text:
    St. Louis-San Francisco Railway Co. v. Friddle.
    5-3196
    375 S. W. 2d 373
    Opinion delivered February 17, 1964.

      Warner, Warner, Ragon & Smith, for appellant.

      Harold C. Rains, Jr. for appellee.
   Jim Johnson, Associate Justice.

This is a suit for damages caused by a tortious burning of appellee’s land. On April 21, 1962, sparks and fire from a train operated over the railroad track of appellant, St. Louis-San Francisco Railway Company, burned through appellant’s right of way onto the land of appellee, J. A. Friddle. Approximately fifteen acres of appellee’s 200-acre farm were burned over.' Of the fifteen acres burned, six were on top of a mountain and fenced by appellee. The remaining nine acres were unfenced property on the side of the mountain. Appellee claimed damage to two acres of meadow, four acres of wooded pasture, four acres of pine seedlings and five acres of growing timber. In addition, appellee claimed that a portion of the fence burned and that he was forced to employ help to control and put out the fire. Suit was filed in Crawford Circuit-Court seeking to collect $6,000.00 damages. The parties having stipulated that the fire was caused by the negligent operation of the train, the only issue before the jury was the amount of damages, if any, to which appellee was entitled. At trial on July 8, 1963, the jury returned a verdict for appellee in the sum of $2,000.00. From judgment on the verdict, appellant has perfected this appeal.

For reversal, appellant urges that (1) the trial court erred in submitting its instruction number five to the jury, and that (2) the verdict of $2,000.00 was grossly excessive and without support of substantial evidence.

The court’s instruction No. 5 reads as follows:

“You are instructed that the measure of damages in this case is the difference in the fair market value of the land immediately before and immediately after the burning. The burden is upon the property owner to establish the amount of his damages by a preponderance of the evidence.”

Appellant concedes that, “When real property is permanently injured, the proper measure of damages is the diminution in the fair market value of the property by reason of that injury or, in other words, the difference between the value of the property before and after the injury. Missouri Pacific R. Co., Thompson, Trustee v. Clements, 225 Ark. 268, 281 S. W. 2d 936; Benton Gravel Co. v. Wright, 206 Ark. 930, 175 S. W. 2d 208; 15 Am. Jur., Damages § 109, p. 518; 25 C.J.S., Damages § 84, p. 603;” but contends here that before this rule is applied, the act complained of must effect a lasting change in the realty itself, urging that the permanency of the injury is the proper test to be applied, and that a temporary injury is not compensated on the basis of diminished market value, citing Ross & Ross v. St. Louis I.M. & S.R. Co., 120 Ark. 264, 179 S. W. 353; 87 A.L.R. 1392.

All of appellee’s testimony seemed to be directed toward showing the permanency of the injury, and his value testimony was directed toward proof of the market value of the property before and after the injury. Appellant made no objection to this testimony, nor did appellant request any instruction at all on the measure of damages, and admitted having only objected generally to instruction No. 5 as given.

The state of the record being thus, the appellant cannot be heard to complain in the Supreme Court for the first time that the measure of damages which was adopted was not the correct rule. See generally, Standard Oil Co. of Louisiana v. Goodwin, 174 Ark. 603, 299 S. W. 2. This court cannot consider the specific objection hero urged to the instruction by the appellant. If appellant desired that the instruction should cover the particular matters of which it now complains, it should have first drawn the attention of the trial court to these matters by specific objection. St. Louis I.M. & S.R. Co. v. Carter, 93 Ark. 589, 126 S. W. 99. Appellant having failed to offer any specific objection to the instruction in the trial court, under the general objection made to the instruction we can only consider such instruction to determine whether there are any inherent defects therein. St. Louis San Francisco R. Co. v. Cox, 171 Ark. 103, 283 S. W. 31. Since appellant permitted appellee to try this case upon the theory of the permanency of the damage without specific objection, we cannot say that instruction No. 5, which stated the rule conceded to be applicable to permanent'damage, was inherently wrong.

The second point urged by appellant for reversal is that the verdict of $2,000.00 was grossly excessive and without support of substantial evidence. After stating his opinion on the before and after value of his property, appellee and his son testified in careful detail on the damages occasioned by this fire, without objections from appellant. Appellant’s witnesses testified on their opinions of appellee’s damages, estimating the loss on a per acre basis. The jury’s function was to evaluate the witnesses and their testimony and arrive at a damage amount if they found that appellee was in fact damaged by the fire. Their verdict was less than appellee’s opinion testimony on damages, and more than appellant’s. After a careful review of the whole case, we find that the jury’s verdict was supported by substantial evidence, was not influenced by prejudice and the amount was not so grossly excessive as to shock the conscience of the court. Beggs v. Stalnaker, 237 Ark. 281, 372 S. W. 2d 600.

Affirmed.


source: Caselaw Access Project

author: Frank Holt, Associate Justice.

license: Public Domain

text:
    United States of America v. McGehee.
    5-3149
    375 S. W. 2d 365
    Opinion delivered February 17, 1964.

      Louis F. Oberdorfer, Lee A. Jackson, Joseph Kovner, J. Edward Schillingburg, Washington, D.C., Charles M. Conway, E. A. Riddle, for appellant.

      Davis <& Mills, Peter G. Estes, James R. Hale, Wade c& McAllister, for appellee.
   Frank Holt, Associate Justice.

The question presented in this case relates to the priorities of various liens. The appellant, United States of America, and the appellees, hereinafter named, were made defendants in a foreclosure proceeding whereupon each of them filed cross-complaints to enforce their claims as lienholders. Upon the foreclosure sale, after payment of costs and the indebtedness to the plaintiff-mortgagee, Frank E. McGehee and The First Pyramid Life Ins. Co. of America, there remained a surplus of $9,119.10 which was insufficient for the payment of all the competing liens. The Chancellor found and awarded priority and payment of the liens among the appellees and appellant as indicated by us in words and figures as follows:

Nature Date Date of Amount Amount Claimant_of Claim Assessed Priority of Claim of Award

Shelton Material & 8/25/60 $1,839.85 $1,839.85 _labor lien_(Date furnished)_

Houston Labor lien 3/10/61 218.03 218.03 _(Date performed)_

United States Tax lien 11/16/60 5/3/61 1,499.99 1,499.99 _# 10,744_(Date filed)_

Roberts Material & 6/19/61 755.54 755.54 _labor

Gibson Mortgage 6/21/61 9,293.33 3,911.56 _(Date recorded)___

State of Ark. Tax lien 6/23/61 885.97 885.97 _(Date filed)_

United States Tax lien 5/26/61 8/9/61 2,324.28 8.36 _# 11,824_(Date filed)_

United States Tax lien 10/25/62 10/25/62 1,296.42 # 62-10-137 (Stipulation)

Only the United States of America appeals from this decree. Appellant’s first contention for reversal is that its three tax liens are superior to the three state created material or labor liens (Shelton, Houston and Roberts) because they had not been reduced to a sum certain or judgment and, therefore, were not choate before the federal tax liens arose.

A federal lien is created by 26 U.S.C.A. § 6321. A federal tax lien arises “at the time the assessment is made”. 26 U.S.C.A. ^ 6322. As to when a state created lien arises, Ark. Stat. Ann. § 51-601 (1947) et seq, provides that upon the date of supplying material or labor one shall have a lien therefor; also, that an account of the amount due must be filed with the Circuit Clerk within ninety days; that an action for judgment must be commenced within fifteen months from the filing of the account and then the Circuit Court, upon a fair trial, must ascertain the amount of the indebtedness and render a judgment thereon.

The federal rule is that liens are choate when [1] the identity of the lienor, [2] the property subject to the lien, and [3] the amount of the lien are established. United States v. New Britain, 347 U.S. 81. Under Arkansas law the general rule is well settled that a materialman’s or laborer’s lien attaches as of the date of furnishing material or performing labor and, thus, is in effect before being reduced to a judgmeht. Ark. Stat. Ann. § 51-601, et seq, supra; Franks v. Wood, 217 Ark. 10, 228 S. W. 2d 480. It is, therefore, appellees’ contention that their liens take priority where they furnished material and labor before appellant filed its tax liens.

The collection of debts owing to the United States is a federal question and it is a matter of federal law when a state created lien has acquired sufficient substance and become so perfected as to defeat a federal tax lien. United States v. Security Trust & Savings Bank, 340 U. S. 47; Aquilino v. United States, 363 U. S. 509. The reasoning is that this is necessary in order to achieve uniformity in the treatment of federal tax. liens in relation to liens created by state law. As was stated in United States v. New Britain, supra:

‘ * * * Otherwise, a State could affect the standing of federal liens, contrary to the established doctrine, simply by causing an inchoate lien to attach at some arbitrary time even before the amount of the tax, assessment, etc., is determined.”

In the recent case of United States v. Pioneer Ins. Co., 235 Ark. 267, 357 S. W. 2d 653, we held that the mortgagee’s lien for an attorney’s fee, provided for in the mortgage, was choate when the federal tax liens were filed after the mortgage was recorded, the mortgagor had defaulted, the foreclosure suit was instituted, and the property sold. However, these tax liens were filed before a judicial determination of the amount of a reasonable attorney’s fee. On appeal, in United States v. Pioneer Ins. Co., 374 U.S. 84 (1963), the United States Supreme Court, in reversing our decision, said:

“Clearly the identity of the lien holder and the property subject to the lien are definite here, but it is equally apparent that the amount of the lien for attorney’s fees was undetermined and indefinite when the federal tax liens in question were filed. * * * the ‘reasonable attorney’s fee’—reasonable in relation to the service to be performed by the attorney—had not been reduced to a liquidated amount. The final amount was to be established by court decree and the Chancery Court set the fee considerably below the sum requested. * >:s * when a mortgagee has a lien for an attorney’s fee which is uncertain in amount and yet to be incurred and paid, such a lien is inchoate and is subordinate to the intervening federal tax lien filed before the mortgagee’s lieu for attorney’s fee matures.”

This case follows the rule enunciated in earlier decisions relative to when a state created lien is choate or inchoate when competing with a federal lien. See, also, W. T. Jones & Co. v. Foodco Realty, Inc., 318 F. 2d 881 (C. A. 4th Circuit, 1963).

In the case at bar two of the tests of choatcness have been fulfilled, namely, the identity of the lienors and the property subject to the liens. The third test, however, has not been fulfilled because the amounts of the material and labor liens have not been determined with sufficient certainty.- It is true that an amount for each lien was furnished when the accounts were filed, but Ark. Stat. Ann. § 51-621 provides that the amount of the lien is subject to a future judicial determination. See, also, United States v. Colotta, 350 U.S. 808; United States v. White Bear Brewing Co., 350 U. S. 1010; United States v. Vorreiter, 355 U. S. 15; United States v. Hulley, 358 U. S. 66. Therefore, we must hold that neither of the three federal tax liens can be subordinated to any of the material and labor liens since none of the latter wore choate by being reduced to a judgment or definitely established in amount at the time of the assessment of the federal liens. The status of these state created liens, before being reduced to a liquidated amount, serves “merely as a caveat of a more perfect lien to come”. New York v. Maclay, 288 U. S. 290.

The appellant also contends for reversal that the Chancellor erred in granting the state tax lien priority over federal tax lien No. 11,824 which arose before the state tax had been assessed. It is appellant’s contention that the Chancellor was in error in according to the state tax lien the status of a judgment-creditor under 26 U.S.C.A. § 6323 (a) and, therefore, priority over federal tax lien # 11,824. This federal tax lien was assessed on May 26, 1961 and filed on August 9, 1961. The state tax lien was assessed on June 23, 1961 pursuant to Ark. Stat. Ann. § 84-1912 (Repl. 1960) which provides that a certificate of indebtedness filed by the Commissioner of Revenue with the Circuit Clerk, when entered on the judgment docket of the Circuit Court, has “the same force and effect as an entry on such judgment docket of a judgment rendered by the Circuit Court”.

It is well settled that a state may make whatever provisions it desires for the internal administration of its own tax laws. United States v. Waddill Co., 323 U. S. 353. However, as stated previously, the interpretation of federal statutes is a federal question. United States v. Security Trust & Savings Bank, supra; United States v. Acri, 348 U.S. 211.

In United States v. Gilbert Associates, 345 U.S. 361, the town of Walpole, New Hampshire assessed an ad valorem tax and the state law provided that such an assessment had the same effect as a judgment. In holding that the assessment of this ad valorem tax did not make the city a “judgment creditor”, the court said:

“A cardinal principle of Congress in its tax scheme is uniformity, as far as may be. Therefore, a ‘judgment creditor’ should have the same application in all the states. In this instance, we think Congress used the words ‘judgment creditor’ in § 3672 in the usual, conventional sense of a judgment of a court of record, since all states have such courts. We do not think Congress had in mind the action of taxing authorities who may be acting judicially as in New Hampshire and some other states, where the end result is something ‘in the nature of a judgment,’ while in other states the taxing authorities act quasi-judicially and are considered administrative bodies.”

Therefore, it is manifest that the State of Arkansas is not a “judgment creditor” within the meaning of 26 U.S.C.A. § 6323 (a) and it follows that its tax lien must be subordinated to federal tax lien # 11,824 which was assessed before the state tax lien was filed pursuant to Ark. Stat. Ann. § 84-1912 (Repl. 1960).

Applying the controlling principles we have discussed, the priority and payment of the federal liens from the $9,119.10 surplus should be as follows:

Date Amount Amount Claim_ Assessed_of Claim_of Award

Federal tax lien 11/16/60 $1,499.99 $1,499.99

# 10,744_._

Gibson mortgage_3,911.56_3,911,56

Federal tax lien 5/26/61 2,324.28 2,324.28

# 11,824_

Arkansas tax lien_6/23/61_885.97_885.97

Federal tax lien 1,296.42 497.30

# 62-10-137_

Material & labor liens 12/7/62 2,813.42 -

__(Reduced to judgment)__

Thus, after the payment of the appellant’s liens in this order, as contended, by appellant, there remains the sum of $3,911.56 allocated for the payment of the Gibson mortgage and $885.97 allocated for the payment of the state tax lien, or a total of $4,797.53. In conformity with our applicable state law as previously discussed [and in accord with the stipulations of the parties, except for the state] the distribution of this balance should be as follows:

Claim Amount Amount of Claim of Award

Shelton -8/25/60 $1,839.85 $1,839.85 Materials and labor furnished__

Houston 3/10/61 218.03 218.03 Labor performed_

Roberts 6/19/61 755.54 755.54 Materials and labor furnished_L_

Gibson mortgage 6/21/61 3,911.56 1,984.11 Date recorded_

Arkansas tax lien 6/23/61 885.97 - Date filed

Reversed and remanded with directions to render a decree not inconsistent with this opinion.

       “Lien for taxes If any person liable to pay any tax neglects or refuses to pay the same after demand, the amount (including any interest, additional amount, addition to tax, or assessable penalty, together with any costs that may accrue in addition thereto) shall be a lien in favor of the United States upon all property and rights to property, whether real or personal, belonging to such person.”

       “Period of lien Unless another date is specifically fixed by law, the lien imposed by section 6321 shall arise at the time the assessment is made and shall continue until the liability for the amount so assessed is satisfied or becomes unenforceable by reason of lapse of time.”

       “Invalidity of lien without notice..—Except as otherwise provided in subsection (c), the lien imposed by section 6321 shall not be valid as against any mortgagee, pledgee, purchaser, or judgment creditor until notice thereof has been filed by the Secretary or his delegate—”

       The appellant takes no issue with the priority assigned to the mortgagee-lienholder, Gibson. 26 U.S.C.A. § 6323 (a) and (c).

       No question is raised in this appeal regarding the Chancellor’s action in subordinating the third federal tax lien, # 62-10-137, to the state tax lien. The taxes for which this lien was asserted were assessed after the state taxes had been assessed.


author: Carleton Harris, Chief Justice.

text:
    Howe v. Freeland.
    5-3197
    375 S. W. 2d 666
    Opinion delivered February 24, 1964.

      Parker Parker, for appellant.

      Robert J. White, James K. Young, for appellee.
   Carleton Harris, Chief Justice.

Gruy T. Freeland, Louise Freeland, his wife, and Mike Freeland, a minor, by his father as next friend, appellees herein, instituted suit against Freddie Lee Howe, appellant herein, for alleged personal injuries and property damage sustained jn a wreck on November 27,1962. Howe answered, denying negligence, and filed his counter-claim, seeking damages for personal injuries and property damage. Appellees then answered, denying all allegations. On trial, the jury rendered judgment against appellant, fixing damages to Freeland in the amount of $1,700, to Mrs. Freeland in the sum of $1,000, and to the minor son in the amount of $300, and found against appellant on his counter-claim. From the judgment so entered, comes this appeal.

For reversal, it is first asserted that the court erred in refusing to grant appellant’s motion for a new trial because the jurors, while separated, were exposed to improper influence. The case was tried on April 19, and both appellees and appellant concluded all of their evidence on that date. Argument in the ease was to be heard the following morning.

On the night of the 19th, three boys were killed, and two others injured, in an automobile accident on Illinois Bayou Bridge, near Dover. The automobile in which they had been riding was practically demolished. According to the evidence, which was presented on the motion for a new trial, this wreckage was picked up by Cogswell Motors, and, at the direction of the Sheriff, placed in front of the courthouse. The Sheriff stated that he wanted people to see it, thinking it would have a salutory influence upon drivers who viewed it. The officer testified that he knew court was in session, but did not know what case was being tried. In his motion for new trial, appellant asserted that excessive damages were awarded to appellees because of passion and prejudice, occasioned by the members of the jury having viewed the wreckage in front of the courthouse (as they individually entered the building to complete the trial of the instant cause), and because of inflammatory statements made by appellees’ counsel (hereinafter discussed).

We find no merit in this contention. In the first place, the record reflects no objection by appellant prior to argument before the jury, nor was there any request for the court to do anything at all. It must be remembered that appellant had likewise filed a complaint against appellees, and the jury, at that time, had not found appellant guilty of negligence. As far as counsel knew, a verdict might be returned for Howe. At any rate, under these circumstances, the court could have committed no error, because it was not asked to take any action.

Point No. Two for reversal is closely related to the aforementioned argument. Appellant asserts that, before the opening of court, counsel for each side met with the judge in his chambers, and the latter admonished the attorneys to stay in the record, and not make any improper statements during the argument; that during the argument of appellees’ counsel to the jury, he asserted that the defendant (appellant) “should be taught a lesson as shown by the wreck now in front of the courthouse.” Counsel for Howe set out in his motion that he objected to the statement as inflammatory, and opposing counsel was admonished by the court to stay within the record. Subsequently, according to appellant, appellees’ counsel, in closing, again stated “that we did not want to have any more wrecks like the wreckage in front of the courthouse.” Appellant contends that these statements inflamed the minds of the jurors, causing them to bring in an excessive verdict.

The Deputy Prosecuting Attorney for Pope County testified that he “dropped in” the courtroom, and heard part of the closing argument of appellees’ counsel:

‘ ‘ The only thing I heard, Mr. Parker, was Mr. White made reference to prohibiting the terrible wrecks like we had had last night, that was the only statement I heard, that was the only time I was here approximately 5 minutes. I dropped in to hear what was going on.”

The court reporter testified that he did not take down the closing arguments, but, as he recalled, counsel for appellees made some reference to the wrecked automobile. The court stated that appellees’ counsel twice referred to the wreck, that each time the attorney for appellant objected, and that it (the court) admonished the jury to consider only the record in the case being tried. Appellant’s counsel also testified, and admitted that the jury was admonished by the court both times. The court did not recall warning the attorneys, while in chambers, that they should “stay in the record.”

We find no reversible error. Admittedly, the court admonished the jury to consider only evidence in the record each time that counsel for appellant objected. This apparently satisfied counsel, since he did not complain that the court’s admonition was insufficient, nor did he move for a mistrial. It was only after an adverse judgment had been rendered that the assertion was made that the court’s admonition was insufficient. In Adams v. Summers, 222 Ark. 924, 263 S. W. 2d 711, a witness made a statement relative to insurance. Appellant objected, and the court promptly sustained the objection, and admonished the jury to disregard the remark. Subsequently, the court, a second time, had occasion to admonish the jury not to consider any statements with reference to insurance coverage. On appeal, the appellants contended that a mistrial should have been declared, but we pointed out that no request for a mistrial was made after the jury was admonished not to consider the matter. In Ocker v. Nix, 202 Ark. 1064, 155 S. W. 2d 58, we said:

“It is next said that the court erred in permitting one of counsel for appellee to make a prejudicial argument to the jury, and in not declaring a mistrial because thereof. We cannot agree. The court sustained appellant’s objections to the remarks when made and instructed the jury not to consider them.”

Numerous cases could be cited to the same effect.

Appellant next contends that the jury’s verdict for $3,000 was excessive. We find no merit in this argument. Mr. Freeland testified that his left knee struck the dash at the time of the collision, and that he had been troubled with the knee since that time, periodically wearing an elastic bandage. Freeland, who is serving with the United States Army, stated that he is an instructor, and is required to stand on the “platform” six hours per day. He testified that his automobile had a value of $1,200 before the collision, and that the fair market value of the car was about $200 after the collision. The witness stated that he had expended $144 for doctor bills, and $71.60 for drugs.

Dr. Douglas Lowrey testified that an examination and x-ray revealed a diagnosis of ligamentous sprain of the left knee, and that Freeland would have had pain and tenderness for a couple of weeks; that the injury would cause at least a moderate amount of discomfort if Freeland had to stand on his feet for a long time. The doctor stated that any type of prolonged activity which required Freeland to be on his feet would produce pain. Of course, the amount awarded to this appellee included damages for both personal injuries and damage to the automobile, and we do not know the amount given for each. Appellant asserts that Freeland received $800 from his (Freeland’s) insurance company in payment of damage to the automobile, and that the appellee stated that the value of the car, after the wreck, was $200, leaving the actual damage to the automobile at $600. This argument was based upon an intervention purportedly filed by the Southwestern Insurance Company, stating that the company had paid Freeland $800 for damage to the ear and was entitled to subrogation in that amount. However, this intervention was stricken by the court before the trial got under way, the court holding that the intervention had not been properly filed. For that matter, the mere fact that Freeland had received $800 from his insurance company, even if that fact properly appeared in the record, would not be adequate grounds to reduce the judgment. As stated, we do not know how the jury prorated the $1,700 awarded to Freeland for personal injuries and damage to the car. It is entirely possible that only $800 was awarded for property damage. In addition, the alleged amount could have been paid by the company to Freeland as a compromise figure.

Mrs. Freeland testified that she received an injured back, a whiplash injury to the neck, and that both knees were bruised; in fact, she “was bruised all over.” The witness stated that she had not been able to perform her ordinary household activities, and that her neck and back still bothered her (at the time of the trial); that she was still taking “pain pills” and nerve medicine. She said that she used the heating pad on her neck at night, and had pain in the left hip when walking.

Dr. Lowrey testified that he took x-rays of the chest, left shoulder, four separate views of the neck or cervical spine, and x-rays of both knees and of the lumbosacral spine (lower back). The doctor stated that Mrs. Free-land had received an acute cervical sprain, a sprain of the muscles of the left shoulder and back, and contusions on both knees, and that these injuries were painful. When asked how long the pain could reasonably be expected to continue, he replied:

‘ ‘ To continue with—without any letting up, I would say over a period of approximately three to six months time, but as far as continuously moderately severe pain, probably only two weeks to a month, and Mrs. Freeland did continue to have a moderately severe amount of pain, particularly in the neck and back for, in fact, about two or three months.

“Q. Now, you say that you expect her to have that pain for that length of time and then additional pain for six months or longer.

“A. Yes, sir, three to six months, I would say.”

Dr. Lowrey further stated that complete recovery would occur, but he did not know how long it would take.

“I would estimate in Mrs. Freeland’s case that within one to two years, there should be recovery to the point that she would not expect flare ups.”

The testimony reflected that the child, Mike, five years of age, was bruised on the head, legs, and back, and complained of pain for about a month and a half.

We agree with the remarks of the trial judge when he overruled the motion to vacate the judgment and grant a new trial. After noting that it was considered that the admonition of the court to the jury was sufficient, that no record was made of the incident, and no mistrial asked for, he stated:

“As an additional reason for refusing to vacate the judgment, it is not my opinion that the amount awarded by the jury, that is the $300.00 to the minor child, $1,-700.00 to Mr. Freeland and $1,000.00 to Mrs. Freeland, show the result of any passion or prejudice or excitement on the part of the jury. In my opinion the judgment was extremely reasonable. ’ ’

Certainly we are unable to say that the amounts awarded were excessive.

Finally, appellant asserts that the court erred in refusing to give his Requested Instruction No. 1, as follows :

“The Jury is instructed that the driver of a motor vehicle shall not follow another vehicle [closer] than is reasonable and prudent, having due regard for the speed of such vehicles and the traffic upon and the condition of the Highway and one following another vehicle too closely is evidence of negligence.”

We find no evidence that would justify the giving of the instruction. Appellant, at one point, stated that the Freeland automobile was back of the truck about 228 feet; at another point in his testimony, he stated that appellees’ automobile was following about 150 feet back of the truck. Freeland stated positively that he was never closer to the rear of the truck than 150 feet, and there is no testimony to the contrary. Under that proof, we do not think that the instruction sought by appellant was justified.

No reversible error appearing, the judgment is affirmed.

       The accident occurred at approximately 8:00 P.M., November 27, 1962, at New Blaine, Arkansas. According to the evidence, appellant was traveling west, and as he rounded the curve at New Blaine, he was “run off” the road by a truck, traveling east, that had just traversed a 255-foot bridge, straddling the center line. Appellant pulled off the highway about two feet, and traveled for approximately 147 feet. Howe stated that in pulling back onto the highway, he was blinded by the lights from Freeland’s car, which was just coming over the bridge. The collision occurred 17 feet from the end of the bridge.


author: Ed. F. McFaddin, Associate Justice.

text:
    Russell v. Hill.
    5-3152
    375 S. W. 2d 661
    Opinion delivered February 24, 1964.

      Bussell S Hurley, for appellant.

      O. W. Pete Wiggins, for appellee.
   Ed. F. McFaddin, Associate Justice.

This litigation involves an option deed. Walter Hill and his wife were plaintiffs below and are appellees here; and Tommy H. Russell and his wife were defendants below and are appellants here.

On an uncertain day in April 1962 Walter Hill and wife executed an instrument, whereby Tommy H. Russell acquired an option to purchase a lot for $21,300.00, provided the said amount was paid on or before April 1, 1963. On February 8, 1963, Hill and wife filed this suit to have the instrument declared void and removed as a cloud on their title. On February 28, 1963, Russell and wife filed their answer as follows:

“Come the defendants to Answer the Complaint in Equity to Cancel Deed and Quiet Title in Plaintiffs and by way of doing state:

‘ ‘ That they deny each and every material allegation contained in the complaint of the plaintiffs filed herein.

“WHEREFORE, defendants pray that this cause be dismissed, for their costs herein expended and for all other proper relief.”

The cause was heard ore terms by the Chancery Court. The plaintiffs claimed that no consideration of any kind was ever paid them; that the instrument was a mere offer to sell and, as such, could be withdrawn at any time; and plaintiffs cited and relied on such cases as Jones v. Lewis, 89 Ark. 368, 117 S. W. 561; and Lane v. Jackson, 135 Ark. 384, 205 S. W. 650. The defendants claimed that the option deed was for a valuable consideration and could not be withdrawn. The only witness for the defendants was Russell; and he testified: (a) that on January 6, 1961 the Hills had listed the property with Wallace Realty Company for sale at $21,300.00; (b) that the listing was for 120 days; (c) that the Hills can-celled the listing before the 120 days; (d) that Wallace Realty Company filed suit against the Hills for damages of $2,130.00 because of such cancellation; (e) that Russell was attorney for the Wallace Realty Company; (f) and that in March 1962 the said case of Wallace Realty Company v. Rill was dismissed in consideration of the Hills executing the option deed to Russell, as previously copied. Thus, the effect of Russell’s testimony was that there was a real and valuable consideration for the option deed and that the option could not be cancelled by the unilateral action of the Hills, as here attempted; and to sustain them the appellants cite such cases as Hogan v. Richardson, 166 Ark. 381, 266 S. W. 299; and Kelly v. Keith, 77 Ark. 31, 90 S. W. 150.

The Chancery decree was in favor of the plaintiffs both on the consideration issue and also because Russell had made no tender. The decree was entered on April 3, 1963, and contains, inter alia, this language:

“The Court further finds that the purported Option Deed was no more than an offer to sell and inasmuch as a nominal and not adequate consideration was mentioned in the said Deed, the Court further finds that the nominal consideration has never been paid. This Court having heard this portion of the case on March 27, 1963, this Decree having been prepared and presented to the Court on the date of the signing hereof, the Court finds that in addition thereto, that the defendants, and each of them, have failed to tender, offer or pay any money on or before the expiration of April 1, 1963, and that said Deed has also expired on the date of the signing of this Decree.”

Thus the Chancery Court assigned two reasons for ruling against the appellants: (a) no consideration was paid by Russell for the option deed; and (b) Russell never made any tender of the $21,300.00 before the option deed expired on April 1, 1963. Regardless of this first point, we agree with the Chancery Court on the second point—i.e., absence of tender; and therefore we affirm the Chancery Decree. The cases hold with practical unanimity that the optionee must make tender of the money within the time stated in the instrument. In 55 Am. Jur. p. 508 et seq., “Vendor and Purchaser” § 39 et seq., the holdings are summarized in this language: £ £ To constitute a valid exercise of an option to purchase land and impose a duty on the vendor to convey, the terms and conditions of the option must be complied with by the purchaser ... It is universally held, not only at law but also in equity, that the time named for the exercise of an option is to be regarded as of the essence of the option, whether so expressly stated or not. Unless an option is exercised within the time limited, the rights of the optionee expire without notice or declaration of forfeiture.”

Thus whatever right—-if any—Russell may have had under the option expired by the terms of the instrument before the entry of the decree, unless Hill did something that would excuse Russell from notice of acceptance of the option and tender of the purchase money. In this Court, Russell seeks to excuse himself from tender on the basis that the filing of this suit by Hill in February 1963 was a repudiation of the option and, as such, excused tender until after the conclusion of this litigation; and Russell cites and relies on such cases as Read’s Drug Store v. Hessig-Ellis, 93 Ark. 497, 125 S. W. 434; and Doup v. Almand, 212 Ark. 687, 207 S. W. 2d 601; and to these could be added Dickinson v. McKenzie, 197 Ark. 746, 126 S. W. 2d 95. But we hold that these cases are not applicable here because of the factual situation existing in this case, as will be later shown.

In 55 Am. Jur. p. 510, “Vendor and Purchaser,” § 40, the holdings are summarized:

“Under some circumstances the optionee’s delay in exercising the option has been held to be excused by various acts and statements of the vendor, such as statements and representations calculated to cause delay, the vendor’s absence or Ms evasive conduct, Ms failure to furnish necessary information, or to furnish the required title, or evidence or history thereof, the vendor’s repudiation, or statements or acts of the vendor amounting to a waiver of exercise of the option at the time stated in the option.”

In 157 A.L.R. p. 1311, there is an annotation entitled: “When optionee’s delay in exercising option excused”; and in discussing repudiation the holdings are summarized :

“It is a general rule that where the exercise of an option contemplates tender of the purchase price as a part of the acceptance, repudiation of the contract by the optionor, in the face of readiness, willingness, and ability to conform on the part of the optionee, excuses tender during the time limited, and entitles the latter to all available remedies, including specific performance . . .

“It is to be observed, in cases involving option contracts which require a tender as part of an indication of acceptance, in order to exercise an option to purchase, that even though the optionee may be excused from making a timely tender by reason of repudiation of the contract by the optionor, he must, under the familiar rule of contracts relating to offer and acceptance, in order to establish any equitable contractual relations with the latter, indicate to him definitely an acceptance and willingness to proceed with the contemplated transaction.”

The facts in the case at bar show that Hill did nothing to excuse a tender. He was anxious at all times to sell the property for $21,300.00; and so testified. He admitted signing the option deed, but claimed that there was no consideration, and that Russell was holding the option until April 1, 1963, on the hope of turning the property at a profit. Hill wanted the option terminated so that he could speedily sell the property. Under such a factual situation what was the burden resting on Bus-sell? To definitely accept the option and to make a tender within the time stated in the written instrument. When Bussell filed his answer herein—as previously copied in full—he merely made a general denial. In his testimony he never at any time said that he had exercised, or intended to exercise, the option. The point was made in the Chancery Court that Bussell had never made any tender. Hill repeatedly testified that he wanted to sell the property for $21,300.00, as stated in the option deed, but did not want to delay the matter. Yet in the face of all such testimony, Bussell never stated that he wanted to exercise, or intended to exercise, the option and make the payment. Certainly he made no tender. So whatever right—if any—he may have originally held under the option, had expired before the entry of the decree.

Affirmed.

       The instrument states that it was prepared by Tommy H. Russell. It was recorded in the Office of the Circuit Clerk on April 4, 1962. Both the instrument and acknowledgment leave the day blank. We copy the full instrument:
      “OPTION DEED.
      “FOR AND IN CONSIDERATION of the sum of One Dollar, to me in hand paid, the receipt of which is hereby acknowledged, and the undertaking of Tommy H. Russell to pay Walter Hill and Shirley Hill the sum of $21,300 (Twenty-one thousand three hundred Dollars), on or before the 1st day of April, 1963, we hereby grant, bargain, sell and convey unto the said Tommy H. Russell and to his heirs, successors and assigns, upon the conditions hereinafter written, the following described land, situated in Pulaski County, State of Arkansas, to-wit:
      “Lot Seven (7), Block Four (4), Baums Re-subdivision to the City of North Little Rock, Arkansas.
      “If said Tommy H. Russell shall fail to pay the sum hereinbefore named within the times above set forth, this conveyance shall be void, and all rights and liabilities of either party thereunder shall cease, and said land shall revert to us without any reconveyance from the said Tommy H. Russell. “And I, Shirley Hill, wife of said Walter Hill, hereby release and relinquish unto the said grantee all my right of dower in said land.
      “WITNESS our hands this ____________day of April, 1962.
      “/s/ Walter Hill
      ‘7s/ Shirley Hill.”

       To these could be added Duclos v. Turner, 204 Ark. 1000, 166 S. W. 2d 251; and Kelley v. Coldren, 226 Ark. 266, 290 S. W. 2d 424.

       The appellees insist that the Wallace Realty Company might have claimed that the dismissal of its lawsuit against the Hills was a valuable consideration for an option to Wallace Realty Company, but that Russell, as attorney for the Wallace Realty Company, cannot so claim.


author: George Rose Smith, J.

text:
    Clarksville Meat Co. v. Brooks.
    5-3198
    375 S. W. 2d 671
    Opinion delivered February 24, 1964.

      Show, Jones S Shaiu, for appellant.

      Donald Poe, for appellee.
   George Rose Smith, J.

This is a workmen’s compensation case in which the appellee seeks an award for a broken leg. The referee and the full commission denied the claim on the ground that Brooks was a casual employee who was not injured in the course of his employer’s business. Ark. Stat. Ann. § 81-1302 (b) (Repl. 1960). This appeal is from a judgment of the circuit court reversing the commission’s decision.

Donald Meek, the employer, owns, and operates the Clarksville Meat Company, an unincorporated meatpacking plant. In connection with the plant Meek maintains one or more horses which he uses to catch wild cattle that he has bought for slaughter. The horses are sometimes used for purposes not related to the meatpacking business, but the commission did not attach any importance to this fact.

Brooks is a part-time blacksmith. He does not have a smithy. Instead, he takes his tools and equipment to his patrons’ premises and performs his work there. For some five years before his injury Brooks had shod Meek’s horses three or four times a year. On September 29, 1961, while he was engaged in shoeing a horse at the packing plant, he was kicked by the animal and sustained the injury giving rise to his claim.

The commission specifically found that Brooks was an employee rather than an independent contractor, but the appellants insist that this finding is unsupported by any substantial evidence. The question is by no means free from difficulty, but we are unwilling to declare as a matter of law that Brooks was an independent contractor.

The governing test is whether Meek had the right to control Brooks with respect to his physical conduct in shoeing the horse. Hobbs-Western Co. v. Carmical, 192 Ark. 59, 91 S. W. 2d 605; Restatement, Second, Agency, § 2. At the time of the accident Meek was holding the horse, an unruly animal, while Brooks did his work. Brooks testified that he was under Meek’s direction and control, that Meek told him what to do. Meek testified that he selected the kind of shoe to be used and instructed Brooks to use an extra nail owing to a defect in the horse’s hoof. Meek also stated that Brooks was under his control, that he could have stopped Brooks if the latter had not followed his instructions. Moreover, Meek testified that through the years he had entered the payments to Brooks upon his books in some instances as labor and in some instances as miscellaneous expense. In the former case the entry became a part of the plant’s total payroll and was taken into account in the computation of his insurance premiums (presumably for workmen’s compensation coverage). In view of all this proof we are unable to say that there is no substantial evidence to support the commission’s finding that Brooks was an employee.

The statute excludes from coverage an employee “whose employment is casual and not in the course of the trade, business, profession or occupation of his employer.” § 81-1302 (b), supra. In construing this section we have held that an employee is not without the protection of the act unless both exceptions are found to exist. Buxton v. Dean, 218 Ark. 645, 238 S. W. 2d 487. Here that finding was made by the commission. It reasoned that Meek’s business was not that of a blacksmith and hence that the shoeing of horses was merely incidental to his meat-packing business.

This narrow interpretation of the statute is a decidedly minority view that we are unwilling to embrace. The horse that kicked Brooks was unquestionably used in the business. There is no doubt that the animal had to be shod in order to maintain it in service. Professor Larson has pointed ont that under statutes similar to ours the overwhelming weight of authority holds that “maintenance, repair, painting, cleaning, and the like are ‘in the course’ of business because the business could not be carried on without them.” Larson, Workmen’s Compensation Law, % 51.23. Many of the cases were reviewed in Sears, Roebuck & Co. v. Pixler, 140 Fla. 677, 192 So. 617, where it was held that a plasterer who was hurt while replacing plaster in a retail store at night was acting in the course of the employer’s business.

Our decision in Aerial Crop Care v. Landry, 235 Ark. 406, 360 S. W. 2d 185, is really to the same effect. There the employer was engaged in agricultural crop-dusting. The claimant was injured while working as a carpenter in the construction of a hangar. Thus the employer was no more engaged in the business of a carpenter than Meek was engaged in the business of a blacksmith. We held, however, that the section of the statute now in issue did not exclude the injured employee from the protection of the law. We adhere to that view.

Affirmed.


author: Sam Robinson, Associate Justice.

text:
    Hillebrenner v. Odom.
    5-3165
    375 S. W. 2d 664
    Opinion delivered February 24, 1964.

      Tilghman E. Dixon, for appellant.

      John T. Jernigan and E. R. Parham, Jr., for appellee.
   Sam Robinson, Associate Justice.

On November 2, 1960, appellants, Nellie Schindler Hillebrenner and R. T. Hillebrenner, entered into an agreement with appellees, W. M. and Gladys Odom, whereby appellants purchased from appellees Lots 16,17, 18, 19, 20, 21 and 22, Block 7, Riffel and Holders Addition to the City of Little Rock. The agreed purchase price was $65,000.00. As partial payment, appellants conveyed to appellees property in Dallas, Texas valued at $26,611.33. For the balance of $38,388.67, appellants executed and delivered their promissory note payable $150.00 per month, in addition to interest at the rate of 5 % per annum. Located on the property are rental units consisting of duplexes, cabins, and a business building. Some house trailers were also on the property at the time of the sale, but it was understood by all parties that they did not go with the property.

Among other things, the contract of purchase provides: “Upon payment of the entire debt with interest when due, together with all taxes, assessments and insurance premiums due hereafter, SELLER will convey to BUYER the above described property by Warranty Deed and will furnish an Abstract of Title certified to the date of this AGREEMENT showing merchantable title.’’

On June 28, 1962, appellants filed this action alleging that the appellees had misrepresented the amount of rent the property would produce and had also misrepresented the condition of the buildings. They alleged that the buildings were in a deplorable condition necessitating the expenditure of about $3,000.00 in making repairs, and further, that under the provisions of a city ordinance the house trailers could not be kept on the premises, and that appellees had moved them, thereby reducing the monthly income from rent.

Appellants further allege that the title was defective and stemmed from a State Tax Title, and that they have called upon the defendants to either correct said title and make it merchantable or to refund their money, which the defendants have failed and refused to do. Appellants prayed for judgment against appellees in the sum of $34,961.33.

The trial court held that the preponderance of the evidence did not show that appellees made any false representations in the sale of the property that called for a rescission of the contract. We agree with the chancellor on that point. The parties were dealing at arms length. Appellants had every opportunity to inspect the property and to make a determination of its value; they knew the house trailers did not go with the property, and, of course, they knew the trailers could be moved at any time. Further, one of the appellants, Mr. Hillebrenner, is a plumber by trade. He spent about two days at the property and was in just about as good a position as anyone to determine the condition of the property. It appears that appellants made a bad trade, but there was no fraud or deception practiced by appellees that would justify a rescission of the contract. The court said in Rose v. Moore, 196 Ark. 527, 118 S. W. 2d 870: “With the opportunity afforded Lange to investigate and inspect the farm, it must be presumed that he exercised and relied upon his own judgment in making the contract.” And the court said in Green v. Bush, 203 Ark. 883, 159 S. W. 2d 458: “This is a suit to cancel a deed upon the grounds that its execution was procured by fraud; which is never presumed, but must be affirmatively proved.”

Appellants further contend that although the contract of purchase provides that when the purchase price is paid in full appellees will furnish an abstract showing a merchantable title, the appellees do not have a merchantable title, and, therefore, cannot furnish an abstract showing title. Appellee offered to furnish title insurance; the trial court thought this would be a sufficient compliance with the purchase agreement, and therefore rendered a decree for appellees.

Apparently, the only defect in the abstract of title to Lot 22 is that the patent from the U. S. Government is not shown. It appears, however, that appellees must depend on adverse possession to establish their title to the other lots. Their adverse possession does not show in the abstract of title that they propose to furnish appellants when the purchase price is paid in full. In all probability, a successful suit to quiet title will be necessary to cause the abstract to show a merchantable title.

In this case there is a contract to convey the property by warranty deed and to furnish an abstract show-, ing- a merchantable title, not a contract to convey a merchantable title. There is a distinction, as pointed out in Lucas v. Meek, 227 Ark. 677, 300 S. W. 2d 593. Perhaps it can be said that in at least two cases it has been held that adverse possession is sufficient to support a contract to furnish an abstract showing a merchantable title. Smith v. Biddle, 171 Ark. 644, 286 S. W. 801; McWilliams v. Toups, 202 Ark. 159, 150 S. W. 2d 34. But the decided weight of authority, with which we agree, is that a contract to furnish an abstract showing a merchantable title means just what it says, and the seller must furnish that kind of abstract.

In Meek v. Green, 166 Ark. 436, 266 S. W. 451, Judge Hart said: "This court has held that, where a contract for the purchase and sale of land calls for an abstract showing good title, the covenant will be construed to mean a good record title, and not such a title as may be shown to be good by oral proof, or affidavits and other writings not subject to registration. In short, it is not sufficient in such cases that the title is good in fact, that is, capable of being made good by the production of affidavits or other oral testimony, but it must be good of record. Hinton v. Martin, 151 Ark. 343; Dalton v. Lybarger, 152 Ark. 193; and Bennett v. Farabough, 154 Ark. 193.” In 46 A.L.R. 2d 561 there is a long annotation on the effect of a contract calling for an abstract showing a merchantable title. It is clearly shown by the cases cited in'this annotation, as well as our own cases, that the great weight of authority is that such a provision in a contract of purchase will be enforced.

Since the institution of this suit, the monthly payments due under the terms of the purchase contract have been paid into the registry of the trial court. The purchase contract provides that the. abstract shall be furnished after the purchase price has been paid. Here, where it is shown that the seller must take affirmative action in order to be able to furnish an abstract showing a merchantable title, equity will not enforce the monthly payments to the seller, but appellants shall continue to make such payments into the registry of the trial court, and appellees are given a reasonable time in which to furnish to appellants, for examination, an abstract showing a merchantable title. If and when such abstract is furnished, the money which has accumulated in the registry of the court, and the future monthly payments, shall be paid to appellees. Lucas v. Meek, 227 Ark. 677, 300 S. W. 2d 593.

The judgment is modified and remanded with directions to enter an order not inconsistent therewith.

Holt, J., not participating.


author: Jim Johnson, Associate Justice.

text:
    Stephenson v. Stephenson.
    5-3067
    375 S. W. 2d 659
    Opinion delivered February 24, 1964.

      B. W. Thomas and Earl Masancler, for appellant.

      Q. Byrum Hurst, for appellee.
   Jim Johnson, Associate Justice.

This is an appeal from a final decree and a modified decree of divorce entered against the appellant, Joan Stephenson, and in favor of appellee J. H. Stephenson. These parties were married on September 11, 1954, and separated March 3, 1962. On July 2, 1962, appellee filed a complaint for divorce in Garland Chancery Court against appellant, alleging that appellant was guilty of indignities to appellee’s person and seeking custody of the two young sons of the parties. A general denial was thereafter filed on behalf of appellant. After changing counsel, appellant filed a motion on September 18, 1962, requesting an order permitting appellant to file an amended and substituted answer and cross-complaint. This motion was granted and on October 2, 1962, appellant’s amended and substituted answer and cross-complaint was filed, 'which specifically denied appellee’s allegations and cross-complained, inter alia, for divorce, custody, child support and attorneys fees. On December 7, 1962, the case was tried before the chancellor, with the parties and a number of witnesses testifying in support of appellee’s complaint and appellant’s cross-complaint. On December 11, 1962, the court entered its final decree of divorce granting custody of the children to appellee except during June, July and August of each year, from which decree appellant has prosecuted this appeal. (On January 29, 1963, a modified decree was entered by the chancellor. The ruling appears to be identical with the original decree, with the additions (1) that appellee was ordered to return to appellant her personal belongings and personal property owned by her prior to the marriage, and (2) that each of the parties was given visitation rights two weekends each month while the children are in the other party’s custody.)

Appellant urges six points for reversal which are argued collectively and resolve down to (1) that the trial court erred in granting custody of the young boys to the father and (2) that the evidence did not support the findings and decree of the chancellor.

It is not usual for a chancellor or this court, for that matter, on trial de novo to award custody of young children to anyone other than their mother. However it is not unheard-of. See Bornhoft v. Thompson, 237 Ark. 256, 372 S. W. 2d 616. Arkansas Stat. Ann. § 34-1211 (Repl. 1962) says in part that, “Where a decree [of divorce] shall be entered, the court shall make such order touching the . . . care of the children, if there be any, as from the circumstances of the parties and the nature of the case shall be reasonable.” In custody matters the unyielding consideration is the welfare of the children. It matters not to this court which of the parties “wins” custody, so long as the children are the ultimate winners of good care and home. In the case at bar the chancellor found that appellee was entitled to a divorce on his complaint and that appellant was not entitled to a divorce on her cross-complaint, and awarded custody to appellee except during the months of June, July and August, during which time appellant should have their custody. During the hearing the perceptive chancellor had the opportunity to fully appraise the witnesses and their testimony. Appellant vigorously contends that the chancellor erred in awarding custody of the children to the father, but there was estimable evidence which supported the able chancellor’s conclusion, and we have said, consistently and frequently, that we will not reverse the findings of the chancellor unless such findings are against the preponderance of the evidence. Murphy v. Osborne, 211 Ark. 319, 200 S. W. 2d 517; Austin v. Austin, 237 Ark. 127, 372 S. W. 2d 231. As we said in Bornhoft v. Thompson, supra:

“The parties and the witnesses were all observed by the chancellor, who thus had the opportunity to note their demeanor on the stand, the manner of answering the questions, and he was, accordingly, in much better position to judge the truthfulness or untruthfulness of the statements made by the parties and witnesses. We are unable to say that his finding ... is against the preponderance of the evidence: . . .

“. . . Of course, the father [mother, here] can always petition the court for a modification of the present decree if circumstances indicate that a change should be made.”

Solicitors for appellant have petitioned for an allowance of attorneys’ fee for their services rendered in this court, which is hereby granted, in the sum of $200.00.

Affirmed.

G-eorge Rose Smith, J., dissents.


text:
    Ark. Coal Co. v. Steele.
    5-3203
    375 S. W. 2d 673
    Opinion delivered February 24, 1964.

      Dobbs, Pryor and Dobbs, for appellant.

      Sam Sexton, Jr., Marvin Holman, for appellee.
   Frank Holt, Associate Justice.

This is a Workmen’s Compensation case in which the claimant-appellee, Bill Steele, seeks total and permanent disability benefits as a result of silicosis. The Referee denied the claim and the Full Commission found the claimant became disabled on January 3, 1961 and awarded compensation for total and permanent disability. The Commission’s award was affirmed by the Circuit Court.

On appeal appellants, Arkansas Coal Company and Commercial Standard Insurance Company, first contend for reversal that “the Full Commission, sitting as a reviewing body, was without authority to pass upon the credibility of witnesses without having heard any witness, and consequently were without authority to reverse the findings of the Referee; that the Circuit Court was without authority to pass upon the credibility of witnesses.” In other words, it is appellants’ contention that the Full Commission is without authority to reverse the findings of the Referee where an appeal is presented to the Commission solely on the transcript of the record made before the Referee. We do not agree. The authority of the Commission to review an appeal from the findings and award made by the Referee is vested in the Commission by Ark. Stat. Ann. §. 81-1323 (b) (Repl. 1960). In pertinent part this statute reads:

* * the full Commission shall review the evidence or, if deemed advisable, hear the parties, their representatives and witnesses, and shall make awards, together with its rulings of law, ’ ’.

In the very recent case of Potlatch Forests, Inc., v. Smith, 237 Ark. 468, 374 S. W. 2d 166, we rejected the very argument the appellants advance in the case at bar. In that case we said:

“ * # * It is pointed ont that the referee, who originally tried this case, heard all of the witnesses in person, both for claimant and the company, and, on appeal, no additional testimony was presented to the Commission. Appellee states that the referee, therefore, ‘# * * was the sole and exclusive judge of the weight of the evidence and the credibility of the witnesses. ® * * He was in position to take into consideration all the surrounding circumstances of each witness, and of particular importance, the manner and demeanor of each witness on the witness stand. * * *’ This contention must be rejected. As recently as October 21 of this year, we had occasion, in Moss v. El Dorado Drilling Co., 237 Ark. 80, 371 S. W. 2d 582, to comment upon this contention stating, ‘We take this occasion to point out that it is the duty of the Commission to make a finding according to a preponderance of the evidence, and not whether there is any substantial evidence to support the finding of the Referee.’ ” Citing cases.

The function and duty of the Circuit Court upon an appeal from the Full Commission is explicitly prescribed by Ark. Stat. Ann. § 81-1325 (b). It provides, inter alia, that:

“ * * * Upon the appeal to the circuit court no additional evidence shall be heard and, in the absence of fraud, the findings of fact made by the Commission, within its powers, shall be conclusive and binding upon said court. The court shall review only questions of law * * '

See, also, J. L. Williams & Sons v. Smith, 205 Ark. 604, 170 S. W. 2d 82.

The appellants next contend that the findings of the Referee ‘ ‘ should be affirmed on the basis of the evidence and the finding of the Referee as to credibility. ” As we have said, the findings of the Referee are not binding upon the Commission and it is the duty of the Full Commission to consider the entire record and determine the merits of the claim upon the preponderance of the evidence.

Appellants next urge that appellee’s claim was not filed within the time prescribed by law. We find no merit in this contention. The claimant’s regular physician, Dr. Kolb, testified that he first became certain about claimant’s condition on January 3 or 4, 1961 when he determined that appellee was not suffering from a suspected lung cancer but was suffering from silicosis, complicated by emphysema, and that his condition was severe, permanently disabling and progressive. Notice to the appellant, Arkansas Coal Company, was given February 2, 1961 and the claim was filed on March 22, 1961. Thus, it must be said that the claimant complied with the statutory requirements upon being definitely advised as to his condition.

Appellants contend, however, that the claimant had knowledge of his condition beginning in 1959 and should be barred from now asserting his claim. In Hixson Coal Co., v. Furstenberg, Adm’x, 225 Ark. 568, 284 S. W. 2d 120, we said:

“In silicosis, the injury may occur many years before the disease becomes manifest, as the accumulated effects of the deleterious substance are of a slow, insidious nature.”-

In silicosis cases the statute commences' to run at the time of disablement and not from the time the claimant learns that he is suffering from the disease and disablement does not occur until the employee is unable to work and earn his usual wages. Quality Excelsior Coal Co. v. Smith, 233 Ark. 67, 342 S. W. 2d 480. The appellant-employer and appellee stipulated in the case at bar that the appellee continued to work at his usual occupation until March 26, 1960. Thus, it is clear the claim is not barred by the statute of limitations. Ark. Stat. Ann. § 81-1318.

The appellants next argue that “aside from the matter of credibility of witnesses, there is not sufficient substantial evidence in the record to support the award in favor of the claimant.” The appellant-employer was engaged in the strip mining of coal. The appellee was employed as a driller for the appellant from 1944 until March 26, 1960 when appellant ceased operations. Appellee testified that for a period of seven hours a day, five days a week during his entire employment at times he worked in dust so heavy it was necessary to rinse his mouth before he could take a drink of water and sometimes it was impossible to see a man from a distance of ten feet. No safety devices, such as dust masks, were furnished. A geologist testified that the sandstone formations where appellee worked were composed of 95-98% silica. The testimony of appellee and the geologist was uncontradicted. 'Appellee’s disablement was corroborated by his regular physician who testified that appellee was totally and permanently disabled by reason of silicosis, complicated by emphysema. A physician, on behalf of appellants, examined the claimant and according to. his report appellee has “some pulmonary fibrosis and emphysema which is probably related to chronic silica inhalation” and he “would clinically estimate his [appellee’s] disability at 40%, perhaps as high as 60%,”.

It is a familiar rule that the findings of the Workmen’s Compensation Commission are entitled to the same verity as a jury verdict and if there is any substantial evidence to support the Commission’s finding it is the duty of the Circuit Court and this court to affirm. This is one of the strongest rules recognized in our compensation cases. Reynolds Metals Co., v. Robbins, 231 Ark. 158, 328 S. W. 2d 489; White v. First Electric Cooperative, 230 Ark. 925, 327 S. W. 2d 720. It cannot be said in the case at bar that there is no substantial evidence to support the findings of the Full Commission.

Appellants argue that there is no evidence in the record to support the award of maximum compensation benefits to appellee. We cannot consider this contention when, as here, it is raised for the first time on appeal. According to the Full Commission, the appellants and appellee stipulated “that the claimant’s average weekly wage was sufficient to entitle him to maximum Workman’s Compensation benefits.”

Affirmed.


text:
    Hardaway v. State.
    5104
    375 S. W. 2d 676
    Opinion delivered February 24, 1964.

      Paul K. Roberts, for appellant.

      Bruce Bennett, Attorney General, By John P. Gill, Asst. Atty. Gen., for appellee.
   Frank Holt, Associate Justice.

This is a motion by the appellee, State of Arkansas, to dismiss the misdemeanor appeals of the appellants for failure to file their appeals within sixty days from the date of rendition of judgment. The appeals were filed seventy-five days from the date of the judgment.

Appellee relies upon Ark. Stat. Ann. § 43-2732 (1947) [Crim. Code, § 340 (1869)] which reads:

‘ ‘ Misdemeanors—When appeal granted—Condition. —The appeal shall be prayed during the term at which the judgment was rendered, and shall be granted upon the condition that the record is lodged in the clerk’s office of the Supreme Court within sixty [60] days after the judgment.”

In resisting appellee’s motion the appellants rely upon Act 158 of 1963 which reads:

“SECTION 1. Section 1 of Act 218 of the Acts of 1909 (Arkansas Statutes 43-2701) is hereby amended to read as follows: ‘No appeals to the Supreme Court in a criminal case shall be granted, nor writs of error issued, except within sixty (60) days after rendition of the judgment of conviction in the case’ except that the trial judge with his discretion may by order entered prior to the expiration of said sixty (60) days extend the time for not to exceed an additional sixty (60) days.”

Pursuant to the provisions of this Act the appellants were granted a sixty day extension and within this time filed their appeals.

In reviewing the history of these Acts we find that the time limitation for appeal in all criminal cases was unquestionably the same until the 1963 Act. Thus, until now, there was no occasion for the present question to arise. We deem it necessary to clarify it by an opinion.

The Criminal Code (1869) § 327 provided that in felony cases the time for lodging an appeal with the supreme court was limited to sixty days after the rendition of judgment. Section 340 of the Criminal Code provided that the time for filing the appeal in misdemeanor cases was also limited to sixty days.

The next legislative expression on this subject was Act 218 of 1909. Section 1 of this Act [Ark. Stat. Ann. § 43-2701] limited the time to sixty days for an appeal to the supreme court in a “criminal case”. This section makes no distinction between felonies and misdemeanors. Section 2 of this Act [Ark. Stat. Ann. § 43-2703] refers to “all criminal cases, both felonies and misdemeanors,” which indicates the clear intention of the Legislature to encompass both types of offenses in dealing with this subject. Section 3 repealed all laws and parts thereof in conflict with the Act.

In addition to the fact that Act 218 of 1909 refers to both misdemeanors and felonies as being criminal cases, we have hold that ‘mimes’ and ‘misdemeanors’ are synonymous terms. In the early case of Rector v. The State, 6 Ark. 187, we said:

“ * * * A crime or misdemeanor is defined to be ‘an act committed, or omitted, in violation of a public law, either forbidding or commanding it.’ This general definition comprehends both crimes and misdemeanors, which properly speaking are mere synonymous terms, though in common usage, the word ‘crimes’ is made to denote such offenses as are of a deeper and more atrocious dye, while smaller faults, and omissions of less consequence, are comprised under the gentler name of misdemeanors only.”

See, also, Ark. Stat. Ann. § 41-101 (1947).

It follows, therefore, that Ark. Stat. Ann. § 43-2732 was supplanted by Act 218 of 1909 [Ark. Stat. Ann. § 43-2701] and that the amendatory Act 158 of 1963 [Ark. Stat. Ann. § 43-2701 (Supp. 1963)] now governs in all criminal cases, both felonies and misdemeanors, as to limitation of time in the filing of an appeal.

The motion to dismiss is denied.


text:
    Bebout v. Bebout.
    5-3177
    375 S. W. 2d 798
    Opinion delivered March 2, 1964.

      W. Q. Hall, for appellant.
    No brief filed for appellee.
   Carleton Harris, Chief Justice.

Eva Bebout, appellee herein, and M. L. Bebout, appellant herein, were married on August 18, 1946. They lived together until April or May of 1961, at which time appellant left the home. Thereafter, on May 16, 1961, appellee filed her petition for separate maintenance. A motion to quash was filed by appellant on June 5, 1961, and on November 27 of the same year a general denial was filed. Thereafter, on February 1, 1962, M. L. Bebout filed a cross-complaint, seeking a divorce on the grounds of general indignities. On February 5, a hearing was held on the question of temporary allowances, and appellant was directed to pay $50.00 per month temporary alimony to his wife, together with an attorneys ’ fee. On June 16, 1962, Mrs. Bebout filed an “Amended and Substituted Complaint” in which she alleged general indignities, and asked the court for an absolute divorce. On June 28, appellant filed an answer denying the allegations in the substituted complaint, and on the same day, filed a suit for divorce in Las Vegas, Nevada. On July 9, 1962, the Madison County Chancery Court heard the cause on its merits. Mrs. Bebout testified, along with Donna Swift, a witness on her behalf. Appellant did not testify, nor was any evidence offered on his behalf, though the court considered the testimony that Bebout had given on February 5, same having been transcribed and introduced by appellee as an exhibit. At the conclusion of the trial, the court awarded appellee a divorce, and vested her with absolute title to the home place in Madison County, which had been held as an estate by the entirety. The proof reflected also that appellant and appellee had sold a piece of property to third parties, and had taken a promissory note payable to themselves for the unpaid purchase price, together with a mortgage to secure same. The note and mortgage were held in escrow by the First National Bank of Huntsville. The court, likewise, held that, under the evidence, Mrs. Bebout was entitled to the proceeds of the note. No actual decree was entered for one year, same being signed on July 8, 1963, nunc pro tunc as of July 9, 1962. From the decree, appellant brings this appeal.

It is necessary that this case be reversed because of insufficient corroboration of the wife’s testimony- as to grounds for divorce. In fact, Mrs. Bebout’s testimony itself was rather weak as to indignities suffered. She stated that, during their marriage, her husband did not fuss, quarrel, or find fault with her. She said that he simply told her that he no longer intended to live with hex’, and left. ‘ ‘ I think he had another woman. ” However, the proof reflected that he was livixig with another couple, axid there is xio evidexice to substantiate her assertion. Oxx cross-examination, she did state that oxx axx occasion “lie choked me and tolcl me he was going to kill me and bury me * *

Donna Swift, the witness offered by appellee, ivas asked by counsel,

‘ ‘ Q. You have heard her testify. Do you know that what she has testified to is true ?

“A. I think so, yes. ’’

Subsequently, on cross-examination, Mrs. Swift was asked several questions relative to the property owned by the parties, and she answered,

“All I know is what she has told .me. She and I are very good friends, and she has visited with me several times, and told me about these things, but —”

It really is not clear from Mrs. Swift’s testimony as to exactly what she meant by, “All I know is what she has told me.” It could relate to both the grounds for divorce and the matters concerning the rights of the parties in property they owned, or the statement could be taken as referring only to the properties. Actually, from her apparent lack of. personal knowledge, it would appear that Mrs. Swift was not really acquainted with any of the facts. However, be that as it may, the testimony, “I think so, yes” does not constitute sufficient corroboration to comply with legal requirements. Of course, actually, corroborating evidence, to carry the proper amount of weight, should detail the facts with which the witness is familiar, but even where the evidence is abbreviated, as here, the witness should be positive in her statements. In Highsmith v. Highsmith, 219 Ark. 123, 240 S. W. 2d 5, the corroborating witness stated that she understood appellant left her husband on the date of separation without cause, and that she was under the. impression that he was good to her. A divorce was granted, and the case appealed to this court. In reversing that decree, we said:

“Our court has many times held in such cases that the testimony of the plaintiff must be corroborated. One case is Sisk v. Sisk, 99 Ark. 94, 136 S. W. 987, where the facts are similar to this case. A recent case (January 29, 1951) is Stimmel v. Stimmel, 218 Ark. 293, 235 S. W. 2d 959. Here the deposition of Zelma Pumphrey plainly shows that she knew very little about the material issues and that her statements were based on impressions or hearsay. ’ ’

The pleadings were not amended to allege desertion, nor was there any corroborating evidence to that effect.

Since appellee has not sustained her cause of action as required under our decisions, it follows that the court erred in granting her a divorce. It may well be that the Chancellor, in disposing of property rights, reached the right conclusions, both from an equitable and legal standpoint, but we do not reach these questions, since the reversal of the Chancellor’s finding as to the divorce means that the entire decree must fall.

Reversed.

       Appellant had stated, in the hearing on February 5, that Mrs. Bebout had made the last $500 payment on the home place:
      “Q. You let her make the payment then with the understanding that she was to get title to the place, is that it?
      “A. Right.
      “Q. Then if that was your understanding, if she did make the payment then she was entitled to the title because you were going to let it go back? You didn’t care about it, is that right?
      “A. That’s right.”

       Emphasis supplied.


author: Ed. F. MoFaddin, Associate Justice.

text:
    Wood v. Combs.
    5-3185
    375 S. W. 2d 800
    Opinion delivered March 2, 1964.

      Wootton, Land & Matthews, for appellant.

      Wood, Ghesnutt & Smith, for appellee.
   Ed. F. MoFaddin, Associate Justice.

This litigation stems from a traffic mishap on Grand Avenue in the City of Hot Springs. E. C. Combs was plaintiff below and is appellee here. Donald Wood and Ben M. Hogan & Co. were defendants below and are appellants here. Mr. Combs drove his car into the rear of a tractor-trailer unit owned by Ben M. Hogan & Co. and operated by Donald Wood. For his personal injuries and damages to his car Mr. Combs filed this action against Donald Wood and Ben M. Hogan & Co., both of whom denied liability. Trial to a jury resulted in a verdict and judgment for appellee Combs, and on this appeal appellants urge two points:

I. The Court erred in failing to direct a verdict for the defendants at the conclusion of the testimony in the case.

II. The Court erred in giving, in failing to give, and in modifying certain instructions.

I. Refusal To Direct A Verdict. This assignment necessitates a review of the evidence; and in so doing we must view the evidence in the light most favorable to the successful party, as is our well established rule in such cases.

Ben M. Hogan & Co. had two tractor-trailer units, each 45 feet in length; and both of these units were engaged in transporting an asphalt plant through the City of Hot Springs on November 11, 1960. The first tractor-trailer unit drove entirely into Jim & Joe’s Service Station property in Hot Springs for the purpose of being serviced. The second tractor-trailer unit was driven by appellant, Donald Wood. He attempted to drive into the same service station property, but because of the presence of the first unit, the trailer part of the tractor-trailer unit, driven by Donald Wood, was parked so that it extended out into Grand Avenue several feet in front of the said filling station. The appellee Combs was driving west on Grand Avenue on his proper side of the street and drove into the said parked tractor-trailer unit. Grand Avenue runs east and west through Hot Springs. It is a four-lane highway with a median divider so that on the north side there are Wo lanes going Avest and on the south side there are two lanes going east. Jim & Joe’s Service Station is on the north side of Grand Avenue. Thus the parked trailer unit driven by Donald Wood Avas partially in the service station, partially on the driveway approach to the service station, and partially extending into Grand Avenue a distance of nine feet.

On the morning in question Mr. Combs was driving his car west on Grand Avenue in the extreme north, or outside lane, and his speed Avas about 25 miles an hour. Just before he reached the entrance to Jim & Joe’s Service Station, one or more cars overtook and passed Mr. Combs on his left, thus forcing him to remain in the north or outside lane. Then he discovered the empty end of the trailer unit extending out into Grand Avenue, directly in his path. At 25 miles an hour he Avas travelling approximately 37 feet per second. The trailer unit Avas a “1oa\t-boy”; and the rear end of the trailer extending out into Grand Avenue Avas empty and was only about three feet above the highway. Mr. Combs testified that he Avas keeping a lookout but was unable to stop before striking the trailer unit. It was stipulated that the ordinance of Hot Springs provided for parallel parking on Grand Avenue and also provided that no vehicle should be parked on a sidewalk or in front of a driveway.

Thus, ■with the tractor-trailer unit parked at an angle in Grand Avenue, and over what was the sideAvalk, and in front of what was the driveway to Jim & Joe’s Service Station, there was evidence that the defendants were violating the ordinance of Hot Springs; and the violation of a law or ordinance is evidence of negligence. Terry Dairy Co. v. Nalley, 146 Ark. 448, 225 S. W. 887; Mays v. Ritchie Groc. Co., 177 Ark. 35, 5 S. W. 2d 728; Ozan Lbr. Co. v. Tidwell, 210 Ark. 942, 198 S. W. 2d 182.

The defendants offered testimony that Mr. Combs’ visibility was impaired because his windshield was either frosted over on the outside or covered with moisture on the inside; but such evidence was disputed. The defendants also insisted below, and vigorously urge here, that for Mr. Combs to drive into a parked trailer was a far greater act of negligence than was the parking of the trailer; and on this point the appellants also insist that they were entitled to an instructed verdict. The comparative negligence statute applicable at the time of this case was Act No. 296 of 1957, which, in effect, provided that a plaintiff could not recover if his negligence was equal to or greater than the negligence of the defendant.

From what we have, detailed of the evidence, it is clear that Mr. Combs made a case for the jury, unless this Court is prepared to hold, as a matter of law, that Mr. Combs’ negligence exceeded the negligence of the defendants. After carefully reviewing the record we conclude that a question was made for the jury, both on the issue of the defendants’ negligence and the plaintiff’s contributory negligence. There are some cases in which we have held, as a matter of law, that the plaintiff’s negligence—in that particular case—was greater than the negligence of the defendant; but the usual rule is that the matters of negligence and contributory negligence are issues for the jury. In Ozan Lumber Co. v. Tidwell, 210 Ark. 942, 198 S. W. 2d 182, we said: 786; Coca-Cola Bottling Co. v. Shipp, 174 Ark. 130, 297 S. W. 856; D. F. Jones Construction Co., Inc., v. Lewis, 193 Ark. 130, 98 S. W. 2d 874. Whether plaintiffs were guilty of contributory negligence in stopping their buggy unequipped with tail lights on the shoulder of a paved highway at night when the buggy was struck by the automobile of defendant was held to be a question for the jury, in the case of Duckworth v. Stephens, 182 Ark. 161, 30 S. W. 2d 840.”

We have held in one or more cases that, under the facts in that particular case, a motorist who drove his car into a train standing still at a crossing was guilty of a greater amount of negligence than was the railroad company, as a matter of law. But we have also held that a question of fact was made for the jury on negligence and contributory negligence when a motorist drove his car into a train standing still on the crossing. These cases are reviewed in Hawkins v. Mo. Pac., 217 Ark. 42, 228 S. W. 2d 642; and that case shows the line of delineation as to whether, under the facts and circumstances in each case, reasonable men might differ as to which party was guilty of the greater degree of negligence. In the case at bar we conclude a question was made for the jury.

II. Instructions. Appellants insist that the Trial Court ruled erroneously regarding each of five instructions. The assignments related to: (a) giving Court’s Instruction No. 6; (b) refusing to give defendants’ Instructions Nos. 10 and 13; and (c) modifying defendants’ Instructions Nos. 12 and 14; but we find no error in any of the Court’s rulings.

The Court’s Instruction No. 6 reads:

“What do we mean by the term ‘proximate cause’! It is a cause which in its natural and continuous sequence —unbroken by any new efficient intervening cause—produces an event, and without which the event would not have occurred. So, in order to warrant a finding that negligence is a proximate cause of a collision, it must appear from the evidence that the collision was a natural and probable consequence of the negligence and ought to have been foreseen by a person of ordinary prudence as likely to occur under the circumstances. ’ ’

The defendants’ specific objection to this instruction was this:

"... in the second paragraph thereof the affirmative statement is upon the finding that negligence is a proximate cause of a collision, when the finding should have been upon some act or omission of the parties constituting negligence, and for that reason is misleading to the Jury.”

The Trial Court gave eleven instructions on its own motion, and these covered such matters as negligence, contributory negligence, ordinary care, proximate cause, preponderance of the evidence, burden of proof, the duty of the jury to weigh the evidence, etc. This Instruction No. 6 was one of such instructions, and when we- consider Instruction No. 6 in its context with the other instructions, we find no merit to appellants’ objection.

The Trial Court refused to give defendants ’ Instruction No. 10, Avhich reads as folloAArs:

"You are instructed that if you find from a preponderance of the evidence that at the time of the accident herein sued upon, parking Avas permitted upon Grand AArenue, and if you further find from a preponderance of the evidence that the portion of the defendant’s truck extending out into Grand Avenue did not extend further out into the street than would a vehicle parked in the usual and customary manner at the curb, then you are instructed that as to the issues betAveen plaintiff and defendant, it Avould be the same as if the vehicle had been parked on Grand Avenue in a normal and customary manner. ’ ’

The Court was correct in refusing this instruction because it Avas argumentative and was a comment on the weight of the evidence. In the defendants’ Instruction No. 9 the Court had told the jury there could be parallel parking on Grand Avenue; then in defendants’ Instruction No. 11 the Court told the jury that no vehicle with a width greater than eight feet could be on the highway except by special permit. To sandwich in this Instruction No. 10 between the two instructions would be in effect to tell the jury that if the trailer as parked extended out into Grand Avenue a distance of less than eight feet it would be the same as if it had been parked parallel. This was argumentative. If an automobile had been parked on Grand Avenue parallel to the curb, as required by the ordinance, the car would not have been in front of the driveway of the filling station as was this trailer. Furthermore, a parked car would have been higher than three feet and therefore more visible than was the empty portion of this lowboy.

The Court was also correct in refusing defendants’ Instruction No. 13, which read:

“You are instructed that the Arkansas law provides as follows: ‘No person shall drive any motor vehicle with any sign, poster or other non-transparent material upon the front windshield, side wings, side or rear windows of such vehicle other than a certificate or other paper required to be so displayed by law.’ If you find from a preponderance of the evidence that all or a portion of the windshield of the car driven by the plaintiff was obscured by a non-transparent material such as ice or frost then the driving of the vehicle under these circumstances would be a violation of the above quoted statute, which may be taken into consideration by you, along with all of the other evidence in the case in determining whether or not the plaintiff, it. C. Combs, was guilty of negligence. ’ ’

There was no evidence that the plaintiff had any “sign, poster, or other non-transparent material” on the windshield. What the defendants had reference to in this instruction, was the testimony by some of the defendants ’ witnesses that the windshield of Mr. Combs’ car was either partially covered over by frost on the outside, or was partially clouded by moisture on the inside. But the instruction as offered was framed from Ark. Stat. Ann. § 75-730 (Repl. 1957), which section does not relate to frost or moisture but to ‘ ‘ stickers. ’ ’ See Kirkey v. Portland Elec. Co. (Ore.), 298 P. 237.

Defendants complain because the Court modified two of their instructions by deleting certain language in each one. These are rather lengthy and we will not burden this opinion by copying them. It is sufficient to say that we find that the Court was not in error. The jury had been instructed as to the duty of the appellee to keep a lookout and to drive with care and caution; and these matters having been covered in other instructions, the Court did not have to repeat such items.

Finding no error, the judgment is affirmed.

        Ark. P. & L. v. Connelly, 185 Ark. 693, 49 S. W. 2d 387; Mo. Pac. v. Hopper, 208 Ark. 128, 185 S. W. 2d 88.

       There was some dispute as to the distance that the trailer extended into Grand Avenue. Plaintiff Combs said nine feet; another witness said six or eight feet; and another witness said four or four and one half feet; the jury could have found the greater distance of nine feet; and we must so consider it on this appeal.

       The word lowboy is defined in Webster’s New 3rd International Dictionary as “lowboy vehicle” and one “having a bed only a few inches above the roadway.”

       In 42 A.L.R. 2d, page 13, there is an exhaustive annotation, entitled, “Liability ior motor vehicle accident when vision of driver is obscured by smoke, dust, atmospheric condition, or unclean windshield.”


author: Geoiige Eose Smith, J.

text:
    Combs, Commissioner of Insurance v. Glen Falls Insurance Co.
    5-3278
    375 S. W. 2d 809
    Opinion delivered March 2, 1964.

      Bruce Bennett, Attorney General, By Jerry L. Patterson, Asst. Atty. Gen., for appellant.

      McMillen, Teague S Bramhall, Wright, Lindsey, Jennings, Lester & Shults, for appellee.
   Geoiige Eose Smith, J.

The appellees, two out-of-state insurance companies doing business in Arkansas, brought suit for a judgment declaring Act 527 of 1963 (Ark. Stat. Ann. § 66-2302 [Supp. 1963]) to be invalid on the ground that it was not enacted by a three-fourths vote in each house of the legislature. The defendants, the Insurance Commissioner and the Attorney General, contended that a simple majority vote, which is all the act actually received, was sufficient for its passage. The chancellor held that a three-fourths majority was required. He therefore declared the act to be invalid.

The main question is whether Act 527 increased the rate of privilege taxes levied against foreign insurance companies. If so, a three-fourths vote was required by Amendment 19 to the Arkansas Constitution. ■ This amendment, adopted in 1934, provides that none of the rates for property, excise, privilege, or personal taxes then levied shall be increased by the General Assembly except by the vote of three-fourths of the members elected to each house.

In 1934, when the amendment was approved, the premium tax against foreign life and health and accident insurance companies was 2%%, and that against other foreign insurers was 2%. Pope’s Digest, §§ 7965-66. These rates of taxation were continued in force through the years and were eventually embodied in § 69 of the Insurance Code—Act 148 of 1959.

On its face Act 527, now under attack, unquestionably increases the rates that were in effect in 1934. The act amends § 69 of the Insurance Code to provide that the premium tax shall be computed ‘ ‘ at the f olloAving rates: ’ ’ For life and disability companies “the tax rate” shall be 3%; for other insurance companies “the rate of tax” shall be 2Thus the act, in language wholly free from ambiguity, increases each tax rate by one half of 1%.

The appellants, in contending that Act 527 does not involve an increase in the rate of taxation, rely upon other provisions in the act which in substance permit any insurer to pay its premium tax at the old rate if it has made capital investments in Arkansas equal to half the total reserves upon its Arkansas insurance. It is argued that the sole purpose of the act was to compel foreign companies to invest their money in this state and that the increase in the premium tax is actually a penalty to be exacted from those companies that are unwilling to make investments here.

The short answer to this contention is simply that this is not what the legislature said. The act makes no mention whatever of a penalty. To the contrary, it refers explicitly and repeatedly to rates of taxation. Furthermore, subsection 8 of section 1 declares that any foreign insurer may “at its option” elect either to pay the higher tax or to make the specified investments and pay the tax at the lower rate. Hence a company might, as a matter of right, choose not to make the local investments, but it would nevertheless be compelled to pay its premium tax at the increased rate. If we should sustain the appellants’ position this provision in Amendment 19 might as well not have been adopted, for a simple majority of the legislature could increase the rate of any tax merely by affording the taxpayer some unacceptable alternative to paying the higher rate.

A secondary contention is that inasmuch as Act 527 contains a severability clause we should sustain the compulsory investment provisions even though the tax increase must be held to be invalid. In this view the sole effect of the act would be to require all out-of-state insurers to make the specified local investments.

This contention is unsound. A severability clause is frequently an aid to the courts in the construction of a statute, but, in the oft-quoted words of Justice Brandéis, it is not “an inexorable command.” Dorchy v. Kansas, 264 U. S. 286, 68 L. Ed. 686, 44 Sup. Ct. 323. While such a clause deserves reasonable consideration it should not be paid undue homage. Sutherland, Statutory Construction (3d Ed.), § 2408. For example, if an act should levy a new tax and create a new agency for its collection, no one could doubt that the invalidation of the tax would also do away with the collection agency, despite the presence of a severability clause. In Nixon v. Allen, 150 Ark. 244, 234 S. W. 45, we declared an entire act to be invalid, in the face of such a clause, because we concluded that if the legislature had known in advance that part of the act was unconstitutional it would not have enacted the rest. That is really the test.

It is evident that Act 527 was intended to put into effect a single indivisible proposal. Insurers were offered the choice of paying a higher premium tax or of making extensive investments in Arkansas. These alternatives are complementary and interdependent. To enforce the one without the other would be such a perversion of the legislative intent as to be equivalent to the enactment of a statute that the General Assembly did not itself see fit to adopt. We must conclude that the chancellor was right in holding the entire act to be void.

Affirmed.