 218 Ark. 54, 234 S. W. 2d 27; Texas Company v. Snow, 172 Ark. 1128, 291 S. W. 826.

Concluding, therefore, that the weight of the evidence on the whole case supports the findings of the Chancellor, the decree is affirmed.


author: Carleton Harris, Chief Justice.

text:
    Page v. John E. Bryant & Sons Lumber Co.
    5-2156
    335 S. W. 2d 809
    Opinion delivered June 6, 1960.

      Charles F. Cole, for appellant.

      Murphy & Arnold, for appellee.
   Carleton Harris, Chief Justice.

This appeal involves the question of priority of liens. Vernon Page and G-eraline Page, his wife, were the owners of a tract of land near Batesville. On June 13, 1958, the Pages gave a deed of trust to D. C. Davis to secure a loan of $4,000, and such trust deed was filed for record in Independence County the next day. Appellees, John E. Bryant & Sons Lumber Company, Inc., furnished materials used in repairing a structure on these lands. An alleged portion of the materials was furnished between July 1, 1957, and August 7, 1957, but no lien was filed as to these materials within 90 days after being furnished; the balance of the materials was furnished between June 24,1958, and November 7,1958, in the amount of $411.93, and a lien claim, as provided by statute, was filed within the statutory period. The parties entered into a stipulation providing, inter alia, that all the materials purchased subsequent to June 24, 1958, were furnished and used in the remodeling of an existing house on the property involved.

T. D. Penn, d/b/a Penn Plumbing and Electric Company, furnished materials and labor for Page in the amount of $618.22 between October 8, 1958, and November 10,1958, and filed his claim for lien within the proper period. Complaint was instituted by appellees seeking judgment in the amounts mentioned, praying that a lien be declared on the Page property herein involved to secure the payment of the judgments, and asking that such lien be declared superior to the claim of Davis. The Pages and Davis separately answered, denying the allegations of the complaint, the Pages denying that appellees were entitled to a lien on the property, and Davis praying that his lien be declared superior to the lien of appellees. Upon hearing, the court made the following findings:

“2. That the plaintiff Bryant is entitled to judgment against Vernon H. Page and Geraline Page, his wife, for the sum of $411.93, with interest at the rate of 6% per annum from January 1, 1959, in a sum of $22.50, or a total of $434.43; that plaintiff Penn is entitled to judgment against Vernon H. Page and Geraline Page, his wife, for the sum of $618.22, plus interest at the rate of 6% per annum from January 20, 1959, in the sum of $31.93, or a total of $650.15.
3. That Penn is entitled and is hereby granted a mechanic’s lien for the sum of $650.15 on Lot 7, Vernon Page Sub-division, being a part of the North Half of the Northeast Quarter of Section 33, Township 13 North, Range six West, as shown by survey recorded in Deed Book D-7, page 171-173 of the records of Independence County, Arkansas, and that said lien is superior to the lien of D. C. Davis, except that the lien of Penn as between D. C. Davis and Penn extends only to the improvements on said lands and not to the lands proper.
4. That Bryant is entitled to and is hereby granted a lien in the sum of $427.70 on said lands described in paragraph 3 above, it being found by the court that the lien claim for the items furnished from July 1, 1957, to August 7, 1957, in the amount of $76.23, is disallowed but that payments in the aggregate sum of $69.50 should be applied to these items, so the net effect is to disallow lien in the sum of only $6.73; that the lien of $427.70 is superior to the lien of D. C. Davis, except that the lien of Bryant as between Bryant and Davis extends only to the improvements on said lands and not to the lands proper.
5. That the liens of Bryant and Penn are on a parity with each other and the amount of the lien of D. C. Davis is determined to be $3,100.00 as of the date of the trial, December 1, 1959.”

Judgment was entered in accordance with these findings, and from such decree, appellant brings this appeal. Appellees cross-appeal from that portion of the decree which denied a lien for the material furnished in 1957. It therefore appears that there are only two issues in this litigation. The paramount issue is whether the materialman’s and mechanic’s liens of the appellees are superior to the lien of the deed of trust held by Davis, and the second issue is whether the Chancellor properly disallowed the claim of the lumber company for a lien because of material furnished in 1957. These issues can be resolved in a more orderly manner by considering the cross-appeal first.

Appellees’ proof consisted of the testimony of Donnie Bryant, an official in charge of sales for the lumber company, and the testimony of Archie Adkerson, deliveryman for Bryant. Bryant testified that Page had been a good customer for several years, and that one day the latter advised him that he (Page) had bought a house, and was going to move it to one of his back lots behind the residence, and remodel same. Bryant stated, that after using about $80 worth of material, Page told him that he had “run out of money”, and the owner quit working on the house. According to the witness, some months after that, (over 10 months) Page returned to the office, wanted further material, stated that he (Page) was going to apply for a loan, and assured Bryant “as soon as we get the house completed, why we’ll have the money to pay you all of it off.” Further material was then sold. Bryant stated that materials were only furnished Page for remodeling of the house that had been moved on the lot beyond the Page residence. On cross-examination, however, the witness admitted that Page might have purchased materials for other improvements, “but it if was, it was a cash sale.” Adkerson testified that he delivered the materials purchased by Page during the summer of 1957, and identified the house as the same involved in the delivery of additional building materials in the summer of 1958. The driver stated that he took material to only one place, and that he actually saw some of the sheetrock nailed up by carpenters who were present, though he was unable to identify any of the workers. The witness testified that the house had a blue hex roof on it at the time of the deliveries; however, he admitted that he also delivered shingles of this color and type in 1958. Contrary to this evidence, Page, and his father, C. H. Page, testified that all of the items purchased in 1957 were used in the beauty shop, operated by the younger Page’s wife, and that all of the work was performed by the father, son, and a brother-in-law. According to the testimony of the younger Page, this shop was located on lot No. 2, whereas the house, which had been moved onto his premises, was located on lot No. 7. Vernon Page also testified that no improvements were made on the house in question in the summer of 1957, except for a hardwood floor that was laid from flooring which had been left over when his residence was completed. Both men testified that the house did not have a blue hex shingle roof on it in 1957, but instead, had a sheet iron roof. D. C. Davis testified that, at the time he took the mortgage (June 13, 1958), he looked at the house, but saw no evidence of any recent work having been done. “I knew the house before it was moved, and it looked to me just like it did. ’ ’ He further testified that the Pages had worked on the beauty parlor some time prior to his lending the money. In Sebastian Building & Loan Association v. Minten, 181 Ark. 700, 27 S. W. 2d 1011 (1930), this Court stated:

“A delivery of material upon the ground where the building is to be constructed is furnishing material within the meaning of the statute, and proof of such fact by the materialman makes a prima facie case in his favor. The owner or other party interested may show that the material was not used in the construction of the building, in order to defeat the lien for the material thus furnished.” Cases are then cited in support of this statement. In accordance with the rule, so stated, we are unable to say that this finding was against the preponderance of the evidence. Were it otherwise, appellee still could not prevail, for the lien was not filed within 90 days, and the facts in this case do not bring the account within one of the exceptions to the statutory requirement. See Streuli v. Wallin-Dickey & Rich Lumber Co., 227 Ark. 885, 302 S. W. 2d 522.

The more important question is that of the priority of the appellees’ liens and the lien of the appellant mortgagee, Davis. Appellees argue that the evidence shows that the mortgage was given for construction, and the failure to so provide within the terms of the instrument causes the situation to come within the rule in Jack Collier East Company v. Barton, 228 Ark. 300, 307 S. W. 2d 863 (1957). In that case we held that before a construction money mortgage becomes superior to a mechanic’s lien, the purpose for which the money is advanced must be shown in the mortgage instrument as recorded.

We do not agree that the preponderance of the evidence shows the deed of trust to have been given for construction purposes. Page stated that the $4,300 received from Davis was used to pay off a previous existing mortgage on the property to a Mr. John Polk. Page subsequently stated, “Mr. Davis knew what the money was to be used for. The amount must be used for construction.” This statement by Page and the aforementioned testimony by Bryant constitutes the only evidence in the record which refers in any way to construction. Just what Page meant by this statement that “the amount must be used for construction” is not shown, though the record reflects that he had engaged in several construction projects. Nor is it clear what Page meant by use of the term “construction”, i.e., whether he was using it in its literal sense, or as a general term which would include repairs or remodeling on existing property. Page, however, did positively state that the money was used to pay Polk’s mortgage, and it is undisputed, and in fact, stipulated, that the materials were used and labor performed on an already existing house on the land. In the ease of Imboden v. Citizens Bank, 163 Ark. 615, 260 S. W. 734 (1924), the trial court held a mortgage lien to be superior to a mechanic’s and materialman’s lien. In affirming the decree, this Court said:

“It is clear from the proof that the building is not separate from the original building so as to constitute a distinct improvement which is separable from the original building. Appellant’s claim of priority therefore calls for a construction of the statute quoted above.
Our construction of the statute is that, as between the lien of a mechanic or the furnisher of material and the lien of a prior mortgage, the lien of the former is superior only upon a separate building constructed on the land with the labor and material furnished, or to such an addition as is separable from the original building. In other words, in order to give a lien to a mechanic or furnisher of material superior to a prior mortgage, the improvement must be separate from the original improvement, or, if connected in any way with the original improvement, it must be so connected as to be removable without injury to the original building. Under the statute the lien of a mechanic or furnisher of material is not superior to a prior mortgage on the entire improved building, nor even to the extent of the betterment accruing from the repair, extension or enlargement of the original building. It is clear that there was no intention on the part of the lawmakers to attempt to impair the obligation of a prior mortgage or the remedy of the mortgagee. On the contrary, the purpose is clear to give a subsequent lienor a distinct remedy for an independent improvement, or what amounts to an independent and separable improvement.”

In Morrilton Lumber Company v. Groom, 176 Ark. 520, 3 S. W. 2d 293 (1928):

“According to our former decisions, if a new building had been erected entirely out of materials furnished by the plaintiff, its lien might have been enforced against such building, and the purchaser would have had the right to remove it from the lots in a reasonable time, notwithstanding there was a prior mortgage on the lots. The lien can be enforced as prior lien only by a sale of the building as a separate and distinct entity from the land. Such priority of lien exists only when a new building has been put upon the land subsequent to the execution of the mortgage, and the one claiming a prior lien for materials furnished must have furnished the materials for the erection of an entirely new building. * * * ”

Since the evidence does not establish that the money was obtained from Davis for construction purposes, and the deed of trust was filed for record prior to the date the materials, used on the house, were furnished, it necessarily follows that the Chancellor erred in holding the materialman’s and mechanic’s liens to be paramount to the lien under the deed of trust. The decree is therefore reversed, and the cause remanded, with directions to hold the Davis lien superior to the liens of appellees.

Ward, J., concurs.

       D. C. Davis died on December 31, 1959, and the cause was revived in the name of Gertrude E. Davis, Administratrix of the estate of D. C. Davis, deceased.