author: J. Fred Jones, Justice. John A. Fogleman, Justice,

text:
    MISSOURI PACIFIC RAILROAD CO. et al v. James E. ELLISON et al
    5-5486
    465 S. W. 2d 85
    Opinion delivered March 15, 1971
    [Rehearing denied April 26, 1971.]

      W. J. Smith and B. S. Clark, for appellants.

      Haskins if Larrison, Hardin ir Rickard and Wright, Lindsey & Jennings, for appellees.
   J. Fred Jones, Justice.

This is an appeal by the Missouri Pacific Railroad Company from a judgment against it for personal injuries and property damages growing out of a train-truck collision at a railroad crossing in Benton, Arkansas.

On March 4, 1969, James E. Ellison, while in the course of his employment by East Texas Motor Freight Lines as a truck driver, drove an East Texas truck onto the Missouri Pacific Railroad Company’s track at the Neeley crossing in Benton, and it was struck by an eastbound Missouri Pacific freight train. The train stopped after the collision and Woodrow Utley, a brakeman in the employ of Missouri Pacific, injured his leg in crossing a ditch after alighting from the train.

Ellison filed suit in the Saline County Circuit Court against Missouri Pacific and its engineer, Wilson, for personal injuries. He alleged negligence in failure to keep a proper lookout and in failure to give the statutory signals. East Texas intervened for damage to its truck, tractor and trailer, and Fireman’s Fund Insurance Company intervened claiming statutory subrogation rights for the amount it had paid, and would be obligated to pay, to Ellison in workmen’s compensation benefits.

Missouri Pacific answered by general denial and affirmatively alleged that the plaintiff’s own negligence in failure to keep a proper lookout and in proceeding onto the tracks while blinded by the sun, was the sole and proximate cause of the collision. Missouri Pacific also counterclaimed against Ellison and East Texas for damages to its locomotive and for $1,633.85, representing the amount it had paid to its brakeman, Utley, in settlement of his claim against Missouri Pacific for personal injuries under the Federal Employers Liability Act. Missouri Pacific alleged that upon receipt of Utley’s demand, it advised East Texas that Utley’s claim could be settled for the- amount paid and that East Texas refused to recognize its responsibility to Utley, and refused to participate in the settlement; whereupon, Missouri Pacific consummated the settlement with Utley and took a release from him in favor of itself, Ellison and East Texas.

At the trial before a jury the trial court refused to submit the counterclaim for the amount paid to Utley to the jury and dismissed the counterclaim. The cause was submitted to the jury on interrogatories and the jury apportioned the negligence 60% to Missouri Pacific and 40% to Ellison. The'jury found that Ellison sustained damages in the amount of $65,000, and that East Texas had sustained property damage in the amount of $3,300. Judgment was entered for Ellison in the amount of $39,000 and for East Texas in the amount of $1,980. On appeal to this court Missouri Pacific relies on the following points for reversal:

"The defendants’ motion for directed verdict should have been granted.
The court erred in refusing to give defendants’ requested instruction No. ‘A.’
The court erred in giving plaintiff’s requested instruction No. 15.
The court erred in dismissing defendant Missouri Pacific Railroad Company’s counterclaim as to Woodrow Utley.”

Under its first point, Missouri Pacific argues that a verdict should have been directed in its favor for the reason that Ellison based his entire case upon the alleged fact that he failed to see the train because he was blinded by the sun, and that he was, therefore, excused from his duty to keep an effective lookout, and since he heard no train coming he proceeded across the crossing. In support of this argument, Missouri Pacific relies heavily on Missouri Pacific R. R. Co. v. Binkley, 208 Ark. 933, 188 S. W. 2d 291. There are considerable differences in the Binkley case and the case at bar. In the Binkley case Mr. Binkley was driving his automobile up a 38 foot wet “gumbo” incline to the railroad track. The wheels were spinning on the wet “gumbo.” Mrs. Binkley saw the train coming and advised Mr. Binkley. He also saw the train when it was between 70 and 100 yards away from him. He explained in detail how he continued in his attempt to drive the automobile from the track after he saw the train coming. Mr. Binkley did not testify as to how long it took him to reach the point of impact from the road at the foot of the slick incline, but as to his vision being affected by the sun, his testimony related to the time he left the road onto the incline and not as he drove onto the track.

“. . . you can see as far as you can see when you leave the road. But I looked down and couldn’t see it because the sun was so bright. I glanced and took a look and it was bright and I didn’t see a thing. Q. Did the engineer do everything possible, do you think? A. Yes, I do. He was just like I was, he gave me time; he thought I was going to get it out of the way and when he saw I wasn’t he did everything possible.”

The appellee’s theory in the case of Binkley was that the collision was due to the negligence of Missouri Pacific in maintaining a slick and muddy approach to its crossing. It was the company’s contention that Binkley was guilty of contributory negligence in failing to exercise caution necessary before driving onto the railroad track. Binkley met this contention in his brief as follows:

“ ‘Appellant insists that the plaintiff should have seen the train before he reached the track, but anyone who has ever tried driving a car on a gumbo dump when it is wet and slick will understand that it takes all the attention and all the skill of a good driver to keep the car from skidding and going into the ditch, and that he has no time for looking for trains or anything else.’ ”

The primary difference, however, between Binkley and the case at bar, is set out in the Binkley opinion in the following sentence:

“Here, appellee sued for property damage only, and any contributory negligence on his part would preclude recovery under the law at the time this action arose.”

Furthermore, in the case at bar, the jury did not absolve Ellison of negligence. The jury found that he was negligent to the extent of 40% of the total negligence. The trial court properly overruled Missouri Pacific’s motion for a directed verdict.

The trial éourt did not err in its refusal to give defendant’s requested instruction No. A, which is AMI No. 1801 as modified. The trial court did give AMI No. 1801 as follows:

“There was in force in the state of Arkansas at the time of the occurrence a statute which provided: A railroad is required to place on each locomotive a bell or whistle, and these shall be rung or whistled at a distance of at least a quarter mile from where the tracks cross any public street and shall be kept ringing or whistling until the locomotive has crossed the street.
A violation of this statute although not necessarily negligence, is evidence of negligence to be considered by you along with all of the other facts and circumstances in the case.”

This instruction was given in the format of AMI No. 903, as evidenced by the last paragraph of the instruction. The instruction offered by Missouri Pacific would have modified AMI No. 1801 almost beyond recognition. Missouri Pacific’s requested instruction No. A is as follows:

“The purpose of giving these signals is to warn the traveler of the approach of the train. But, if the train is in plain view, or if its presence is otherwise discoverable by the exercise of ordinary care, then the giving of signals ceases to be a factor in the case.
Therefore, if you have found from a preponderance of the evidence that the train in this case was in plain view or that its presence could have been otherwise discovered by the plaintiff, James Ellison, in the exercise of ordinary care, then you are instructed that the sounding of the whistle or bell on the locomotive ceases to be a factor to be considered in this case. (Tiren the failure to sound the whistle and bell by the trainmen should not be considered by you as evidence of negligence.)”

This instruction would have told the jury that if the presence of the train could have been discovered by Mr. Ellison in the exercise of ordinary care, that the sounding of the whistle or bell on the locomotive ceases to be a factor to be considered in the case; and that failure to sound the whistle or the bell should not be considered as evidence of negligence.

Missouri Pacific argues that the court’s refusal to give the instruction took away from the jury its duty to consider the train was in plain view, and that the presence was otherwise discoverable because some witnesses testified that they heard the noise of the train from a distance as far as a quarter of a mile away. We are unable to follow Missouri Pacific’s reasoning on this point. The refusal of the requested instruction did not take from the jury its duty to consider that the train was in plain view in the light of the other instructions given by the court, including AMI No. 1804; but, on the contrary, Missouri Pacific’s instruction No. A, if given as tendered, would have in effect, removed from the jury’s consideration as negligence, evidence of Missouri Pacific’s failure to sound the whistle or bell as required by statute, even had the engineer observed the truck approaching the crossing with all obvious intentions of driving across in front of the train. It would appear the the physical fact that one using the crossing would be looking into the setting sun on a clear day should make it even more necessary to sound the bell and whistle on a locomotive approaching the crossing from the west in the afternoon.

Missouri Pacific relies on the case of Kansas City Southern Ry Co. v. Baker, 233 Ark. 610, 346 S. W. 2d 215, but that case is distinguished from the case at bar by two sentences in the Baker opinion as follows:

“There is direct and circumstantial evidence that Mrs. Baker did see the train and tried to cross in front of it. There is no substantial evidence to the contrary.”

In Baker we quoted with approval from Missouri Pacific R. R. v. Doyle, 203 Ark. 1111, 160 S. W. 2d 856, as follows:

“ ‘We have many times held that the purpose of giving signals is to warn the traveler of the approach of a train, but when the traveler has this knowledge otherwise, warning signals cease to be factors.’ ” (Emphasis added).

As we read the Baker case, it does not hold that “the giving of signals ceases to be a factor because the train was in plain view and easily discoverable” as argued by Missouri Pacific in the case at bar. As above stated, in the Baker case, Mrs. Baker did see the train and simply tried to outrun it. (Apparently because rain was falling).

The Missouri Pacific contends that the trial court erred in giving plaintiff’s requested instruction No. 15, which is AMI No. 180,2, as follows:

“All persons operating trains upon any railroad in this state have the duty to keep a constant lookout for persons upon, near, or approaching the railroad track. A violation of this duty is negligence.
This does not mean that each member of the train crew must keep a constant lookout, but it does mean that an efficient lookout must be kept by some member of the crew at all times.”

This instruction, as given by the court, placed less duty on Missouri Pacific than would have its own requested instruction No. 3, which was refused by the court. Missouri Pacific’s requested instruction No. 3 was AMI No. 1802 modified to include “property,” as well as “persons” upon, near, or approaching the railroad track. Furthermore, plaintiff’s instruction No. 15, as given by the court, was given in connection with plaintiff’s instruction No. 20 (AMI No. 2104) which reads, in part, as follows:

"If you should find that the defendants were not guilty of negligence, which was a proximate cause of the occurrence, then they are entitled to recover the full amount of any damages you may find they have sustained which were proximately caused by any negligence of James Ellison.”

Missouri Pacific, in support of its assignment of error in giving plaintiff’s instruction No. 15 (AMI No. 1802), argues that engineer Wilson testified that he did see Ellison’s truck when the engine was about 1400 to 1500 feet from the crossing and the truck was about 200 or 250 feet from the crossing, and that the truck was driving 20 or 25 miles per hour. But engineer Wilson also testified, as pointed out by Missouri Pacific in its brief, that when the train was within 200 or 250 feet of the crossing and it appeared that Ellison was not going to stop, he yelled at fireman Armstrong, who was operating the engine, to put it into emergency.

Fireman Armstrong also testified that he was acting as engineer at the time of the collision and that as such he sat in the righthand side of the locomotive cab and that Ellison approached the crossing from Armstrong’s left side. He testified that the windshield on the locomotive extends across the front of the cab to the door channels. He testified that there is glass in the front doors of the cab on each side of the locomotive and that he was able to see out of both sides of the cab. He testified that the engine was about 1500 to 1400 feet from the crossing when the truck-trailer came into his view. He says that Ellison was approximately 200 feet from the crossing at the time he first saw him and was traveling about 25 miles per hour after coming into his view. He testified that the truck seemed to be continuing to slow down as if it was going to stop at the crossing. He says that Mr. Wilson and Mr. Utley, as well as himself, were observing the truck very closely, and that when the truck approached the crossing to within 20 or 25 feet it looked as if the truck was going to stop, but that it didn’t and “I put the brake to emergency, and, of course, Mr. Wilson and Mr. Utley they had called my attention to go to emergency because they realized it was possible he wouldn’t stop, but he just eased down to the west rail and completed his stop and a fouling the west rail.” (Emphasis added).

It was brought out on cross-examination of Mr. Wilson as well as Mr. Armstrong that in prior depositions they had estimated that the truck was approximately 600 feet from the crossing when they first observed it. The train crew testified that the usual and statutory signals were given on approaching the Neeley crossing, but other witnesses, including Ellison, testified that they heard no bell or whistle signals; so, the jury might have reasonably concluded that neither Wilson nor Utley actually saw the truck until they shouted a warning to Armstrong, and that Armstrong did not see the truck until his attention was called to it, which was too late to avoid the collision. It is obvious that the estimates of distances by Wilson and Armstrong were not very accurate. Wilson was a party defendant and his testimony is not to be regarded as undisputed. French v. Browning, 187 Ark. 996, 65 S. W. 2d 647. In the light of all the evidence, as well as all the instructions both given and requested, we conclude that the trial court did not commit reversible error in giving the lookout instruction.

We are of the opinion that the trial court did not commit reversible error in dismissing Missouri Pacific’s counterclaim as to Woodrow Utley. As we view the record there was simply no causal relation between Mr. Utley’s injury and the negligence of Mr. Ellison. Mr. Wilson testified that the engine traveled about 1900 feet after the collision and that the engine stopped within about 10 feet of the Edison Avenue, or Bauxite crossing, which was the next crossing from the Neeley Street crossing where the collision occurred. Mr. Utley testified that after the collision occurred and the train had stopped he obtained the flagging equipment, as it was his duty to protect the head of the train, and that he went back to the engine to get off. He says that the front of the engine had oil all over it and was bent up so he alighted from the rear end of the engine. He says that there was a filling station at the crossing where the engine stopped and he saw the filling station attendent standing outside the station. He says that there was a little ditch between the railroad track and the filling station and that,

“I hopped over this ditch to get the attendent to call the ambulance and police and in doing this I pulled a ligament in the calf of my right leg. He said he would call the police and ambulance and I proceeded on to the front of the train with my flagging equipment to do my flagging duties.”

As to Missouri Pacific’s claim against East Texas for the amount it paid to Mr. Utley in settlement of his claim against the railroad, the record shows in-chambers proceedings as follows:

“MR. CABE: At the conclusion of the evidence the intervenor East Texas Motor Freight moves for a directed verdict on the claim of the Missouri Pacific Railroad Company seeking to recover by way of contributions for monies paid to W. W. Utley, its brakeman for the reason that the injury sustained by Mr. Utley was not proximately caused b/ this collision. The chain of events had been efficiently broken and there is insufficient evidence from which a jury might find that East Texas Motor Freight through its driver James Ellison was guilty of negligence which was a proximate cause of the injury and damages sustained by W. W. Utley.
MR. CLARK: Let the record show the Court has refused to give instructions on Mr. Utley’s claim for damages on the basis that Mr. Utley had a cause of action against East Texas Motor Freight, and the action on the part of Missouri Pacific Railroad in making the settlement and including East Texas Motor Freight and James Ellison in the settlement was purely voluntary.
THE COURT: I am saying he could have a cause of action otherwise I confirm what Mr. Clark says.
MR. CABE: We object to any instructions or interrogatories regarding Mr. Utley.
THE COURT: Sustained.
MR. CLARK: Save our exceptions.”

The railroad’s claim for the amount it had paid its employee, Utley, was apparently made under the theory of contribution between joint tort-feasors, and although the manner in which the trial court refused to give an instruction on Utley’s claim for damages is an awkward way of refusing to submit the Missouri Pacific’s counterclaim on this item to the jury, we agree with the results. If there was error in the manner or reasoning of the court in reaching the results, we consider such error harmless in this case.

The fact that Utley might have had a cause of action against East Texas, and that the Missouri Pacific Railroad’s settlement with Utley was purely voluntary, would not within itself justify withdrawing this part of the claim from consideration by the jury. Ark. Stat. Ann. §§ 34-1001—1009 (Repl. 1962). See also Lacewell v. Griffin, 214 Ark. 909, 219 S. W. 2d 227. But, proximate cause was properly defined in the instructions as, . . a cause which in a natural and continuous sequence, produces damage and without which the damage would not have occurred.”

The proximate cause of Mr. Utley’s injury was obviously his "hopping” across a small ditch to talk to a filling station attendant at a railroad crossing some 1900 feet from the point of collision; and when the engine, from which he alighted, was within 10 feet of the Bauxite crossing he was intending to protect, and did protect, as a flagman.

The judgment is affirmed.

Fogleman, J., concurs.

John A. Fogleman, Justice,

concurring. I concur in the result. I think there was error in giving the instruction submitting the issue of the railroad’s failure to comply with the lookout statute, but I do not think appellants have any standing to raise the question.

In my opinion, the undisputed evidence eliminated the lookout question entirely. The train consisted of 89 cars and 4 diesel power units. It was equipped with air braking system. At least one-half to three-fourths of a second is required for one operating the engine to perceive danger and three-fourths to one second for reaction and movement to the emergency system. Six seconds would then elapse before the lead unit develops brake cylinder pressure. The air pressure is then propagated to the rear at the rate of approximately 930 feet per second. Six or seven additional seconds will elapse before the emergency application of the brakes is effective for the entire length of this train. At least 12 seconds will elapse before there is any retardation of the train. If the train were traveling at the rate of 50 miles per hour, as the engine crew estimated, it would move at least 800 feet before there is any perceptive slowing down of the train. In the opinion of appellant’s road foreman of engines, from 3,000 to 3,300 feet would be a normal stopping distance for this train traveling slightly upgrade, as it was. When the train stopped, it blocked the' crossing. The front of the train stopped at a distance of not more than 1,900 feet (54 cars and 4 power units) beyond the crossing.

The engineer in charge of the train was acting as fireman and was seated on the left-hand side of the first power unit, as was the brakeman, who sat just to his rear. This was the side from which Ellison approached in his truck. The firéman, who was acting as engineer, was seated on the right-hand side. All had many years of experience in their respective jobs. Each had an unobstructed view. Engineer Wilson (the acting fireman) testified that he saw Ellison’s truck approaching on Neely Street when the train was 1,400 to 1,500 feet from the crossing. The truck was then passing the Jones warehouse. Engineer Armstrong saw it when the train was 1,300 to 1,400 feet from the crossing. Brakeman Utley estimated the distance from the crossing at the time he saw the truck at 1,500 feet. Wilson and Utley estimated the truck’s speed at 20 to 25 miles per hour when they first saw it. All the engine crew testified that the truck speed constantly decreased as it approached the crossing as if it would stop before reaching the tracks. Armstrong said that the truck was moving so slowly when it was 20 to 25 feet from the crossing, it appeared that it would stop at any point. As soon as he realized that it would not, he put the brake into emergency position at about the same time that Wilson and the brakeman called out to him to do so. He saw Ellison’s truck ease down to the west rail of the track on which the train was traveling and stop with the front wheels on the rail. Wilson also said the truck finally stopped on. this rail before it was struck by the train. Wilson said that the front of the train was 200 to 250 feet from the crossing when it became apparent that the truck would not be stopped.

Ellison’s testimony does not really contradict that of the train crew in this regard. Ellison said that he approached the tracks, stopped, and seeing nothing eased across the switch tracks toward the track on which the train was traveling without seeing or hearing anything. He said that he was traveling pretty slow in low gear and estimated his speed at 2 or 3 miles per hour. He confirmed the fact that, when he stopped, just the front of his truck was on the rail.

The testimony of witnesses called by appellees tends to corroborate the engine crew. Warren Long was on the loading dock at Masonite about 100 yards from the crossing. He first saw Ellison approaching the crossing when his truck was about even with the Jones mill at a distance he estimated at 50 yards from the switch tracks. It seemed to him that Ellison stopped at these tracks and then proceeded after which Long heard the impact. Barnie Jernigan was standing on the back porch at Arkansas Face Veneer, about 150 yards from the crossing. He saw the truck emerge from behind a building and proceed toward the crossing and then stop suddenly about the time of the impact. When he first saw them, the truck was a little over 200 feet and the train about 150 yards from the crossing. Scotty Smith was on the dock at Masonite, at a distance of 75 to 100 yards from the crossing. He saw the truck approach the crossing and saw the front end decline when the driver applied his air brakes. As Smith turned to resume his work the truck was near the spur track. He heard the impact almost immediately.

There was' every indication to everyone who saw the truck that it would stop before proceeding onto the track ahead of the train. Under similar circumstances we have held that the testimony of the train crew cannot be disregarded and that the lookout issue should not be submitted to the jury as a possible proximate cause. Chicago, R. I. & Pac. Rd. Co. v. Gipson, 246 Ark. 296, 439 S. W. 2d 931; St. Louis-San Francisco Railway Company v. Spencer, 231 Ark. 221, 328 S. W. 2d 858; St. Louis-San Francisco Ry. Co. v. Cole, 181 Ark. 780, 27 S. W. 2d 992; St. Louis-San Francisco Ry. Co. v. Thurman, 213 Ark. 840, 213 S. W. 2d 362; St. Louis-San Francisco Ry. Co. v. Williams, 180 Ark. 413, 21 S. W. 2d 611; Kansas City Southern Railway Company v. Shane, 225 Ark. 80, 279 S. W. 2d 284.

Whatever may be said about the inaccuracy of the train crew's original estimate of the distance of the truck from the crossing, it is obvious that it would have been impossible to have stopped the train before reaching the crossing after it became apparent that the truck would proceed onto the crossing rather than stop, as it gave every indication of doing. The truck’s distance from the crossing was wholly immaterial and insignificant. Under similar circumstances, we have said that failure to keep a lookout could not have contributed to cause the collision. Missouri Pac. Ry. Co. v. Yarbrough, 229 Ark. 308, 315 S. W. 2d 897. Language used there is pertinent:

Certainly if the trainmen saw the appellee with his truck standing still near the track they would not be required to anticipate that he was going to start the truck up and attempt to cross, when to do so would make a collision almost inevitable. In Missouri Pacific R. R. Co. v. Doyle, 203 Ark. 1111, 160 S. W. 2d 856, the court quoted from Blytheville, L. & A. So. Ry. Co. v. Gessell, 158 Ark. 569, 250 S. W. 881, as follows [203 Ark. 1111, 160 S. W. 2d 858]: “ ‘The operatives of trains have the right to assume that a traveler or a pedestrian approaching a railroad track will act in response to the dictates of ordinary prudence and the instinct of self-preservation and will, in fact, stop before placing himself in peril, and the duty of the railroad employees to take precautions begins only when it becomes apparent that the traveler at a crossing will not do so.’ ”

In spite of the absence of an issue under the lookout statute, there was a fact issue on the question of the giving of the statutory signals. Consequently, appellant was not entitled to a directed verdict. It is in no position to complain because, as pointed out in the majority opinion, appellant requested the same instruction as that given at appellees’ request. A defendant cannot complain, on appeal, of the giving of an erroneous instruction at the request of a plaintiff when it is the same, in effect, as an instruction requested by defendant. Dunnington v. Frick Co., 60 Ark. 250, 30 S. W. 212. Where the evidence is sufficient to support a verdiet upon one of several allegations of negligence so that there was no error in failure to direct a verdict for a defendant, the defendant is in no attitude to complain of an instruction submitting an issue of negligence not justified by the evidence, when he asked an instruction submitting the same issue. L. J. Smith Const. Co. v. Tate, 151 Ark. 278, 257 S. W. 83. An alleged error in giving an instruction on- an issue not raised by the evidence is harmless where both sides request an instruction on that issue. Keatts v. McAllister, 222 Ark. 658, 262 S. W. 2d 136.

Chicago, R. I. & P. Ry. Co. v. Smith, 94 Ark. 524, 127 S. W. 715, is analogous. There the appellant contended that a pedestrian struck by its train was guilty of contributory negligence as a matter of law, so that an instruction submitting the question whether the pedestrian was guilty of negligence in failing to look, listen and discover the approach of the train was erroneous under the uncontroverted evidence. This court agreed but said:

We think, however,, that the defendant waived that particular error by requesting instruction containing the same error. By such action it invited the error. “Appellant cannot complain of an error in instructions asked by his opponent if the same error was repeated in instructions asked by himself.” Choctaw, O. & G. R. Co. v. Hickey, 81 Ark. 579, 99 S. W. 839; Railway Co. v. Dodd, 59 Ark. 317, 27 S. W. 227; St. L., I. M. & U. S. R. Co. v. Baker, 67 Ark. 531, 55 S. W. 941; L. R. & M. R. Co. v. Russell, 88 Ark. 172, 113 S. W. 1021; St. L., I. M. & S. R. Co. v. Carter, 93 Ark. 589, 126 S. W. 99.

The case of Missouri Pacific Railroad Company v. Yarbrough, 229 Ark. 308, 315 S. W. 2d 897, might appear at first blush to be contra. Upon analysis, however, it appears that the trial judge had read all the requests for instructions by both parties and decided which would be given and which refused before the appellant had any opportunity to move for a directed verdict at the conclusion of all the evidence or to object to submission of the issue of keeping a lookout, both of which appellant did. Furthermore, appellant’s requested instruction no. 3, refused by the court, would have instructed the jury not to consider the allegation of failure to keep a lookout. The trial judge decided to and did give appellant’s instruction request no. 19, dealing with the lookout question, instead of appellee’s requested instruction on that point. Appellant objected to the giving of its own requested instruction on the point. Of course, under these circumstances, we found that appellant did have standing to raise the question. We have no such record here, so I would affirm the judgment.


source: Caselaw Access Project

author: Conley Byrd, Justice.

license: Public Domain

text:
    FORD MOTOR COMPANY v. Robert L. REID et ux
    5-5287
    465 S. W. 2d 80
    Opinion delivered March 15, 1971
    [Rehearing denied April 26, 1971.]

      Wright, Lindsey if Jennings, for appellant.

      Lightle ir Tedder and Sandy S. McMath, for appellees.
   Conley Byrd, Justice.

Appellees Robert L. Reid and Billie Marie Reid, his wife, on April 26, 1967, purchased through W. H. Capps, d/b/a Capps Motor Company, a 1967 Lincoln Continental automobile manufactured by the appellant, Ford Motor Company. Approximately 1,800 miles later, on May 29, 1967, the automobile caught fire while parked in the garage attached to the Reid residence. Within ten minutes from the time the fire was first observed in the electrical harness under the right front seat of the automobile, it spread to and engulfed the residence in flames, resulting in total destruction of the automobile and the residence. The Reids brought this action against both W. H. Capps and Ford Motor Company alleging that the wiring under the front seat was defective in violation of the basic warranty on said automobile and that the damages sustained by them in the fire were proximately caused by the defect in the automobile. The first trial resulted in a directed verdict for Capps and a hung jury on the liability of Ford Motor Company. Upon retrial against Ford Motor Company, the jury returned a verdict for $89,279.00 for which judgment was entered. For reversal Ford Motor Company contends that the directed verdict in favor of Capps exonerated Ford Motor Company and that the court erred in giving its Instructions No. 6 and No. 7.

The testimony presented clearly made a fact issue as to whether there was a defect in the wiring harness that worked the solenoid for the reclining back of the right front seat and the motor which operated the head rest. The express warranty that came with the vehicle provided:

BASIC WARRANTY
“Ford Motor Company warrants to the owner each part of this vehicle to be free under normal use and service from defects in material and workmanship for a period of 24 months from the date of original retail delivery or first use, or until it has been driven for 24,000 miles, whichever comes first.
POWER TRAIN WARRANTY
“In addition, Ford Motor Company further warrants to the owner each part of the engine block, head, and all internal engine parts, water pump, intake manifold, transmission case and all internal transmission parts, torque converter, drive shaft, universal joints, rear axle and differential, and rear wheel bearings of this vehicle to be free under normal use and service from defects in material and workmanship for a period of five (5) years from the date of original retail delivery or first use, or until it has been driven for fifty thousand (50,000) miles, whichever comes first.
STEERING, SUSPENSION AND WHEEL WARRANTY
“In addition, Ford Motor Company further warrants to the owner each . part of the suspension system, steering gear and linkage, power steering pump, road wheels, and front wheel bearings and seals of this vehicle to be free under normal use and service from defects in material and workmanship for a period of five (5) years from the date of original retail delivery or first use, or until it has been driven for fifty thousand (50,000) miles, whichever comes first.
“The further warranties do not include or apply to related items such as ignition, electrical, fuel, cooling, or brake systems, engine or transmission controls or linkages, steering column, clutch assembly, shock absorbers, or load leveling system.
GENERAL WARRANTY PROVISIONS
“It is a condition of all the warranties that the owner maintain this vehicle according to the maintenance schedule set forth in the Customer Maintenance Record in the Maintenance section of this Owner’s Manual. It is also a condition of all the warranties that, every twelve months, the owner furnish an authorized Ford or Lincoln-Mercury dealer with evidence that these maintenance services have been performed and obtain the dealer’s written certification that he has received such evidence.
“All the warranties shall be fulfilled by the Selling Dealer (or if the owner is traveling or has become a resident of a different locality, by any authorized Ford or Lincoln-Mercury dealer) replacing with a genuine new Ford or Ford Authorized Reconditioned part, or repairing at his place of business, free of charge including related labor, any such defective part.
“None of the warranties shall apply to (i) tires or tubes (adjustments for them being provided by their manufacturers), or (ii) normal maintenance services (such as engine tune-up, fuel system cleaning and wheel and brake adjustments), or (iii) normal replacement of service items (such as filters, spark plugs, ignition points, wiper blades and brake linings), or (iv) deterioration, due to normal use or exposure, of soft trim, appearance items, hoses, belts or moulded rubber or rubber-like items.
“The warranties herein shall not apply to any vehicle normally operated outside of the United States, Puerto Rico, or Canada, except a vehicle ordered through an Exchange or Ship’s Store of the U. S. or Canadian Armed Services. A vehicle normally operated in a country other than the United States, Puerto Rico or Canada will be provided the dealer’s warranty authorized for that country. If an owner is temporarily traveling in other countries, his U. S., Puerto Rican, or Canadian license plates or Certificate of Registration will identify him as a visiting owner entitled to the privileges of the U. S., Puerto Rican, or Canadian warranty.
“The warranties herein are expressly IN LIEU OF any other express or implied warranty, including any implied WARRANTY OF MERCHANTABILITY or FITNESS, and of any other obligation on the part of the Company or the Selling Dealer.”

The trial court instructed the jury with reference to their duties, the opening statements and arguments of counsel, credibility of witnesses, circumstantial evidence, burden of proof, expert witnesses and sudden emergency. Then the court gave the following:

INSTRUCTION No. 6
“Robert L. Reid and Billie Marie Reid claim damages from Ford Motor Company, and, therefore, have the burden of proving each of four essential propositions:
First, that they sustained damages;
Second, that there was a defect in the Lincoln automobile;
Third, that the defect existed at the time the automobile was delivered to the plaintiff;
Fourth, that the defeat in the automobile proximately caused their damages.
If Robert L. Reid and Billie Marie Reid failed to prove any one of these propositions, they would not be entitled to recover from defendants, Ford Motor Company.”
INSTRUCTION No. 7
“You are instructed that Ford Motor Company, at the time of its sale of the Lincoln automobile involved in this cause of action to the plaintiffs, Robert L. Reid and Billie Marie Reid, warranted that the vehicle would be free, under normal use and service, from defects in material and workmanship for a period of twenty-four (24) months from the date of the original retail delivery or first use, or until it had been driven for 24,000 miles, whichever came first. If you find from a preponderance of the evidence that this warranty was breached by the defendant, Ford Motor Company, and that such breach of warranty resulted in damages to plaintiffs in this cause of action, you may then find for the plaintiffs in the amount of damages which you find they sustained by reason of the breach of warranty.”

The other instructions dealt with proximate cause and damages.

Ford Motor Company’s argument here on instruction No. 7 is as follows:

"While the express warranty provides that it is expressly in lieu of any other express or implied warranty, including any implied warranty of merchantability or fitness, and exclusion or modification of warranties is permitted by statute (Ark. Stat. Ann. 85-2-316 [2]), and this case does not involve injuries to a person, this is not the point that we are here making.
"In this facet of the case, the plaintiffs seek to use and rely upon an express warranty and part of that warranty spells out how it will be fulfilled. There is a contractual modification or limitation of remedy with respect to the express warranty and that is replacement of ‘any such defective part’. At the most, this could not be more than the automobile which had cost $6,100.00.
"Ark. Stat. Ann. 85-2—719 provides that an agreement may limit or alter the measure of damages and may limit the buyer’s remedies to repair and replacement of non-conforming goods or parts.
“If the plaintiffs are going to rely and seek recovery under an express warranty, they should not be permitted to select certain parts of the whole and reject other parts.”

In its reply brief Ford Motor Company stated the matter in this language:

“Since appellant is not here claiming exclusion, modification or limitation of the implied warranty of merchantability, there need be no concern with whether negation of limitation is unreasonable or unconscionable. But if there is to be a claim that any contract or clause is unconscionable, the parties are to be afforded an opportunity to present evidence in connection with the making of a determination. Ark. Stat. Ann. 85-2-302 (2). As long as consequential damages from breach of implied warranties are neither limited nor excluded, it is submitted that a limitation in an additional, or ‘bonus’ express warranty is not unconscionable. But, in any event, there has been no factual determination of unconscionability as a basis for departing from the express terms of the express warranty.”

The pertinent portions of the Uniform Commercial Code provide:

Ark. Stat. Ann. § 85-2-714 (3). “In a proper case any incidental and consequential damages under the next section may also be recovered.”
Ark. Stat. Ann. § 85-2-715. “(1) Incidental damages resulting from the seller’s breach include expenses reasonably incurred in inspection, receipt, transportation and care and custody of goods rightfully rejected, any commercially reasonable charges, expenses or commissions in connection with effecting cover and any other reasonable expense incident to the delay or other breach.
(2) Consequential damages resulting from the seller’s breach include
(a) any loss resulting from general or particular requirements and needs of which the seller at the time contracting had reason to know and which could not reasonably be prevented by cover or otherwise; and
(b) injury to person or property proximately resulting from any breach of warranty.”
Ark. Stat. Ann. § 85-2-719. “(1) Subject to the provisions of subsections (2) and (3) of this section and of the preceding section on liquidation and limitation of damages,
(a) the agreement may provide for remedies in addition to or in substitution for those provided in this Article [chapter] and may limit or alter the measure of damages recoverable under this Article [chapter], as by limiting the buyer’s remedies to return of the goods and repayment of the price or to repair and replacement of non-conforming goods or parts; and
(b) resort to a remedy as provided is optional unless the remedy is expressly agreed to be exclusive, in which case it is the sole remedy.
(2) Where circumstances cause an exclusive or limited remedy to fail of its essential purpose, remedy may be had as provided in this Act.
(3) Consequential damages may be limited or excluded unless the limitation or exclusion is unconscionable. Limitation of consequential damages for injury to the person in the case of consumer goods is prima facie unconscionable but limitation of damages where the loss is commercial is not.”
Ark. Stat. Ann. § 85-2-316. "(1). Words or conduct relevant to the creation of an express warranty and words or conduct tending to negate or limit warranty shall be construed wherever reasonable as consistent with each other; but subject to the provisions of this Article [chapter] on parol or extrinsic evidence (Section 2-202 [§ 85-2-202]) negation or limitation is inoperative to the extent that such construction is unreasonable.”

When we read the second paragraph of the general warranty provisions under the guide lines of Ark. Stat. Ann. § 85-2-316 (1) that words "tending to negate or limit warranty” are to be construed whenever reasonable as consistent with each other but if the clauses are inconsistent then the words of disclaimer of express warranties must give way to the words creating the express warranty, we reach the conclusion that the mandatory language "all the warranties shall be fulfilled by the selling dealer. . .” is an instruction to the dealer and not a limitation on other remedies of the buyer. This construction is supported by Ark. Stat. Ann. § 85-2-719 (1) (b) which provides that “resort to a remedy as provided is optional unless the remedy is expressly agreed to be exclusive, in which case it is the sole remedy.”

There is no language anywhere in the warranty form "expressly” stating that the remedy of repair or replacement of defective parts is to be the exclusive remedy. The language in the fifth paragraph of the “General Warranty Provisions” goes only to "obligations” and "warranties,” not to remedies. As Section 85-2-301 (Add. 1961), General Obligations of Parties, shows “The obligation of the seller is to transfer and deliver. . . . in accordance with the contract.” Remedies are not "obligations,” they are the rights arising from failure to perform obligations. This is further made clear by the provisions of Section 85-2-316 (4) cross referencing to contractual remedy section of the Code as governing those phases of the agreement. If the Ford Motor Company intended the repair remedy to be exclusive, as it now contends, it should have stated that intention in express language. Consequently it follows the Instruction § 7 was correct.

Ford Motor Company’s complaint about Instruction No. 6 is that it did not limit liability to defects existing prior to the time the vehicle left Ford’s control or to defects for which Ford had some manufacturing responsibility. This argument of course is premised upon the basis that Ford is not liable under the express warranty. As shown above, Ford is liable on its express warranty and it follows that this contention is without merit. By the very terms of the warranty it runs from the date of delivery to the purchaser.

It is also suggested that Instruction No. 6 is defective in that it did not limit the jury to a defective wiring condition in, under and about the front seat. We can find no prejudicial error here, because the pleadings and all of the proof had to do with a fire that started in the electrical wiring under the right front seat.

Ford also argues that the directed verdict in favor of Capps, the dealer, in the first trial also exonerated Ford. This argument, too, is premised upon the theory that Ford’s liability could only be upon the basis of an implied warranty of fitness. As pointed out above, Ford’s liability under the circumstances is that under its express warranty. That liability by its terms is independent of any liability of the dealer. It therefore follows that the exoneration of the dealer was in no way an adjudication of Ford’s liability under its express warranty.

The appellees in their brief and the Amicus Curiae briefs have urged us to adopt the doctrine of strict liability as set out in Restatement of Torts 2d § 402A. Our disposition of this case under the Uniform Commercial Code makes it unnecessary to pass upon that argument.

Affirmed.


author: Conley Byrd, Justice. John A. Fogleman, Justice,

text:
    ARKANSAS STATE HIGHWAY COMM’N v. W. F. LEMLEY et al
    5-5384
    464 S. W. 2d 605
    Opinion delivered March 15, 1971

      Thomas B. Keys and James N. Dowell, for appellant.

      Gordon, Gordon if Eddy and Williams if Gardner, for appellee.
   Conley Byrd, Justice.

This eminent domain proceeding was before this court in Arkansas State Highway Commission v. Lemley, 247 Ark. 201, 444 S. W. 2d 692. On retrial the jury fixed just compensation at $12,000. For reversal, the Highway Commission relies upon the following points:

“1. The trial court erred in refusing to strike the before the taking value testimony and the resulting damage testimony of Mr. Roy Jackson on the basis that he gave no substantial evidence upon which to predicate his land values.
2. The trial court erred in refusing to strike the testimony of Mr. Jackson with reference to drainage damages that were not plead as special damages.
3. The trial court erred in refusing to strike that portion of Mr. Jackson’s testimony as to the east 40 acres of land on the basis that this is a separate tract of land; that there was no taking from this portion of land; and that any impairment of access to a separate tract would not be compensable.
4. The trial court erred in allowing Judge Tom Scott to testify as to the cost of acquiring new access.
5. The trial court erred in refusing to strike Mr. C. V. Barnes’ testimony with reference to damage based upon circuity of travel, a non compensable element.
6. The trial court erred in refusing to strike Mr. Barnes’ testimony with respect to damages to the separate tract.
7. The trial court erred in refusing to strike Mr. Barnes’ inconsistent and improper testimony relating to damages to the remaining land wherein he valued the land in the taking as a separate unit of value, damaging the remaining lands on a basis of their value to the whole.
8. The trial court erred in giving appellees requested instructions A and B.
9. The verdict is not supported by substantial evidence and is excessive.”

Points No. 3, No. 6 and No. 8 were held adversely to appellant upon the first appeal and have become the law of the case.

Point No. 4, upon substantially similar testimony, was ruled adversely to appellant in Arkansas State Highway Commission v. Darr, 248 Ark. (May 18, 1970), 453 S. W. 2d 719.

Neither do we find merit in Point No. 2. Identical testimony about the drainage problem was elicited on the first trial—thus putting appellant upon notice of the nature of the claim. Furthermore, the drainage problem was restricted to acknowledged residual lands and was properly admitted as part of the claim for severance damages.

Mr. Roy Jackson testified that, he and Lemley bought these lands in 1945. After qualifying as an owner and as an expert on land appraisals, Mr. Jackson valued the 120 acres of Section 33 at $3,200 before the taking and an after value of $1,500. He valued the 40 acre tract in Section 34 at $8,000 before and $3,000 after the taking. Because Jackson placed a before value of $200 per acre on the woodland and did not support this value by comparable sales of woodland, appellant now argues that his valuation is without substantial support. We find no merit in this contention. Jackson, among other things, compared the fertility of woodland areas with that of surrounding farm lands and testified about cost of clearing. No question is raised about his valuation of the open lands.

Mr. C. V. Barnes testified that before the taking the 120 acre tract abutted upon Highway No. 64, but after the taking, the property was left in two separate and distinct parcels of land. The owners can not cross the Interstate to reach the south 40 acres from the north 66 acres. The 66 acres left on the north side of the Interstate is four and a half miles farther from Morrilton than before the Interstate construction. It is also a mile and a half further from a paved road than before construction. Furthermore, there is no public access to the north 66 acres since the taking;. Based upon his experience and study of the market in the area, Mr. Barries arrived at a before value of $30,000 for the 120 acre tract and an after value of $18,000.

On cross-examination Mr. Barnes stated that he did not place a separate value on the 40.8 acres south and west of the Interstate in arriving at his after value. He considered it one parcel before the taking and as one unit after the taking. Although the 40.8 acres still had access to Highway 64 and was severed from the north 66.48 acres by the Interstate, he did not analyze the south 40.8 acres by itself. On the whole remaining 107.28 acres he ascribed $170 per acre in round figures.

We agree with appellant that the trial court should have struck that portion of Barnes’ testimony relating to the damage to the remaining lands. Ordinarily non-contiguous lands cannot be valued as a unit. The exception is upon a showing of a unity of use. See Kansas City So. Ry. Co. v. Boles, 88 Ark. 533, 115 S. W. 375 (1908). Barnes’ testimony here demonstrated that the north 66.48 acres was left without public access and that even if such access were provided there would still be a considerable circuity of travel to get from the south 40.8 acres. In view of the fact that Barnes described the highest and best use of the lands before the taking as an owner occupied and operated agricultural unit and the fact that he described the south portion as a relatively small unit, we find nothing in his testimony by which one could say that the two parcels constituted a unit for valuation purposes after the taking. Furthermore, since the south 40.8 acres still has the same access that it had before, it certainly has not sustained any damage from lack of public access. Yet the method of averaging values used by Barnes would ascribe also damages to the south 40.8 acres for lack of public access.

The cardinal, rule in eminent domain cases involving partial takings is the difference in values of lands before and after the taking. The per acre value of agricultural lands on either side of an Interstate may be and usually is as much after the taking as before the taking. However, this does not mean that two separated parcels operated as a unit are worth as much per acre because of circuity of travel, access and location of improvements. This is particularly true of relatively small plots.

Appellant also argues that Barnes’ testimony with reference to circuity of travel should have been stricken. We find no testimony of Barnes that ascribes damages to circuity of travel. All we can find is Barnes’ statement that the north 66 acres after the taking is farther from the City of Morrilton and a paved road. These are matters that ordinarily affect value of lands and we hold that the trial court did not err in so ruling.

Reversed and remanded.

Fogleman, J., dissents.

John A. Fogleman, Justice,

dissenting. I would affirm this judgment. Roy Jackson testified that the difference in value amounted to $22,000. No infirmities are found in that testimony. It affords ample support to the jury verdict without regard to the Barnes testimony, as I will subsequently attempt to illustrate. Regardless of this, however, I submit that there was no reversible error in the trial court’s refusal to strike Barnes’ testimony as to severance damage. The reason given for reversal in the majority opinion is not the basis of appellant’s argument, and does not seem to me to have support in the record. We have uniformly refused to reverse a trial court’s action for a reason not argued by the appellant. Cummings v. Boyles, 242 Ark. 923, 415 S. W. 2d 571; Fancher v. Baker, 240 Ark. 288, 399 S. W. 2d 280, 16 A. L. R. 3d 1383. In such a situation we decide the appeal on the basis of objections argued here and consider all others waived. Kane v. Carper-Dover Merchantile Co., 206 Ark. 674, 177 S. W. 2d 41. Errors relating to admission of evidence not argued on appeal are considered as waived. Harris v. Edwards, 129 Ark. 253, 195 S. W. 1064. We have also refused to consider, on appeal, any objection not specifically made in the trial court. Arkansas State Highway Commission v. Sadler, 248 Ark. 887, 454 S. W. 2d 325; Nelson v. Busby, 246 Ark. 247, 437 S. W. 2d 799; Judy v. McDaniel, 247 Ark. 409, 445 S. W. 2d 722; Sandidge v. Sandidge, 212 Ark. 608, 206 S. W. 2d 755; Wade v. Goza, 78 Ark. 7, 96 S. W. 388. We have also said that a motion to strike part of the value testimony of a witness must sufficiently pinpoint the objectionable part for the trial court’s action before error can be predicated upon denial of the motion. Arkansas State Highway Commission v. Woody, 248 Ark. 657, 453 S. W. 2d 45.

In order to demonstrate that there is no reversible error, it is necessary to view the Barnes testimony as a whole, not just an isolated part of it. Arkansas State Highway Commission v. Pruitt, 249 Ark. 682, 460 S. W. 2d 316. He stated that the 120-acre tract had 50 acres of woodland on the north end and 70 acres of open land on the south. The 120 acres fronted on U. S. Highway 64. He described the soil characteristics and topography of the tract. Its highest and best use, according to him, was for an owner-occupied and operated agricultural unit. He ascribed a value of $30,000 to the entire 120 acres. Barnes described the 12.72 acres taken as running diagonally through this tract, having a length of 1,830 feet and a width varying from 300 to 320 feet. He valued this tract at $3,800. The taking, according to him, severed a farm road running through the property and eliminated a protecting levee. The remaining 107.28 acres consisted of 40.8 acres, south and west, and 66.48, north and east, of Interstate Highway 40. These two tracts were effectively severed, said Barnes, to the extent that an additional 3,700 feet of turnrows on each side of the new highway would be necessary to cultivate the lands, which would also be left in irregular shapes and thus more difficult to cultivate. He considered the south residual a relatively small unit. According to him, the highest and best use after the taking was the same as before, except for diminished adaptability and the inaccessibility of that portion of the tract lying north of the new highway. He put a value of $18,200 on the remaining 107.28 acres, making a difference of $11,800, which he said would include the value of the lands taken. In addition to the diminution of accessibility and adaptability of the remaining lands, and the reduction in productive acreage attributable to necessity for additional turnrows, Barnes said there would be an increased operating cost and a loss of unity of use of the property. He also pointed out the loss of the headquarters on the 120-acre tract, only a part of which was left on the 40-acre residual.

Barnes considered the damage to the separate 40-acre tract at $1,200 based upon a value of $150 per acre before the taking and $120 per acre thereafter. Thus, $5,000 of his total damages was arrived at without regard to the value of the remainder of 107.28 acres.

The only objection which is in any way related to this point for reversal is appellant’s motion to strike, reported as follows:

I would like to make a motion to strike that portion of this witness’ testimony relating to damages to the remaining lands, the $80.00 per acre, and also the value of the lands in the taking, the $300.00 per acre, because the witness is valuing the land in the taking as a separate unit of value, whereas he is damaging the remaining lands on a basis of their value to the whole. This is inconsistent and improper, and his testimony in this regard should be stricken.

This motion accounts for the wording of appellant’s point for reversal but hardly for its argument here. Appellant’s entire argument on this point follows:

On cross-examination, Mr. Barnes testified as follows:

Q. What per acre value after the taking did you place on the south 40 acres south of the Interstate—south and west of the Interstate?
A. 1 didn’t place a separate value on the 40.8 acres south. I considered the 107 acres of the 120 acres all together as one parcel.
Q. As one parcel?
A. It was one parcel before the taking, so I considered it as one unit after the taking.
Q. Isn’t this a completely separated and controlled access facility?
A. Yes, sir. It is one unit cut in two pieces.
Q. You didn’t arrive at an after value per acre on the south 40 acres?
A. No, sir.

And later:

Q. You didn’t ascribe any specific value to the 120 acres on a per acre basis?
A. On the whole 107.28 acres, I did.
Q. How much?
A. $170.00 in round figures.
Q. $170.00?
A. $18,200.00 which I ascribed to the land remaining in the 120 acre parcel figures approximately $170.00 per acre.
Q. Did you set $250.00 on the before value on the 120 acre tract?
A. That’s right.

The fallacy of such a determination of value is pointed out in Nichols on Eminent Domain, Third Edition, Section 17.1 (4) at page 106, 1969 Cumulative Supplement:

“Similarly, where a parcel of land consists of segments which have different values, it is improper to average the values and apply such averages to the entire parcel. This is especially applicable in partial takings.”

The majority opinion says that the testimony should have been stricken because Barnes valued the remainder as a unit. This is a complete departure from the reason assigned by appellant. Appellant has never made any such objection. Reversal for a reason not urged in either the trial court or in this court, is a novel procedure.

If we but look at the above testimony and argument, it should be obvious that appellant showed no ground for reversal for the reason assigned in its objection. There was absolutely no evidence that the two segments had different values, or that Barnes averaged the values and then applied the averages to the entire parcel. Of course, it was proper for the witness to state separately the value of the lands taken. Arkansas State Highway Commission v. Stallings, 248 Ark. 1207, 455 S. W. 2d 874; Arkansas State Highway Commission v. McAlister, 247 Ark. 757, 447 S. W. 2d 649; Young v. Arkansas State Highway Commission, 242 Ark. 812, 415 S. W. 2d 575. He was specifically asked to do so on cross-examination.

Assuming, however, that the motion was proper and that it should have been granted, this would not have resulted in striking all the testimony of this witness. As pointed out above, a substantial part of Barnes’ testimony was admissible. Consequently, any error in this regard does not necessarily call for a reversal, since there was other substantial evidence as to severance damage to support the verdict and Barnes’ testimony would have been properly considered, in any event, as to the 40-acre tract and as to the value of the part taken. See Arkansas State Highway Commission v. McAlister, supra; Arkansas State Highway Commission v. Stallings, supra; Arkansas State Highway Commission v. Ormond, 247 Ark. 867, 448 S. W. 2d 354.


text:
    Ralph MAY v. Alta Inez MAY
    5-5495
    464 S. W. 2d 598
    Opinion delivered March 15, 1971

      Lester E. Dole and Charles L. “Chuck” Honey, for appellant.
    No brief filed for appellee.
   Conley Byrd, Justice.

The trial court held void child custody provisions in a divorce decree obtained on March 14, 1967, by appellant Ralph May and awarded the custody of their three minor children to appellee Alta Inez May. For reversal appellant contends:

“1. That the divorce decree was a final adjudication and that the trial court erred in not requiring a showing of a change of circumstances and in not requiring appellee to go forward with the burden of proof.
2. That the court failed to take into consideration the best welfare of the children.”

The record shows that on or about September 10, 1966, appellee Alta Inez May left her then husband, appellant Ralph May. Accompanying her were the children, her mother Bessie Colvert and her husband’s cousin, John May, an ex-convict and parole violator, now her husband. Appellee moved to North Little Rock where she remained until February 25, 1967.

On September 14, 1966, appellant filed suit for divorce and caused a warning order to be issued upon his affidavit that he did not know the whereabouts of his wife. On November 18, 1966, he married his present wife, Nancy. On March 14, 1967, an uncontested divorce decree was entered. That decree, in awarding custody to appellant, recited a finding that the children were in his custody at that time.

At the hearing on October 21, 1969, appellant testified that when he filed the divorce suit on September 14, 1966, he knew his wife and children were in North Little Rock with Johnny May and that he had a copy of the divorce decree with him when he took the children from his wife in St. Joe, Louisiana, about March 10, 1967. At the hearing held on October 27, 1969, appellant testified that he got the children before he got the decree because he had enrolled his oldest child in school on March 6, 1967. At this time he also said it was about three weeks or a month1'before he picked up the children that he found out that his wife was in Little Rock.

We find no merit in appellant’s contention that the Chancellor erred in failing to require appellee to show a change of circumstances. Appellant first testified that he knew his wife’s whereabouts when he filed his divorce action, then later changed his story. The same is true with respect to custody of the children at the time the decree was rendered. Under these circumstances, the Chancellor could properly treat the decree as void in so far as it affected custody. See Bauer v. Brown, 129 Ark. 125, 194 S. W. 1025 (1917).

The testimony about the welfare of the children is conflicting. There is testimony that appellee engaged in a number of extra marital affairs, that she did not keep the children clean, and that she selfishly spent the family earnings on herself instead of food for the family. On the other hand the extra marital affairs were denied and proof was offered that appellee maintained a clean and comfortable home where the children would be kept. There was also testimony that appellant did not provide for his family while appellee was living with him.

Appellant’s present wife has three minor children who live in their home and she was pregnant at the time of the hearing. There is also some testimony indicating that appellant is a cattle thief. While he denied the charge, he admitted that he was arrested and that after he agreed to return some cattle in his brother’s pasture, the charges were dropped.

The chancellor saw the parties and their demeanor during the trial and upon the record before us, we are unwilling to hold that his findings are contrary to the weight of the evidence.

Affirmed.


text:
    Janazean DAGGS v. GARRISON FURNITURE COMPANY et al
    5-5506
    464 S. W. 2d 593
    Opinion delivered March 15, 1971

      Sexton, Wiggins ir Christian, for appellant.

      Daily, West, Core & Coffman, for appellee.
   Conley Byrd, Justice.

The sole issue on this appeal is whether an unprovoked assault upon appellant Janazean Daggs arose out of and in the course of her employment with appellee Garrison Furniture Company. The law with reference thereto is set out in Townsend Paneling v. Butler, 247 Ark. (Dec. 15, 1969), as follows:

“ ‘It is generally held that injuries resulting from an assault are compensable where the assault is causally related to the employment, but that such injuries are not compensable where the assault arises out of purely personal reasons.’ Larson, Vol. 2, § 11.21, et seq.; Johnson v. Dierks Lbr. and Coal Company, 207 Ark. 527, 181 S. W. 2d 485 (1944).”

The proof is that appellant worked on the same floor as her assailant, Joy Stevens. Appellant had no social contact with Mrs. Stevens, had not talked to her and had not talked about her. On the day of the occurrence appellant had clocked into appellee’s premises and was waiting for the bell to go to work. The work bell rang at 7:25 A.M. About 7:15 A.M. Mrs. Stevens came up to her, said, “I heard you were talking about me” and began striking appellant.

Joy Stevens admitted the striking. On direct examination she stated that her reason for striking appellant was not connected with her work for appellee. She just struck her for personal reasons not connected with her work. On cross-examination she admitted she had never talked to appellant and that she struck appellant because of something she heard from the other employees where she worked. When asked if it would have been the day before that she heard this something she replied, “It was just about every day.” On redirect she testified that she heard the rumors from her fellow employees and the rumors concerned Billy Lowe, a man who worked in her department. On recross she said her fellow employees would come by and whisper the rumors in her ear. On redirect she stated that the matter had gotten worse the day before because of something she heard after work.

Even if the assault be considered the result of horse play, there is evidence from which the Commission could have found that it was not work connected. Of course the Commission could also have inferred that the assault was related to a purely personal matter involving Billy Lowe.

Affirmed.


text:
    Paul H. MILLER et al v. STATE of Arkansas
    5-5530
    464 S. W. 2d 594
    Opinion delivered March 15, 1971

      Skillman ir Furrow, Bruce Ivy, Donald A. Forest, James Robertson and Jay F. Friedman, for appellant.

      Joe Purcell, Attorney General; Don R. Rebsamen, Asst. Atty. Gen.-, for appellee.
   Conley Byrd, Justice.

Appellants Paul H. Miller, Raymond Rowell and Charles A. Barron along with James E. Cox were found guilty of obtaining property by false pretence. For reversal appellants raise the issues hereinafter discussed.

Lena F. Martin, about 85 years old, was the widow of a Cross County bank officer at Wynne, Arkansas. When the bank’s management observed some excessive checks on her account, the bank personnel were instructed to require identification of anyone presenting her checks and to ask the bearer what the check was for. Between November 21, 1968 and December 30, 1968, over $4,000 was withdrawn by checks made payable to appellants or Cox. In each instance the check was submitted for payment on the day it was dated, the bearer identified himself by driver’s license or social security number and stated that the check was for roofing repairs to Mrs. Martin’s home. The State’s evidence shows that less than $100 worth of repairs were made to the home during that time.

POINT No. 1. The record shows that the trial date was set six months earlier and two days before the trial date, the parties announced ready for trial. On trial date appellants made motions to quash the information which the trial court denied. We can find no abuse of discretion by the trial court. See Ark. Stat. Ann. § 43-1206 (Repl. 1964), Thurman v. State, 211 Ark. 819, 204 S. W. 2d 155 (1947), and Beckwith v. State, 238 Ark. 196, 379 S. W. 2d 19 (1964).

POINT No. 2. The trial court did not abuse its discretion in refusing appellants’ motions for a severance. See Ballew v. State, 246 Ark. (June 2, 1969), 441 S. W. 2d 453. Furthermore, since the trial court struck all portions of the confessions of Cox and Barron referring to the other defendants, no problem of confrontation arose contrary to the holding in Bruton v. United States, 391 U. S. 123, 88 S. Ct. 1620, 20 L. Ed. 2d 476 (1968). See Mosby v. State, 246 Ark. 963, 440 S. W. 2d 230.

POINT No. 3. We find no error in the admission of the testimony of lay witnesses as to the mental capacity or competency of Mrs. Martin. See Hill v. State, 249 Ark. 42, 458 S. W. 2d 45. As we read the record each witness stated the facts upon which his observations and conclusions of Mrs. Martin’s mental condition were made.

POINT No. 4. After Robert A. Smith, a builder with 15 years experience, testified that if any repairs had been made to Mrs. Martin’s home during November and December 1968, they would have been discernible at the time he inspected the building, his testimony was competent to show the amount of repairs made. Appellants’ argument that it would be impossible for any witness fifteen months after the repairs to give an opinion of the value of the repair work done, goes to the credibility of the testimony and not its admissibility.

POINT No. 5. Relying upon Bruton v. United States, supra, appellants contend that the trial court erred in admitting the confession of codefendant Cox into evidence. We disagree. The trial court deleted all portions of the confession having reference to appellants. This we understand to be permissible. See Mosby v. State, supra.

POINT No. 6. The information alleged that on the 26th day of November, $886.50 in money was obtained under false pretenses. At the trial it developed that the prosecuting attorney in drawing the information had transposed the figures and that the exact amount of the check was $686.50. The trial court did not err in amending the information because there was no material variance and no prejudice shown. See Ark. Stat. Ann. § 43-1012 (Repl. 1964).

POINT No. 7. Here appellants argue that the trial court erred in refusing their motion and request to instruct the jury that there was, as a matter of law, no conspiracy between appellants. The motion of appellants appears at page 279 of the record and is as follows:

“Mr. Skillman: Your honor, let me make it clear. By the term as used in the Information, the State is attempting to show that there was a collective action by these defendants on all of the sub-paragraphs thereto, with exception of sub-paragraph 4. Now, sub-paragraph 4 dealt with, or does deal with, as to Holmes, which is not involved in this particular instance today. I understand him not to be included. But that leaves 1, 2, 3, 5, 6 paragraphs of the Information wherein the State is alleging that the four defendants today jointly conspired by a common scheme and method and design. There is no evidence showing there was any common scheme, design, and plan. We say that each should be treated separate, distinct, and apart for this reason: if it is not, then Mr. Pearson can allege and claim that these four all got together and they did go at separate times to get these amounts of money, as they say, by false pretense. We say to that, there is no showing that they all benefitted in the fruits of this, or there was in fact a false pretense, and if the Court does find that there was no joint common scheme or plan, we are entitled to an instruction that the defendants, the charges against them, are to be treated as separate and distinct, even though they may be tried together, and it would prohibit the State from referring to such a common scheme, plan or design.”

After listening to argument by appellants’ counsel and counsel for the State, the trial court ruled:

“I am going to sustain the motion as to the conspiracy question, and neither defense nor the State can get involved, when it comes time to argue the case, in this particular aspect before the jury. The defendants are jointly charged here with obtaining money or property by false pretense from this lady. That means one verdict form as to each defendant will be submitted to the jury, and the jury will have to determine whether each defendant did or did not obtain money by false pretense. I am saying there will be one verdict form as to each defendant on charge of obtaining money by false pretense, whether contained in Count 1 or Count 6.”

After this ruling, we find no further request on the issue either by oral motion or request for an instruction to the jury. Consequently we hold that appellants are not in a position to complain of the trial court’s failure to so instruct the jury. See Stockton v. State, 259 Ark. 228, 388 S. W. 2d 382 (1965).

POINT No. 8. The trial court allowed the introduction into evidence of bail bonds and other judicial processes signed by appellants as handwriting samples to be used in identifying each appellant as one of the persons who endorsed and cashed the checks. This was not error. See Lewis v. United States, 382 Fed. 2d 817 (D. C. Cir. 1967).

POINT No. 9. Appellants requested the trial court to instruct the .jury that the State’s failure to call Mrs. Lena Martin would justify the inference that her testimoney would be contrary to the contentions of the State. Assuming that such an instruction would be proper in a cáse such as this, still the trial court did not err here. The record shows that Mrs. Martin, because of her age, had become so forgetful and senile that her relatives had moved her to their home in California to take care of her.

POINT No. 10. The trial court properly admitted the checks executed by Mrs. Martin to appellants into evidence. The identification of each appellant was made by a handwriting expert through comparison of the check endorsement signatures with the bail bonds and waivers of extradition signed by appellants.

POINT No. 11. On occasions the trial court examined the witnesses. Such examinations usually occurred after an objection was made and on those occasions the trial court would question the witnesses to clarify their testimony before ruling on the objections. On one occasion, the trial court asked an out of state officer to identify one of the accused—apparently for the purpose of excusing the officer to return to his home. Under the circumstances we can find no abuse of discretion or prejudice to the appellants. See Clubb v. State, 230 Ark. 688, 326 S. W. 2d 816 (1959).

POINT No. 12. We can find nothing in the Prosecuting Attorney’s reference to appellants as “con artists” that would call for a mistrial. The comment, while not recommended as good practice, was at most argumentative. Appellants asked for no other relief.

POINT No. 13. Appellants here contend that the trial court should have granted a mistrial when the Prosecuting Attorney, in his closing argument, referred to the confession of James E. Cox in reference to the appellants. Since we find nothing in the record to support this contention, we must hold it to be without merit.

Affirmed.

Fogeeman, J., not participating.


author: Frank Holt, Justice.

text:
    Carlton J. CARNEY v. STATE of Arkansas
    5554
    464 S. W. 2d 612
    Opinion delivered March 15, 1971

      Harold C. Rains Jr., for appellant.

      Ray H. Thornton, Jr., Attorney General; Garner L. Taylor, Jr., Asst. Atty. Gen., for appellee.
   Frank Holt, Justice.

Appellant was charged in June 1966 with first degree murder. Thereupon, he and a codefendant were afforded the assistance of a court-appointed attorney. About five months later they entered a plea of guilty to the reduced charge of second degree murder, and each was sentenced to twenty-one years in the State Penitentiary. In March 1970 appellant filed this Rule 1 petition for post-conviction relief. Ark. Stat. Ann., Vol. 3A, 1969 Supp., p. 91. His present counsel was then appointed, and an evidentiary hearing was conducted after which the trial court, by written findings of fact and conclusions of law, denied the petition. This appeal follows.

For reversal appellant first argues that he was not advised of his right to remain silent and did not have the benefit of counsel at the time of his alleged guilty plea. He therefore asserts that the trial court erred in failing to find that his constitutional rights were violated. Although the record adequately reflects that appellant was in fact given the Miranda warnings, we need not further consider this contention since it was not included in appellant’s Rule 1 petition but, instead, raised here on appeal for the first time.

It is undisputed that appellant’s court-appointed counsel represented appellant at his arraignment and when he later entered his plea of guilty. Appellant’s claimed lack of representation appears to be founded upon his personal impression that unless he pleaded guilty, his court-appointed attorney would represent his codefendant exclusively. This was denied by the attorney who testified that he submitted a plea to the lesser degree because he thought it was “wise under the circumstances.” There was evidence that appellant was fully advised of his rights by his counsel and the court. Appellant does not question the attorney’s competency, and the record amply demonstrates that his approval of a guilty plea to a lesser charge was a matter of professional judgment based upon a thorough investigation of the facts, including the evidence accumulated by the prosecution and the probabilities of an unsuccessful trial of the case upon the original charge. An elderly person was murdered, and it appears that appellant was present as a participant with his codefendant when the alleged crime was committed. The crime was described as “gruesome” and committed with “brutality.”

Appellant’s 1 court-appointed counsel is an experienced lawyer, having practiced for the past seventeen years. Upon appointment he learned that appellant had a history of some mental instability and treatment while living in Chicago. He promptly secured an order from the trial court committing appellant to the State Hospital for a mental examination and advised the Hospital concerning the information he had about appellant. The Hospital, however, found appellant without psychosis. Further, he contacted appellant’s relatives in Chicago numerous times and acquired data from a mental institution there for the trial court’s consideration. Appellant’s counsel secured two continuances to facilitate his duties and discharge his responsibilities. It appears that appellant was ably and diligently represented by his court-appointed counsel. In our view, the evidence supporting the court’s findings on this issue is certainly sufficient.

In his. next two points for reversal appellant contends that he did not in fact enter a plea of guilty or, alternatively, that if he did, it was a product of duress. He claims that his guilty plea was in contravention of Ark. Stat. Ann. § 43-1221 (Repl. 1964) in that it was submitted by the court-appointed attorney while he himself remained silent. However, witnesses who were present when the plea was entered testified that upon pleas of guilty it was the practice of the trial court to affirmatively determine from the defendant himself whether he desired to plead guilty and, also, if he understood the significance of such a plea, and that in the case at bar the appellant did, in accordance with that practice, confirm the plea submitted by his attorney. Appellant nevertheless maintains that in any event the plea was extracted as a result of harassment and numerous threats which, according to his testimony, were made by the police during his pretrial incarceration to the effect that he would be sentenced to death unless he pleaded guilty to a lesser offense. This complaint, which was never asserted prior to appellant’s Rule 1 petition, is not corroborated and is, in fact, contradicted by other testimony that he was not abused or "mistreated in any manner.” There was also evidence that the officers brought him clothing and attended to some of his other needs. We think there was sufficient evidence of a substantial nature to support the finding of the trial court that appellant’s plea was properly entered.

Appellant lastly argues for reversal that because of his age at the time of the crime (16) and his history of mental instability, the common-law presumption of incapacity should apply. Again, this point is raised for the first time on appeal and cannot, therefore, be considered. However, we note that the appellant had attained the ninth grade and, as previously indicated, the State Hospital found him without psychosis.

In the case at bar, a full canvass of the record reveals no violations of appellant’s constitutional rights.

Affirmed.


author: Carleton Harris, Chief Justice.

text:
    ST. PAUL INSURANCE COMPANY v. LIBERTY MUTUAL INSURANCE COMPANY and Joe E. HERDISON
    5-5480
    464 S. W. 2d 566
    Opinion delivered March 22, 1971

      Daily, West, Core & Coffman, for appellants.

      Shaw ir Ledbetter and Hardin, Jesson & Dawson, for appellees.
   Carleton Harris, Chief Justice.

This case involves the question of which insurance carrier, appellant, St. Paul Insurance Company, or appellee, Liberty Mutual Insurance Company, must ultimately pay workmen’s compensation benefits which were awarded appellee claimant Joe E. Herdison. During the years 1968 and 1969, Herdison was employed by Hallett Construction Company, Liberty Mutual Insurance Company, (hereinafter called Liberty) being the compensation carrier through December 31, 1968. On January 1, 1969, St. Paul Insurance Company (hereinafter called St. Paul) became the insurance carrier for Hallett Construction Company. A claim was filed by Herdison, in which he alleged that he had sustained a back injury on November 26, 1968. A hearing was held on August 27, 1969, and the referee ordered that St. Paul be made a party. Another hearing was held on November 4, 1969, at the conclusion of which the referee found that Herdison sustained an accidental injury on November 26, 1968, while Liberty was the insurance carrier, and sustained another accidental injury sometime in February 1969, at which time St. Pjiul was the insurance carrier; that both accidents contributed to Herdison’s condition, and liability was equally apportioned between the two insurance carriers. St. Paul appealed to the full commission, and on March 16, 1970, that tribunal filed its opinion in which it adopted the findings and award of the referee. From this order, St. Paul appealed to the Sebastian County Circuit Court which affirmed the findings of the commission. From the Circuit Court judgment, appellant brings this appeal. For reversal, it is simply asserted that there is no substantial evidence to support the commission’s findings, and that said findings do not support the award.

At the first hearing in August, 1969, the referee found that Herdison had suffered an accidental injury on November 26, 1968, at a time when Liberty was the insurance carrier, and that no time was lost in 1968, but on April 6, 1969, Herdison underwent an operation; that at this time St. Paul was the insurance carrier. The referee then directed that St. Paul be made a party as a respondent along with the employer and Liberty. Don Mitchell, called on behalf of Herdison, testified that he had instructed claimant to move a dozer in November, 1968, and knew that Herdison, while so engaged, had fallen and been taken to the hospital. There was no mention of any other accident or injury by Mitchell. Bill Logsdon, also called on behalf of Herdison, testified that when claimant was injured in November 1968, he (Logsdon) went to the hospital after the accident and brought Herdison back to Ft. Smith. Likewise, there was no mention of any other accident or injury by Logsdon. The record also reflects that Herdison reported no second accident or injury to his employer, nor to either of the doctors who treated him, and to whom he gave a history. The only evidence offered in support of two injuries came from Herdison himself. In a discovery deposition, Herdison testified that after the accidental injury on November 26, 1968, he returned to work the next day, and worked until he was operated on in April, 1969. He was then asked if during that period of time he received any other injuries. Herdison replied, “Well, at one time I noticed my back hurt me more. I was moving some—you know, my legs and things was bothering me more. I was moving some steel and of course, I was doing some lifting and I noticed it.##** It was my leg more or less, my back didn’t hurt me so much it just—I don’t know how to explain it, just my legs.” The record then reflects the following:

“Q. Did you have any specific instance when you were lifting something that you felt—
A. Like I say, when I was lifting that steel that time why I noticed it was hurting me more. I was stiff, you know for awhile.
Q. Did you feel any popping in your back or anything like that?
A. No sir, I didn’t, no.”

When asked when this lifting took place, he answered “It happened somewhere in I’d say in about February”. During counsel’s summary of the evidence taken by deposition, we find the following:

“Q. Joe, as I understand your testimony then, sometime within say two weeks after this accident [the first accident on November 26] when you fell about ten feet you noticed that your left leg or right leg or right foot started going to sleep?
A. Yes sir.
Q. This would have been well before January 1st, wouldn’t it?
A. Yes sir.
Q. That would also have been before you’d done any lifting?
A. Yes sir.
Q. And it just progressively got worse until finally you had to go to the doctor?
A. Yes sir.”

Likewise, before the referee, Herdison testified that he moved some steel out of Durant, Oklahoma, and “I did quite a bit of lifting and seemed like it hurt me worse, you know. I got to hurting worse after that.” He said that he did not recall the month in which this occurred, and would have to look in his log books to determine the month. The record then reflects, referring to his injury,

“A. Well, it was gradually getting worse, yes sir, up until I moved the steel and seemed like it hurt me worse after I did do the lifting.
Q. Well, after the steel incident would it be say kind of a snow balling effect? Is that the way it affected you?
A. Well, I don’t know whether that did it, or whether time. I just got worse, I know.”

However, Herdison again testified that he was having pain and discomfort in January and February of 1969. From the record:

“Q. From the standpoint of the way or as we call it, the symptoms you had, did you have pain and discomfort and so forth in January and February of ’69?
A. Yes sir, just shortly right after I had the accident why my foot and things started bothering me.
Q. As you continued to do the work in January and February would it be a fair statement that the day to day activities that you had seemed to make it worse?
A. Yes sir.
Q. Did it seem to aggravate it?
A. Yes sir, I got worse as every day went on.”

It is apparent that constant complaint was made by Herdison relative to pain in his foot and legs within two weeks after the first accident, and as previously stated, this was the only injury mentioned to the doctors when they discovered that he actually had a back injury. The quoted testimony makes clear that he was getting worse sometime before the first of the year, and that he had extreme pain and discomfort in the early part of 1969 before the alleged second injury. As to this last, Herdison admitted that he did not know whether the steel lifting incident caused his condition to get worse, “or whether time”. It is our opinion that, as a matter of law, the evidence is not substantial that Herdison specifically received a second injury. Actually, the proof was barely enough to establish even that claimant could have sustained a second specific injury. In Aluminum, Co. of America v. Williams, 232 Ark. 216, 335 S. W. 2d 315, this court quoted Larson as follows:

“In Larson’s two-volume treatise on 'Workmen’s Compensation Law’, that writer states the holdings in Vol. 1 § 13.00: ‘When the primary injury is shown to have arisen out of and in the course of employment every natural consequence that flows from the injury likewise arises out of the employment, unless it is the result of an independent intervening cause attributable to claimant’s own negligence or misconduct’. In 58 Am. Jur. p. 775, ‘Workmen’s Compensation’ § 278, cases from various jurisdictions are cited to sustain the text: ‘A subsequent incident, or injury, may be of such a character that its consequences are the natural result of the original injury and may thus warrant the granting of compensation therefor as a part of that injury’.”

In accordance with what has been said, it is the order of this court that the judgment of the Sebastian County Circuit Court be, and hereby is, reversed with directions to remand the cause to the Workmen’s Compensation Commission for1 an order consistent with this opinion.

       Herdison was not aware that his back was injured until his deteriorating condition forced him to see a doctor; originally, he complained only of pain in his feet and legs.


text:
    Cletus BYRD, Leonard BRUMMETT, and Andrew HOGELAND v. SECURITY BANK
    5-5453
    464 S. W. 2d 578
    Opinion delivered March 22, 1971

      Rhine ér Rhine, for appellants.

      Douglas Bradley, for appellee.
   Carleton Harris, Chief Justice.

This appeal is brought by three farmers, Cletus Byrd, Leonard Brummett, and Andrew Hogeland from adverse decrees of the Clay County Chancery Court which found inter alia, that these appellants were indebted to appellee, Security Bank, in various amounts by virtue of promissory notes which they had executed to Parsons Gin Company and which Parsons had subsequently assigned to the appellee bank. Parsons’ Gin Company was not incorporated and was only a name used by Jimmy Parsons, the owner. These notes were sued on by Security Bank in December, 1968, and Kennett Bank of Kennett, Missouri, intervened in each case alleging that it held notes from each of the appellants and also had liens superior to those of appellee, on the assets of these farmers.

From the evidence it would appear that sometime prior to the execution of the notes sued on, these farmers had executed notes to Parsons Gin Company with financing statements as security. These notes were assigned by Parsons Gin Company to Security Bank, but the financing statements were retained by Parsons and filed in its name.

On or about January 26, 1968, the appellants each signed other notes to Parsons Gin Company, simply signing blank notes. Without appellants’ knowledge or consent, Jimmy Parsons of Parsons Gin Company filled in the notes for varying amounts and on February 3, 1968, assigned them to Security Bank as consideration for the release of the prior notes and other notes which Parsons had previously assigned. Parsons once again kept the financing statements in the Gin Company’s name.

The farmers then wished to borrow money from Kennett Bank, but after a lien search, that bank found the financing statements to Parsons and would not make the loans until these statements had been released. At Kennett Bank’s request, Parsons released the financing statements in March of 1968. Kennett bank then filed financing statements from these farmers as security late in March of 1968 and made loans to the appellants as evidenced by notes signed by them on or about April 8, 1968.

On June 20, 1968, Security Bank discovered that Parsons had released the financing statements and to recover its former position, had Parsons assign these statements to it with the words “This statement replaces a prior one to secured party, released by error, when the secured party intended to merely subordinate the lien”.

When the notes assigned to Security Bank became due, and after demand, were not paid, these suits were brought, Kennett Bank intervening shortly thereafter. The trial court found the lien of Kennett Bank to be superior to that of Security Bank, but that finding is not involved in this appeal. For reversal of the decree in favor of Security Bank, appellants contend that the lower court erred in finding that appellee, Security Bank, was a holder in “due course” and an “innocent purchaser” of the notes and security transferred to the bank by “Parsons Gin Company”.

It is argued that at the time appellee took the assignment of the second group of notes, no money was advanced by the bank to Parsons, and that appellee knew Jimmy Parsons was in financial straits, and should have known that he did not have sufficient money to advance the amounts mentioned in the notes, to the three appellants. The amounts of the notes were Byrd, $9,500, Brummett, $18,000, and Hogeland, $1,000. It is true, as previously stated, that no money was advanced to Parsons at that time, these notes being given in lieu of the original notes, and also being applied on other indebtedness due by Parsons.

Ark. Stat. Ann. § 85-3-302 (Add. 1961) defines a holder in due course as one who takes the instrument for value, and in good faith, and without notice that it is overdue or has been dishonored, or of any defense against, or claim to it, on the part of any persons.

We do not agree that appellee was not a holder in due course. The instrument was taken for value, and we need look no further than Ark. Stat. Ann. § 85-3-303 (b), where it is provided that the instrument is accepted for value when it is accepted in payment of, or in security, for an antecedent claim against any person whether or not the claim is due.

There is no evidence that the instrument was not taken in good faith. Let it be remembered that there is no proof, nor is it even suggested, that appellee knew that these notes had been blank when signed by appellants, and that the amounts had been filled in by Parsons. Also, the record reflects that transactions of this nature between the parties had been customary for a number of years, and all had worked out satisfactorily. There is no showing that at the time (February 3, 1968) the notes were taken, the bank officials had any reason to believe that Parsons had committed any fraud, or that he was in bad financial condition. Testimony on the part of the bank was that this fact did not come to its attention until June 20, when appellee discovered that Parsons had released its security in March. Were it otherwise, while there might well be a duty on the officers of a bank to check or investigate prospective debtors of the bank as a matter of protecting that institution, we find nothing in the commercial code that compels such a duty on the part of the bank as a matter of protecting the prospective debtor.

Finally, in determining whether the bank was a holder in due course, the notes were not overdue, nor had they been dishonored. Nor is there evidence, as already stated, that the bank was aware of any defense on the part of any person. Appellants say that if the Security Bank had checked in the office of the Circuit Court Clerk, it would have found that the Kennett Bank had filed financing statements from appellants as security, said statements covering substantially the same property which had been covered in the financial statements securing appellee’s indebtedness; that appellee would accordingly have been put on notice that “something was wrong”. We disagree. The evidence reflects that appellee did not learn until June that Parsons had released the financing statements, and that Ken-nett had a lien on the properties. The Kennett financing statements were not filed until March 30, and it will be recalled that the Security financing statements had been filed in January. Appellee could not possibly have known about the latter filing unless it checked the clerk’s records each day, week, or month to determine if the original financing statements were still in effect. Under the circumstances of this case, we cannot see where there was any duty on appellee to go over and check the records regularly to see if it still held effective security. There simply wasn’t any reason for this to be done. Of course, this litigation could not have arisen except for appellants signing blank notes. The one fact that contributed most to the situation in which appellants now find themselves, is that they imprudently signed these blank instruments, and in doing so, failed to act as prudent persons.

It is also argued that James Parsons was operating under the assumed name of “Parsons Gin Company”, and in doing so, was in violation of Ark. Stat. Ann. § 70-401-405 (Repl. 1957). A penalty of a fine of not less than $25.00 nor more than $100.00 is provided for violation. We fail to grasp the significance of this argument, and consider it entirely irrelevant to the issue of whether the bank was a holder in due course. Whether Parsons properly complied with the aforementioned sections, which are entirely unrelated to the provisions of the Uniform Commercial Code, can have no effect on this litigation. If Parsons ignored or disobeyed the law, he is subject to a fine. Though the question of the liability of appellants cannot be affected by the failure of Parsons to file the required certificate, we do wonder how the bank could have learned that he had violated the law if he had not filed such a certificate.

Affirmed.

       These suits were brought separately but were consolidated for trial.

       The statute, inter alia, provides that no person shall conduct or transact business under an assumed name unless such person shall file in the office of the county clerk a certificate setting forth the name under which the business is to be conducted, together with the true name of each person conducting or transacting said business.