author: Jim Johnson, Associate Justice. Neill Bohlinger, Associate Justice

text:
    Dutton, Adm ’x v. Brashears Funeral Home.
    5-2713
    357 S. W. 2d 265
    Opinion delivered May 21, 1962.

      Carlos B. Hill, for appellant.

      W. Q. Hall, for appellee.
   Jim Johnson, Associate Justice.

This is an appeal from an order of the Washington County Probate Court allowing a claim for funeral expenses against the estate of Stonewall Jefferson Dutton, deceased.

For reversal appellant contends that the judgment was arbitrary and not supported by the evidence and that the claim should be disallowed because appellant was denied the right to take charge of the body and to arrange for the funeral and further that appellee contracted with volunteers who acted officiously and without interest.

The facts for the most part are undisputed. Stonewall Jefferson Dutton died intestate in Washington County on the 7th day of December 1960. At the time of his death Dutton had been separated from his wife for more than six months. They had discussed her contemplated suit for separate maintenance against him and his contemplated suit for divorce, against her with an attorney in Fayetteville. The deceased had. informed his wife and her attorney that he conld not meet their, demands for separate maintenance dne to his inability to work because of the condition of his health. Thereupon the deceased was advised to go to a doctor and get a certificate verifying his contentions. Apparently upon the receipt of the certificate the matter of contemplated action was dropped, at least she testified as follows:

‘ ‘ Q. So far as you know you never got a decree of separate maintenance against him?
“A. No.”

There is no contention or showing in this record that the deceased, even under the handicap of ill health, failed to adequately support his wife and two 14-year-old daughters. It is shown, however, that some three weeks prior to his death (which was the last time his wife saw him alive) deceased came by their home, which he and his wife owned, in Fayetteville and “brought the girls a coat apiece from Penney’s.” At the time of his death, Dutton was making his home with his parents at Goshen, a small town located on the main highway between Fayetteville and Huntsville. He died suddenly and unexpectedly from heart failure and the parents caused the body to be removed to the Brashears Funeral Home in Huntsville. Mrs. Dutton testified that neither of the deceased’s parents nor close relatives called her but that a neighbor called and notified her of the death. She waited awhile for some of the family to call and when they didn’t she called Brashears about 10 minutes after 9:00 the next morning and told him she would be up there about noon that day. She arrived at the funeral home about 1:30 in the afternoon and found that the deceased’s mother, father and brother had already made the funeral arrangements. She stayed at the funeral home approximately 20 minutes and testified that she did not ask “Mr. Brashears if she could have custody of the body.” She did inquire about the financial arrangements and when questioned by the court testified as follows:

“Q. Now, do I understand yon to say that you raised with Mr. Brashears the question of who was going to pay for the funeral?
“A. I asked him what kind of financial arrangements had been made.
‘ ‘ Q. And his answer was that he knew the Duttons, they were reliable people, and he was not going to worry about getting his money, is that the essence of it?
“A. (Witness nods head affirmatively.) He told me to go on home and not worry about it. That I was not liable for it.”

Mr. Brashears testified on direct examination relative to the financial arrangements as follows:

“Q. Did she ask you if she would be financially responsible for the arrangements?
“A. She did.
"Q. What did you tell her?
“A. I told her that she wouldn’t be held liable personally, and that seemed to satisfy her.
‘ ‘Q. And she never made any demand for the body? She never made any demand to make any sort of arrangements herself?
“A. No.”

When questioned by the court, Mr. Brashears further testified as follows:

“Q. Mr. Brashears, were there arrangements, and an understanding about who was going to pay for this funeral?
“A. There wasn’t any definite arrangement made about it at that time between the mother, father and brother. I asked them, naturally, about financial arrangements and they said, ‘Well, he has a lot of property and some cattle and some things.’ And said, ‘Just don’t worry about your money. ’ And that was, approximately, the best I recall, what was said.
“Q. There was no writing, no contract or anything signed?
“A. No.
“Q. You didn’t ask for a contract to be signed?
“A. No, not with that family.”

As to the arrangements, Mrs. Dutton on cross-examination testified as follows:

“Q. Did you like the casket that the body was in?
“A. I don’t recall noticing it at first, I don’t recall that I saw anything wrong with it.
“Q. Did you like the clothes that the body had on? Did you notice them?
“A. Not particularly.
“Q. It did have — the body was laid out and in the casket ready for burial?
“A. Yes.
“Q. What sort of objection did you make?
“A. The body was drawn.
“Q. The body was what?
“A. The body was drawn. The hands were too far down.
“Q. Did you make any other objections?
“A. I don’t recall.”

When further examined by the court about the arrangements, Mrs. Dutton testified as follows:

“Q. Now, Mrs. Dutton, you mentioned something about you did not like the way your husband’s body was laid out, something about the hands, you said something about that?
“A. Aunt Mona and I were, talking and she may have even been the one that mentioned it, we were both talking about it, he was standing close by, but he said there was nothing they could do about it.
‘ ‘ Q. Were the hands folded across the body in some fashion or alongside of the body?
“A. Just down too far.
". I’m not quite sure what you mean by saying they were down too far. What was the position of the hands? Were they folded across his body?
“A. No.
“Q. Were they down along his sides?
“A. No, they were just down this way some way.
“Q. They were on top of his body but they were not folded, is that correct?
“A. Yes.
"Q. And to you it looked as if they were farther down than they naturally would be, is that correct?
“A. Yes.
“Q. Did you mention that to Mr. Brashears?
“A. Aunt Mona did; we were talking about it.
“Q. Did you hear her mention it to him?
“A. Yes.
“Q. What reply if any did he make?
"A. He said that the body had been so long — he had been dead so long there was nothing they could do about it. And as I recall he said they brought the body in about noon.
“Q. As I understand it, Mr. Brashears suggested that the body had been dead so long when he took charge of the body that he could not manipulate the limbs ?
“A. Yes.
“Q. And if I follow you on that, you do not propose this as an objection about the way Mr. Brashears handled it?
“A. No.
“Q. But it was simply a thing you observed?
“A. Yes.
“Q. Now, leaving that aside, Mrs. Dutton, and the fact you thought it looked unnatural, the hands were too far down, was there anything about the funeral service itself, including the casket and the flowers and the manner of conducting the funeral, and the actual burial, was there anything about the entire funeral service that you objected to, or found distasteful or inappropriate or off base?
“A. Well, I am objecting to them ignoring me and the children.”

Fourteen days after the death of her husband, Mrs. Thelma A. Dutton was appointed administratrix of his estate, and within the time provided by law appellee Brashears Funeral Home filed its claim against the estate for the collection of the funeral expenses. It was stipulated between appellant and appellee that the amount of the claim was reasonable. Appellant, as administratrix, denied the claim on the basis of her contentions set oiit above, and as heretofore stated the trial court after hearing all of the evidence allowed the claim. As stipulated by the parties “the only issue here involved is whether, under the facts, the claim for the funeral expenses should he paid by the administratrix.” Even though the Probate Court is a court of law, appeals from such courts are tried de novo in this court. Campbell, Administrator v. Hammond, 203 Ark. 130, 156 S. W. 2d 75; Suits v. Chumley, Administrator, 218 Ark. 488, 236 S. W. 2d 1001. On trial de novo, as sympathetic to the widow as the facts will permit us to be we cannot escape the conclusion'that here the appellant is confusing the liability of the widow for funeral expenses with the liability of the estate of the deceased for such expenses. Under the circumstances disclosed in the record before us we could not say that the widow, as such, would have been liable for the expenses here claimed, but such is not the case. In the early case of Yarborough v. Ward, 34 Ark. 204, this Court acknowledged that funeral expenses were an exception to the rule that “no debts can be created against an estate after death.” It is stipulated that the claim in the case at bar was filed within the time and in the manner required by law for the funeral expenses against the estate of the deceased. Ark. Stats. Ann. § 62-2606 provides that “reasonable expenses” shall be paid as a Class b claim and in Security Bank & Trust Co. v. Costen, 169 Ark. 173, 273 S. W. 705 this Court said: “It goes without question.that the estate of the decedent is chargeable for the reasonable and necessary expenses of interment of the body. The duty rests upon some of the living to see that the right of decent burial is provided, and from this duty springs a legal obligation of decedent’s estate to pay the expenses.” Appellant stipulated that the appellee’s claim for burial was reasonable, and it would go without question that interment of the dead body was a necessary expense and in fact was a necessary undertaking.

From the evidence, it is clear that the appellant did not demand that she be allowed to take charge of the body, nor did she make any objections to the arrangements for interment as had been made nor did she make any objection at the time to the place of interment of the body.

The widow was not entitled to take charge of the body since she and her husband were not living together at the time of his decease. In Teasley et al v. Thompson, 204 Ark. 959, 165 S. W. 2d 940, this . Court stated the following rule: “Where the wife is not living with her husband at the time of his death or neglects or refuses to assume the trust incident to her right, a waiver of that right is implied and the right and duty immediately descends to the next of kin present and ápting. In the case of a dead body needing burial, tbe right of the spouse must be promptly asserted, or the right to possession of the body for the purposes of interment will be held to have been waived in favor of the next of kin. ’ ’ At page 963 of the same case it is said: “(4) That, in case of husband and wife, the right of possession is in the surviving spouse, provided the husband and wife are living together at the time of the demise; (5) that the absence of the spouse, or his or her failure or refusal to act, has the effect of transferring the right of custody and duty of trusteeship to the next of kin in succession. ’ ’ Following this rule certainly it cannot be said that the mother, father and brother of this deceased were volunteers who were acting officiously and without interest.

We find, therefore, that appellant here waived any right she may have had to take charge of the body, when she did not make a prompt demand of the appellee to take charge of the body and she ratified the acts of the parents of the deceased when she did not make a timely objection when she visited the place of business of the appellee and viewed the body.

Affirmed.

Ward, Robinson, and Bohlinger, JJ., dissent.

Neill Bohlinger, Associate Justice

(Dissenting). I respectfully dissent from the majority decision in this case.

It is elementary and no man can gainsay that the funeral expenses are but one of the first charges against the estate of a deceased, but before that charge can come into being there are certain things that must be done, the most important of which is entering into a contract with the undertaker.

As I see it in this case, the sole question is who had the right to make that contract.

The evidence reflects that the appellant, the widow ■ of the deceased, was living in their home in Fayetteville with two minor children. The deceased, her husband, had been staying with his parents out in the country where he was engaged in the cattle business and it appears that it had been about three weeks since he had visited the appellant in Fayetteville. This man died very suddenly at his parents’ home and the parents did not notify his wife, the appellant, of his death but she learned it from a neighbor.

The following day she phoned the undertaker, the appellee here, at Huntsville that she would be over that day to make the funeral arrangements. At that time no arrangements had been made by anybody. She made the trip from Fayetteville to Huntsville to make the funeral arrangements and the appellee advised her that the arrangements had been made by her husband’s parents and there was nothing she could do. She inquired as to the financial arrangements that had been made for the funeral and was advised by the appellee that she would not have to pay them, that “the Duttons [parents of the deceased] are honest, reliable people. I’m not worried about the bill. They always pay their debts.”

In 15 Am. Jur. § 9, p. 834, it is said:

“Bight of Surviving Spouse. — It is generally conceded that on the death of a husband or a wife, the primary and paramount right to possession of the body and to control the burial or other legal disposition thereof is in the surviving spouse, and not in the next of kin, at least in the absence of a different provision by the deceased. The surviving spouse is entitled to select the place of burial and the place of reinterment if the remains are removed after burial. However, in making the selection, consideration must be given to the last expressed wish of the deceased. The right of a surviving spouse to control the burial is dependent on the peculiar circumstances of each case, and may be waived by consent or otherwise. However, if the parties were living in the normal relations of marriage, a very strong case will be required to justify a court in interfering with the wish of the survivor, and a widow’s waiver of the right to admiister upon the estate of her deceased husband .will not include a waiver of her right to control the interment of his- body unless it is made to do so expressly. ’ ’

It therefore appears to me that the burial of' a deceased mate involves something more than a legal duty. It involves a personal right and this right is closely linked in the hearts and minds of women as a final loving tribute at the close of a relationship.

It is a right, and I am unwilling to concede that that right is dependent on the fleetness of foot of the widow or the allacrity with which she reaches the door of the undertaker’s shop. There is but one requirement and that is that she must move promptly. In this case the widow did and no arrangements had been made at the time she phoned the undertaker.

I am unwilling to concede that a relative, friend, or other person can inject himself in the transaction while the widow is trying to make her own arrangements and commit an estate [in this case a very meager one] to a funeral obligation which will be in accord with their sense of fitness. I must admit that the widow, the appellant here, might have used the entire $2,500.00 which is the appraised value of her husband’s estate and have braved the world with her two small children penniless but there is nobody else who can force that condition upon her. And in this case it appears that almost a half of the appraised value of this estate was committed to this funeral by people who were not connected with nor dependent upon the estate in any way.

The case of Security Bank and Trust Co. v. Costen, 169 Ark. 173, 273 S. W. 705, was a case involving the incurring of expenses and advancement of money to pay funeral expenses. It is not applicable here. And the case of Teasley v. Thompson, 204 Ark. 959, 165 S. W. 2d 940, does apply and this phrase is used:

“It is generally conceded that on the death of a husband or wife, the primary and paramount right to possession of the body and to control the burial or other legal disposition thereof is in the surviving spouse, * * *".

In the Teasley case the court found that the widow had waived her rights. Such is not the case here.

What prompted the parents of the deceased to attempt to commit a disproportionate part of this meager estate to the burial of their son I do not know. But be that as it may, they were seeking to commit a fund which was not in their power to commit. It seems clear to me that even though the appellee knew that the widow was on her way to its place of business to make the funeral arrangements, nevertheless elected to contract with the parents of the deceased whose credit it regarded as good.

The parents of the deceased, in my opinion, were at best but officious volunteers who contracted a debt which they should now be made to assume.

I am strongly of the opinion that this case should be reversed and dismissed and for that reason I respectfully dissent from the majority view.

I am authorized to state that Robinson, J., joins in this dissent.


source: Caselaw Access Project

author: Neill Bohlinger, Associate Justice. Carleton Harris, Chief Justice

license: Public Domain

text:
    Henshaw v. Henderson.
    5-2467
    359 S. W. 2d 436
    Opinion delivered May 21, 1962.
    [Rehearing denied September 10, 1962.]

      McMillan & McMillan & Otis H. Turner, for appellant.

      Cole & Scott and Wiley Smith, for appellee.
   Neill Bohlinger, Associate Justice.

Early in the evening of April 25, 1960, the appellant, Joe Wilburn Henshaw, called at the apartment of Miss Sarah Over-turf in the City of Hot Springs with the intention of having Miss- Over turf accompany him for an automobile ride.

Sharing the apartment with Miss Overturf was Miss Peggy Henderson. Miss Henderson did not wish to be left alone in the apartment and it was decided that she would accompany the appellant and Miss Overturf. These three parties, in the appellant’s new Chevrolet convertible, drove up Central Avenue in Hot Springs toward the race track. At Truman’s Tavern the appellant got out and went in by himself and came out with a can of beer. He then drove out the Golf Links Road to a tourist court where it had been planned they would meet a married couple who were friends of both the appellant and Miss Overturf but it was found that the couple was not in.

Either at that time or shortly before, and the time is immaterial, it was suggested that they would drive to Malvern to get a young man of Miss Peggy Henderson’s acquaintance who was to be her escort for the evening. Upon leaving the tourist court it appears that the car progressed a short distance when it struck a Plymouth automobile parked near the pavement. The impact inflicted minor damage to the left rear of the Plymouth automobile.

At that point the appellant, as driver of the car, seems to have lost control of the vehicle which partly skidded across the road in a left-hand direction and traveled about 190 feet where it struck a large oak tree. Either at the point of impact or shortly prior thereto the two young ladies were thrown from the car and the force of the impact was such that the Chevrolet convertible was wrecked and subsequently caught fire. Miss Henderson died as a result of the accident and D. C. Henderson, as special administrator of the estate of Peggy Henderson, brought this action in the Circuit Court of Hot Spring County to recover damages for the wrongful death of Miss Henderson. •

The case was duly tried before a jury which returned a verdict of $1,750.00 for the estate of Peggy Henderson; the sum of $2,500.00 for Mrs. D. C. Henderson; and $2,500.00 for D. C. Henderson, the Hendersons being the next of kin of the deceased.

Judgment was duly entered and to reverse that judgment the appellant brings this appeal.

The record clearly establishes that both Miss Over-turf and Miss Henderson were guests in the car driven by the appellant. Therefore the allegations of the appellee must be viewed in the light of our guest statute. Our guest statute, Ark. Stats. 75-913 also [75-915], is as follows:

“ Action by guest prohibited except in case of wilful negligence. — No person transported as a guest in any automotive vehicle upon the public highways or in aircraft being flown in the air, or while upon the ground, shall have a cause of action against the owner or operator of such vehicle, or aircraft, for damage on accbunt of any injury, death or loss occasioned by the operation of such automotive vehicle or aircraft unless such vehicle or aircraft was wilfully and wantonly operated in disregard of the rights of the others. [Acts 1935, No. 61, § 1, p. 135; Pope’s Dig., § 1302; Acts 1955, No. 175, § 1, p. 406.] ”

In establishing the rule as to guests in the case of Simms v. Tingle, 232 Ark. 239, 335 S. W. 2d 449, we said:

“The general rule for determining the status of a passenger in an automobile is that if the transportation or carriage in its direct operation confers a benefit only on the person to whom the ride is given and no benefits other than such as are incidental to hospitality, companionship, or the like, upon the person extending the invitation, the passenger is a guest within the statutes (Ark. Stats. § 75-913 to 75-915), but if the carriage tends to the promotion of the mutual interests of both the passenger and the driver for their common benefit, or if the carriage is primarily for the attainment of some objective or purpose of the operator, the passenger is not a guest. Ward v. George, 195 Ark. 216, 112 S. W. 2d 30.”

The status being that of guests, it must be established that the appellant operated the automobile in a wilful and wanton manner in disregard of the rights of others.

In order to. establish wilful and- wanton negligence on the part of the appellant, appellee has. presented some testimony in regard to heer drinking by the appellant and testimony as to the speed at which the appellant operated his automobile. These are matters for the jury’s consideration on a retrial of this cause since we find error on which this present cause must be reversed and hence we do not find it necessary to go further into the points thus presented.

It appears from the record that the appellee presented as a witness Glen Minton, a trooper for the Arkansas State Police. Mr. Minton was presented as an expert with thirteen years service with the State Police.

Mr. Minton was permitted to testify, over the objection of the appellant, that he was called to the scene of the accident shortly after it occurred.. He described in detail the position of the Plymouth automobile and the Chevrolet convertible; the point where the two girls were found; and the position of the appellant who was unconscious on the front seat of his car and was further permitted to testify that on the morning of the trial he had taken his car, a 1960 Chevrolet, from a dead stop and accelerated as fast as possible for two-tenths of a mile [this being the distance between the motel and the location of the Plymouth that was struck] and that he attained a speed of 75 miles per hour; that it was one of the requirements of his position to estimate the speed of vehicles involved in a collision and that viewing the distance the Chevrolet convertible was out of control and the severity of the impact, he thought the Chevrolet convertible was traveling 80 miles per hour.

Appellant properly objected to this line of testimony. There is no need to resort to expert opinion in the absence of evidence to indicate that it was beyond the jury’s ability to understand the facts and draw its own conclusion.

In the ease of Conway v. Hudspeth, 229 Ark. 735, 318 S.W. 2d 137, we said:

“We do not agree with the appellants’ contention that the proffered testimony was admissible as the opinion of an expert. It has been said that the courts look with disfavor upon attempts to reconstruct traffic accidents by means of expert testimony, owing to the impossibility of establishing with certainty the many factors that must be taken into consideration. Moniz v. Bettencourt, 24 Cal. App. 2nd 718, 76 P. 2d 535. In the case at hand the officer was not asked to describe every physical fact that he had seen and then to explain his deductions, in the manner that ballistic experts often explain their conclusion that a certain weapon fired a certain bullet. Here the officer was asked his opinion on the basis of the position of the vehicles, the damage to them, ‘and other physical evidence found at the scene.’ In the absence of anything to inicdate that it was beyond the jurors’ ability to understand the facts and draw their own conclusions, there was no need to resort to expert opinion. Mo. Pac. R. Co. v. Barry, 172 Ark. 729, 290 S.W. 942.”

The witness’ test was made with a car other than the one involved in the accident and there is no showing that his test was made under the same conditions that prevailed at the time and at the place of the accident. The testimony of a policeman as an expert carries great weight but when it is predicated on conditions different than those under scrutiny it is inadmissible.

The objection of the appellant was timely and should have been sustained. For error in overruling the objection this cause is reversed and remanded for further proceedings not inconsistent herewith.

Harris, C. J., Smith & Robinson, JJ., dissent.

Carleton Harris, Chief Justice

(Dissenting). While I have every sympathy for the family of the unfortunate young lady who was killed in the accident, I am forced to dissent to the holding of the Majority, for I think this holding emasculates the law as set out in numerous prior holdings of this Court. The Majority say that a jury question was made because of the combination of evidence relative to speed and intoxication. Let us examine first the evidence as to intoxication.

(1) Henshaw himself testified that he had two cans of beer at noon; one can in the early part of the afternoon, and a portion of a can after he picked up his date that night.

(2) Sarah Overturf (now Ashley) testified that she could smell alcohol when he came to get her for the date. On leaving her premises to go to the car, she stated, “He kinda stumbled once.” He drank part of a can of beer after she was with him.

(3) Mrs. Delbert Hughes, who arranged the date for Henshaw with Miss Overturf, went with him to her apartment about 5:30 or 6 p. m., testified that she noticed nothing unusual about the way he walked, nor anything different about the way he handled the automobile while driving, and smelled nothing on his breath while with him.

(4) Glen Minton, trooper with the Arkansas State Police, who went to the scene of the accident, testified that he could smell alcohol on Henshaw’s breath, but that it had a “sour” smell, indicating that the alcohol had been consumed sometime before, rather than recently.

No one testified that Henshaw was intoxicated.

Let us next examine’the evidence relative to speed.

(1) Dayton Thornton, a mechanic, who was the only eye witness, was traveling the highway in his car with his wife and family. Mr. Thornton observed the entire occurrence, and estimated the speed of Henshaw’s automobile to be somewhat between 50 and 65 mph.; he would say the car was not exceeding 65 mph.

(2) Glen Minton, heretofore mentioned, who did not observe the accident, but was subsequently called to the scene, estimated appellant’s' speed at 80 mph. This estimate was based, as he stated, “on the distance that the car was out of control and the severity of the impact. ” (The Majority is holding this testimony inadmissible, with which holding, I thoroughly agree.)

(3) Miss Overturf never did estimate the speed, only saying the car was going very fast.

(4) Henshaw testified that he was not driving in excess of 55 mph.

This was all the testimony relative to speed.

I do not think that the aforementioned . evidence, establishes intoxication, and the strongest competent evidence of the speed was 65 miles per hour. Of course, in numerous cases, we have said that in order to sustain a recovery under the Guest Statute,, the negligence must be of even greater degree than gross negligence; it must be willful or wanton. Edwards v. Jffers, 204 Ark. 401, 162 S. W. 2d 472. In that case, an award of damages to a guest was reversed by this Court,-and.the cause of action dismissed. Mrs. Jeffers, a passenger in the Edwards ear, was injured when the ear traveled too rapidly around a curve and overturned. There was evidence that the automobile was traveling at a speed of 70 to 80 miles per hour. There was even evidence that Mrs. Jeffers protested two or three times to Mrs. Edwards about the rate of speed at which the car. was being driven. This Court said that no willful and wanton negligence was established. This case involved purely a matter of speed. In Lewis v. Chitwood Motor Co., 196 Ark. 86, 115 S. W. 2d 1072, this Court said that if a driver is under the influence of liquor to such an extent as to make him an incompetent driver, and such intoxicated condition contributes to the injuries complained of by the guest, still, there can be no recovery if the passenger knew, or by the exercise of ordinary care should have known, that the driver was under- the influence of liquor, but not withstanding such knowledge, rode with him. In one of our more recent cases, Poole v. James, 231 Ark. 810, 332 S. W. 2d 833, a guest in a car operated by James instituted suit for damages, and following a directed verdict for the defendant in the trial court, appealed. This Court, quoting from Blashfield’s Cyclopedia of Automobile Law and Practice, said:

“Where the road becomes dangerous, or the speed of the machine in which a passenger or guest is riding becomes excessive or unlawful, or the driver is otherwise careless or reckless in his conduct, and this is or ought to be known to the passenger, he is under the duty, in the exercise of ordinary care, to protect himself from injury, to caution the driver of the danger, remonstrate against it, and, unless the dangerous character of the surrounding conditions or the dangerous manner of operation is altered in such a way as to lessen the grave potentiality of harm, to quit the car if that may be safely done, or to request the driver to stop the vehicle, and, when it has stopped, to get out of the car.”

Of course, the facts in these eases are not identical with the facts in the instant case, but the principle of law, just enunciated, is exactly the same. Let us review the evidence in the case before us to determine whether the guests in Henshaw’s car remonstrated with him about his speed, or had the opportunity to quit the car. In the first place, if Henshaw was intoxicated when he went to the Overturf apartment, the girls could (and should) have refused to go with him. Miss Overturf testified that she smelled alcohol, and he “kinda stumbled once” (though she did not say this was because of intoxication, and people have been known to stumble when completely sober). In fact, she testified that she saw Henshaw walking, and talked with him in the apartment, and she was not afraid to go with him. She did go with him, and Miss Henderson insisted upon going also. Also, Miss Over-turf testified she had been around Henshaw once since the accident, and had heard him talk, and she observed no difference in his speech on the latter occasion and that of the night of the accident. She testified that Henshaw started out in Hot Springs driving fast, and had to ‘ ‘ squeal his brakes ’ ’ to keep from hitting a car in front of them at a red light; thereafter, she closed her eyes because she was scared, until they reached Truman’s Tavern, where Henshaw got out and went in and purchased the can of beer heretofore mentioned. The car was parked there for several minutes, and both girls had a clear opportunity to quit the car; instead, they remained, and drove to the tourist, court where they were to meet a married couple. • Again, Miss Overturf testified that she closed her eyes until they reached their destination. Here, also, the car was stopped for several minutes, and both girls had a second opportunity to quit the car. Instead of leaving it, they requested Henshaw to drive to Malvern to pick up Miss Henderson’s boy friend, and this was the purpose of driving toward Malvern, where the accident occurred. During all of this time, from the period of leaving the apartment until the accident occurred, no one made a single protest to Henshaw about his speed, or the can of beer that he had purchased; nor did either of the girls request to go home. Likewise, Miss Overturf testified there was no difference in his driving from the last stop made (the tourist court), to the scene of the accident, and his previous driving. “It was about the same.” She testified that the only time anything was said about his driving was between Truman’s Tavern and the tourist court, when she told him her scarf was blowing off (they were riding in a convertible), and he slowed down for her to put it back on. She stated that he did nothing to indicate he would not have slowed down had he been requested to do so. Under the principles of law heretofore set out, I am convinced that this judgment should be reversed, and the cause dismissed.

I therefore respectfully dissent.

George Rose Smith and Robinson, JJ., join in this dissent.

       The officer explained that from his experience in arresting people who were intoxicated, he had learned there was a difference in the smell of the breath when a fresh drink had been taken, and when the drinks had been taken over a period of time. He stated a fresh drink smelled as though fresh out of the container, while in the latter instance, the breath becomes soured. . ,


author: Neill Bohlinger, Associate Justice. Jim Johnson, Associate Justice

text:
    Davis v. Kukar, Adm’x.
    5-2612
    357 S. W. 2d 275
    Opinion delivered May 21, 1962.

      William H. Drew, for appellant.

      John F. Gibson, for appellee.
   Neill Bohlinger, Associate Justice.

On December 16, 1959, at approximately 7:50 p. m., Gerald Kukar was driving a 1956 Mercury sedan on U. S. Highway 65 in Chicot County and at approximately 45 feet north of the point where State Highway 144 intersects U. S. Highway 65, which point is. known as McMillan Corner, the car driven by Gerald Kukar struck the rear of a 1956 John Deere tractor which was the property of the appellant, Alice-Sidney Farms. The tractor was - driven by Joe Nathan Davis, ah appellant herein who was an employee of the appellant, Alice-Sidney Farms. The force of the impact was such that Gerald Kukar died several hours after the accident in a nearby hospital and to recover damages for the death of said Gerald Kukar, the appellee, Agnes Kukar, individually and as administratrix of the estate of Gerald Kukar, brought action in the Chicot Circuit Court against the appellants herein.

She alleged that the appellant, Joe Nathan Davis, was a regular employee and acting in the scope of his employment for the Alice-Sidney Farms at the time of the accident; that the proximate cause of the accident was negligence of the Alice-Sidney Farms in permitting the appellant, Joe Nathan Davis, to operate the tractor on the highway when they knew or should have known that he was not a qualified driver or operator; that the appellants were both negligent in operating the tractor driven by appellant, Joe Nathan Davis, along and upon the highway at the time of the accident without any rear lights operating on said tractor; that any rear lights on said tractor was not of a type approved by the laws of the State of Arkansas; and that such acts of negligence were the proximate cause of the injury and resulting death of Gerald Kukar.

Taking the sequence of events from the record, it is shown that the appellant, Joe Nathan Davis, had been working for Alice-Sidney Farms about a year and a half and had been a tractor driver for about a year. About 5:30 on the afternoon of December 16, 1959, the bookkeeper for the Alice-Sidney Farms had gone to the home of the appellant, Joe Nathan Davis, and directed him to go to the Alice-Sidney tractor shed. He was directed by an employee of the Alice-Sidney Farms to take a certain tractor and proceed to a point on State Highway 144 where a car had been mired down or was in the ditch. State Highway 144 was undergoing some repairs and was muddy and rutted. Arriving at the point where the car was mired down, the appellant, Joe Nathan Davis, drove behind the.ear to pull it back-and after he had hooked onto the car another employee of the Alice-Sidney Farms took the tractor and pulled the car to the front of the McMillan Store.

Appellant, Joe Nathan Davis, was told to take the tractor back to the farm. However, he waited in front of the McMillan Store until his boss had left the vicinity, then he turned the tractor and drove east across TI. S. Highway 65 to Stene Dunn’s farm where he stayed 15 to 20 minutes and took two of his friends from that point to Judge Locke’s farm which was approximately two miles north of Dunn’s. He there drove out in a pasture and left his friends at a house where he stayed two or three minutes and then started back south on U. S. Highway 65 and had reached the front of the Oasis Cafe, about 45 feet north of the junction of State Highway 144 and U. S. Highway 65, when the accident occurred.

To account for his being on highway 65 and the lapse of time involved, Davis had told his employer and others that he had gone north on 65 to help start a car, which statement he subsequently retracted and said he had made it to keep from being fired because he had been doing something he had not been told to do.

The case as to Alice-Sidney Farms hinges upon the question: “Was the appellant, Joe Nathan Davis, engaged in the business of the appellant, Alice-Sidney Farms, at the time of the accident?” There is no showing that the Alice-Sidney Farms had any business which required Davis to go either upon highway 65 or to any point east thereof. That part of the excursion seems to have been purely a personal and social one initiated by and in the interest of the appellant, Joe Nathan Davis.

The law of respondeat superior is well settled.

“* * * the doctrine of respondeat superior * * * rests upon the proposition that, in doing the acts out of which the accident arose, the servant was representing the master at the time and engaged in his business. It is conceded that the doctrine cannot be invoked unless, at the time of the negligent act causing the injury, the servant was engaged in performing a service for the master or [an act] incidental thereto. It is generally stated by text writers and in judicial decisions that the test of the liability of the master for his servants [sic] acts is whether the latter was at the time acting within the scope of his employment. The phrase ‘in the scope of his employment or authority,’ when used relative to the acts of the servant, means while engaged in the service of his master or while about his master’s business. It is not synonymous with ‘during the period covered by his employment.’

* * * The very basis of the rule of respondeat superior, as applied to automobile accidents as well as to other cases, is that the driver of the car is acting for the owner and not for himself personally at the time of the accident. When the servant steps outside of the master’s business and enters upon the performance of some individual purpose of his own, he ceases to act as the servant of the owner, and the latter’s responsibility for his act terminates.” Hunter v. First State Bank of Morrilton, 181 Ark. 907, 28 S. W. 2d 712.

In Page Lumber Company v. Carman, 214 Ark. 784, 217 S. W. 2d 930, this court discussed the master’s liability and said:

“In order to bind the master, * * * ‘the act must be done not only while the servant is engaged in his master’s service, but it must pertain to the particular duties of that employment.’
‘In the more recent case of Carter Truck Line v. Gibson, 195 Ark. 994, 115 S. W. 2d 270, it is said: “The act of the servant for which the master is liable must pertain to something that is incident to the employment for which he is hired, and which it is his duty to perform or be for the benefit of his master. Sweeden v. Atkinson Imp. Co., 93 Ark. 397, 125 S. W. 439, 27 L. R. A., N. S. 124. * * * And if the servant steps aside from the master’s business to do an independent act of his own and not connected with his master’s business, then the relation of master and servant is for such time, however short, suspended; and the servant while thus acting for a purpose exclusively his own, is a stranger to his master, for whose acts he is not liable. * * * If a servant completely turns aside from the master’s business and pursues business entirely his own the master is not responsible.’ Lindley v. McKay, 201 Ark. 675, 146 S. W. 2d 545.”

The case of Healey v. Cockrill, 133 Ark. 327, 202 S. W. 229, is a leading case on the matter of deviation and abandonment. In the Healey case the master had ordered the servant to bring the car around to her door. This entailed the servant driving the car around three sides of a block and parking the car at the master’s door. But instead of this, the servant drove the car several blocks away to purchase cigarettes for himself and on the return trip was involved in an. accident. In this case we said: ■

“We do not think that the facts of the present case bring it within the rule of slight .deviation from the employer’s service, or a mere incidental departure from the service to mingle it with purposes of the servant’s own, but that it is a case of complete abandonment or departure from the employer’s business and a stepping aside wholly for the servant’s own purpose. The distance traveled by the servant in going upon his own errand was not very great, but it was considerably out of proportion with the distance necessary to travel in obeying the instructions of his employer. In other words, the .relative distance was too great to be called a slight deviation, and the departure from the line of duty was so complete that the connection with the employer’s service was completely broken. In order to perform the employer’s service it was unnecessary for the servant to leave the immediate proximity of the employer’s premises. He did not even have to cross any of the streets, but his journey from the back of the premises to the front was merely to follow the same side of the street half way around the block. Instead of following that course, the servant left the premises entirely and went off on an errand of his own to purchase an article for his private use, and in order to make the trip to the store, was .not mingling his it was necessary for him to travel the distance of six and one-half blocks in getting back to the front of his employer’s residence. The servant, in leaving the premises in order to make that trip in observance of the traffic rules, own business with that of his employer, but he was stepping aside entirely from the employer’s business to go on an errand of his own, and this is true even though he intended to dispose of the car, on his return, in accordance with the employer’s direction.”

In Neville v. Adorono, 123 Conn. 395, 195 A. 613, there is a discussion of deviation from and return to the scope of employment.

“In deciding whether an unauthorized deviation from the employment is so slight and not unusual as not to relieve the employer from liability, or of such a character as to constitute a temporary abandonment of the employment, ‘the trier must take into account, not alone the mere fact of deviation, but its extent and nature relatively [sic] to time and place and circumstances, and all the other detailed facts which' form a part of and truly characterize the deviation, including often the real intent and purpose of the servant in making it.'’ * * *

Only when the deviation is clearly of the one character or the other can its effect upon the employer’s liability be determined as matter of law. In most cases it is a question of fact, depending upon the nature and extent of the deviation and all the attendant circumstances.” [Citations omitted]

The testimony in this .case is in no wise disputed that the employer, Alice-Sidney Farms, had no business that required its servant, Joe Nathan Davis, to go on highway 65 at all nor to go east of highway 65 and that Davis’ action in so doing constituted a deviation and departure from his employment for which the employer is not responsible.

The accident occurred at a point north of where the employer had left Davis when Davis was instructed to take the tractor back to the farm. Hence, there could have been no resumption of his employment. We think that the time that elapsed between the departure from employment, when Davis, on his own, turned the tractor around and went east across highway 65, and the claimed resumption is a significant circumstance. We do. not know how much time elapsed after Davis crossed highway 65 going east, but as a matter of common knowledge we know that time did elapse between Davis’ departure from in front of the store to the point where he picked up his friends on the Stene Dunn farm. We know that time did elapse between the time he picked up his two friends at Dunn’s and drove two miles north to the Locke farm where he stayed two or three minutes' and time certainly elapsed between the leaving of the Locke farm and the time when Davis arrived in front of the Oasis Cafe, the scene of the accident, and it was Davis’ use of that time on his own business that placed him at the scene of the accident.

We think the finding of the Alabama Supreme Court in Bell v. Martin, 241 Ala. 182, 1 S. 2d 906, is especially pertinent.

“It is established in this jurisdiction that where there is an abandonment of the master’s business for personal reasons of the servant or agent in question, the employment is suspended and the master is not liable for the negligence of such agent or servant during such suspended employment and during the time of his departure from the master’s business. Each case must be ruled by its ‘own peculiar’ or particular facts, and when a servant has abandoned his employment by the master (Moore-Handley Hardware Co. v. Williams, 238 Ala. 189, 189 So. 757), the mere fact that he is returning thereto, does not of itself reinstate the servant, agent or agency in his master’s employment and establish the engaging in the master’s business so as to subject the master to liability and for damages resulting after the departure and before the return is accomplished as of fact.”

That court also said:

“ * * * where there has been an abandonment and the driver must return to the place of such abandonment before he can commence carrying out what he was hired to do, then to such extent the employment is suspended, both on the outgoing and return trip.”

The defendants requested instruction No. 15 as follows:

“You are instructed that under the proof in this case, as a matter of law, the defendant, Joe Nathan Davis, was not acting within the scope of his employment, and you are, therefore, instructed to find for the defendant, Alice-Sidney Farms, and against the plaintiff.”

Under the proof in this case, the above instruction should have been given. Failure to give it was error and for that error this cause is reversed and dismissed as to Aliee-Sidney Farms. The negligence of the appellant, Joe Nathan Davis, was properly submitted to the jury which found for the appellee against him. That verdict we do not disturb.

Johnson, J., dissents.

Jim Johnson, Associate Justice

(Dissenting). I dissent to the majority opinion for the reason that in my view the principal question presented here is one of fact for the jury. I am convinced that the trial court correctly submitted to the jury the question of re-entry upon the purposes of the master by the servant. The Court’s Instruction No. 3 is as follows:

“You are instructed that even though you should find that the defendant, Joe Nathan Davis, was on an errand for his employer and had, prior to the accident, deviated from the scope of his employment, that this fact is immaterial if you find from a preponderance of the evidence that at the time of the accident the Defendant, Joe Nathan Davis, had resumed the performances of his duties for the defendant, Alice-Sidney Farms, and if you so find from a preponderance of the evidence, then you will find that Joe Nathan Davis was acting; within the scope of his employment at the time of the collision. ’ ’

There can be no question but that appellant’s servant was on a frolic of his own and had departed from the scope of his employment. However, there is ample evidence to show that somewhere in point of time or space appellant’s servant intended to re-enter upon the master’s business. There is testimony to support a conclusion that at some point in the deviation appellant’s servant intended to return the tractor to its accustomed place. (That was what he was instructed to do.) The facts here show that appellant’s servant returned to within less than 45 feet of the point where he had departed from the scope of his employment. His own testimony is undisputed that his intent was to return the tractor in accordance with the instructions of his superior. He testified that he slowed the speed of the tractor for the purpose of making a turn onto the road at which point he had departed on his own business. While in this process of altering the speed of the tractor for the purpose of negotiating the turn, the fatal, injury occurred. What was in the servant’s mind? The servant and the Lord only knows! Surely a trial judge would not be expected to rule, as a matter of law, that the servant was not intent upon returning the tractor to its rightful place. Intent is a matter of proof. The strength or weakness of the proof may or may not allow a trial judge to rule, as a matter of law, that the servant was or was not intent upon fulfilling his mission for his master, however tardy he may be in doing so. Clearly, reasonable men could differ in the case at bar. Since reasonable men could differ, it is most unreasonable to expect a trial judge or this Court on appeal to substitute his or our evaluation of the facts by denying a jury review of those facts.

The majority here has placed too much stress upon this Court’s ruling in Healey v. Cockrill, 133 Ark. 327, 202 S. W. 229. The Cochrill case is clearly distinguishable. There the distance, though not great, which was traveled by the servant in going upon his own errand was many times greater than the distance necessary to travel in obeying the instructions of his employer. Here the distance traveled by the servant in going upon his own errand was less than half the distance necessary to travel in obeying the instructions of his employer. The majority goes to great length to reiterate the well known rule that when a servant goes upon a frolic or detour of his own such departure from the course of the master’s business terminates the relationship of master and servant and relieves the master of tort liability for acts and omissions of the servant during such frolic or detour. There can be no quarrel with this rule for it is sound and represents the great preponderance of case law in this country. But the question of re-entry by the servant upon the purposes and business of his master has too long been ignored by this Court. And I take specific issue with the majority’s reliance upon the minority holding that re-entry is not effectuated so as to reéstablish tort liability upon the master until the servant has reached the exact point of departure. This rule is much too narrow and could open the door to collusive and even perjured testimony whereby judgment-proof servants might willingly lift the burden of liability from their more prosperous master and the master’s sureties.

By the very nature of a master-servant relationship it is folly to expect a master to be in constant supervision of each act his servant is to do. When a master sends a servant to accomplish some purpose for the master he thereby incurs certain liabilities of a vicarious nature for the acts and omissions of the servant. If the servant departs from that purpose the master is relieved of liability. But the perplexing problem presented to the courts is to devise some means of determining the approximate point in time or space when the servant re-enters upon the purposes of the master and thereby reestablishes the vicarious liability of the master.

No two cases present the same set of facts. The-facts in one case may be so clear as to allow the trial judge to rule, as a matter of law, that the servant had. or had not re-entered upon the purpose of the master. Conversely, the facts in another case may be such that, reasonable men could differ. There can be no doubt but. the case at bar falls in the second category.

The Court attempted to define re-entry in Cahill v. Bradford, 172 Ark. 69, 287 S. W. 595, when it held that it was a question for the jury “. . . whether the-servant was pursuing the general course necessary to-accomplish the purposes involved in his master’s business at the time the injury occurred.”

The facts in the present case are undisputed that the servant was in fact in the process of re-entering the-road at the exact spot from which he had departed whem the collision occurred.

. The question still remains: At what point in time or space does re-entry into the scope of employment occur?

In an effort to answer this difficult question, the American Law Institute’s Restatement of the Law of Agency, 2d, § 237, set out this rule:

“A servant who has temporarily departed in space or time from the scope of employment does not re-enter it until he is again reasonably near the authorized space and time limits and is acting with the intention of serving his master’s business.”

Cases cited in the appendix point clearly to the better view that, as here, on close questions of fact, submission to the jury is proper. (See cases cited in Restatement of the Law, Agency 2d, Appendix, § 237.)

American Law Institute’s Restatement position is clearly supported by other authoritative legal writers. Professors Harper and James in their learned three volume text “The Law of Torts”, Yol. 2, § 26.8 p. 1386, say:

“. . . The simplest case of detour is that of a driver who is employed to drive a truck to deliver his master’s goods to a point 10 miles south of the store, but who drives the loaded truck a short block west of the prescribed direct route to get some cigarettes, intending to return forthwith to the performance of his duty. If he negligently injures plaintiff, during the deviation, the master is generally held liable.
“At the other extreme stands the case where the driver, having delivered the goods, proceeds to take a 50-mile drive further south to see his girl and on his way there injures plaintiff 25 miles south of where he delivered the goods. Here the master is not held.
“Between these extremes exist the greatest confusion and contrariety of opinion. Most courts and commentators agree that no clear line can be drawn although some of the earlier cases are marked by a striving for precise — and arbitrary — tests. For the most part the tendency has been to recognise the importance of a num her of factors, attaching to each a weight that varies with the circumstances — a process that is usually committed to the jury . . (Emphasis supplied.)

Further, see Prosser on Torts, 2d Ed. § 63, p. 353, which states:

“Questions of fact of unusual difficulty arise in determining whether the servant’s conduct is an entire departure from the master’s business, or only a roundabout way of doing it — and likewise, the point at which the departure is terminated, and the servant may be said to have re-entered the employment. This is particularly true in the ‘detour’ cases, where the servant deviates from his route on a personal errand, and later returns to it. Various tests have been proposed. One makes the question turn primarily on the servant’s motive in the deviation, saying that he is within his employment while he intends in part to serve his master, or as soon as he starts to return to his route. Another more generally accepted, looks to the foreseeability of such a deviation, and holds the employer liable only for torts occurring in a ‘zone of risk’ within which the servant might be expected to deviate. Under this view the servant does not re-enter the employment until he is reasonably near the authorized route. . . .”

35 Am. Jur. Master and Servant, § 558, p. 992.

“. . . One of the controverted questions is whether an employee who has turned aside from his employer’s business to accomplish some purpose of his own, and who, after accomplishing his purpose, returns to resume his duties, is, while so returning, engaged in the business of his employer and within the scope of his employment so as to render the employer liable for his tortious conduct. According to the rule of many courts, the employer may be held liable for the torts of his servant which are committed after the personal business of the latter has been concluded and while he is returning to the place where he departed from the designated course. Some courts hold that the mere fact that an employee using the car for his own business or pleasure is returningxtq.- the master’s garage or-.to Ms. employment, .when, the injury occurs, does-not alone^constitute such a resumption of the master’s business as will render the master liable for the injury. The truth is that no hard and fast rule oh the subject either of space or time can be applied. It cannot be said of a servant in charge of Ms master’s vehicle, who temporarily abandons his line of travel for a purpose of his own, that he again becomes a servant only when he reaches a point on his route which he necessarily would have passed had he obeyed his orders.”

It is my view that this Court should follow the great weight of authority in deciding the question of re-entry by the servant upon the purposes and business of his master. The better view, in my opinion, is that on close questions of fact the jury is the proper forum to decide whether a servant has re-entered upon the purposes and business of his master. The case at bar is a clear illustration of the injustice of the narrow view taken by the majority of this court.

For the reasons stated above, I respectfully dissent.


author: Carleton Harris, Chief Justice.

text:
    Higgins v. State.
    5034
    357 S. W. 2d 499
    Opinion delivered May 28, 1962.

      Jeff Duty, for appellant.
    J. Frank Holt, Attorney General, by Milas H. Hale, Asst. Attorney General, for appellee.
   Carleton Harris, Chief Justice.

Appellant, Lawrence John Higgins, was charged by Information with the crimes of burglary and grand larceny, the Information alleging that appellant burglarized the Western Auto Store in Bentonville, Arkansas. The Information also charged Higgins with being an habitual criminal alleging that he had previously been convicted of three separate felonies and had served a sentence in a penitentiary on each of said convictions. On trial, the jury returned the following verdict:

“We the Jury find the defendant, Lawrence John Higgins, guilty of Burglary and fix his punishment at 15 years consecutively in State Penitentiary.
We the Jury find Lawrence John Higgins guilty of Grand Larceny and fix his punishment at 15 years consecutively in State Penitentiary. ’ ’

Prom the judgment entered in conformity with this verdict, appellant brings this appeal.

Por reversal, it is first asserted that the court erred in permitting introduction of State’s exhibit No. 8. This exhibit, which was admitted over the objections and exceptions of appellant, is a copy of the criminal record of Lawrence Higgins, and includes all of the arrests and convictions of appellant from the year 1935 to the present time. In admitting the exhibit, the court did not permit the jury to look at the record itself (apparently because it showed the number of arrests, as well as the number of convictions), but did permit the prosecuting attorney to read into evidence those portions relating to appellant’s convictions. The admitted portion reads as follows:

“UNITED STATES (SEAL) OF AMERICA
FEDERAL BUREAU OF INVESTIGATION
July 7, 1961
In accordance with Title 28, Section 1733, U. S. Code, I hereby certify that the annexed paper is a true copy of the original record and fingerprints in the Identification Division of this Bureau, of LAWEENCE HIGGINS (ALSO KNOWN AS LAWEENCE JOHN HIGGINS) FBI number 1 146 464.
In Witness Whereof, I have hereunto set my hand and caused the seal of the Federal Bureau of Investigation to be affixed, on the day and year first above written.
/s/ A. K. Bowles
A. K. Bowles
Inspector
Identification Division
Contributor of fingerprints: State Reformatory, Monroe, Washington; Name and number, Lawrence John Higgins, No. 9810; Arrested or received, October 10, 1936; Charge, grand larceny; Disposition, not more than 15 years; 5 years board action. June 21, 1944, final discharge from parole.
Contributor of fingerprints, United States Marshal, Abilene, Texas; Name and number, Larry J. Higgins, No. 1497; Arrested or received, January 30, 1956; Charge, Dyer Act; Disposition, March 22, 1956, 2 years.
Contributor of fingerprints, United States Penitentiary, Leavenworth, Kansas; Name and number, Lawrence John Higgins, No. 75012; Arrested or received, November 12, 1957; Charge, Motor Vehicle Theft Act; Disposition, 3 years, December 30, 1959, mandatory release.”

The authority for offering this evidence is contained in Section 43-2330 (1961 Supp.), and reads as follows:

“The duly certified copy of the record of a former conviction and judgment of any court of record for imprisonment in the penitentiary against the person indicated or the certificate of the warden or other chief officer of any penitentiary of this State or any other State in the United States, or the Federal Government or of any foreign country, or of the chief custodian of the records of the United States Department of Justice, containing the name and the fingerprints of the person imprisoned as they appear in the records of his office shall be prima facie evidence on the trial of any person for a second and subsequent offense, of the conviction and judgment of imprisonment in the penitentiary and may be used in evidence against such person. ’ ’

This section is a part of the “Habitual Criminal Act” (Act 228 of 1953, as amended in 1961), which provides a greater penalty for those defendants who have been previously convicted of felonies.Appellant contends that the court erred in admitting this exhibit, since it is not signed by anyone claiming the title of “Chief Custodian of the Records of the United States Department of Justice”, but rathei;, the signer is only identified as an “Inspector, Identification Division”. We think there is merit in this contention.

Since the statute authorizing a more severe punishment for one who has been previously convicted, is highly penal, it must be strictly construed. U. S. V. Lindquist, et al, 285 F. 447; State v. Bailey (La.), 115 S. 613. There is here no showing that A. K. Bowles, Inspector, Identification Division, is the chief custodian of the records of the United States Department of Justice. In Mullican v. United States, 252 F. 2d 398 (U. S. Court of Appeals, 5th Circuit), it was urged by the appellant that certain exhibits offered by the Government constituted error requiring a Reversal. The Court quoted from the Federal Rulés-ás¿follows:

“An official record or an entry therein, when admissible for any purpose, may be evidenced by an official publication thereof or by a copy attested by the officer having the legal custody of the record, or by his deputy, and accompanied with a certificate that such officer has the custody. * * *”

Relative to one of the exhibits, the Court then said:

“Government Exhibit 4 consisted of photo static copies of a Certificate of Parole issued to Mullican in December, 1954, at which time he was an inmate of Texarkana, an Order of Revocation of the Parole, a Warrant for his return to Texarkana, and a Marshal’s return showing the delivery pursuant to the Warrant of Mullican to Texarkana on May 18, 1956. These were certified as being exact copies of official documents issued by the United States Board of Parole. The certificate was signed by the Chairman of the Board of Parole, and in this form:
‘District of Columbia, Washington, D. C., ss.
I, Scovel Richardson, Chairman, United States Board of Parole, hereby certify that the three attached instruments are exact copies of official documents issued by the United States Board of Parole, in the case of Lloyd Ray Mullican — 8786—TT.
The documents are as listed below:
Parole Certificate
Warrant
Order of Revocation
Witness my hand and seal this 1st day of March, 1957.
[Signed] Scovel Richardson
Chairman
[Seal]
I hereby certify that this document was signed in my presence this 1st day of March, 1957, and that I have custody of the seal of the United States Board of Parole, which is affixed hereto.
[Signed] James C. Neagles
Acting Parole Executive’

This certificate, in addition to having some of the infirmities inherent in Exhibit 3, is also defective in not containing any recital saying that the officer making the certificate has the custody of the records. We conclude that the court erred in admitting Government Exhibit 4. ’ ’ We might here point out that we do not think it was the intent of the Legislature in passing Act 228 of 1953 (§ 43-2330, 1961 Supp.), to permit the introduction of a certified copy of the records of the United States Department of Justice, even though properly certified by the Chief Custodian of the Records, in instances where the prisoner’s sentence was served in a state prison. Rather, we are of the opinion that the language of that section requires the certificate of the warden or the chief officer of the state penitentiary wherein the accused had previously served time. The records of the United States Department of Justice, properly certified, could appropriately be offered where the accused had served time in a federal prison or reformatory. When a man is arrested and charged with crime in this state, under the usual procedure, he is fingerprinted, and a copy of the prints sent to the Department of Justice in Washington. That department then sends back to the arresting officers a copy of the defendant’s record, if any, which shows both previous arrests and convictions. If the prosecuting officials of that county desire to charge the defendant with being an habitual criminal, and to invoke the penalties of the Habitual Criminal Act, it is only necessary that they write the warden or other chief officer of the institution where he served time, and request a certificate that the defendant served a sentence in that prison (giving dates and charge convicted of, along with copy of fingerprints). Of course, the record is hearsay evidence (made admissible by the Legislative Act), but under this procedure, it is, at least, hearsay “at first hand”, whereas, when a certified copy of a record is obtained from the Department of Justice, it is hearsay “once removed”, since the department acquired its information from the state authorities. We think, unquestionably, that the introduction of a prior record carries great weight with a jury, and the statute permitting this type of evidence should be strictly complied with.

Appellant also complains that the exhibit is objectionable in that Higgins and the person named in the record were not identified by the State as one and the same person. Courts of various jurisdictions are not in agreement upon the sufficiency of proof to establish the identity of a defendant. As stated in 11 A. L. E. 2d, p. 884 andp. 887:

“It would seem that there are two distinct lines of authority in regard to the effect to be given to identity of name as evidence of identity of person in such case. One line of authorities holds that identity of name of the defendant and the person previously convicted is prima facie evidence of identity of person, and, in the absence of rebutting testimony, supports a finding of such identity.
* * * *
. . . some courts hold that, to warrant the application of a statute authorizing additional punishment of one convicted of crime upon proof of former conviction, the identity of the accused and the one against whom the former judgments were entered must be established by affirmative evidence, mere proof of identity of names not being sufficient. ’ ’

In fact, it would appear that the authorities are rather equally divided. We prefer the former view, feeling that the certified copy of record is proper prima facie evidence. Of course, there is nothing to prevent a defendant from tendering proof to the effect that he is not the preson referred to in the record. Actually, we have already upheld the admission of such evidence, without additional identification, in previous cases. See Rowe v. State, 224 Ark. 671, 275 S. W. 2d 887.

Appellant next questions the sufficiency of the evidence to sustain the conviction. While the evidence was not overly strong, we think, when viewed in the light most favorable to the State, which we must do on appeal, it was sufficient. For that matter, on a second trial, it may well be that the evidence will be more fully developed. The proof reflected that some guns were stolen from the Western Auto Store at Bentonville, Arkansas. Higgins, Bill Linehan, alias 0’Banyan, and a man named Smith, were registered together at a Eureka Springs hotel. Sheriff Dwan Treat of Carroll County arrested appellant, because of circumstances that appeared suspicious to him, and took Higgins to his (the sheriff’s) office. Earl Rife, criminal investigator for the Arkansas Police, testified that appellant told him that he had some guns in the trunk of his car. Appellant points out that neither Mr. Rife, nor the sheriff, who also testified, stated that Higgins admitted that the guns, referred to were the same guns that had been stolen. The sheriff then arrested 0 ’Banyan, who, at the trial, testified that he and Higgins broke into the building and stole three shotguns, shotgun shells, and a radio. These items were recovered by the sheriff near Lake Eureka, after 0’Banyan took him to the place where they were hidden. Clayton Morrow, a justice of the peace of Carroll County, stated that he heard Higgins and 0’Banyan talking in the sheriff’s office, and Higgins asked 0’Banyan what he (0’Banyan) “did with the guns.” The latter replied that he “hid them over in the woods.” Mr. Morrow could not testify that the men were talking about the particular guns stolen from Western Auto, though 0’Banyan testified that the guns were the same. We think it plausible, considering the two men had just been arrested for stealing the guns from the Western Auto Store, that the conversation related to those particular items.

The jury, in fixing the punishment, found that the sentences should be served consecutively. We take this occasion 'to point out that this finding can only be considered advisory, much in the same nature as when a jury recommends a suspended sentence, inasmuch as the question of whether sentences shall be served concurrently or consecutively lies solely within the province of the court. See § 43-2312, Ark. Stats. Anno.

Because of the error in admitting the exhibit as herein set out, the judgment is reversed, and the cause remanded.

       This seal reads: “Department of Justice” (at top) — “Federal Bureau of Investigation” (at bottom).

         “§ 43-2328. Second or Subsequent Convictions — Sentence.—Any person convicted of any offense punishable by imprisonment in the Penitentiary, who has been discharged, either upon compliance with the sentence or upon pardon or parole, and shall subsequently be convicted of any offense committed after such discharge, pardon or parole, shall be punished as follows:
      (1) If the second offense is such that, upon a first conviction, the offender could be punished by imprisonment for a term less than his natural life, then the sentence to imprisonment shall be for a determinate term not less than one (1) year more than the minimum sentence provided by law for a first conviction.
      (2) If the third offense is such that, upon a first conviction the offender could be punished by imprisonment for a term less than his natural life, then the person shall be sentenced to imprisonment for a determinate term not less than two (2) years more than the minimum sentence provided by law for a first conviction.
      (3) If the fourth or subsequent offense is such that, upon a first conviction, the offender could be punished by imprisonment for a term not less than his natural life, then the person shall be sentenced to imprisonment for the fourth or subsequent offense for a determinate term not less than three (3) years more than the minimum sentence provided by law for a first conviction.”

       Where a defendant admits in open court his prior convictions, the certificates are not necessary.

       Actually, because of the fact that this evidence does carry great weight with the jury, and may even subconsciously influence the minds of the jurors in determining the defendant’s guilt or innocence of the crime with which he is immediately charged, a few states follow the procedure of first determining the guilt of a defendant on the present charge before admitting evidence of prior convictions. The procedure is set forth in the case of State v. King (Nash.), 140 P. 2d 283, as follows: “Where a defendant has been convicted of a crime, consequent upon which an habitual criminal proceeding is instituted against him, sentence upon the substantive offense upon which he has been convicted shall await the outcome of the habitual criminal proceeding, and if the latter be substantiated, then, and not until then, shall sentence he imposed upon the defendant for the commission of the substantive crime, with an increased penalty exacted because of the adjudication of defendant’s habitual criminal status.” This procedure is predicated upon a statute (since repealed), but the procedure is still maintained. See State v. Huneke, 249 P. 784; State v. Kirkpatrick, 43 P. 2d 44. Connecticut likewise follows a similar procedure, as set out in Section 340 of the Connecticut Practice Book. See Armstrong v. Potter, 125 A. 2d 389. While we approve this practice, we feel that such procedure should properly he required by the Legislature, rather than by this Court.