author: Carleton Harris, Chief Justice.

text:
    Rosemary LOCKLEY v. David Orr LOCKLEY
    74-243
    519 S.W. 2d 52
    Opinion delivered February 17, 1975

      Burk Dabney, for appellant.

      Giles Hearing, for appellee.
   Carleton Harris, Chief Justice.

This is a divorce case between Rosemary Lockley, appellant herein, and David Orr Lockley, appellee. Questions presented are the validity of property transactions between the two; the jurisdiction of the trial court in entering an in rem order as to title to lands located in another state; the granting of a divorce to appellee, and the refusal to grant appellant a divorce on her counterclaim.

Appellee was formerly married to Sedella Lockley (according to the complaint, for more than 40 years), sister of appellant, such marriage being terminated by the death of Sedella on August 17, 1972. There were no living children of the marriage, the only child having died as a baby. Appellant came down for the funeral and returned to her home in Michigan. In January, 1973, appellee went to Leslie Michigan to get appellant who returned to Arkansas with him for the purpose, according to appellant, of helping him take care of his income tax. Rosemary brought with her her 13-year-old daughter, Beverly. Appellant’s five other children were left with an older married son. The two were married in February, 1973. Prior to the marriage, two of the younger children came to Arkansas. According to Rosemary, they first separated about two months after the marriage.. She remained away four or five days, but returned at the behest of Mr. Lockley. Thereafter, she again left appellee and on that occasion instituted suit for divorce in the Cross County Chancery Court. Complaint was filed on May 22, 1973. She apparently remained away for about a week before returning to the Lockley home. Lockley owned a farm in Cross County, on which the home is located and on May 31, 1973, this property was conveyed by Lockley to himself and Rosemary as tenants by the entirety. Subsequently, on June 15, 1973, a house was purchased in Leslie, Michigan, the property being conveyed to appellee and appellant as tenants by the entirety. After making the purchaser *he parties returned to Arkansas, and Rosemary, after rerfwning at the Arkansas home for only a few days, left, and returned to Leslie. Thereafter, Lockley instituted the present suit for divorce. Appellant counter-claimed, seeking a divorce and property rights. On trial, after the taking of testimony, the court rendered rather comprehensive findings in which it awarded a divorce to Mr. Lockley on grounds of indignities, rejected the charges (hereinafter discussed) made by Rosemary against appellee, found that appellant had deliberately induced Lockley to place the title to the Cross County property in the parties as tenants by the entirety; found that the same situation existed as to the Michigan property, and the court, in its order, set aside the deed from Lockley to himself and Rosemary to the Cross County property, and vested the title to the home in Michigan in Lockley alone. The court, however, apparently recognized that this last action was of doubtful validity and accordingly an alternative order was also entered giving Lockley a lien against the Michigan property to the full extent of the purchase price. As to personal property, a new automobile, which had been given to Rosemary soon after the marriage, was given to appellant, and appellee was ordered to pay to her the sum of $5,000 in cash. From the decree so entered, appellant brings this appeal. For reversal, four points are asserted which we proceed to discuss in the order listed.

THE TRIAD COURT ERRED IN SETTING ASIDE THE DEED FROM THE APPELLEE-HUSBAND TO THE APPELLEE AND THE APPELLANT-WIFE AS AN ESTATE BY THE ENTIRETY TO PROPERTY LOCATED IN CROSS COUNTY, ARKANSAS.”

The court rendered its Finding No. 1 as follows:

“1. This case is an outstanding example of the folly of quick marriages, and particularly those which occur shortly after the death of the spouse to whom one of the parties has been married many years. The plaintiff and his former wife had lived together many years, and apparently happily. Shortly after she died, the plaintiff and the sister of the deceased, Rosemary, the defendant herein, established contact, and their marriage took place on February 17, 1973. It was only a short time before Rosemary left, and filed suit for divorce. After persuasion she came back for a short time. During this time she persuaded the plaintiff to place the title to his Cross County farm, which included his home, in both their names. She also persuaded him to withdraw cash from bank accounts in Arkansas, and to purchase with those funds a home in Michigan, title being taken in both their names. Also, the plaintiff bought the defendant a car during this period, as well as gave her cash monies.”

Mr. Lockley, who can neither read nor write, other than print his name, testified that appellant was dissatisfied and that she said if the property were placed in their joint names, she could “do better.” Appellee stated that his wife said she could handle the business better than he could because of his lack of education; that he realized that he needed help, and he believed what appellant said and relied upon it. He also said that Rosemary told him that the title in both names would be beneficial as to inheritance tax in that money would be saved and that he believed her and relied upon such information. Mrs. Lockley said that she originally came to Arkansas to help appellee with his income tax, testifying that he stated he would pay her to render such aid. She said that she wrote all the checks for purchases made, and that appellee had total bank accounts of about $68,000 in three different banks; that there were 120 acres in the home property valued at approximately $300.00 per acre, a well-furnished three bedroom brick house with modern conveniences; that the house would be valued at $35,000 or $40,000. Admittedly, all the money mentioned had been acquired by Mr. Lockley. Appellant said she filed the divorce complaint about the time she talked to her daughter Beverly about the actions of Mr. Lockley. According to her testimony, appellee had been making advances toward this 13-year-old girl and he had made various purchases of personal items for the daughter. She said that she had seen him kissing the daughter on the neck but that her husband said “I love her just like a daddy”, but this statement did not conform to her daughter’s comments. Appellant stated that after talking with Beverly she left her husband and went to her brother’s home; that he came and talked with her several times endeavoring to get her to come back to him; that he said if she would come back “he would change everything over.” She said that she finally agreed to return, but set out certain conditions. Appellant added that he told her that he didn’t want his people to have the property, “When I die I want you to have it.” Within a few days, the deed to the Cross County property was executed.

Appellant’s brother, a resident of Cross County, also testified but his testimony added but little to the question now under discussion.

Certainly, we cannot say that the chancellor’s finding was against the preponderance of the evidence. It is very apparent that Lockley wgs almost totally uneducated; that he knew little of business matters; that he recognized and believed his wife was better able to handle such transactions as evidenced by the fact that admittedly she wrote all checks. The testimony from both parties makes it clear that he wanted her to return to live with him. In Harbour v. Harbour, 103 Ark. 273, 146 S.W. 867, this court stated:

“If it be true that she married and started in with the deliberate intention to simulate an affection she did not feel for a man much older than herself in order that she might acquire the title to his property and despoil him of it and drive him from the home he had purchased and conveyed to her in his utter reliance upon her affection, loyalty and faithfulness to him, or if she later formed such a design and pursued it with such intention to the consummation proved herein, we do not see why it was not such a fraud against his rights that equity should relieve against it.”

Further, quoting from an Oklahoma case, we added:

“The majority of cases between man and wife where questions arising out of constructive fraud, undue influence, or a violation of confidence reposed are involved are generally those wherein the wife sues to secure relief from contracts, gifts, and transactions entered into under the influence of the husband; the cases quoted from above, however, and some others cited are those where the husband was the victim. The principle controlling the rule for relief under either situation is the same. It is that influence has been acquired and abused; confidence reposed and betrayed. It is of no consequence that the one deceived is a man, and the other party a woman. Difference in sex does not create the equities, nor alter the rule. It is the confidential relationship existing between the parties and the fact that the acts done spring from it which create the equities. In the case at bar it appears that the sole consideration for the transfer of this property from the husband to the wife was the affection and confidence which he had in her as his wife. She was not a stranger to him, nor did she pay him any valuable consideration for the property. As he doubtless viewed it, their relationship made them virtually one person, and it was probably a matter of indifference to him whether the title to the property was in her or himself. They were to jointly use it as a continuing, harmonious family. He did not give it to her, nor did she receive it, in contemplation of divorce and separation; the transaction had its life and being in the sacred relationship of husband and wife. Without this it would never have taken place.”

In its Finding No. 5, the court stated:

“The court finds that Rosemary deliberately induced Mr. Lockley to place the title to the Cross County property in their names as tenants by the entirety, with the knowledge that she did intend to continue to live with him as man and wife. The court further finds that the same state of affairs is true as to the home in Michigan. Rosemary should not be permitted to profit by these unconscionable actions. Therefore, the court finds that the deed from Mr. Lockley to himself and Rosemary will be set aside.”

A circumstance that seems indeed pertinent in determining this litigation is that appellant agreed to go back to Lockley, even though her daughter told her that he had made improper sexual advances to her; still further, appellant testified that appellee had abused her (appellant) sexually, stating that he “mutilated” her. Now, if these things had happened, particularly the former, the love of a parent for a child being what it is, it is difficult to see how appellant could have resumed her relationship with appellee, and the fact that she subsequently left him a third time permanently, within three weeks after this deed was executed, is a potent circumstance indicative of the fact that she set out to acquire whatever property rights could be cajoled out of Mr. Lockley. We find no error in the ruling as to the Cross County property-

“II.
THE TRIAL COURT ERRED IN ENTERING AN IN REM ORDER OPERATING DIRECTLY UPON THE TITLE TO LANDS LYING IN THE STATE OF MICHIGAN BY REFORMING A DEED VESTING TITLE IN APPELLEE-HUSBAND ALONE OR IN GIVING HIM A LIEN AGAINST SUCH PROPERTY LOCATED IN THE STATE OF MICHIGAN.”

The facts leading to the purchase of the property in Michigan are pretty well covered in the discussion under the preceding point. At the same time that Mr. Lockley was endeavoring to persuade appellant to return to him and discussed with his wife the Cross County property, he also agreed to purchase property in Leslie, Michigan. Appellant stated that Lockley told her he knew what it would take to make her happy, and that would be to return to Michigan; that they went to Leslie, Michigan for the purpose of buying § home. She said that appellee had never been in Michigan éxcept when he drove there to get her and take her back to Arkansas. The two looked at a house, liked it, and made the purchase for the sum of $34,000 which was drawn from Mr. Lockley’s bank accounts. This purchase took place on June 15, 1973, and the parties after staying there for a day or two, returned to Arkansas.

Lockley stated that his wife wanted to buy property in Michigan since some of her children were going to school there, and that she said they would live there for about three years until the children were out of school and that they would then return to Arkansas to live. Lockley said that he believed her and they made the trip, found the property that she liked and purchased it as she desired, i.e., “She wanted it in mine and her name and I put it there.” While, as previously stated, this record is most confusing, it does appear that they stayed in Michigan for one or two nights, returned to Arkansas and, according to Lockley, appellant left the day after they arrived in Arkansas. At any rate, only a few days elapsed. Again, we do not find, for the same reasons enumerated under the preceding point, that the chancellor’s finding should be overturned. However, the court erred in its disposition of the property. The finding was as follows:

“The court finds that, from an equitable standpoint, title to the home in Michigan is vested in Mr. Lockley alone, and the deed to it should be reformed to that effect. In the alternative, if this cannot be accomplished, then Mr. Lockley is given a lien against the Michigan home in dollars to the full extent of the purchase price.”

This transfer of title cannot be accomplished under the method employed by the chancery court. As stated by Dr. Robert A. Leflar, distinguished professor of law, in American Conflicts Law, § 173, p. 427:

“The only state which can, by operation of law and apart from the act of the parties, transfer title in land out of one person and into another is the state where the land lies.”

In § 174, p. 428, it is stated:

“Although the courts of one state are without power to issue any judgment or decree directly affecting title to land in another state, it is permissible for them to issue in personam judgments and decrees in suits involving foreign land. *** The court’s decree for the plaintiff is good so long as it merely orders the defendant to execute conveyance, and does not purport to pass the title in the extrastate land. The conveyance executed under the legal duress of such a decree is recognized as valid. A court’s power to issue decrees for conveyance of foreign land is not limited to suits on contracts, but may be exercised in any case in which an in personam right to have conveyance is discoverable.”

In our own case of Tolley v. Tolley, 210 Ark. 144, 194 S.W. 2d 687, the court held that a Kansas divorce decree awarding certain Arkansas realty to the wife involved an attempt by the Kansas court directly to adjudicate title to property outside the jurisdiction of Kansas, and was not effective in this state. The Kansas decree awarded the land to the wife, “free and clear of all claims and liens of the defendant.” In discussing the case, this court said:

“The judgment of the District Court of Wyandotte county, Kansas, contained this language: ‘It is further ordered and decreed that plaintiff be and she is hereby awarded the following described real estate, to-wit: The southeast quarter (!4) of the southeast quarter (V\) of section ten (10), township seven (7) north, range five (5) west, consisting of forty (40) acres of land, more or less, in White County, Arkansas, free and clear of all claims and liens of the defendant.’ This was a decree in rem by the Kansas court, attempting to settle title to real estate in Arkansas by operating directly on the title. The full faith and credit clause of the United States Constitution does not afford any sanctity or force in the State of Arkansas to such judgment of the Kansas court, because the Kansas court was without jurisdiction to vest title to Arkansas real estate in the form in which this judgment was rendered. Fall v. Eastin, 215 U.S. 1, 30 S. Ct. 3, 54 L. Ed. 65, 23 L.R.A., N.S., 924, 17 Ann. Cas. 853. In that case just cited, Mr. Justice McKenna, speaking for the United States Supreme Court, quoted from the earlier case of Watts v. Waddle, 6 Pet. 389, 8 L. Ed. 437: ‘It is not in the power of one state to prescribe the mode by which real property shall be conveyed in another. This principle is too clear to admit of doubt.’ In speaking of the full faith and credit clause, Mr. Justice McKenna said: ‘This provision does not extend the jurisdiction of the courts of one state to property situated in anoth-
“In 27 C.J.S. 1287 the rule is stated: ‘sincejurisdiction to render a judgment in rem inheres only in the courts of the state which is the situs of the res, a divorce decree which attempts to settle the title to lands in another state, by operating directly on the title, and not by compelling the holder of the title to convey, is void and not res adjudícala of the same claim in an action between the same parties and involving the same land.’
“And in 17 Am. Juris. 369 this appears: ‘The rule is well established that in divorce proceedings the courts of one state cannot, by their decree, directly affect the legal title to land situated in another state, . . .’
“And in Leflar on ‘Conflict of Laws, ’§119, the rule is stated: ‘The only state which can, by operation of law and apart from the act of the parties, transfer title in land out of one person and into another is the state where the land lies.’”

See also Kendall v. Crenshaw, 116 Ark. 427, 173 S.W. 393. In the Michigan case of Parkinson v. Guilloz, et al, 231 N.W. 89, the Supreme Court of Michigan said:

“The evidence consisted of plaintiff’s testimony, taken by deposition, and the introduction of records and opinions of the California courts, which are claimed to be res adjudicata. In Guilloz v. Parkinson, 204 Cal. 441, 268 P. 635, the court held that plaintiff did not hold the lots in trust for defendant. The decision authorized a personal decree, but expressly recognized that the title to the lots was determinable only by the courts of this state. The decision is not res adjudicata here.”

Here, Mrs. Lockley was not directed to execute a deed to Mr. Lockley conveying the Michigan property; rather, the court itself divested Mrs. Lockley of title, and it was without authority to do so. Of course, the alternative set out by the court was also beyond its authority. It follows that this portion of the decree will have to be reversed.

“III.

THE DIVORCE GRANTED TO APPELLEE-HUSBAND ON HIS COMPLAINT IS NOT SUPPORTED BY A PREPONDERANCE OF THE EVIDENCE.”

The trial court found as follows:

“3. The court finds that a divorce should be awarded to Mr. Lockley on the grounds of indignities. While the corroboration of Mr. Lockley’s testimony is rather slight, this court cannot be blind to the circumstantial evidence set out above. When all of the testimony of all of the witnesses, including Rosemary herself, is put together with the actual facts and circumstances, this court must conclude that Mr. Lockley is entitled to a divorce.
“4. The court rejects the charges made by Rosemary against Mr. Lockley.”

We agree that the corroborating evidence offered by Mr. Lockley was slight, but we are also of the opinion that considering the findings of the court, and the circumstances reflected by the evidence, we cannot say that his decision in granting a divorce was erroneous. Of course, we have said numerous times, so numerous as to require no citation of authority, that corroboration in contested divorces need only be slight. What are the circumstances in the present case? First, let it be pointed out that the court specifically rejected the charges made by appellant against appellee. Let it be remembered that the chancellor heard and saw all of these witnesses, an advantage we did not have, and his rejection of the accusations made by Mrs. Lockley is quite significant, for if the charge made by appellant to Mr. Lockley that he was making improper advances to her daughter was not true, this was an extreme indignity that would “cut to the quick”. That we consider there was excellent reason for the chancellor to disbelieve this testimony, has already been indicated in our earlier discussion pointing out that it is unusual for a woman to return to her husband if such abuse of a child has taken place. Strongly indicating her feelings toward this husband, even though she returned to his abode, was her statement in court, “I would have rather been dead than live with him.” Of course, we daresay most any husband denied the conjugal relationship, would consider this a gross indignity. Her testimony, throughout the evidence definitely leaves the impression that she looked upon him with loathing, and held him in complete contempt. Of course, leaving him, and returning soon thereafter, as well as instituting suit against him, were indignities if there was no just cause for the leaving and the institution of the suit. The fact that she returned on these occasions, and dismissed her complaint, denotes that these actions were perhaps not justified. At any rate, we are. unable to say that the chancellor’s findings were against the preponderance of the evidence on this point.

“IV.
THE TRIAL COURT ERRED IN REFUSING TO GRANT APPELLANT-WIFE A DIVORCE ON HER COUNTERCLAIM.”

Of course, under the finding in Point III, there is really no need to discuss this contention, for if Mr. Lockley was entitled to a divorce because of indignities, it necessarily follows that Mrs. Lockley was not so entitled. Beverly Beegle, the daughter, sustained her Mother’s allegations to a degree, stating that Lockley pinched her between the legs and on her breast, and that he had put his hands under her blouse touching her breasts. It has already been pointed out that the court did not accept testimony relative to this charge and we certainly cannot say, from the printed record, that it should have been accepted. Of course, though denying the divorce, the court did find:

“Mr. Lockley did marry Rosemary, although foolishly, and she did live with him for a short time. Therefore, he should not be permitted to escape unscathed. Therefore, the court will permit Rosemary to retain the automobile, and any household belongings purchased while they were married which are presently in her possession. Any belongings which she took with her which belonged to Mr. Lockley and/or his former wife should be returned to Mr. Lockley. In addition, Mr. Lockley will be ordered to pay Rosemary the sum of $5,000.00 in cash.”

For the reasons set forth under Point II, that portion of the decree is reversed and the cause remanded for further orders or proceedings; furthermore, because of our reversal on this point, the chancellor may, if he deems it proper, reconsider the distribution of assets.

It is so ordered.

      The record is confusing in this respect. Appellee testified that he was 55 years of age at the time of trial and that he was married to Sedella for more than 40 years. This, of course, would mean that he was 14 or 15 years of age at the time of this marriage. According to the marriage license, appellee was 60 years of age at the time of his marriage to Rosemary.

      Appellant had seven children by her first marriage to Charles Beegle, from whom she was divorced.

      The record in this case is very difficult to follow. Different dates and different months are mentioned as the time of the separation.

      Appellant’s suit for divorce was dismissed on June 11, four days before the Michigan property was acquired.

      From the record:
      “Before we got married everything — he told me we would stay and he would will the house to Beverly, he would give Beverly the house, everything would go to Beverly. I told him I didn’t want it, so it was Beverly. Everywhere he went he took Beverly. He never asked me to go, it was always Beverly and he loved Banana cake and he would come in and ask her first to bake one, he never asked me to. I would go to cook and he would come in and take over. It wasn’t because I didn’t want to cook, he didn’t want me to cook, if he wanted anything done he asked Beverly. He bought for Beverly, he didn’t buy for me. Well, I wasn’t jealous but it hurt me to think he would do that on her birthday he bought her a cake and an eighty-eight dollar ($88.00) bicycle. When mine came around he bought me a 39* pair of house shoes and a box of powder.”

      From the record:
      “Anyway, my agreement when I went back to him was that I had lost all respect for him. ‘I don’t think I can live with you as a wife because of what you have done.’ I said, ‘I have not got a cent, I have got no place to go, I’ll come back and I will try but I will be watching every move you make and you know that I will.’ I said, ‘You are to stay away from Beverly, you are to treat Clark [a son] right and I will do my part, I will make you a wife if you will let me. ’ He said, ‘I know we have never been man and wife but we will this time, I’ll do anything for you if you will come back,’ so I went back.
      #**
      “He immediately demanded I start sleeping with him and I told him I couldn’t, every time I look at you, I know you know that I know what you have done. I said, ‘when I look at you I think of that and I can’t respect you and I can’t respect you and I can’t sleep with you until I respect you. You’ve got to take me back on them terms’, and he said he would. I said that maybe later on I could grow to feel like I did at first, that I would want you as a husband. He said, ‘I will stay with you under any circumstances.’”

        Thomas v. Thomas, 27 Okla. 784, 109 Pac. 825.

      It is not clear from this language whether the court meant that Lockley changed the title because he thought his wife intended to continue to live with him, or whether the language has reference to Mrs. Lockley. If the latter is true, it is obvious from the findings in the case that the sentence “That she did intend” was a mistake and meant “that she did not intend”.

      One rather puzzling fact was not developed. The evidence reflects that Mr. Beegle, the former husband of appellant, stayed in the same house with Mrs. Lockley overnight (in the home of appellant’s sister), though not in the same room, but there is no evidence of any illicit conduct. There is no explanation of why Mr. Beegle was in Arkansas. The record indicates that this occurred after appellant left the Lockley home for the second time.


source: Caselaw Access Project

author: George Rose Smith, Justice.

license: Public Domain

text:
    ARKANSAS STATE HIGHWAY COMMISSION v. Carlton A. SMITH et ux
    74-260
    519 S.W. 2d 64
    Opinion delivered February 17, 1975

      Thomas B. Keys and Philip N. Gowen, for appellant.

      Douglas Bradley and Jon R. Coleman, for appellees.
   George Rose Smith, Justice.

In this condemnation case the Highway Commission appeals from a verdict and judgment fixing the landowners’ compensation at $4,000. The testimony of the landowners’ expert witness, a professional appraiser with 44 years’ experience, amply supports the verdict. Nor was there any error in the court’s refusal to strike the “before” value testimony of Carlton A. Smith, one of the owners. He had lived in the community for 27 years and had watched the sales of land in the area through the years. He valued his farm at $2,000 an acre and stated on cross-examination, without objection, that he had been offered that amount for his land. Such an offer, like hearsay, is not admissible as proof of value, but we have held that hearsay testimony, if not objected to, may support a verdict. Ark. State Highway Commn. v. Bradford, 252 Ark. 1037, 482 S.W. 2d 107 (1972). An offer falls in the same category. It was not shown that the offer in question was not an adequate basis for Smith’s opinion.

Affirmed.


author: Lyle Brown, Justice.

text:
    THE STANDARD OF AMERICA LIFE INSURANCE COMPANY v. Mrs. Vanelane HUMPHREYS
    74-250
    519 S.W. 2d 64
    Opinion delivered February 17, 1975

      Bridges, Young, Matthews & Davis, for appellant.

      Gibson & Gibson, P.A., for appellee.
   Lyle Brown, Justice.

The trial court awarded $7,000 to appellee for the death of her husband. The award was based on group insurance coverage issued by appellant. The sole issue was whether the insurance covered death suffered while the deceased, James C. Humphreys, was on the job. The appellant contends that only non-occupational death was covered.

The Holland Company, employer, made application to appelant for group coverage on its employees. Policy GC-1788 was issued on the basis of Holland’s application for nonoccupational death and dismemberment. The maximum coverage was $7,000. Appellant explains that no coverage was provided for occupational death since that loss was covered by workmen’s compensation insurance and the nonoccupational benefit carried a much lower rate. Mr. Humphreys was killed in an on-the-job accident when a hydraulic drill press exploded. The appellee, widow, filed claim under the policy for $7,000 and the company denied liability because death resulted from Mr. Humphreys’ employment.

Among other insurance requested, Holland’s application contained this recital:

“(5) COVERAGE DESIRED:

XX Accidental Death & Dismemberment Benefits”

Holland then executed Schedule of Benefits (A), Accidental Death and Dismemberment Benefits. That application had this recitation: “AD&D Benefits for Insured shall be XX Non-Occupational”

Finally, the application states: “It is understood that this application and each of the applicable Schedules indicated in (5) above shall be attached to and become a part of the Policy or Policies issued by the Company.”

The application was attached to the master policy. The policy provides:

“LIMITATIONS. The Insurance with respect to Accidental Death and Dismemberment Benefits does not cover loss caused or contributed to by:

(E) any act or thing pertaining to any occupation or employment for wage or profit if only non-occupational coverage is to be provided as specified in the Schedule of Benefits for Accidental Death and Dismemberment Benefits.”

The certificate of insurance issued by appellant and possessed by James C. Humphreys at the time of his death was dated March 1, 1972 and the schedule of benefits included “Accidental Death and Dismemberment $7,000”. The certificate recites that the schedule of benefits was “subject to the provisions and limitations of the master policy” issued to Holland Company. Then it provided that “This individual Certificate is furnished in accordance with and subject to the terms of said group policies and is merely evidence of insurance provided under said group policies . . . .” The schedule of benefits contained on the certificate has this wording:

“LIMITATIONS. The Insurance with respect to Accidental Death and Dismemberment Benefits does not cover loss caused or contributed to by:

(E) any act or thing pertaining to any occupation or employment for wage or profit if only non-occupational coverage is to be provided as specified in the Schedule of Benefits. ”

Based on the great weight of authority the appellee cannot prevail in this case.

It is generally held that an employee’s contract of insurance under the group plan consists of the policy issued by the insurer to the employer, the individual certificate delivered by the employer to the employee being no part of such contract, but only an instrument reciting the employee’s right to protection under the terms of the group policy so long as there is a compliance with the conditions of the policy. 44 Am. Jur. 2d, Insurance § 1870.
# * #
The insured may have actual knowledge of the contents of the master policy, but in any case he will be deemed to have constructive knowledge of its provisions either on the theory that the employer is his agent, and that knowledge of the employer of the terms of the master policy is to be imputed to the employee, or because the certificate which the employee receives expressly states that it is subject to the terms of the master policy, which are incorporated into the certificate by reference. Couch on Insurance, Group Insurance § 82:13.

We have held that the employer is the employee’s agent in connection with a group insurance policy. Metropolitan Life Insurance Company v. Thompson, 203 Ark. 1103, 160 S.W. 2d 852 (1942)

Appleman agrees with the text authorities we have cited:

In construing the rights of any insured, the court will look first to the terms of the master policy. The rights and obligations of all parties are measured by the terms of the master policy, it being considered that an employee accepting the group insurance contract made between the employer and insurer is bound by the terms thereof. * <! * * Some courts have held that if there is a conflict between the terms of the certificate and the master policy that the certificate will control, although the majority of courts have, partly upon the basis of the contractual expressions, reached a contrary conclusion. 13 Appleman Ins. L. & P., § 7528.

The certificate in the case at bar does not contain, as does the master policy, the statement that the insurance covers only non-occupational hazards; however, as we have pointed out, the certificate issued to the employee recites that the certificate is subject to the terms and limitations of the master policy; recites that the certificate is mere evidence of insurance provided by the master policy; and refers to the master policy’s provision for non-occupational coverage. Therefore, those expressions in the certificate were sufficient to make the certificate subject to the terms and conditions of the master policy. On the question of conflict between the master policy and the certificate see General American Life Insurance Co. v. Yarbrough, 360 F. 2d 562 (1966). Yarbrough is an Arkansas case and the decision was based on the circuit court’s interpretation of Arkansas law.

Reversed and dismissed.

Harris, C.J., not participating

Holt, J., not participating


author: J. Fred Jones, Justice.

text:
    Raymond TIPPS v. L. C. MULLIS
    74-234
    519 S.W. 2d 67
    Opinion delivered February 17, 1975

      Charles S. Gibson, for appellant.

      Gill, Clayton & Johnson, for appellee.
   J. Fred Jones, Justice.

This is an appeal by Raymond Tipps from a summary judgment for $1,425 rendered by the circuit court as rental money due under a lease entered into by Tipps as lessee and the appellee, L.C. Mullis, as lessor.

The facts appear as follows: Tipps and Mullis entered into a written lease agreement under which Tipps leased a store building in McGehee, Arkansas, from Mullis at $75 per month for a period of five years ending on June 30, 1973. Tipps vacated the premises in December, 1971, and Mullis filed suit seeking a declaratory judgment adjudicating the rights of the parties and for judgment of amounts due under the lease.

The case was tried before a jury and at the conclusion of the evidence Mullis moved for a directed verdict and the motion was denied. The jury was unable to reach a verdict and the trial court declared a mistrial. Before the case was reset for a new trial, Mullís filed a motion for summary judgment to which the appellant responded. The trial court granted appellee Mullis’s motion and awarded summary judgment in his favor in the amount of $1,425, together with interest and costs.

The appellant Tipps has designated the following points he relies on for reversal:

“The trial court erred in allowing appellee to move the court for summary judgment after the court had already denied appellee’s motion for directed verdict.
The court erred in granting appellee’s motion for summary judgment because:
A. Factual issues existed which should have been resolved by a jury trial, and;
B. The court, by construction, varied the literal and express language of the parties’ lease.”

We find no merit in appellant’s first assignment. It is a matter of common judicial knowledge that in many instances motions for directed verdicts are denied and then judgment entered on motion notwithstanding the verdict of a jury. The propriety of the trial court in discharging the jury in this ease is not questioned. (Ark. Stat. Ann. § 27-1735 [Repl. 1962]). Under Ark. Stat. Ann. § 27-1736 (Repl. 1962) the case stands ready for a new trial following the discharge of a jury. This section reads as follows:

“In all cases where the jury are discharged during the trial, or after the cause is submitted to them, it may be tried again immediately or at a future time, as the court may direct.”

This section does not mean that the case may or may not be tried again, it means that the trial court can direct when the cause is to be tried, immediately or at a future date, not whether it can be tried. Gregory v. Colvin, Judge, 235 Ark. 1007, 363 S.W.2d 539 (1963). We are of the opinion that the trial judge found and properly applied the law as to the appellant’s first point. We quote from the trial court’s opinion and adopt his language as our own. In the trial court’s written opinion he says:

“What then is the status of a case after a hung jury? In C.J.S., Volume 89, at paragraph 482, citing as authority City of Woodward v. Caldwell C.C.A. Okla. 86 F. 2d 567, it is said:
‘After the jury have been discharged for failure to agree, the case is terminated with no issue determined and stands as if no trial had been had, and is ready for retrial immediately or at a future time as directed by the court. ’ That which I have underlined is almost identical language employed in 27-1736 Arkansas Statutes Annotated. Further, ‘a mistrial is often defined as being equivalent to no trial, certainly there has been no final determination of petitioner’s cause of action.’ Gregory v. Colvin, 363 S.W. 2d 539.”

We hold, therefore, that when the trial court properly discharges a jury because of its inability to agree on a verdict, the same case stands ready for a completely new trial on all issues and subject to the same motions and procedure as if no trial had ever been had.

The conclusion we have reached on the appellant’s first point disposes of the question of the propriety of the trial court in entertaining the appellee’s motion for summary judgment, and we are of the opinion that the trial court did not err in granting the motion for summary judgment in this case.

The summary judgment procedure under Ark. Stat. Ann. § 29-211 (Repl. 1962) is now so well established in Arkansas little time need be devoted to it here. It is an adoption of Rule 56 of the Federal Rules of Civil Procedure and provides as follows:

“A party seeking to recover upon a claim, counterclaim, or crossclaim or to obtain a declaratory judgment may, at any time after the expiration of 20 days from the commencement of the action or after service of a motion for summary judgment by the adverse party, move with or without supporting affidavits, for a summary judgment in his favor upon all or any part thereof.”

We do not agree with the appellant’s contention that factual issues existed which should have been resolved by a jury trial, and that the trial court varied the express language of the lease by erroneous construction. The appellee pled the lease agreement between the parties and alleged that appellant had abandoned the leased premises and refused to pay the monthly rental. He sought a declaratory judgment adjudicating the respective rights of the parties under the lease, and prayed judgment for the amount due under the terms of the lease. The appellant answered that the leased premises had become untenable and unfit for occupancy; that appellant was well aware of the condition of the premises and had refused to place such premises in tenable condition. The appellant relied upon the following portion of the lease agreement:

“DESTRUCTION OF PREMISES: In the event that the building or premises herein leased shall, during the term of this lease, become destroyed or injured by fire or any other cause or casualty so as to be rendered untenable, and such injury shall not be repaired by Lessor within sixty days thereafter, it shall be optional with either party hereto to cancel this agreement and terminate this lease, and in such case such cancellation shall be in writing, and the rents shall be paid to the date of such fire or casualty. ...” (Our emphasis).

The appellant in his answer only alleged that the appellee permitted the leased premises to become untenable. He argues that the phrase “any other cause” in the lease contract includes ordinary deterioration of the building. We agree with the trial court’s interpretation of the lease in that the above italicized portion related to becoming destroyed or injured by fire or any other cause or casualty so as to be rendered untenable, did not relate to untenability because of normal wear and tear.

The lease in the case at bar contained a provision pertaining to repairs as follows:

“REPAIRS AND NOTICE: The said Lessee agrees to quit and deliver up the said premises to Lessor peaceably and quietly at the end of the aforesaid term, or at any previous termination of this lease for any cause, in as good order and condition and state of repair, reasonable wear and tear alone excepted, as the same now is or may be placed or put into by Lessor. Lessor agrees to make all necessary repairs to the roof and the exterior of said building, excluding damage to any windows or doors, whether by breakage or otherwise. Lessee agrees to make all minor repairs becoming necessary on account of the use of said premise? to the interior of said leased premises, and to make all necessary repairs for damage, by breakage or otherwise, to all windows and doors in said building. The repairs by Lessor, if necessary, shall be made upon notice in writing by Lessee of any such repairs required and Lessor agrees to have same fixed and repaired within seven days from the receipt of said notice or Lessee may have same repaired and deduct the cost of having same repaired from the rent. Lessor is not to be responsible for any damage from any faulty or leaky roof.”

In the appellant’s response to the motion for summary judgment, he concludes with a paragraph as follows:

“Defendant states that affirmative defenses to Plaintiff’s Complaint have been raised joining issues of fact as a matter of law. Specifically the Defendant has stated by answer that the premises were untenable and unfit for occupation. This is a defense to Plaintiff’s cause according to the terms of the lease.”

The appellant admitted that he gave no written notice of needed repairs to the building under this provision of the lease agreement, and certainly the lessor would have been entitled to sufficient time to make repairs after such notice. See Tedstrom v. Puddephatt, 99 Ark. 193, 137 S.W. 816. Furthermore, this provision of the lease only gave the lessee the right to make repairs and charge them against rent. It did not give him the right to terminate the lease agreement.

The judgment is affirmed.


author: Conley Byrd, Justice.

text:
    Sherry WHITE v. Kenneth O. HUGHES
    74-258
    519 S.W. 2d 70
    Opinion delivered February 17, 1975

      Me Math, Leatherman & Woods, for appellant.

      Laser, Sharp, Haley, Young & Boswell, P.A., for appellee.
   Conley Byrd, Justice.

The appellant, Sherry White, a high school cheerleader, beauty queen and model, was a guest in an automobile driven by her boy friend, the appellee Kenneth O. Hughes when a collision occured with an automobile parked partly on and partly off the freeway. The trial court submitted the issues to the jury in accordance with our guest statute, Ark. Stat. Ann. § 75-913 (Repl. 1957), which denies a recovery to a guest except for willful and wanton negligence. The jury found the issues in favor of appellee. For reversal appellant contends only that the guest statute, supra, is unconstitutional, being in violation of article 2, § 18 of the Arkansas Constitution and the equal protection clause of the United States Constitution.

The constitutionality of our guest statute was upheld in Roberson v. Roberson, 193 Ark. 669, 101 S.W. 2d 961 (1937), as against the argument that it contravened article 2, § 18 of the Arkansas Constitution. A similar statute has been upheld as against the equal protection clause of the United States Constitution in Silver v. Silver, 280 U.S. 117, 50 S. Ct. 57, 74 L. Ed. 221 (1919). Appellant recognizes the foregoing authorities, but as predicted by the case notes in 49 Notre Dame Law 446 and 48 Tul. L. Rev. 419, she suggests we should follow the lead of the Supreme Court of California in Brown v. Merlo, 8 Cal. 3d 855, 106 Cal. Rptr. 388, 506 P. 2d 212 (1973), and reconsider the inequities and hardships imposed upon innocent victims by the guest statute. In the Merlo case, supra, the California guest statute was held in violation of the equal protection clause. The Texas Court of Civil Appeals in Tisko v. Harrison, 500 S.W. 2d 565 (Tex. Civ. App. 1973), after criticizing the Merlo case, supra, concluded that the Texas guest statute did not violate the equal protection clause. The Supreme Courts of Kansas, Henry v. Bauder, 213 Kan. 751, 518 P. 2d 362 (1974), Utah, Cannon v. Oviatt, — Utah —, 520 P. 2d 883 (1974), Idaho, Thompson v. Hagan, 96 Idaho 19, 523 P. 2d 1365 (1974) and North Dakota, Johnson v. Hassett, 217 N.W. 2d 771 (N.D. 1974), followed Merlo, supra, in striking down their guest statutes. The Supreme Courts of Iowa, Keasling v. Thompson, — Iowa —, 217 N.W. 2d 687 (1974), Colorado, Richardson v. Hansen, —, Colo. — 527 P. 2d 536 (1974), Oregon, Duerst v. Limbocker, — Or. —, 525 P. 2d 99 (1974) and Delaware, Justice v. Gatchell, — Del. —, 325 A. 2d 97 (1974), followed the Texas Court in Tisko v. Harrison, supra, in upholding their guest statutes.

Upon the authorities cited we cannot say that the guest statute, supra, has no fair and rational relation to the legislative objectives sought to be controlled and like the Delaware Court, Justice v. Gatchell, supra, we take the view that if the rule of Silver v. Silver, supra, the highest authority on the equal protection clause, “is to be changed and the strictures of the Fourteenth Amendment extended in this area of the law, we shall await the views of the United State Supreme Court on the subject.”

Affirmed.


text:
    ARKANSAS KRAFT CORPORATION v. Kathy JOHNSON, Administratrix of the Estate of Ben JOHNSON
    74-210
    519 S.W. 2d 74
    Opinion delivered February 24, 1975

      Laser, Sharp, Haley, Young & Boswell, P.A., for appellant.

      Smith, Williams, Friday, Eldredge & Clark, by: William H. Sutton and Frederick S. Ursery, for appellee.
   Carleton Harris, Chief Justice.

Kathy Johnson, Ad-ministratrix of the Estate of her husband, Ben Johnson, instituted suit in the Pulaski County Circuit Court against Arkansas Kraft Corporation, hereafter called Kraft, appellant herein, alleging that on September 1, 1970, the deceased, an employee of Chicago, Rock Island & Pacific Railroad Company, hereafter called Railroad, was killed when he was struck by pulpwood logs which fell from a railroad car; further, that the pulpwood had been loaded on the train by Kraft employees who had been negligent in the loading operation in such a manner that the pulpwood had fallen from the car. Recovery was sought on behalf of the estate, appellee’s widow, and one minor child, in the total amount of $601,936.32. Kraft answered, subsequently amending its answer, denying each and every material allegation except that the accident did occur, pleaded that the injuries resulting in Johnson’s death were caused or contributed to by his own negligence and that, in the alternative, the injuries resulted from a risk or risks which Johnson assumed. On trial, the jury rendered a judgment in the amount of $35,000 for the widow, $45,000 for the daughter, and $1,960.00 for the estate, a total of $81,960.00. The court entered a total judgment for $81,936.32, and from such judgment comes this appeal. For reversal, four points are alleged which we proceed to discuss in the order listed.

“I.
THE COURT ERRED IN ALLOWING PLAINTIFF TO ADVISE THE JURY THAT A PRIOR SETTLEMENT HAD BEEN REACHED BETWEEN PLAINTIFF AND A THIRD PARTY, CHICAGO ROCK-ISLAND & PACIFIC RAILROAD COMPANY.”

Since Ben Johnson was an employee of a railroad company, his personal representative had a cause of action against the railroad under the Federal Employer’s Liability Act for negligence resulting in the death of the decedent. Such an action was filed (prior to the litigation now before us) in Federal District Court under which an FELA recovery was sought. However, prior to trial of that case, appellee and the railroad settled for a total of $79,500.00. Prior to trial of the instant litigation, counsel for appellee disclosed an intention to inform the jury that the appellee had filed a separate suit against the railroad which had been settled for $79,500.00, and this was done over the objections of the appellant. It is argued that the court’s action in permitting the amount of this settlement to be disclosed to the jury constituted error, appellant asserting that the proper procedure was for the jury not to be apprised of the settlement, but instead, the court should credit the amount of any judgment against Kraft with the settlement amount. As authority for this position, Kraft relies upon Walton v. Tull, 234 Ark. 882, 356 S.W. 2d 20. There, Tull had sued several alleged tortfeasors for personal injuries arising out of an automobile accident but prior to trial, Tull settled his cause with one of the defendants. Subsequently, one of the defendants attempted to introduce the settlement to the jury which the trial court did not permit. On appeal, we upheld this action pointing out that though in Giem v. Williams, 215 Ark. 705, 222 S.W. 2d 800, the payment by one joint tortfeasor was considered by the jury, we did not hold that procedure to be proper in all cases. In affirming, we stated:

“The fact of settlement might have had some slight bearing upon Tull’s credibility, but this reason for admitting the proof is outweighed by the arguments for its exclusion. The evidence would have informed the jury that one of the defendants had admitted liability and might also have been used as a basis for an argument that Tull had accepted the amounts of the settlement as fair compensation for his injuries. The Uniform Contribution Among Tortfeasors Act contemplates that each tortfeasor will be credited with amounts paid by other joint tortfeasors, Ark. Stat. 34-1004, but the statute is silent about how the matter is to be handled.”

In Giem, mentioned in the previous citation, the ad-ministratrix brought suit against Giem, a general contractor, and suit was also filed against a subcontractor. The subcontractor (Tune) was dismissed as a defendant prior to the trial following his payment to the administratrix of the sum of $4,000 in return for a covenant not to sue. At the trial, Giem introduced into evidence the settlement between the subcontractor and the plaintiff. When the jury awarded the plaintiff a verdict in the amount of $8,500, Giem moved the court to credit the verdict with the $4,000 which the subcontractor had paid in settlement. The motion was denied and on appeal we affirmed, stating:

“Appellants had the right, under Section 34-1007, Ark. Stats, of 1947, to make Tune a third-party defendant, even after the appellee had dismissed as to him. But, instead of availing themselves of the said section, appellants evidently decided to proceed under Section 34-1004, Ark. Stats, of 1947, which reads: ‘Release of one tortfeasor — effect on injured person’s claim — A release by the injured person of one joint tortfeasor, whether before or after judgment, does not discharge the other tortfeasors unless the release so provides; but reduces the claim against the other tortfeasors in the amount of the consideration paid for the release, or in any amount or proportion by which the release provides that the total claim shall be reduced, if greater than the consideration paid.’
“At all events, as between appellants and appellee, appellants in the trial of the case before the jury obtained the full benefit of the above-quoted section by introducing into evidence, proof as to the amount of money that appellee received from Tune. Certainly, in such circumstances, appellants were not entitled to have the court — after the verdict — make the allowance again.”

In Woodard v. Holliday, 235 Ark. 744, 361 S.W. 2d 744, West Bend, a joint tortfeasor, settled with the plaintiffs and a covenant not to sue was executed. On appeal, this court cited the provisions of Section 4 of the Uniform Contribution Among Tortfeasors Act, Ark. Stat. Ann. § 34-1004 (Repl. 1962), and then stated:

“This statute was approved by this court in Giem v. Williams, 215 Ark. 705, 222 S.W. 2d 800. In that case evidence as to the amount paid by one of the joint tortfeasors was introduced into evidence at the trial of the other tortfeasor. After the verdict, the court correctly refused to reduce the amount of the. verdict by the amount paid by the other tortfeasor prior to trial, since the jury was advised of the settlement and the amount prior to reaching its verdict. [Our emphasis]. As the court said in that opinion:
‘At all events, as between appellants and appellee, appellants in the trial of the case before the jury obtained the full benefit of the above-quoted section by introducing into evidence, proof as to the amount of money that appellee received from Tune. Certainly, in such circumstances, appellants were not entitled to have the court — after the verdict — make the allowance again. ’ (Emphasis ours.)
“In the instant case, the trial court refused appellant permission to introduce evidence of West Bend’s settlement payment to appellees, but after verdict the trial court, under the theory that the law of joint tortfeasors applied, correctly credited the judgment with the $5,000 payment, since, the jury had no knowledge of the. West Bend settlement and therefore assessed the total damages of appellees." [Our emphasis].

Appellant argues that Walton v. Tull, supra, prohibits the disclosure of the Rock Island settlement to the jury, apparently contending that since Walton was handed down subsequent to Giem, the latter is controlling. We do not agree. In the first place, there is nothing in Walton which overrules Giem. The court only commented that we did not hold that the Giem procedure was proper in all cases. Walton v. Tull, supra, was handed down on March 26, 1962 (rehearing denied April 30, 1962), and the fact that Giem was not overruled is emphasized by Woodard (handed down on November 19, 1962) in the just quoted language from that case. Furthermore, in Bailey v. Stewart, 236 Ark. 80, 364 S.W. 2d 662 (February 11, 1963), the language of the opinion clearly denotes that Giem has not been overruled, though the point there in issue was not affected by either Giem or Walton. We said:

“The Giem case and the Walton case, relied upon by the trial judge, do not quite reach the point at issue. In the former we held that where the jury had been informed of a compromise payment made by another tortfeasor its amount should not have been subtracted from the verdict, as the jury had already taken it into consideration. In the Walton case we indicated (and later declared, after the trial below, in Woodard v. Holliday, 235 Ark. 744, 361 S.W. 2d 744) that such a deduction would be proper where the jury had not been told about the settlement made by the other tortfeasor.”

Actually, this court has never reversed a judgment on either basis, i.e., the jury was told, or not told, about settlement with another tortfeasor.

Appellant asserts that it was particularly prejudiced because, when the settlement was disclosed, it tended to negate in the jury’s mind the validity of two defenses it had raised, viz., contributory negligence and assumption of risk. Appellant says that the jury, having been apprised that the railroad had admitted liability, obviously concluded that the railroad did not believe the deceased was con-tributorily negligent or had assumed the risk of riding next to an overloaded freight car. It is alleged that the defense of assumption of risk was particularly weakened since under FELA (45 USC Section 54), the defense of assumption of risk was not available to the railroad; also, that under FELA, contributory negligence does not bar recovery of one who is more than 50% negligent but only diminishes it in proportion to his negligence. We are not impressed with this argument. The comment under Arkansas Model Jury instructions - Civil - § 1921 (1974) points out that the joinder of an FELA action with a common law action has been repeatedly sustained. Kraft offered instructions as to the railroad’s duty of care which were given by the court, and there was nothing to prevent additional instructions advising the jury of the law under FELA, had it so desired. Appellant was not deprived of these defenses and it certainly cannot be assumed that the jury ignored the instructions on contributory negligence and assumption of risk.

On the whole, we fail to see how prejudice occurred. Let it be remembered that Kraft could have made the railroad a third party defendant as it was entitled to do even though appellee had settled with the railroad. This, Kraft chose not to do, but instead desired to follow the strategy that as long as the settlement was not in evidence, it could argue that the railroad was the negligent party in the case and should have been sued instead of appellant. However, with the settlement being shown, appellant was still in a position to argue that it was not liable for it could point out to the jury that the railroad had already admitted that it was responsible for Johnson’s death; that it had paid $79,500 because it was liable, and certainly it could argue that the railroad would not have paid had some other company been the responsible party. In fact, this would seem to be a stronger argument than the argument appellant was deprived of making.

Be that as it may, comparatively speaking (as between appellant and appellee), the injustice to appellee would have been much more pronounced (than to appellant) had the jury not received the information about the settlement, for if the jury had not been so informed after its verdict had been reached, appellant would have asked that the amount of settlement with the railroad be credited on the amount of the judgment obtained against it. Under Woodard, this would have been proper and appellee would have wound up with an approximate $500 judgment against Kraft (for herself and daughter), or a total judgment of $80,000. This certainly would have been more unjust to appellee than any prejudice claimed by appellant, for Johnson was a 25-year-old brakeman, with an excellent work record, who had just been promoted to conductor, and with a life expectancy of 44 years.

Mr. Joseph A. Krenz, Jr., an actuary, using a 5% interest rate, testified that, considering expected earnings per annum of $13,000 to $17,000, and considering contribution to his family each year in the amount of $9,000, the amount (present value) that would have been contributed to his family over the period of his life expectancy, would be $158,964.84. It is interesting to note that this amount is within less than $2,500 of the total amounts received by appellee from the railroad settlement and the judgment against Kraft, the latter judgment also including $1,936.82 for the estate. This seems to be a clear and decisive indication that the jury, in fixing damages against Kraft, took into full consideration the settlement with Rock Island.

Though not argued by appellant, it has been suggested in conference that the court did not specifically tell the jury that the plaintiff was only entitled to one recovery of total damages and that in reaching the determination of total damages, the jury should keep in mind the $79,500 settlement with the railroad, and that total damages would include this settlement figure. The short answer to this suggestion is that there is no contention by appellant that such an instruction should have been given, or that any more comprehensive wording should have been used when the jury was informed of the settlement. Nowhere in appellant’s brief is such an argument presented. In other words, such a position was neither taken at the trial court level nor is it set forth here. No citation of authority is necessary in saying that, aside from jurisdiction, we do not reverse cases on theories not presented by appellant to either the trial court or this court. For that matter, the fact that appellant made no motion to credit the judgment for appellee with the amount of the railroad’s settlement (see footnote 2) reveals Kraft knew the jury fully understood that any verdict reached for appellee should be in addition to the railroad compromise. Certainly, the motion would otherwise have been made.

Be that as it may, it is evident that the jury knew exactly the purpose of acquainting it with the railroad settlement.

Under the facts mentioned, considering the overall picture, we hold that no error was committed.

II.

In making this argument, appellant assumes, for purposes of argument, that it was negligent in loading the railroad car by stacking the pulpwood above the bulkheads. It is then asserted that the act of the railroad, in accepting this car, constituted the efficient intervening cause of the decedent’s death. The principal case relied upon is Cowart, Administratrix v. Casey Jones Contractor, Inc., 250 Ark. 881, 467 S.W. 2d 710. There, an action for wrongful death was instituted by the widow of a deceased employee of Bechtel Corporation, a building contractor. Recovery was sought against Casey Jones Contractor, Inc., that company supplying heavy duty lifting cranes to contractors. It was asserted that the defendant company had leased a dangerous and defective crane to Bechtel, the crane not being equipped with certain safety devices designed to prevent the mechanism from spinning during lifting operations. The Bechtel employee was killed when such spinning occurred, knocking him from the crane to the ground. We held that the actions of decedent’s employer (Bechtel) constituted an efficient, independent, and intervening proximate cause which superseded or broke the causal connection of the negligence, if any, of appellee. However, the facts there were far different from those at hand. The opinion sets out those facts.

“In the case at bar it is undisputed that the crane had been on the job site and out of the appellee lessor’s control for at least three to four weeks; that the crane was assembled on the job site and operated by the decedent’s employer, during which time the appellee exercised no control over the crane’s operation. Further, that decedent’s employer was aware during this three to four weeks of use that the two safety devices were not on this crane; that, knowing this, decedent’s employer directed him to work with or about this crane in the lifting of heavy structural steel which, according to the record, is the only time during the three to four weeks it had been so used; and that decedent’s employer admitted that it was customary, in the absence of these safety devices, to take ‘the back lay out of the cable’ before it is sent up.”

In the case before us, the railroad car had only been in possession of the railroad for a few hours, and there was no proof that employees of the railroad were aware, before the accident, that the car was improperly loaded.

It appears to us that if the car was negligently loaded by Kraft, the railroad’s negligence was its failure to discover the negligence of Kraft. We like the reasoning of the Supreme Court of Ohio in Pennsylvania Railroad Company v. Snyder, 45 N.E. 559, where a switchman (Jesse Snyder) was an employee for the Lake Shore and Michigan Southern Railway Company. Snyder was injured when he fell from a boxcar and it developed that the handhold on the ladder which was attached to the side of the car was missing. Because of this defect, he lost his balance and fell. This railway car had been furnished to Lake Shore by the Pennsylvania Railroad Company, the owner of the car. The Pennsylvania Railroad appealed a judgment against it obtained by Snyder, contending that its negligence in furnishing a defective car was not the proximate cause of Snyder’s injury for the reason that the causal connection was broken by the intervening negligence of Lake Shore in failing to inspect the car and discover the defect. On appeal, the court said that Lake Shore Railroad was clearly negligent, but it then continued as follows:

“But it does not follow that, because the Lake Shore Company is liable for the damages sustained by the plaintiff below, the plaintiff in error may not be also. To reliéve the latter from the consequences of its negligence, it is not enough that the act of the Lake Shore Company was nearest in the order of events to the injury, nor that, without it, the injury would not have occurred. To have that effect it must have been the efficient, independent, and self-producing cause, disconnected from the negligence of the plaintiff in error. The causal connection is not broken ‘if the intervening event is one which might in the natural course of things be anticipated as not entirely improbable, and the defendant’s negligence is an essential link in the chain of causation.’ It is not essential to the liability of the plaintiff in error that its negligence should be the sole cause of the injury; but if that result was produced by the negligence of both companies, each contributing a necessary condition to the result, either or both might be held responsible at the election of the party injured. Neither could claim exoneration on account of the fault of the other. The negligence of the plaintiff in error was undoubtedly the primary cause. If it had not furnished the defective car, the injury could not have occurred.”

An instruction on intervening cause was properly given to the jury, and certainly we cannot say, as a matter of law, that there was no jury question on this issue.

III.

It is contended that the court should have directed a verdict on grounds of the deceased’s contributory negligence and assumption of risk. It is argued that the condition of the flat car (loaded with pulpwood), which contained two vertical bulkheads, one at each end of the car, was such that Johnson either knew of the height of the pulpwood in relation to the bulkheads, or should have known. All of the evidence in the case was circumstantial evidence, as will be discussed under Point IV, and while, pershaps, there were some circumstances that favor appellant’s position, they certainly were not such as to justify a directed verdict. Let it be remembered that the defense of contributory negligence, like assumption of risk, is an affirmative defense, and the burden of proof is upon the defendant. Aluminum Company of North America v. Ramsey, 89 Ark. 522, 117 S.W. 568. Also, as stated in McDonald v. Hickman, 252 Ark. 300, 478 S.W. 2d 753,’ “It is not our province to compare the negligence of the litigants when fair-minded men might reach different conclusions in the matter.”

As to assumption of risk, we find no evidence in the record that Johnson was actually aware of the dangerous condition of the cars, and without such knowledge, the doctrine cannot apply. In McDonald v. Hickman, supra, this court said:

“Assumption of risk, a harsh doctrine, depends upon actual knowledge and appreciation of the danger. As Prosser puts it: “Knowledge of the risk is the watchword of assumption of risk” Under ordinary circumstances the plaintiff will not be taken to to assume any risk of either activities or conditions of which he is ignorant. Furthermore, he must not only know of the facts which create the danger, but he must comprehend and appreciate the danger itself.’ Prosser on Torts, § 68 (4th ed., 1971). See also the Restatement of Torts (2d), § 496 D (1965), where it is stated: ‘The standard to be applied is a subjective one, of what the particular plaintiff in fact sees, knows, understands and appreciates. In this it differs from the objective standard which is applied to contributory negligence.’ ”

The court instructed the jury on comparative negligence and assumption of risk and these issues were accordingly before that body in its deliberations. We cannot agree that a directed verdict should have been granted on the basis of these defenses.

IV.

Finally, it is contended that there was no substantial evidence that Johnson’s death was caused by any act of appellant, and it is asserted that appellee’s case rests entirely upon conjecture and speculation. It is true that no one saw a falling log strike Johnson, nor that anyone observed him fall from the train. It is asserted that though there was evidence that there was a pile of pulpwood in the area where drag marks left by the deceased began (Johnson was dragged approximately 423 ft. aftef hitting the ground), this condition was commonly found as a result of the switching operations of the various trains using the depot and there was no direct proof that these logs had fallen from this particular train; furthermore, that during the backing up of the train (while Johnson was still alive) some pulpwood had fallen from one of the cars in the same area where the fallen pulpwood was found.

Of course, as pointed out in Arkma Lumber Company v. Luckett, 201 Ark. 140, 143 S.W. 2d 1107, it is not necessary that an injury to established by direct proof, but if the circumstances are such to justify an inference on the part of the jury that the negligent conditions alleged produced the injury complained of, recovery can be had. We said, quoting an earlier case, “It will be sufficient if the facts proved are of such a nature and are so connected and related to each other that the conclusion therefrom may be fairly inferred.” There was evidence that Johnson fell from the stirrup located on the right front end of the air dump car on which he was riding, and evidence that the logs in the car directly in front of the air dump car were loaded well above the bulkhead.

Mike Lanahan, Manager of Safety for Rock Island Railroad, went to the scene of the accident within two hours and conducted an investigation. He testified that from the point of the first drag marks to the point where Johnson’s body was found was approximately 423 ft.; that he saw a number of logs (pulpwood) on the right-of-way to the west of the area where the drag marks started. The witness stated that the center of the distribution of the area of the logs was between 12 ft. and 20 ft. west of the first sign of Johnson’s body being dragged. The next day, Lanahan returned to the scene and examined the car from which the pulpwood had allegedly fallen, the car being in the same location and in the same condition (except for the surfaces at the top of the bulkhead) that it was on the previous day immediately following the accident. “The day before when I climbed up on the car I noticed, oh, six or eight fragments of loose bark lying on top of that horizontal steel sheet next to the wood liner and on the top of the steel braces you see going to the right of the picture.” Lanahan testified that if the bark had gotten on the bulkhead at the time the car was being loaded, it would have blown off prior to the accident due to the wind or vibrations from the movement of the train, and that such bark was gone the day after the accident. Lanahan said that the logs in the pulpwood car directly in front of the air dump car were loaded considerably above the bulkhead, and photographic exhibits likewise reveal that the pulpwood on this car was stacked above the bulkhead; it would appear that these logs would have been directly above Johnson who, as stated, was riding on the stirrup. Lanahan stated that in his nine years of investigating accidents, he had never seen a cluster of logs (approximately 13) deposited on the railroad right-of-way like the one under discussion, and he was very positive that the car was overloaded. Medical evidence reflected that a wound on the right side of decedent’s head was consistent with his having been struck by a log, although it could also have occurred from the head bumping the crossties. In Hawkins v. Missouri-Pacific Railroad Company, Thompson, Trustee, 217 Ark. 42, 228 S.W. 2d 642, this court said:

“A directed verdict for the defendant is proper only when there is no substantial evidence from which the jurors as reasonable men could possibly find the issues for the plaintiff. In such circumstances the trial judge must give to the plaintiff’s evidence its highest probative value, taking into account all reasonable inferences that may sensibly be deduced from it, and may grant the motion only if the evidence viewed in that light would be so insubstantial as to require him to set aside a verdict for the plaintiff should such a verdict be returned by the jury.”

Certainly, in line with Hawkins, we cannot say that this evidence was so insubstantial that reasonable men could not possibly find the issues for the plaintiff. When all the circumstances are viewed, and giving appellee’s evidence its highest probative value, we think, and hold that a jury question was presented.

Affirmed.

Byrd, J., not participating.

      It was agreed that the jury’s award on behalf of the estate was in excess of the damages proven and the amount was reduced by agreement.

      From the record:
      “ATTORNEY FOR DEFENDANT:
      In Chambers and prior to the commencement of the trial, the defendant objects generally and specifically to any and all statements, testimony and references to any settlement between plaintiff and the deceased employer railroad company arising out of the Federal Court lawsuit brought about as a result of the accident giving rise to this litigation for the reason that same would be prejudicial to the defendant’s position in this cause.
      “ATTORNEY FOR PLAINTIFF:
      The plaintiff would like to have the record reflect that its intentions to announce the settlement and the amount of it to the jury is in response to defendant’s contention that it is entitled to a credit for the settlement.
      “ATTORNEY FOR DEFENDANT:
      I would contend the proper handling would be for no mention to be made with respect to settlement and the Trial Court to simply credit it on any amount returned by the jury.
      “THE COURT:
      Objection overruled.”

      The court gave the following instruction:
      “If you decide for the administration [rix] on the question of liability against Arkansas Kraft Corporation, you must fix the amount of money which will reasonably and fairly compensate the wife, child and estate for those elements of damages which you find were proximately caused by the negligence of Arkansas Kraft Corporation.” [Our emphasis].

        St. Louis-San Francisco Ry. Co. v. Bishop, 182 Ark. 763, 33 S.W. 2d 383.


text:
    Herbert Ray TROGLIN v. STATE of Arkansas
    CR 74-161
    519 S.W. 2d 740
    Opinion delivered February 24, 1975

      Don Langston, Public Defender, for appellant.

      Jim Guy Tucker, Atty. Gen., by: Gary Isbell, Asst., for appellee.
   Lyle Brown, Justice.

Appellant filed a petition pro se for a writ of error coram nobis seeking to set aside a felony plea of guilty entered in October 1952. The trial court examined its 1952 records and decided, without granting a formal hearing, that the petition had no merit. The single error advanced on appeal is that the trial court should have granted a hearing on the petition.

In his petition and supporting documents appellant contended (1) that the docket sheet was in error in reciting that he waived counsel; (2) that if the docket sheet is correct, he never voluntarily and knowingly entered such a plea; and (2) that the plea was coerced.

In the order denying the petition the trial court pointed out that the docket sheet showed that appellant had declined the offer of counsel. The court also noted the long delay of some twenty-two years between the plea and the filing of the petition and concluded that the petition was untimely; the court also concluded that the petition and supporting documents “were ineffective to accomplish the purposes intended.” We perceive the recited defect in the documents to refer to the fact that they stated bare conclusions.

We hold that the court’s refusal to grant the writ was correct because of the untimely delay and the insufficiency of the allegations. We wholeheartedly approve of the guidelines set out in People v. Maston, 48 Cal. Rptr. 439 (1965), cert. denied 86 S. Ct. 917 (1966). They may be fairly paraphrased as follows:

(1) The function of the writ of coram nobis is to secure relief from a judgment rendered while there existed some fact which would have prevented its rendition if it had been known to the trial court and which, through no negligence or fault of the defendant, was not brought forward before rendition of judgment;
(2) Coram nobis proceedings are attended by a strong presumption that the judgment of conviction is valid. The court is not required to accept at face value the allegations of the petition;
(3) Due diligence is required in making application for relief, and, in the absence of a valid excuse for delay, the petition will be denied; and,
(4) The mere naked allegation that a constitutional right has been invaded will not suffice. The application should make a full disclosure of specific facts relied upon and not merely state conslusions as to the nature of such facts.

The documents and actions of appellant substantially violate all four of the enumerated guidelines. As has been pointed out, he waited some twenty-two years to file his petition; also the filing was over eleven years after Gideon v. Wainwright, 372 U.S. 335 (1963). Additionally, since statehood, we have required appointment of counsel for indigent defendants in felony cases. Ark. Stat. Ann. § 43-1203 (Repl. 1964). Furthermore, there is no disclosure of specific facts upon which he relies — nothing but naked conclusions.

Affirmed.


author: John A. Fogleman, Justice.

text:
    AMERICAN RED CROSS AND TRAVELERS INSURANCE COMPANY v. Billie C. WILSON
    74-261
    519 S.W. 2d 60
    Opinion delivered February 24, 1975

      Wright, Lindsey & Jennings, for appellants.

      Spencer and Spencer, for appellee.
   John A. Fogleman, Justice.

Mrs. Billie C. Wilson had been executive director of the Union county chapter of the American Red Cross for 28 years preceding December 12, 1971. Part of her duties included taking emergency calls at her home after usual working hours. She was also charged with the sole responsibility for providing Christmas decorations to various nursing homes in the El Dorado area. On December 12, 1971, Mrs. Wilson was in her attic, where the Christmas decorations were customarily stored, when her telephone rang. When she heard it, she gathered up a bundle of the decorations and proceeded down the attic stairway and, on her way down, she slipped and fell and suffered serious injuries. Upon her claim for Workmen’s Compensation benefits, the Commission awarded her permanent and total disability. The award was affirmed by the trial court. On appeal, the only contention made by appellants is that there was no substantial evidence to support the award. We find that there was and affirm.

Mrs. Wilson testified that just before the telephone rang she was in the process of gathering the decorations stored there for the purpose of taking them, on the following day, to the Red Cross office at the El Dorado City Hall for making an inventory of them, in order to ascertain what purchases were needed for that year, as she did every year. Before the telephone rang, she had not taken any of the decorations downstairs. Mrs. Wilson had no way of knowing or showing whether the phone call she never answered was a personal one or a Red Cross emergency call. The Commission found that the evidence was clear that appellee was engaged in duties required of her by the American Red Cross at the time of her injury and that her injury arose out of and in the course of her employment.

Appellants argue that, since it was not shown and was impossible to know, that the telephone call pertained to appellee’s duties, the evidence suppporting this finding of the Commission is not substantial. They say her carrying the bundle of decorations downstairs was merely incidental to the primary purpose of answering the telephone.

We agree with appellants that a claimant bears the burden of proving that his injury was the result of an accident that arose in the course of his employment, and that it grew out of, or resulted from the employment. We do not agree, however, with their argument that the Workmen’s Compensation Act does not mandate that the Commission view the evidence liberally in favor of the claimant. To the contrary, the Commission, in considering a claim, must follow a liberal approach and draw all reasonable inferences favorably to the claimant. Holland v. Malvern Sand & Gravel Co., 237 Ark. 635, 374 S.W. 2d 822. It was the duty of the Commission to draw every legitimate inference possible in favor of the claimant and to give her the benefit of the doubt in making the factual determination. Brower Manufacturing Co. v. Willis, 252 Ark. 755, 480 S.W. 2d 950; Herman Wilson Lumber Co. v. Hughes, 245 Ark. 168, 431 S.W. 2d 487. The same rules apply, of course, in determining whether the accident grew out of and occurred within the course of the employment. Brooks v. Wage, 242 Ark. 486, 414 S.W. 2d 100.

The question, on appeal to the courts, remains the same as on other questions, i.e., was there any substantial evidence upon which the Commission could reasonably make the factual determination. We have said that an injury arises out of employment when there is apparent to the rational mind, upon consideration of all the circumstances, a causal connection between the conditions under which the work is required to be performed and the resulting injury, and that it is enough if there be a substantially contributory causal connection between the injury and the business in which the employer employs the claimant, but it need not be the sole or proximate cause. Simmons National Bank v. Brown, 210 Ark. 311, 195 S.W. 2d 539.

Mrs. Wilson’s presence in her attic was attributable to the performance of her duties. The decorations had to be carried downstairs by her at some time. She did pick up some of them to take down when the phone rang and did proceed down the stairway carrying them. Under these circumstances, it is of little consequence whether the nature of the telephone call was personal or business. This court is committed to a view of the term “arising out of and in the course of the employment” which requires a liberal application to allow compensation. Tinsman Manufacturing Co. v. Sparks, 211 Ark. 554, 201 S.W. 2d 573. In Tinsman, we held that slight deviations from the duties of employment do not remove employees from coverage of the act. See also Cox Bros. Lumber Co. v. Jones, 220 Ark. 431, 248 S.W. 2d 91; Williams v. Gifford-Hill & Co., 227 Ark. 340, 298 S.W. 2d 323. Language in these opinions seems to make the consent or acquiescence of the employer a controlling factor in reaching a conclusion that the deviation does not eliminate coverage, in spite of the fact that in Cox Bros. Lumber v. Jones, the acquiescence was only evidenced by the employer’s testimony that the employer had no objection to the employee’s crossing the railroad tracks on which he was killed for anything he needed.

There is respectable authority holding that an injury to one, whose duties include answering telephone calls, by falling downstairs while answering a personal private telephone call, is not prevented from “arising out of and in the course of his employment.” In Re Cox, 225 Mass. 220, 114 N.E. 281 (1916). Of the same tenor are Kent v. Kent, 202 Iowa 1044, 208 N.W. 709 (1926) and Holland-St. Louis Sugar Co. v. Shraluka, 64 Ind. App. 545, 116 N.E. 330 (1917) where the same liberal view entertained by this court is emphasized; Adams v. Colonial Colliery Co., 104 Pa. Super. 187, 158 A. 183 (1932) where the “slight deviation” test was applied; and Parisi v. City of Niagra Falls, 245 App. Div. 884, 282 N.Y.S. 310 (1935) where the consent or acquiescence of the employer was given significance.

We find it unnecessary to decide, in this case, whether, under the authority of our cases, a deviation from the regular course of employment must necessarily be with the consent and acquiescence of the employer to be so slight as to be considered incidental to the employment. In this case the duty of answering telephone calls was imposed upon appellee. Neither she, nor any other such person should be expected to have the prescience which would be necessary to discriminate between personal calls and business emergency calls in determining whether to answer. The duty imposed upon her was, to say the least, evidence of acquiescence in her answering her telephone, even if she had to go down the stairway from her attic to do so. When this evidence is coupled with the fact that appellee did carry with her a part of the decorations she had to take downstairs sometime that day, we find very substantial evidentiary support for the award.

The judgment is affirmed.