author: Conley Byru, Justice.

text:
    C. E. Lawrence, et al v. Duane Lawrence, Admr.
    5-4808
    437 S.W. 2d 457
    Opinion Delivered February 24, 1969

      Curtis L. Ridgeway, Jr. for appellants.

      Fitton, Meadows & Adams for appellee.
   Conley Byru, Justice.

Tlie issues here with reference to ownership of the joint and survivorship bank accounts arose under our law as it existed prior to the effective date of Act No. 78 of Acts of 1965. See Park v. McClemens, 231 Ark. 983, 334 S.W. 2d 709 (1960). In holding that the joint and survivorship accounts belong to the estate of H. S. Lawrence, deceased, the trial court found that there was no intention on the part of IT. S. Lawrence to create a survivorship account or a gift to appellants C. E. Lawrence and L. M. Lawrence.

The record shows that H. S. Lawrence, a long time resident of Searcy County, died at the age of 89 leaving surviving him 13 children. Two of the children, appellants C. E. Lawrence and L. M. Lawrence, lived near their father and for the last 5 or 6 years alternated in caring for him — i.e., they would see that his meals were cooked, his fires were built and necessary wood was available to keep the fires burning. Following the death of his wife, IT. S. Lawrence on Nov. 8,1962, caused his checking account in the Leslie State Bank, Leslie, Arkansas, to be placed in a joint and survivorship account with his son, L. M. Lawrence. On the same date he also caused a savings account of $8,600, to be established under the same arrangement. On April 18, 1963, IT. S. Lawrence opened a joint and survivorship checking account in the Citizens Bank of Marshall, Arkansas, with his son L. M. Lawrence. Thereafter on Sept. 21, 1964, II. S. Lawrence obtained a $10,000 certificate of deposit payable to H. S. Lawrence or C. E. Lawrence, either or the survivor. H. S. Lawrence kept the certificate of deposit and saving account book in his possession until his death.

C. E. Lawrence was asked on what basis he claimed ownership of $10,000 certificate of deposit. His answer was, “My dad put it in there in mine and his name and said, ‘I would like for you to see that I am took care of’ ”. When asked what he meant by saying that he would be taken care of with this $10,000, C. E. Lawrence again said, “Well, he figured on getting sick, figured on big doctor bills, I guess, of course, ’ ’ and at another time upon being asked, “Well you said your dad, when he put in the money in there, said he was putting it in there so that you coaid take care of him?” Whereupon C. E. Lawrence again answered, “Well, yes.” L. M. Lawrence was asked, whether he had advised the heirs that he would divide the money with them, his answer was, “Well in a round about way I imagine I might have after everything was said and done.” At another time he testified as follows:

‘1Q. Did your Father have any instructions concerning this $8,600.00 in the Bank of Leslie, when he set it up in a joint account?
A. What do your mean?
Q. Well, your brother has told us that the father told him that he was putting it in so that you could use it to take care of him.
A. Yeah, he said he didn’t know how long he was going to live and we didn’t either, so he wanted us to be paid for our services when he passed away.
Q. He put this money in so that you could take care of him during his lifetime and help with his funeral expense?
A. I guess you might say that, yes.”

On another occasion Mr. O. E. Lawrence was asked, “I take it, from your earlier testimony, Mr. Lawrence, that you are not now willing to divide the money that was in the Marshall bank with the other children?” His answer was, “This thing will have to clear up pretty well, then I will make my decision on that.” When asked if this was not inconsistent with his father’s statement to him, he answered, “I don’t think so. Anyway, how did I know but what I was going to have to spend everything else I had to see that he was taken care of, that -was my promise and that is what I would have done, that is what I had to do.” Letters written by C. E. Lawrence and L. M. Lawrence to members of the family subsequent to the father’s death acknowledge that they w’ere holding or had control of the monies involved, but there was no outright assertion that the funds belong to them.

As pointed out in Park v. McClemens, 231 Ark. 983, 334 S.W. 2d 709 (1960), the ownership of the accounts h.ere must turn on whether PI. S. Lawrence intended to create or vest title in the survivor. There is testimony in the record from which the trial judge could have found the issues either way. The chancellor observed the witnesses as they testified. We are not in a position to say that his finding on this issue is contrary to the preponderance of the evidence.

Affirmed.


source: Caselaw Access Project

author: Frank PIolt, Justice.

license: Public Domain

text:
    William Kittler v. B. W. Phillips
    5-4806
    437 S.W. 2d 455
    Opinion Delivered February 24, 1969

      Odell C. Carter for appellant.

      Gill & Clayton for appellee.
   Frank PIolt, Justice.

This is a boundary line dispute between adjoining land owners involving a 16- to 17-foot strip of land. The appellant owns a 40-acre tract on the west and appellee owns 16% acres lying east of the disputed line. When appellant attempted to relocate an old fence line by the construction of a new fence along what lie contends to be the true boundary line, the appellee filed this suit for an injunction. In deciding the issue for the appellee, the court found:

“The old fence row and fence has been along the common boundary of the two tracts of land now owned by the parties for more than a half a century. The parties and their predecessors in title by their actions in relation to said old fence row and fence caused the same to be ‘silently acquiesced’ as the boundary between the two tracts of land. ’ ’

For reversal the appellant contends that the findings of the chancellor are against the preponderance of the evidence.

The appellant purchased his 40-acre tract of land, which adjoins appellee’s 16% acres, in 1956. He presented evidence that when he purchased his lands, the fence went up through some woods; that the seller told him the fence was not the true boundary line; that he did not know appellee or his predecessors in title claimed any interest in the disputed land until 1967; that there never was any mutual understanding or agreement that the old fence constituted the true boundary; that in 1957 or 1958 lie relocated and reconstructed the fence along and ‘ ‘ fairly close ’ ’ to the old fence line to contain cattle and cleared the land on both sides of the fence; that he had no intention of this or the old fence being any recognition of the true boundary line; that no one had “farmed” the land within 100 feet east of the old fence until appellee began using this strip' of land as a turnrow when he. started farming about 1962; that appellee had tried to buy the disputed strip from appellant; that in conversations with appellee, they both understood the old fence was not the true line and that he, appellant, did not learn the exact location until 1967 when a survey was made just before this action.

The appellee purchased his lands in 1961. He testified that the old fence line, between his 16% acres and appellant’s 40 acres, was there when he bought his property, and that he had personally observed its existence for more than 25 years. He has owned other property in the community since 1943. According to appellee, ho had never offered to buy the disputed strip of land from appellant; appellant had never communicated to him any non-recognition of the fence line as being the accepted boundary; appellant had never cleaned up any land on his [appellee’s] side of the fence, it had been “cleaned up for 25 years;” his 16% acres “had been farmed up to the fence” for that length of time; the area was not wooded: “There was no timber there and there haven’t been any. Since I been going out there.” Further, according to appellee’s evidence, both he and his predecessors in title had occupied the lands east of the fence for at least 25 years and had recognized the old fence row and line as the visible boundary for a period of approximately 50 years; neither the appellant nor his predecessors in title had at any time occupied, used or controlled the disputed land east of the old fence line and that the first attempt by appellant to use this disputed strip was in 1967, which action resulted in this lawsuit.

A surveyor testified that in 1967, while conducting a survey in that vicinity, the appellant was present and expressed no knowledge as to where the true line was; acknowledged the old fence line had been used as a boundary; and that appellant made no objection to liis using the old fence line as a boundary.

According' to appellee, the appellant repaired and “re-posted” the old fence about 10 years before this controversy and there was no “change in the location of this old fence line.” This lawsuit resulted when the appellant, or someone, relocated this “old fence” about “eighteen” feet to the east “at night.”

The location of a disputed boundary line, being an issue of fact, is determined by a preponderance of the evidence and on appeal we affirm unless the finding of the chancellor is against the preponderance of the evidence. Mason v. Peck, 239 Ark. 208, 388 S.W. 2d 84 (1965).

The appellant ably argues that to establish a boundary line by acquiescence there must be a mutual or express agreement of the dividing line. However, in Stewart v. Bittle, 236 Ark. 716, 370 S.W. 2d 132 (1963), we said:

“It may be conceded, as claimed by appellant, that there never was any express agreement to treat the fence as the dividing line between the two parcels of land. Such an agreement, however, may be inferred by the actions of the parties.”

To the same effect, see Deidrich v. Simmons, 75 Ark. 400, 87 S.W. 649 (1905); Gregory v. Jones, 212 Ark. 443, 206 S.W. 2d 18 (1947); Tull v. Ashcraft, 231 Ark. 928, 333 S.W. 2d 490 (1960); Weston v. Hilliard, 232 Ark. 535, 338 2d 926 (1960); and Barnes v. Young, 238 Ark. 484, 382 S.W. 2d 580 (1964).

A boundary line by acquiescence may well exist without the necessity of a prior dispute. Gregory v. Jones, supra. Nor is there any requirement of adverse usage up to a boundary fence to establish a boundary by acquiescence. Morton v. Hall, 239 Ark. 1094, 396 S.W. 2d 830 (1965).

The chancellor has the advantage of seeing and hearing the witnesses in evaluating conflicting evidence. We see only the printed material and exhibits. Therefore, when the evidence is in close dispute as to where the preponderance lies, we cannot say the chancellor was in error. Murphy v. Osborne, 211 Ark. 319, 200 S.W. 2d 517 (1947).

In the case at bar, we cannot say that the chancellor’s finding that a boundary line is now established by acquiescence is against the preponderance of the evidence.

Affirmed.


author: Carleton Harris, Chief Justice.

text:
    W. F. Allen, Adm’r v. Lake Catherine Footwear Corp.
    5-4827
    437 S.W. 2d 803
    Opinion Delivered March 3, 1969

      Jinn G. Gole for appellant.

      Wright, Lindsey & Jennings for appellee.
   Carleton Harris, Chief Justice.

Appellant, as administrator of the estate of Elwood Allen, deceased, brought a wrongful death action against appellee, Lake Catherine Footwear Corporation, in the Circuit Court of Hot Spring County. Appellee operates a shoe manufacturing plant in Garland County, and J. E. Stanage held a contract with appellee to haul off waste and trash from its plant. Stanage, stipulated to be an independent contractor, hauled this waste and trash six days per week. It is also stipulated that Lake Catherine Footwear had no control over the means or methods of his operation in disposing of the waste material. The waste consisted of scrap leather, cloth, rubber, outsole and insole material, and other similar remnants. Included was a flammable, combustible, and volatile naphtha base liquid cleaning material. The pattern for disposition of the trash was for Stanage to park his truck at the plant, and the company’s employees would load it with all of the scrap material except the naphtha base liquid. This was placed in barrels or drums on the dock, and picked up last by Stanage. These drums were ordinarily marked with a red or yellow label with the word “caution” in large letters and “inflammable material, volatile solvent” painted thereon. No witness was able to say whether the drums loaded on February 18, 1966, were so marked.

Stanage had known Elwood Allen for approximately twelve years, and Allen had worked for him, off and on, during that period; also, Allen had worked intermittently for Stallage during the six or seven years that he had been disposing of the trash. The witness said that Allen, who could not read nor write, and perhaps was to some extent mentally retarded, could only be used for ordinary labor, though he was able to operate a Ford tractor. He (Stallage) said that he had been advised by company employees that the solvent should not be thrown in when the trash was burned — that it might be explosive.

On February 18, after picking up the trash and solvent, the trash was dumped in a ravine selected by Stan-age, and the solvent -was poured over it. Subsequent events are then described by Stallage:

“Well, when I got that on there, I got on this machine 1 had there and shoved it over in the pit with it, and started driving it away. 1 asked if anyone had matches. No one had any. I said there are usually some in the truck. I said, ‘got the matches.’ Doug got the matches and started back with them. So, JElwood said, ‘Let me have them. ’ He gave them to him. As I was watching there he started down in this ravine. There is a kind of little pathway like deal going down in there. 1 said, ‘Judge, don’t go down in there and light that stuff off, you are liable to get blown up.’ So, I am moving out on the machine at the time I said that. So I went over and parked it and come back over there. He was still down in there attempting to strike the matches, little book type matches. One of my boys, I believe Dave said, ‘He is not going to get that lit down there.’ I said, ‘Come out of there, Judge and let’s light the thing from up here.’ I don’t really remember whether he said anything or not. Usually he didn’t whenever I would talk to him like that, so I stood there another instant. I said, ‘Come on up here, Judge and give Doug those matches and let him light a piece of paper and throw over there and we will do it from up here,’ and I said, ‘Everything will be all right’ or something to that effect. That is all I said. About the time I completed that statement he was still in the operation of striking the match and so I guess this thing must have sparked. I don’t think he threw the match in the fire. When he made the arc, the air was full enough of these vapors coming off this stuff, it exploded.”

Allen was severely burned, and subsequently died. Suit was then instituted, appellant asserting that the company, its agents and employees, were negligent and careless in placing the solvent in unmarked or inadequately marked drums; in failing to adequately warn the deceased and others of the high and unusual danger involved; and in placing the dangerous liquid waste in the possession and control of persons without educating those persons as to the danger involved in the use and disposition thereof. On trial, at the conclusion of appellant’s evidence, the company moved for a directed verdict ; after argument of counsel, the motion was granted, and the jury was instructed to return a verdict for appellee. From the judgment dismissing appellant’s complaint, comes this appeal.

Appellant has submitted an able brief, relating to liability of persons supplying chattels which are known to be dangerous for the use of others. It is also argued that the manner in which the solvent was disposed of involved an unreasonable risk of bodily harm to the decedent, and that the company knew, or should have known, that Elwoocl Allen was mentally retarded, and that he would probably use the solvent in a manner involving unreasonable risk of bodily harm to himself ox-others. Though Allexx’s mental condition is mentioned by appellant several tixnes, the evidence of axxy mental deficiency is meager ixxdeed. In fact, the only evidence relating thereto was given by the witxiess, Stanage. He was asked, “Was Mr. Allen to some extent mentally retarded, or mentally slow?” The answer was, “Well my impression of it was yes. I am not an authority. My impression was yes.” Since apparently Allen had practically no education, and could not read nor write, he could well have appeared retarded without that actually being the case. The brother of the deceased, W. F. Allen, also testified, but he only said that his brother was unmarried, and unable to read or write; there was not the slightest reference to a lack of mental competency. It might also be pointed out that there is no showing that any company employee had any reason to believe that Allen was menially retarded; for that matter, it is not shown that any of the company employees ever saw Allen. The testimony is even conflicting that Allen was ever present at the plant site when the solvent was picked up. The only witness to testify about this matter was Stallage who first stated that Allen had accompanied him on some occasion or occasions when the trash was picked up at the plant site; subsequently, however, Stallage stated that he couldn’t really remember whether Allen had been with the crew when this was done. Apparently, most of the time, Allen would go to the dump where the trash was disposed of. The Contractor was definite in stating that Allen was not with him when he picked up the drums on February 18.

However, under the facts of this case, we see no necessity to enter into a discussion of appellee’s possible duty to Allen, or vdiether warnings to the independent contractor satisfied any legal obligation, for the failure of appellee to giv.e any warning to Allen was not the proximate cause of the accident and injuries sustained.

In United States v. Bowers, 202 F. 2d 139, the United States Court of Appeals for the Fifth Circuit, in reversing a judgment under the Federal Tort Claims Act, said:

“Assuming without deciding that the negligence found by the court is within the terms of the Federal Tort Claims Act, we are of the opinion that under the evidence the finding of negligence proximately causing the plaintiff’s injuries was clearly erroneous. The plaintiff admitted that he had used the road dozens of times, was thoroughly familiar with it, that he knew there were no guard rails on it, and that he knew where the edge of the road was. Failure to warn the plaintiff could not have been negligence proximately causing his injuries when he was already so familiar with the road as to appreciate the peril.”

In Arkansas Portland Cement Company v. Taylor, 179 Ark. 915, 18 S.W. 2d 904, we said that there is no duty to warn, when the danger should be obvious. See also A. A. Electrical Company v. Ray, 202 Ark. 85, 149 S.W. 2d 38; Parker v. Heasler Plumbing and Keating Company (Wyo.), 388 P. 2d 516. We have held in numerous railroad cases that the failure to sound a whistle or bell, when approaching a crossing for the purpose of warning a motorist of the approach of the train, ceased to be a factor, and no recovery could be had for failure to give these signals, when the presence of the train was plainly discoverable by other means. Missouri-Pacific Railroad Company, Thompson, Trustee v. Doyle. 203 Ark. 1111, 160 S.W. 2d 856; Missouri-Pacific Railroad Company, Thompson, Trustee v. Carruthers, 204 Ark. 419, 162 S.W. 2d 912; Chicago, Rock Island and Pacific Railway Company v. Sullivan, 193 Ark. 491, 101 S.W. 2d 175; Kansas City Southern Railway Company v. Baker, 233 Ark. 610, 346 S.W. 2d 215.

What, then, is the evidence with regard to Allen’s knowledge that the solvent was dangerous, and should be handled with extreme care? The testimony reflects that Allen had received one of the clearest warnings possible — far more impressive than merely being told that the liquid was dangerous; he had observed an explosion resulting from the liquid’s being thrown on a smoldering fire. Stanage testified to this occurrence as follows:

{ í * * =::• Whenever we were down at this original dump I had been using, he had been there. The reason I remember particularly was that the smallest boy, Lave [Stanage’s son], was using some of that stuff in an open container and throwing it on the fire. I wasn’t aware he did it. He threw it on a fire that wras smoldering in order to get it to burn more. The fact is the material had been rained on laying there the earlier part of the week. It had been rained on and it tended to smolder on. On Saturday we kept the stuff burned. That was the day we cleaned and burned it up. He threw this stuff on there and it exploded out there and almost burned him. If he hadn’t been as fast as an actor as he was, it probably would have. Me and Elwood was standing over by a little shop I have there and I said, ‘Look there. That is what that stuff will do to you. ’ ’ ’

The testimony of Stanage relative to the warnings he shouted to Allen just prior to the explosion has been heretofore set out, and there is no necessity to reiterate that evidence.

It is clear that Allen had observed the dangerous propensity of the liquid at least once prior to February 18. It is also undisputed that on that date Allen was warned three times not to light the trash pile down in the ravine, Stanage specifically saying, “You are liable to get blown up.”

It being apparent from what has been said that any failure on the part of appellee or its employees to personally warn Allen of the dangers of the solvent was not a proximate cause of appellant’s injuries and death, the trial court did not err in directing the jury to return a verdict for appellee.

Affirmed.

      According to Donald Munro, plant manager for the appellee, the liquid is used to wash the “upper of the shoe,” if the leather is particularly dirty. Operators use the solvent until it becomes so dirty that it is unusable. It is then discarded.

      Stanag'e testified that Allen was not a regular employee: “He just worked for me whenever I had some labor type work which he was qualified to do, and he did work of that nature and he would also work for other people in the neighborhood doing gardening work and yard work for women around there or anyone that could use him or brush cutting and what not. Never worked for me steady, never had him on any payroll.” He said that Allen lived close to the dump where he burned the trash, and that “if he happened to be around he would come down. He lived right in the area.” According to the witness, Allen’s primary reason for going to the dump would be “to get things of value he could sell to the shoe shop in town maybe or buckets, five gallon buckets on there, he could sell and soda pop bottles.”


author: George Rose Smith, Justice.

text:
    Employers Protective Life Assurance Company v. William V. Gatlin
    5-4867
    437 S.W. 2d 811
    Opinion Delivered March 3, 1969

      Eubanks & Hood by Phillip K. Kinsey for appellant.

      Hardin & Rickard for appellee.
   George Rose Smith, Justice.

This action was brought by the appellee to recover $1,000 in benefits under a hospitalization policy which was applied for but never actually issued. The trial court, sitting as a jury, made a general finding of fact tliat a valid contract liad in fact been agreed upon. This appeal is from the ensuing judgment for $1,000, plus penalty and attorney’s fee. For reversal the insurer argues that the proposed agreement was never consummated.

The facts, stated favorably to the appellee, are simple. On August 10, 1967, Fred Nolan, a soliciting agent for the appellant, called at Gatlin’s home and obtained his written application for a $1,000 hospitalization policy. For the first quarterly premium of $46.37 Gatlin gave a check, postdated September 1, which was eventually cashed by the insurance company. Nolan signed and issued a printed form of receipt which merely acknowledged receipt of $46.37 “as payment on insurance applied for” in the company. The application, which Gatlin signed without having read it, concluded with a paragraph reading in part:

I hereby apply to Employers Protective Life Assurance Company at Little Rock, Ark., for a policy to be issued solely and entirely in reliance upon the written answers to the foregoing questions, and agree that it shall not be effective until a policy has been actually issued while all of the above members are alive and in sound health.

(The pertinent clauses in the application and in the receipt are not set out in the appellant’s abstract, as they should have been, but they are quoted in the appellant’s brief, which is a substantial compliance with our Rule 9. Gott v. Moore, 218 Ark. 800, 238 S.W. 2d 754 [1951].)

Gatlin testified that Nolan told him that the policy went into effect “as soon as I wrote you that receipt.” Nolan denied that statement, saying that he told Gatlin that the policy would go into effect as of the date of the application if it was approved by the home office. TTe accept Gatlin’s version, for that view was evidently taken by the trial court.

On August 23 Gatlin was injured in an automobile accident and ultimately incurred hospital expenses exceeding the face amount of the policy. On September 13 the company sent Gatlin its check for the amount lie had paid and informed him that “we are not able to issue this coverage to you.” Gatlin refused the tender and filed this suit.

AYe are unable to sustain the judgment. Gatlin relies on our holding in Union Life Ins. Co. v. Rhinehart, 229 Ark. 388, 315 S.W. 2d 920 (1958), but that case is not in point. There the company issued a “binding” receipt, which, when read along with the application, provided temporary insurance. AAre distinguished that case in Dove v. Ark. Nat. Life Ins. Co., 238 Ark. 1033, 386 S.W. 2d 495 (1965), where both the application and the receipt recited that the policy would take effect as of the date of the approval of the application at the company’s home office. Here the application states explicitly that “it shall not be effective until a policy has been actually issued.” Since, as we said in the Dove case, the application and the receipt are to be read together, the case at bar is substantially similar to the Dove case, where we held that there was no coverage until the application was approved at the company’s home office. AYe cannot distinguish that case from this one. It is immaterial that Nolan stated that the policy would be effective immediately, as a soliciting agent has no authority to agree upon the terms of the policy or to change or waive those terms. Holland v. Interstate Fire Ins. Co., 229 Ark. 491, 316 S.W. 2d 707 (1958). With respect to the effective date of the policy see also Appleman, Insurance Law & Practice, § 103 (rev. ed. 1965).

Ee versed and dismissed.


author: Lyle Brown, Justice.

text:
    Ethel Louise Nelson et al v. Mary Busby et al
    5-4803
    437 S.W. 2d 799
    Opinion Delivered March 3, 1969

      Mann & McCulloch and Frank N. Burke, Jr. for appellants.

      Spears & Sloan and Carrold Bay for appellees.
   Lyle Brown, Justice.

Ethel Louise Nelson and Helen M. Littlefield, her guardian, appeal from a judgment in tort. While operating her automobile on the streets of Marianna, Mrs. Nelson struck Mrs. Mary Busby, a pedestrian. Mrs. Busby recovered for personal injuries, and her husband, Bruce Busby, was compensated for loss of consortium and medical expenses. The appeal challenges the competency of the testimony of three witnesses and urges that the trial court should have given appellants’ requested instruction on unavoidable accident. Appellee Bruce Busby appeals, objecting to the reduction of his award commensurate with Mrs. Busby’s negligence.

Mrs. Busby emerged from the post office on the north side of the street and was proceeding across the street to enter a vehicle parked on the south side. The second tier of steps in front of the post office led directly to the street curb and near the center of the block. Just as Mrs. Busby entered the street, Mrs. Nelson pulled out from the curb where she was parked to the left of Mrs. Busby. The Nelson car struck Mrs. Busby, ran over her body, and allegedly dragged her some twenty feet. The jury fixed Mrs. Nelson’s negligence at 65% and that of Mrs. Busby at 35%. Neither tlie fixing of negligence nor the amount of total damages is argued on appeal. The three points raised by Mrs. Nelson for reversal will be enumerated and separately discussed.

Point 1. The court erred in permitting the chief of police to testify as to point of impact. The investigating officer testified by deposition. Prior to trial his testimony was examined by court and counsel, at which time objections were made and some portions of his testimony were deleted, while other objections were overruled. We have examined his testimony on the question of point of impact. Here are the proceedings on direct examination for the plaintiff:

Q. "What evidence did you find in your investigation as to how she started from — came from the parking spot where she was located?
A. "Well, just in front of the first meter, parking meter, west of the corner, there were skid marks leading to the point of impact, which was six feet from the curb, and the skid marks indicated to me, as a police officer, a rather rapid start, but that is how I arrived at her parking place. T traced those skid marks from just in front of that first meter' — those were made by the rear wheels — 21 feet farther west on Main Street.
MR. MCCULLOCH ;
Now, Your Honor, we object to that portion of that which says, “...indicated to me, as a police officer, a rather rapid start.”
deposition continued :
Q. And 21 feet of skid marks that you could see?
A. Yes, sir, which I indicated, yes, sir.
Q. How far from the intersection would you say this accident occurred?
A. Are you referring now to the point of impact, sir Í
Q. Yes.
A. The point of impact was 56 feet from the intersection of Church and Main Street.

The only recited objection on direct examination is the one we have quoted and that objection referred to the officer’s testimony as to “a rather rapid start.” Then on cross-examination counsel for defendant pursued the subject of point of impact at length. In response to one of those questions the witness again referred to the point of impact as being approximately six feet from the curb. Thereupon this colloquy occurred :

mr. mcoulloch:
Just for the record, we will object to it [referring to point of impact].
the court;
All right.
MR. MCCULLOCH;
TVe object to that part of it on the grounds that he did not make sufficient investigation, and was not qualified to state where the impact was.

That specific objection was not well taken because the officer had detailed his many years experience as a policeman and had established by his testimony that he had in fact made an immediate and thorough investigation. Appellants argue here that the establishment of the point of impact by opinion evidence was error because the jury could have drawn its own conclusion with respect thereto. If counsel thought the conclusion of the officer invaded the province of the jury then he should have called it to the attention of the trial court.

Under this point appellants also challenge the right of the officer to state his conclusion concerning' a rapid start. The trial court was correct in permitting the officer to so testify. In fact the court gave a logical reason:

. . . police officers are familiar with skids and c‘an tell most of the time whether one was made on starting or on stopping. In other words, whether it is a dragging of a tire that made the mark, or the spinning of a tire. I think an experienced officer could tell that...

It would hardly he reasonable to say that skid marks could be otherwise described to a jury so as to enable them to be equally capable with the officer in telling under what conditions they were made.

’Point II. It was error to permit Doctors Robertson and Williams to testify as to statements about the collision related to them by Mrs. Busby. Those two doctors were treating physicians. Dr. Robertson took Mrs. Busby’s history. With respect to the history he testified by deposition as follows:

Yes, she stated she had been well until about 1:30 p.m. on the 10th of July, 1964, when, as she walked out between automobiles in front of the post office on Main Street in Marianna, Arkansas, [sic] An automobile pulled out to her left and [without apparent slowing down literally] ran over her. She was not rendered unconscious and fell, landing mostly on her right shoulder, head and back. She sustained multiple abrasions and bruises and had immediate severe head, neck, right shoulder, and general body pain. She was seen by Dr. Gray and subsequently transferred to our hospital. Her past history revealed that she had had some heart difficulty and had been cared for by Dr. Toni Stern. In the past, she had also had some minor surgery.

Appellants’ counsel objected to the foregoing testimony as being hearsay. The trial judge struck from the deposition that phrase we have bracketed. Dr. Williams also took a history and testified as follows:

She stated that she stepped off the sidewalk on to the street at Marianna, Arkansas, on July 10th, 1964, when an automobile struck her and ran over her body. She stated that the automobile dragged her body, with the body being caught under the undersurface of the vehicle, and during this injury she sustained multiple abrasions [and was brought to the Baptist Hospital emergency room where she was seen by Dr. Robertson, and then he called me to see her in consultation].

Appellants’ counsel challenged the foregoing testimony as being hearsay. The trial judge deleted from the deposition the bracketed phrase.

In St. Louis, I.M.&S. Ry. v. Williams, 108 Ark. 387, 158 S.W. 494 (1913), our Court said:

Testimony relative to the statements made by the injured person to his attending physician as to how the accident happened, and what caused it, is not admissible in a suit to recover for alleged negligent injury. It is but hearsay, when not a part of the res gestae, and the fact that it is recited by the physician to whom it was related as the history of the case when the injured person sought treatment for the injury, does not make it any the less so.

Again, in Mutual Benefit Health & Accident Ass’n. v. Basham, 191 Ark. 679, 87 S.W. 2d 583 (1935), we held that statements by an injured person to his attending physician “as to how an accident happened and what caused it is not admissible.” Compared with other jurisdictions there has been very little development of our case law on this question. In many other states the stricter rule as exemplified in Williams has been relaxed. In fact, one of our leading' authorities states the more logical rule to be that statements given “by the patient to the doctor for treatment which describe the general character of the cause or external source of the condition to be treated, so far as this description is pertinent to the purpose of treatment” should be looked upon with trust-worthiness. He goes further and points out that professional standards require the assembling of that information from the patient “and the person treated will be fully conscious that his treatment may well be affected by his report as to the cause, whether a fall, a crushing' by a heavy object, or a collision.” McCormick Evidence HB § 266 (1954). However, he points out that other features of the incident, such as who was at fault, would seem unrelated to the treatment.

It is not necessary in the case at bar to deviate from, or relax, the rule in Williams. That is because it is clear to us that the challenged testimony of the doctors was not prejudicial; their recount of the incident was cumulative to the testimony of every eye witness, including the sister of Ethel Louise Nelson. In that connection we would point out that the Williams case was reversed because the doctor’s testimony was found to be prejudicial. In that case no witnesses corrorated plaintiff’s testimony as to the manner of the accident, whereas all of the railroad’s witnesses denied there was any sudden jerking of the train as alleged by the plaintiff. The only witness which tended to support her, and prejuclically so, was her doctor, who was permitted to recount what plaintiff had told him in reciting plaintiff’s version of the cause of the accident. In that situation it was this Court’s opinion that the doctor’s testimony tended to improperly bolster plaintiff’s case.

In appellants’ reply brief they challenge the testimony of the two doctors with reference to two other physical complaints related by the patient in the course of treatment. Mrs. Busby complained of pain in one eye. As a result of that complaint the doctor found a recent onset of positive scotoma; however, he concluded that the eye complaint had no connection with the accident. The other point was with reference to her complaint about becoming stooped in the shoulders since the accident. Again, her own doctor testified in his opinion there was no connection between this complaint and the accident. "We can perceive no prejudice when her own doctors related both complaints to other causes. We would also point out that a challenge made in a reply brief to matters not raised in the original brief cannot be considered because in that event appellee has no opportunity to reply. O’Dell v. Young, 210 Ark. 1073, 399 S.W. 2d 971 (1947). Appellants’ counsel mentioned the subject matter in oral argument and appellees’ counsel endeavored to answer it as best he could from personal recollection of the testimony. The fact that he attempted to answer the argument is hardly sufficient to constitute a waiver.

Point III. The court should have given the requested instruction on unavoidable accident. The defendants requested the giving of AMI 604 covering an unavoidable accident. Of this point little need be said because this mishap would certainly not have occurred except for negligence on the part of the driver or the pedestrian, or both. The usual circumstances which justify the giving of the requested instruction are not here present. Connor v. Cooper, 245 Ark. 386, 432 S.W. 2d 761 (1968).

CROSS-APPEAL. Appellees, by cross-appeal, ask us to correct the judgment entered in favor of Bruce Busby, husband of Mary Busby. The jury found his total damages to be $5000 and the trial court entered judgment for $3250 because Mary Busby was found to have l)oeii 85% .negligent. We think appellees’ contention is fairly answered in the negative by our own case of Sisemore v. Neal, 236 Ark. 574, 367 S.W. 2d 417 (1963). There we held that the husband’s right to special damages for his lows of consortium and his wife’s medical expenses was derivative. It is only logical that since his cause of action is derivative, Mr. Busby can have no better standing in court than is vested in his wife.

The judgment is in all respects affirmed.


author: John A. Fogleman, Justice.

text:
    United States Fidelity & Guaranty Company v. Conrad J. Wells
    5-4794
    437 S.W. 2d 797
    Opinion Delivered March 3, 1969

      Gannaway & 1)arrow for appellant.

      Guy 11. Jones & Phil Stratton for appellee.
   John A. Fogleman, Justice.

This case involves the liability of appellee upon a promissory note executed by him on December 21, 1959. The principal question involved is whether appellant who sued on the note was entitled to a directed verdict as a holder who had all the rights of a holder in due course. Since we agree with appellant on this point, it is unnecessary that we consider any of the other points raised.

Appellee Wells purchased a bulldozer from Kern-Limerick, Inc., on or about the date the note was executed. Appellee traded another piece of equipment as part of the down payment and gave the note in question for the remainder. This note was for $2,892.36 with interest at the rate of 8% per annum until maturity and 10% per annum after maturity. The balance of the purchase price was secured by a conditional sale contract which was assigned to Associates Discount Corporation.

The note to Kern-Limerick was negotiated to the First National Bank in Little Rock on December 23, 1959. The status of the bank as a holder in due course is undisputed. It was indicated on the face of the note that it was secured by a lien on the bulldozer'. The note was payable in two installments due on June 1, 1960, and December 1, 1960, respectively. Kern-Limerick was engaged in the sale of construction equipment and handled many transactions in a similar manner. This concern filed a voluntary petition in bankruptcy and was declared bankrupt on or about May 24, 1960.

'When the bank attempted to collect the note, it learned that it was not secured by a first lien on the bulldozer and that its lien was subject to the lien of the conditional sale contract. The bank then made a claim against appellant under its banker’s blanket bond on this and other notes of a similar nature. Appellant’s liability was settled by the payment of $125,169.04 and the assignment of the notes upon which the claim was recognized. It appears that the payment made represented the total of the balances due on these notes on the date of assignment. While the assignment hears no date, it is undisputed that it was made well after the date of the maturity of the last installment of the note in ojuestion.

After appellee’s refusal to pay the note, appellant filed suit. At the trial, a verdict in favor of the appellee was rendered by the jury and judgment entered pursuant to this verdict.

Appellant bases its contention upon Ark. Stat. Ann. § 68-158 (Repl. 1957). This is § 58 of the Negotiable Instruments Law and is applicable to this transaction. See § 10-102 of Act 185 of 1961 and Compiler’s Notes following Ark. Stat. Ann. § 85-1-101 (Add. 1961). Also notes on Ark. Stat. Ann. W 68-101 — 68-169 (Supp. 1967).

It is not contended that appellant was a party to any fraud or illegality affecting the note. While we do not know of any case in which this court-has been called upon to construe this section and neither of the parties has been able to discover any, the language of the statute is clear. We do not see how it can be construed in any manner other than literally. Under a literal construction appellant was entitled to all of the rights of a holder in due course because it derived its title through the First National Bank in Little Rock. See Transbel Inv. Inc. v. Scott, 344 Pa. 544, 26 A. 2d 205 (1942); Blow v. Ammerman, 350 F. 2d 729 (D.C. Cir. 1965); Ederer v. Fisher, 183 S. 2d 39 (Fla. 1965).

Appellee argues, however, that appellant is not entitled to the rights of a holder in due course because the note was taken by appellant as an unwilling purchaser by assignment without endorsement after maturity with full knowledge of the fraud practiced by the original payee upon appellee and the bank. We find no support for this position in the statutes and find an overwhelming weight of authority to the contrary. It is immaterial that the transferee of a note from a holder in due course took it after maturity [Ludlow v. Woodward, 102 N.Y.S. 647 (1907); Cormany v. Ryan, 154 Tenn. 432, 289 S.W. 497 (1926); Lanahan v. Clark, 279 Pa. 297, 123 A. 798 (1924); Toll v. Monitor Binding & Printing Co., 26 F. 2d 51 (8th Cir. 1928, apply Kansas statute); Butterworth v. Beach, 30 Wyo. 46, 215 P. 1085 (1923); Johnston v. Wolf, 118 Cal. 388, 5 P. 2d 673 (1931); Case v. Fevig, 187 Minn. 127, 244 N.W. 821 (1932); Houston v. Lundy, 45 Ga. App. 122, 163 S.E. 328 (1932); North Hollywood Mort. Co. v. North American Bond & Mortgage Co., 137 Cal. App. 180, 30 P. 2d 446 (1934); In re Canal Bank & Trust Co., 186 La. 366, 172 So. 421 (1937); City of Florence v. Anderson, 95 F. 2d 777 (4th Cir. 1938); Wheeler v. Wallace, 167 S.W. 2d 1043 (Tex. 1943)]; or without payment of value [Ferber v. Third Street Realty Co., 152 N.Y.S. 352 (1915); Toll v. Monitor Binding & Printing Co., supra; Ludloto v. Woodward, supra; Wheeler v. Wallace, supra]; or with notice of existing equities, infirmities or defenses [Ludlow v. Woodward, supra; Toll v. Monitor Binding & Printing Co., supra; Wheeler v. Wallace, supra]. It is also immaterial that the holder in due course did not endorse the note, since transfer by assignment or by mere delivery is sufficient. Smith v. Nelson Land & Cattle Co., 212 F. 56 (8th Cir. 1914, applying Kansas statute); Cormany v. Ryan, supra; Tesdahl v. Hiebert, 148 Mont. 241, 419 P. 2d 298 (1966, applying Washington law); Johnston v. Wolf, supra.

There is an analogy between this case and the cases involving suits by the United States against the makers of notes acquired after default by the government from holders in due course through payment on account of Federal Housing Administration insurance of the notes. It has uniformly been held in these cases that the United States has all rights of a holder in due course under these circumstances and that the notes are not subject to any defense which the maker might assert against the original payee. See, e.g., U. S. v. O’Hara, 46 F. Supp. 780 (D.C. Mich. 1942, applying Michigan law); U. S. v. Perpignano, 86 F. Supp. 105 D.C. N.J. 1956).

Since it is clear that appellant was entitled to a directed verdict, the judgment of the lower court is reversed and judgment entered here in favor of appellant in the sum of $2,892.36 the face amount of the note with interest as follows:

on the face amount of the note or $2,892.36 @8% per annum from December 21, 1959, until June 1, 1960;

on one-half or $1,446.18 @ 8% per annum from June 1, 1960, to December 1, 1960;

on one-half or $1,446.18 @ 10% from June 1, 1960, to December 1, 1960;

on the face amount @10% per annum from December 1. 1960. Judgment is also rendered against the appellee for the costs in both courts.

      See Waxahachie Medicine Company v. Daly, 122 Ark. 451, 183 S.W. 741.


author: J. Fred .Jones, Justice.

text:
    Duel Kirby, et al v. Lois Hedgepeth
    5-4838
    437 S.W. 2d 807
    Opinion Delivered March 3, 1969

      Mobley, Bulloch & Harris for appellants.

      Irwin & Streett for appellee.
   J. Fred .Jones, Justice.

This appeal grows out of a dispute between relatives as to the location of a property boundary line in relation to a water well. Mrs. Lois Hedgepeth erected a barbed wire fence along what she considered to be the west boundary line of her property, twenty seven inches west of a bored water well. Duel Kirby removed the wire from the fence posts claiming that the fence was erected on property he and his wife had purchased from Mrs. Hedgepeth. Mrs. Hedgepeth sought an injunction and restraining order against the Kirbys in the Pope County Chancery Court and after hearing the evidence adduced on both sides, the chancellor and held that the issues had been settled by previous decree and he granted the petition for injunction and restraining order. The Kirbys are the appellants here.

The background for this case, including the previous litigation and decree, is as follows: On July 14, 1961, the appellee Lois Hedgepeth, sold to her brother-in-law and sister, Duel and Stella Kirby, a plot of land in Pope County under a metes and bounds description, as follows:

“Part of the Southeast Quarter (SE%) of the Southeast Quarter (SE%) of Section 16, Township 7 Forth, Range 20 West, described as beginning at the Southwest corner of said Southeast Quarter of Southeast Quarter, Section 16, Township 7 North, Range 20 West, and run North 136 feet; thence East 98 feet; thence South 136 feet; thence West 98 feet to point of beginning.”
The deed also contained a provision as follows:
“It is specifically agreed that grantor and grantees shall have the right and privilege of the use of the well located on the above described lands.”

In 1966, some differences arose between Mrs. Hedgepeth and the Kirbys as to who owned the water well and upon examination of her abstract of title, Mrs. Hedgepeth noticed that the language appearing in her deed to the Kirbys indicated that the well was located on the land she conveyed to them. So on March 11, 1966, Mrs. Hedgepeth filed a petition in the Pope County Chancery Court against the Kirbys alleging that the water well was not on the land conveyed to the Kirbys and that the deed so reciting constituted a cloud on her title. She prayed “that said cloud be removed from plaintiff’s title, be declared to be void and of no effect, and title to said property be declared to be vested absoliitely in this plaintiff as against the defendants in this canse; for costs and all other proper relief.” The Kirbys answered by general denial and affirmatively alleged that the deed was drawn as intended by the parties. After being fully advised of the facts in that case, the chancellor on September 1, 1966, decreed in language as follows:

“4. That the said deed conveying the above described land contains the following language: ‘It is specifically agreed that the grantor and the grantees shall have the right and privilege of the use of the well located on the above described land.’
5. That the well referred to above is not located on the land conveyed to the defendant by the plaintiff as described in Book 7-K page 665, but is located on the following described land: Begin at a point 98 feet East of the SW corner of the SE1/^ of the SE% of Section 16, Township 7 North, Range 20 West, and run East 562 feet; thence North 355 feet; thence West 78 feet; thence South 169 feet; thence West 370 feet; thence South 44 feet; thence West 114: feet; thence South 142 feet; thence to the point of beginning, containing 2.9 acres more or less.
6. That the parties herein and each of them and their tenants, assignees, licensenees [sic] shall have the right to use the above mentioned well.
It is therefore considered, ordered, and decreed that the deed recorded in Book 7-K page 665 from plaintiff to defendant be corrected as follows: ‘It is specifically agreed that the grantor and grantees, their tenants, assignees, and licensenees [sic] shall have the right and privilege of the use of the well located on the plaintiff’s property described as follows:
Begin at a point 98 feet East of the SW corner of the SE1^ of the SE1^ of Section 16, Township 7 North, Range 20 West, and rnn East 562 feet; thence North 355 feet; thence West 78 feet; thence South 169 feet; thence West 370 feet; thence South 44 feet; thence West 114 feet; thence South 142 feet; thence to the point of beginning containing 2.9 acres more or less.
The costs of this action are adjudged against the plaintiff.”

No appeal was taken from the 1966 decree but soon after it was rendered Mrs. Hedgepeth erected the division line fence, now in litigation, seventeen inches west of the water well.

In the hearing on the petition giving rise to the appeal now before us the evidence was directed to the location of the north-south division line between the property conveyed to the Kirbys by Mrs. Hedgepeth and the property she retained. The evidence offered is in irreconcilable conflict. Mrs. Hedgepeth testified that she sold to Kirbys her laud west of the water well; that Kirby measured the south boundary line from the southwest corner with a steel tape and drove a marker down at the southeast corner of the tract, stating “right here’s where my land comes to.” She testified that this corner was later verified by a survey done by Mr. Ragsdale, who also started from the southwest corner of the forty acre tract which was near the center of a county road on the west boundary of the property. She testified that the southeast corner of the tract was established by Kirby’s measurement and the Ragsdale survey, immediately south and slightly west of the water well on her property and it was north from this point that she built her fence following the 1966 court decree. Kirby denied that he measured the south boundary line of the property when he purchased it and denied that he pointed out or assisted in any maimer with the establishment of the southeast corner of the property. He testified that when he purchased the property it was completely enclosed by an old fence with the water well about 15 feet inside the fence on the east side of the enclosure, and that he purchased all the enclosed land subject to survey. He testified that an old hedgerow had grown up just east of the fence along the east boundary line of the property he purchased and that this hedgerow was also east of the well and that it also marked the east boundary line of the property he purchased.

Mrs. Hedgepeth testified that the old fence and hedgerow marked the original boundaries of a yard for a house on the property and had nothing whatever to do with boundary lines. She denied that the property she sold io the Kirbys was ever enclosed by a fence and the testimony of other witnesses tended to support Mrs. Hedgepeth. A survey by Mr. Warndof in April 1968, tended to support Kirby’s testimony to the effect that the true east boundary line of his property, as described in his deed, lay along the old hedgerow east of the water well. Mr. Warndof did not locate, or measure from, the southwest corner of the tract as the beginning point described in the deed but began at the nearest section corner and measured 1,222 feet west to the point he considered to be the southeast corner of the Kirby property. Mr. Warndof testified, in part, as follows:

“Q. [A] re the sections, as far as you know, regular in.this area?
A. Well, it’s all more or less. Generally this one here, I’m pretty sure it is 1320. All of these measurements is based on our way of surveying which is good enough usually. It’s not precision surveying known to the coast and geodetic surveying or as you would do downtown where you pay $5,000.00 a front foot, but it’s accurate as from local standards.”

After hearing the evidence pertaining to the location of the division line between the two tracts, the chancellor found as follows:

“Prom the evidence and a view of the premises, together with the proceedings in the previous case between the parties, #10,705, it is concluded that all issues between the parties were adjudicated in the previous suit. The previous decree located the well on plaintiff’s property with both parties having the privilege of the use of the well. This of necessity fixed the boundary between plaintiff’s and defendant’s lands to the west of the well and in its present location as indicated by previous surveys and grading on defendant’s land.”
He then entered the following decree:
“Prom the pleadings, testimony of witnesses before the Court, statements of counsel, and other things and matters before the Court, the Court finds:
1. That this Court has jurisdiction of the parties and the subject matter of this action.
2. That all issues of law and fact involved in this ca’ese have, heretofore been adjudicated in a prior cause bearing No. 10,705 of the Chancery Court of Pope County, Arkansas.
3. That Defendants and each of them, their servants, agents, and employees should be restrained and enjoined from interfering with the Plaintiff’s fence in its present location, the said location being' on a north-south line commencing 27 inches west of the well as it is presently located.
4. That the Defendant’s right to the use of the well should be continued, unaffected by the location of the fence.
5. That the cost of this action should be equally divided by the Plaintiff and the Defendants.
IT IS THEREFORE ORDERED AND DECREED that the Defendants together with their agents, servants, and employees, and they hereby are enjoined and restrained from interfering with the Plaintiff’s fence and from interfering with the Plaintiff’s peaceful possession and use of said fence and the land east of the said fence, the said fence being located on a north-south line 27 inches west of the well as the well is now located. The Defendants are given the right to the use of said well free from interference by the Plaintiff. It is further ordered and decreed that the cost of this action be divided equally between the parties. The Court retains jurisdiction of the parties to make such other further orders as may be necessary.”

On appeal to this court the Kirbys rely on the following points for reversal:

“The Chancery Court was in error in ruling that all issues between the parties were adjudicated in the 1966 litigation, Pope County Chancery case No. 10,705, and in ruling that the previous decree entered therein adjudicated the issue of the boundary line between the parties’ lands, since the matter of the parties’ boundary line was not in issue and the decree was too indefinite to establish a boundary line.
The preponderance of the evidence clearly established that the disputed boundary line between the parties’ land was 98 feet east of the SW corner of the SE% of the SE% of Section 16, Township 7 North, Range 20 West, and that said boundary line physically consisted of the mature hedge and deteriorated remains of a fence which divided the parties’ property.”

The chancellor viewed the premises, he heard and observed the witnesses as they testified and was in a better position to resolve the conflict in the testimony than, we are from the record before us. Had the chancellor rendered his decree on the basis of the evidence in the record before us, we would be .unable to say his decree is against the preponderance of the evidence. The chancellor was familiar with the evidence adduced at the trial in 1966, and his decree in that case placed the well on Mrs. Hedgepeth’s property, which was the same thing as placing the division line west of the well. Mrs. Hedgepeth relied on that decree in erecting her fence only seventeen inches west of the well, where it remained undisturbed for two years and until Kirby took it down. We are unable to say that the chancellor erred in holding his 1966 decree res judicata as to the location of the east boundary line of appellants ’ property.

The doctrine of res judicata is based upon the policy of the law to end litigation by preventing a party who has had one fair trial of a question of fact from again drawing it into controversy. Ted Saum & Co. v. Swaffar, 237 Ark. 971, 377 S.W. 2d 606. In the case of Robertson v. Evans, 180 Ark. 420, 21 S.W. 2d 610, this court said:

“The test in determining a plea of res judicata is not alone whether the matters presented in a subsequent suit were litigated in a former suit between the same parties, but whether such matters were necessarily withm the issues and might have been litigated in the former suit.” (Emphasis supplied.)
And again in Ted Gaum & Co. v. Swaffar, supra:
“ . . . [R]es judicata is applicable not only to an issue actually litigated, but also governs as to matters within the issue that might have been litigated.”

We conclude that the chancellor did not err in his application of the above rules of law to the facts of this case, and having so concluded, appellants’ second point is left without merit.

The decree is affirmed.


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

text:
    St. Louis Southwestern Railway Co., et al v. Ward Jackson, Adm'r, et al
    5-4664
    438 S.W. 2d 41
    Opinion Delivered March 3, 1969

      Audrey Strait and Barrett, Wheatley, Smith & Beacon for appellants.

      Gordon, Gordon & Eddy for appellees.
   Conley Byrd, Justice.

Following’ our reversal and remand in St. Louis Southwestern Railway Co. v. Jackson, 242 Ark. 858, 416 S.W. 2d 273 (1967), this case was retried with the same witnesses used before, plus additional witnesses for both sides. The verdict in the former case was for $69,188.90 and the verdict upon which judgment was entered here is for $93,236.13. For reversal appellants set forth two points as follows:

I. There was absolutely no proof on negligence and a verdict should have been directed for all defendants.

II. The mental anguish award for the death of grandchildren was erroneous.

Appellees’ witnesses again testified about the motorists’ obstructed view of southbound freight trains and the dimness of the signal lights. Witnesses Otha Hewitt and Larry Coulson again testified that motorists traveling west did not have a clear and unobstructed view of a southbound train until they got within 150 feet of the railroad track. Other witnesses testified that this distance could be as much as 200 feet. Appellees’ witnesses again testified that the signal lights were dint and difficult to see. One witness said they were much dimmer than the railroad’s interlocking signal where the Missouri Pacific tracks cross the Cotton Belt tracks. A new witness, Albert Hess, testified that the signal lights were not near as bright as the flashing light on the car of the policeman called to investigate the second accident.

The testimony with reference to the previous two accidents within the same two-week period under similar circumstances was again presented, together with the traffic count and the overall view of the area. In the previous appeal we held this testimony sufficient to make a jury issue on excessive speed and abnormally dangerous crossing. We find that decision to be controlling here as the law of the case.

On the first appeal appellants contended that the grandparents were not entitled to recover damages for mental anguish occasioned by the death of the grandchildren because Tommy Jackson lived some few moments after the death of his children and thus any cause of action for mental anguish died with Tommy Jackson. We there pointed out that there was evidence from which the jury could find that all parties died simultaneously. In holding that the matter was properly submitted to the jury we said,

“It is true that when we had our mental anguish statute before us in Peugh, supra, we there limited recovery for mental anguish to ‘heirs at law’ of the decedent. However, where a whole family is killed in a matter of moments, as is the situation here, the bench and bar should not expect a too literal interpretation of the words ‘ heirs at law’ as the same are used in Peugh. Act 255 of 1957, creating the right to recover for mental anguish, certainly did not intend that right to be so limited.”

Upon retrial the matter came upon the same pleadings and was presented to the court under identical evidence but this time appellants contended that the grandparents are not within the enumerated relatives permitted to assert a cause of action for mental anguish under Act 255 of 1957. Under the doctrine of the law of the case, we hold that the trial court properly ruled against appellants on this issue.

We had before us an analagous situation in Moore, Admx. v. Robertson, 244 Ark. 837, 427 S.W. 2d 796 (1968) wherein we said:

“On cross appeal Robertson first contends that the trial court’s decision in favor of his codefendants, on the merits, should inure to his benefit as well. That contention is based upon a common-law rule that where one defendant answers and another defaults, a decision on the merits in favor of the answering defendant — upon a defense common to both defendants — operates as a release of the defaulting defendant. Burt v. Henderson, 152 Ark. 547, 238 S.W. 626 (1922).
“The appellee’s contention is not now available to him, because it could and should have been made on the first appeal. The rule is that the decision on the first appeal is conclusive of any arguments that were or could have been made at that time. Storthz v. Fullerton, supra. The case at bar confirms the wisdom of the rule. If the appellee’s contention has merit — a point which we do not decide — its assertion on tlie first appeal would have done away with the necessity for a second trial and a second appeal, with their attendant expenditure of time and money. Such waste can be effectively prevented only by a strict adherence to the principle that points not urged upon the first appeal are not available later on.”

We would be less than honest if we did not agree with appellant that the law of the ease doctrine is a harsh rule, but when weighed on the scale of justice we find that tlie confusion and uncertainty which would result without use of the doctrine outweighs the harshness. In Porter v. Hanley, 10 Ark. 186 (1849) we had before us a case which after remand was retried upon substantially the same evidence. In applying the law of the case doctrine, we said:

“The counsel for the appellant has argued at some length, tlie main question decided by this Court upon the first appeal, and asks that we review that decision for the purpose of correcting what he assumes as error in the decision. We have duly considered this proposition (for the question is not raised by the assignment of errors) and inasmuch as the decisions of this Court have not been altogether uniform on this point, we will proceed to review them and determine whether, in the after adjudications of this Court upon the same case, its decisions can, under any circumstances, be modified or overruled. The cases of The Real Estate Bank v. Rawdon et al., 5 Ark. 558. Fortenbury v. Frazier et al., 5 Ark. 202 and Walker & Faulkner v. Walker, 2 Eng. 542 expressly decide that after the term has expired at which the decision is made, it is final and conclusive between the parties; that the Circuit Court is bound by the decision of this Court and must carry it into execution; that the inferior court cannot vary the decision, nor can it give further relief as to any matter decided, not even when it is apparent that this Court has mistaken a material fact. In the case of Fortenbury v. Frazier, et al., the court says ‘After a case has been decided by the Supreme Court and remanded to the inferior Court and is again brought before the Supreme Court, nothing is before the Court for adjudication but the proceedings subsequent to the mandate.5 In the ease of The Real Estate Bank v. Rawdon et al., 5 Ark. 558, upon a question as to whether the Court had power to reconsider its decisions at the close of the term at which they were made, although the Court were divided, a majority being of opinion that even though the motion is made at the same term, it must be decided also at that term or the judgment will be conclusive, still they were unanimously of the opinion, that where no motion for a reconsideration is interposed, the decisions at the close of its term, became final and conclusive upon the parties.
“In a more recent case, (Rutherford, use, &c. v. Lafferty, 2 Eng. 402,) this court seems to have departed from the rule laid down in these cases, whilst their authority is not questioned. On the contrary, it would seem that the court recognized the general principle, but based its decision upon the fact that the Supreme Court, in its former decision, had overlooked an important fact in the case. This was doubtless true; but then the question recurs, can the decision be held as conclusive between the parties and yet subject to correction and revision as to a misapprehension of facts? If for these, why not for errors as to the law also? We are at a loss for any satisfactory reason for the distinction, and are unwilling to concede that it should exist. It would not only authorize the appeal made to the court in this instance, but in all cases where the counsel, in their zeal for the success of their clients, might and doubtless would, where there was a hope of success, ask that the whole case be reviewed. The uncertainty and confusion which would result from such a practice, would strike vitally that progressive principle which lies at the foundation of all judicial proceedings so happily illustrated in the order and system of pleading and practice, which make each definite step in the progress of the cause conclusive upon the parties, and point them prospectively to an ultimate and final decision of the case. These rules of pleading have their origin in the same common principle alike applicable to the judgments of courts, where litigation ceases, and the judgment of each court is final and conclusive in the inferior courts unless set aside or reversed by an appellate tribunal; in the superior court, unconditionally so. If the propriety of this rule could need illustration, it is abundantly to be found in the case of Rutherford, use, &c. v. Lafferty. There the Supreme Court decided that the plaintiff had no right of action whatever in the matter in controversy, and reversed the decision of the Circuit Court. When the case returned to the Circuit Court, in obedience to the decision of this court it decided that the plaintiff had no right of action, and rendered judgment against him for costs. The plaintiff appealed to this court again, and this court reversed the decision of the Circuit Court which had been rendered on the mandate of this court, for the reason that this court had mistaken an important fact in the case. So that, in fact, there are two decisions on the point totally different. We think the cases of Fortenbury v. Frazier et al., and the R. E. Band, v. Rawdon et al., well sustained, both upon authority and principle, and give them our full approbation.”

In Floyd v. Miller Lumber Company, 160 Ark. 17, 254 S.W. 450 (1923), the issue relative to the validity of the severance tax act came before us on the pleadings. In the trial court, the complaint alleged that the tax act was unconstitutional. The trial court overruled a demurrer by Floyd, and when he elected to stand thereon, rendered judgment for the lumber company holding the act unconstitutional. On appeal we upheld the validity of the act and reversed. Upon remand, the Lumber Company amended its complaint to raise the issue that the tax act was not applicable to it. On the subsequent appeal, Miller Lumber Company v. Floyd, 169 Ark. 473, 275 S.W. 741 (1925), we held that the issue of applicability of the tax act to the Lumber Company had been foreclosed by the law of the case doctrine. In so doing, we said:

Having reached the conclusion that the tax levied by the statute was a tax on business and not on property, four members of this court for different reasons united in a decision that the tax was an occupation tax and not a property tax, and therefore was not in violation of the provision of the Constitution above quoted. Whether this decision was right or wrong, it is the law of the case; it is res judicata. The rule has been long established in this State and uniformly adhered to that in the same cause this court will not reverse nor revise its former decisions., Fortenberry v. Frazier, 5 Ark. 200; Porter v. Doe, 10 Ark. 186; Taliaferro v. Barnett, 47 Ark. 359; Vogel v. Little Bock, 55 Ark. 609; United States Annuity & Life Ins. Co. v. Peak, 129 Ark. 43; Danaher v. S. W. Tel. & Tel. Co., 137 Ark. 324; Ft Smith Lbr. Co. v. State of Arkansas, 138 Ark. 581; Stuart v. Barron, 148 Ark. 380; Mo. Pac. Rd. Co. v. Walnut Ridge-Alicia Road Imp. Dist., 160 Ark. 297; St. L. S. F. R. Co. v. Kirkpatrick, 162 Ark. 65, and numerous other cases cited under the head of Appeal and Error in 1 Crawford’s Digest, 405 and 5 Crawford’s Digest, § 405. This general rule is grounded on public policy, experience, and reason. If all questions that have been determined by this court are to be regarded as still open for discussion and revision in the same cause, there would be no end of tlieir litigation until the financial ability of the parties and ingenuity of their counsel had been exhausted. A rule that has been so long established and acted upon and that is so important to the practical administration of justice in the courts should be followed and not departed from.”

This doctrine is neither new or antiquated, but has constantly lived with this court through its many appli-, cations. At this time, we are unwilling to overrule the many precedents wherein it has been applied. For this reason the judgment is affirmed.

George Rose Smith, J., concurs; Brown & Fogleman, JJ., dissent.

George Rose Smith, Justice,

concurning. I join in the majority opinion, but I think it appropriate to add a few words of separate concurrence to call attention to an assumption made in the dissenting opinion which I think to involve a misconception of the practice that we follow in remanding a case for a new trial.

The keystone of the minority opinion in this case is the assertion that the appellant should escape the rule of the law of the case because counsel could not have successfully urged their present contention on the first appeal. This is the pivotal language in the dissenting opinion:

I would agree that when the record was such that the partjr against whom the rule [of the law of the case] is invoked could have argued the point on the first appeal, he should be foreclosed from arguing it on a second appeal. But that is not the case here. Appellants could not have argued the point on their first appeal. We would have rejected their argument had they done so, because the question would have been raised for the first time on appeal.

When we are affirming a ease we customarily reject arguments that are vulnerable to technical procedural defects, such as a failure to make the proper objection in the trial court, a failure to include in the motion for a new trial an objection in a criminal case, a failure by the trial judge to give a requested instruction that was imperfectly drawn, a failure to save an exception in a criminal case, and a host of other procedural defects that must ordinarily be given effect in the orderly conduct of litigation.

When, however, we have already found reversible error and are remanding the case for a new trial, the situation is wholly different — quite as much so as night from day. It is then our practice — and rightly so — to consider on its merits any contention that may arise again when the case is retried, regardless of procedural defects that would otherwise compel us to reject the contention. The only requirement is that the point be brought to our attention in the briefs (which was not done on the first appeal in Mode v. State, relied upon by the minority opinion in the case at bar).

Our practice in this respect is so well settled that examples could be found in any volume of our Reports published during the past quarter century or so. I will cite only our unanimous opinion in Arkansas State Highway Commn. v. Ark. Real Estate Co., 243 Ark. 738, 421 S.W. 2d 882 (1967), because there we considered on the merit not one but two contentions that were procedurally defective. One, we held that upon a new trial the appellant would be entitled to a certain instruction, even though the one offered at the first trial was properly rejected because it ivas imperfectly drawn. Two, we pointed out that one of the appellant’s contentions might be unsound upon a second trial, even though we could not tell from the appellant’s abstract on the first appeal whether the trial court had erred at the original trial.

Our practice is demonstrably right. It involves no unfairness ¡either to the trial court or to the losing party, because the case is going back for a new trial in any event. Hence what we fry to do is to prevent still a third trial as a result of some error that is called to our attention upon the first appeal. The view of the dissenting opinion, on the other hand, would encourage such unnecessary third trials by requiring us to reject, on procedural grounds, contentions that ought to be disposed of on their merits upon the first appeal.

Indeed, the present case illustrates my point. The minority opinion is in error, I think, in its concluding observation: “In this ease it should be less difficult to recognize the ¡error urged by appellants because we would not be faced with the bugaboo of a third trial. We simply could reduce the judgment by the amount of the award for mental anguish.”

Here the bugaboo is not that of a third trial; it is that of a second trial, as far as the point now at issue is concerned. On the first appeal the railroad company argued, though for the wrong reason, that the grandparents were not entitled to recover for mental anguish. The company could and should have presented its present argument at that time. In that way even a second trial upon the extent of the grandparents’ mental anguish (which is a question of fact under Peugh v. Oliger, 233 Ark. 281, 345 S.W. 2d 610 [1961]) would have been avoided. Thus the damage has already been done, and it is only by adhering to the doctrine of the law of the case that we can effectively prevent such wasteful and unnecessary retrials in the future.

John A. Fogleman, Justice.

I concur in all of the court’s application of the “law of the case” except as to that portion relating to the mental anguish award to grandparents. I do not think that the doctrine has any application to this part of the judgment of the court below. While the rule is a necessary and salutary one, its recognized harshness should not be extended beyond those situations in which it is necessary, particularly to reach a patently erroneous result, as is the case here. I have been unable to find any ease where this court has made the doctrine applicable to a situation of this sort.

In order to illustrate, it is necessary to review the record of this and the previous proceeding. At the time of the first trial, the circuit judge gave instructions permitting recovery by grandparents for mental anguish. The reason given for the objection by appellants to the instructions was that the proof showed that the children were survived by their father and that the claim for mental anguish died with him, extinguishing itself, and did not then pass on to the grandparents. The point relied on by appellants on the first appeal is stated in the opinion. See St. Louis Southwestern Railway Co. Et Al v. Ward Jackson, Adm’r Et Al, 242 Ark. 858, 416 S.W. 2d 273, 283. The point was argued on the basis that the right to recover for mental anguish was vested in the father and that the undisputed evidence showed that he survived the two children by from one to fifteen minutes.

We disagreed with the appellants on this point but solely on the ground that there was testimony from which the jury could find that all occupants of the automobile were killed instantly. In covering the point, we said:

“It is true that when we had our mental anguish statute before us in Peugh, supra, we there limited recovery for mental anguish to ‘heirs at law’ of the decedent. However, where a whole family is killed in a matter of moments, as is the situation here, the bench and bar should not expect a too literal interpretation of the words ‘heirs at law’ as the same are used in Peugh. Act 255 of 1957, creating the right to recover for mental anguish, certainly did not intend that right to be so limited.”

This point was not treated any further. Its determination was not necessary to a decision of the case. Wo reversed for error of the trial court in admitting expert testimony as to the abnormally dangerous condition of the railroad crossing and for admission of certain special instructions given by appellants to their employees. Our opinion directed a new trial.

I do not think that the doctrine of the law of the case should be applied because the present issue is not one which was decided on the previous appeal and the decision made on the previous appeal was not necessary to the disposition of the case. When the instructions concerning the grandparents ’ right to recover for mental anguish were presented on the new trial, appellants did not attempt to again raise the question which was decided by this court. It simply objected on the basis that grandparents had no right to recover mental anguish for the death of grandchildren under our statute because they are not within any permissible class of relationship.

The application of the rule made by the majority would mean that every litigant will have to make every possible objection to any step in the trial which he considers erroneous, even when the trial court may rule favorably on the first objection he makes. This would mean that one who had objected to testimony on the basis that it was irrelevant could not object to it on the basis that it was hearsay in a new trial granted upon reversal of the trial court because of its erroneous ruling on that point in the first trial. I cannot find any case where snch an extreme application of the rule has been made. The majority has cited no snch case in its opinion. The cases it did cite are distinguishable.

In Moore, Adm’x v. Robertson, 244 Ark. 837, 427 S.W. 2d 796, we clearly said that since the contention in question could and should have been made on the first appeal, it was barred. I would agree that when the record was such that the party against whom the rule is invoked could have argued the point on the first appeal, he should be foi-eclosed from arguing it on a second appeal. But that is not the case here. Appellants could not have argued the point on their first appeal. We would have rejected their argument had they done so, because the question would have been raised for the first time on appeal.

In Storthz v. Fullerton, 185 Ark. 634, 48 S.W. 2d 560, this court remanded an equity case to the chancery court with directions to enter a decree and for further proceedings to enforce a vendor’s lien for the benefit of Fullerton. See Fullerton v. Storthz, 182 Ark. 751, 33 S.W. 2d 714. On remand, Storthz filed a new pleading in which he sought to reach the lien note in Fullerton’s hands by equitable garnishment. The court referred to the “law of the case,” but actually applied res judicata. It is clear, however, that the contentions made there could have been made on the former appeal. In this case the direction was to grant a new trial, not to enter a judgment. Storthz was endeavoring to have the court determine whether the judgment directed by this court be entered and carried into effect. Appellants are not seeking to do this. Furthermore, appellants could not have argued the objection now urged on the former appeal.

In Miller Lumber Co. v. Floyd, 169 Ark. 473, 275 S.W. 741, the appellees had filed a demurrer, which was overruled and final chancery decree was entered against them. The judgment was reversed and the cause remanded for proceedings not inconsistent with the opinion. The only question involved the constitutionality of the Severance Tax Act. On remand, appellees in the first case amended the complaint raising-issues as to the construction and application of the act. The trial court sustained a demurrer to the amended complaint and again entered final decree. From this decree, the second appeal was taken. Appellants again argued that the act was unconstitutional. On the first appeal, the decision was based upon a holding that the tax was an occupation tax not a property tax. On the second appeal the contentions of Miller Lumber Company were such that it would have been necessary for the court to say that the tax was on property rather than on the occupation. "We properly applied the “law of the case” doctrine because to do otherwise would have required a reversal of the holding that the tax was not a property tax.

Although the doctrine has been applied in Arkansas with reference to instructions given on the first trial, none of the cases indicate that it has application where the objection made on the second trial was not the same as that made on the first trial.

In Friedman v. Cornish, 99 Ark. 648, 139 S.W. 543, we recited that all the instructions on the former trial were repeated on the second trial except for an erroneous instruction, in lieu of which an instruction in accordance with the opinion of the court on prior appeal was given. The points raised on the second appeal are not stated. The court only said that the instructions approved on the former appeal or not disapproved were the law of the case and the instructions, as given, fairly submitted the cause to the jury.

In St. Louis, I. M. & F. Ry. Co. v. Gibson, 113 Ark. 417, 168 S.W. 1129, we only said that it was sufficient answer to unspecified assignments of error to the giving of instructions to say that the instructions given on the second trial were in conformity with the rules of law laid down in the opinion on the first appeal.

In Scott v. Cleveland, 122 Ark. 259, 183 S.W. 197, it was held that the opinion on a former appeal did not settle the law of the case as to certain instructions. The former opinion had stated that the only error committed by the trial court was in refusing to grant a continuance. The instructions in question were refused, but it does not appear that these two instructions were asked and refused on the former trial, and they were not discussed in the first opinion. The court reversed for failure to give the instructions.

In McCombs v. Moss, 131 Ark. 509, 199 S.W. 545, we held that instructions on the second trial conforming to the rules of this court on appeal from the judgment on the first trial are deemed correct on second appeal. The case was reversed on the first appeal for failure to give an instruction. See McCombs v. Moss, 121 Ark. 533, 181 S.W. 907.

In Missouri Pacific Railroad Co. v. Foreman, 196 Ark. 636, 119 S.W. 2d 747, the court stated that instructions given on the first trial were not subject to review on the second appeal, since they were approved by the holding that there was no error in the record of the first trial ¡except in the argument of one of the attorneys. The first opinion (194 Ark. 490, 107 S.W. 2d 546) specifically stated that the usual questions arising in such cases were present and discussed in the briefs but that no error was found except in the particulars stated therein.

In Thacker v. Hicks, 215 Ark. 898, 224 S.W. 2d 1, the principal objection to the instructions was that there was no competent evidence to support the giving thereof. We said that the holding on the first appeal, that there was no error in the refusing or giving of instructions, was binding as the law of the case insofar as these instructions were concerned.

The only question decided on the first appeal in this case was that there was a fact question as to whether the father of the minors survived them. The instruction given was not mentioned, nor was anything said about the right of grandparents to recover for mental anguish. It was not necessary to the decision of the case to do so. The former opinion has become binding as the law of the case to the extent that the questions there involved were decided. Baker v. State, 201 Ark. 652, 147 S.W. 2d 17. See also St. Louis, I. M. S. Ry. Co. v. DeLambert, 120 Ark. 61, 178 S.W. 926. In St. Louis & S. F. R. Co. v. Conarty, 124 Ark. 454, 188 S.W. 310, we quoted with approval a statement by the United States Supreme Court that the rule does not apply to expressions of opinion on matters the disposition of which was not required for the decision. We also said:

“Whatever was before the court and disposed of is considered as finally settled, but the inferior court, upon the case being remanded, is justified in considering and deciding any question left open by the mandate and opinion, and may consult the opinion to ascertain exactly what was decided and settled. * * * ”

While our opinions have stated that the law of the case applied to all questions which were raised, or might have been raised on the first appeal, I find none that extend the principle to those which might have been raised in the trial court but not in this court. Obviously, any question raised on appeal that was not raised in the trial court would not be entertained by this court. We have refused to consider such questions in many cases where a new trial was or should have been anticipated. Holland v. Ratliff, 238, Ark. 819, 384 S.W. 2d 950; Ransom v. Weisharr, 236 Ark. 898, 370 S.W. 2d 598; Industrial Farm Home Gas Co. v. McDonald, 234 Ark. 744, 355 S.W. 2d 174; Lee Rubber & Tire Corporation v. Camfield, 233 Ark. 543, 345 S.W. 2d 931; Robinson v. Martin, 231 Ark. 43, 328 S.W. 2d 260; Missouri Pac. R. Co. v. Gilbert, 206 Ark. 683, 178 S.W. 2d 73.

In order to say that ail objection not raised in the trial court on the the first trial cannot be raised on the second trial, we must disregard the effect of the remand of a case for a new trial on reversal. When we do this, the slate is wiped clean, as if there had never been any trial. The case stands in the attitude it was just prior to going into trial. Heard v. Ewan, 73 Ark. 513, 85 S.W. 240. In Hartford Fire Ins. Co. v. Enoch, 79 Ark. 475, 96 S.W. 393, we said:

“ * * # "When, on appeal or writ of error, a cause is reversed and remanded for new trial, the case stands as if no action had been taken by the lower court. Harrison v. Trader, 29 Ark. 85; Heard v. Ewan, 73 Ark. 513, 85 S.W. 240. If the facts developed on second trial remain the same as they were on the first trial, the lower court must be governed, in applying the law to the facts, by the principle announced by this court in that case as controlling. * * * ” [Emphasis mine.]

No better statement of the principle involved could be made than was contained in Palmer v. Carden, 239 Ark. 336, 389 S.W. 2d 428, where we said:

“ * * * This court reversed the trial court judgment in that ease, and remanded the cause, and we have said, on numerous occasions, that, when a judgment is reversed and remanded for new trial, the case stands as if no action at all had been taken by the trial court. This was first stated as far back as 1874 in the case of Harrison v. Trader and Wife, 29 Ark. 85. In that case, we quoted language from the case of Simmons v. Price, 18 Alabama 405, as follows:
‘When a judgment is reversed, the rights of the parties are immediately restored to the same condition in which they were before its rendition; and the judgment is said to be mere waste paper.’
Since that time, we have had occasion to reiterate this statement many times. See Hartford Fire Ins. Co. v. Enoch, 79 Ark. 475, 96 S.W. 393; Holt v. Gregory et al., 222 Ark. 610, 260 S.W. 2d 459. * * *

See also Clark v. Ark. Democrat Co. 242 Ark. 133, 413 S.W. 2d 629, Supplemental Opinion, 242 Ark. 497, 413 S.W. 2d 633; Morgan Engineering Co. v. Cache R. Drain. Dist., 122 Ark. 491, 184 S.W. 57.

Not only did our opinion specifically remand tire case for a new7 trial, but the mandate directed “further proceeding's not inconsistent with the opinion herein.” The result reached by the majority ■would probably be proper if the case had not been remanded for new trial. The rule followed in the majority opinion would be applicable as to any issues if the mandate had given instructions to render a judgment in accordance with the opinion on first appeal. See Hollingsworth v. McAndrew, 79 Ark. 185, 95 S.W. 485; Hill v. Draper, 63 Ark. 141, 37 S.W. 574; Prewitt v. Waterworks Improvement Dist. No. 1, 176 Ark. 1166, 5 S.W. 2d 735. The same result has been reached as to new7 issues where the directions to the circuit court were to affirm the judgment of a county board of education. Milsap v. Holland, 184 Ark. 996, 44 S.W. 2d 662. The correct result was reached as to new issues in Shackleford v. Arkansas Baptist College, 183 Ark. 404, 36 S.W. 2d 78, because w7e affirmed the judgment of the trial court, as modified, on first appeal. See 181 Ark. 363, 26 S.W. 2d 124. While the rule is called “larv of the case” there, the doctrine of res judicata was actually applicable.

It is only the law specifically declared on the first appeal that must be followed. In Linograph Co. v. Bost, 180 Ark. 1116, 24 S.W. 2d 321, we said:

“Where a case has been to the Supreme Court and been reversed, the law announced on the former appeal is the law of the case. Propositions of law once decided by an appellate court are not open to reconsideration in that court upon a subsequent appeal. Whatever was decided on the first appeal remains the law of the case for all further proceedings. Morris & Co. v. Alexander & Co., 180 Ark. 735, 22 S.W. (2d) 558; Fentres v. City National Bank, 172 Ark. 711, 290 S.W. 58. However, the decision on former appeal is the law of the case as to so much of the case as was adjudicated. Henry v. Irby, 175 Ark. 614, 1 S.W. (2d) 49; Chicago Mill & Lumber Co. v. Osceolo Land Co., 94 Ark. 183, 126 S.W. 380.
Tbe only question adjudicated in this case on former appeal was the right of appellant to maintain the suit. This question was settled on the former appeal and cannot be reconsidered. The other issue raised by tbe pleadings was not adjudicated on former appeal and is not res adjudieata. ’ ’

We have previously permitted new issues to be raised on a retrial after reversal mid remand. For instance, in American Surety Co. of N. Y. v. Kinnear Manufacturing Co., 185 Ark. 959, 50 S.W. 2d 586, this court refused to apply the “law of tbe case” from a previous appeal. Upon remand the complaint was amended to allege that- an architect was guilty of such inattention and indifference as to imply bad faith. This issue was then submitted to the jury under instructions correctly declaring the law on that subject. On the previous appeal, the court had held an instruction touching upon this issue to be correct. Tbe reversal was foi failure to give that instruction. Thus, one of the parties was permitted, upon retrial, to raise a new issue. In effect, this is what is being done here.

In Morgan Engineering Co. v. Cache R. Drain. Dist, supra, the court refused to apply the d >etrine. The appellant contended that the circuit court on trial after remand, was foreclosed from inquiring into the validity of a contract. It asserted that the language of the opinion on the former appeal was an adjudication of the binding effect of the contract and that the trial court and the parties were bound under the law of the case. The reversal on the former appeal AYas based upon the failure of the trial court to take proof of the value of services rendered under the contract and to find for appellant for that amount. On retrial, an issue was made as to the validity of the appellee district and, incidentally, the validity of the contract. In referring to authorities cited by appellant, we said that those decisions simply announced and adhered to the rule that where an issue has been raised in the court below and has been finally adjudicated on appeal to the Supreme Court the same issue cannot be reopened on another trial. We said that a remand for further proceedings in accordance with the opinion was in effect a remand for a new trial in general, which contemplated that there was to be a new trial on the issues that might be presented. The language used there is particularly significant here:

“Now, on the first trial the appellees (Interveners) did not challenge the validity of the drainage district, and they introduced no evidence to show that the district was invalid. Their contention Avas that under the act abolishing the district the appellant should be alloAved to recover only such compensation as the jury might find reasonable. They did not directly call in issue appellant’s contract, but only claim that it was not entitled to recover under it. On the last trial the issues were entirely changed. By permission of the court the appellees were permitted to put forth an entirely new defense to appellant’s claim, and to set up that, the district being void for uncertainty, the directors had no authority to enter into a contract Avith appellant, and that therefore such contract was void, and that appellant Avas not liable at all, and they introduced evidence to sustain their contention. Thus the issues and the facts on the last trial were entirety different from what they were on the former appeal, and hence what was said by us in the former opinion as to the contract and its binding effect would not be the law applicable to the changed issues and facts as discovered by this record.”

This court has actually followed and applied the principle I would follow in Mode v. State, 234 Ark. 46, 350 S.W. 2d 675. The rule of law of the case was applied in this second appeal from a conviction of murder. On the second appeal, the admission of testimony relating to the good character of the deceased was asserted as error. The court decided the question of admissibility, saying:

“This assignment cannot be disposed of by the rule of ‘law of the case’ because, in the first tria_, there was no objection to testimony of the good character of the deceased.”

If by making no objection to the admissibility of testimony, a party is not later barred from objecting, I can perceive of no reason why he should not be permitted to make a different objection on a second trial. In order to say that a different objection cannot be made on a second trial, we must necessarily apply the doctrine of waiver, which would be just as applicable in a case where a party made no objection. If the principle followed in Mode v. State were applied to jury instructions, then a party who had made no objection to a jury instruction on a first trial could object on a trial after reversal and remand. I can see no logic in permitting this and not permitting a party to make a different objection on the second trial.

In this case it should be less difficult to recognize the error urged by appellants because we would not be faced with the bugaboo of a third trial. YYe simply could reduce the judgment by the amount of the award for mental anguish. The jury awarded $24,000 to each set of grandparents. We could correct the error by reducing the judgment in the amount of $48,000.

Brown, J., joins in this dissent.