author: George Howard, Jr., Judge.

text:
    Jean DeFOURE v. MFA LIFE INSURANCE COMPANY
    CA 79-75
    596 S.W. 2d 7
    Court of Appeals of Arkansas
    Opinion delivered March 12, 1980
    Released for publication April 2, 1980

      Joseph Philip James and Larry Hartsfield; by Joseph Philip James, for appellant.

      Barrett, Wheatley, Smith & Deacon, by: Stephen M. Reasoner, for appellee.
   George Howard, Jr., Judge.

The issue for determination is whether appellee is liable for medical expenses of $2,-780.95, under the terms of a “Conditions Precedent” (a binding receipt), providing, among other things that “no insurance shall be effective for any persons proposed for insurance in the application if [appellee] declines to insure any one of them.”

On March 22, 1977, appellant made application for health insurance coverage for herself and her two minor children, Annetta, age 13, and Charles, age 15. Appellant paid two months’ premium in advance of $88.14. Appellant received an instrument designated as “Conditions Precedent” which provided conditional coverage.

Relevant portions of the “Conditions Precedent” are:

Condition No. 1. Payment of Premium. Full payment of initial premium on selected mode must be made to an authorized agent of MFA Life Insurance Company on date of application.
Condition No. 2. Insurability. MFA Life Insurance Company at its Home Office must determine to its satisfaction, according to its rules and practices, that as of the later date of the application or medical examination form, if required, the persons proposed for insurance were insurable for the plans and amounts applied for and at the rate of initial premium paid.
Effective Date of Insurance. If the above conditions are met, insurance shall be effective, subject to the provisions in the policies applied for, as of the later date of the application or medical examination form, if required.
Maximum Amount of Insurance which may be Effective before Policies are Issued. No insurance against death, including accidental death benefits, under this receipt shall be effective for more than $50,000.00 inclusive of all insurance now pending with MFA Life Insurance Company.
Condition Not Met or Application Approved on Basis Other Than as Applied for: If above conditions are not met or if application is approved on a basis other than as applied for, insurance shall be effective only if: (a) a policy is delivered to the owner during the lifetime of all persons proposed for insurance, and (b) to the best of applicant’s knowledge, there has been no material change in the answers contained in the application since the date of application or medical examination form, if required, and (c) full payment of any required additional premium is made. No insurance shall be effective for any persons proposed for insurance in the application if MFA Life Insurance Company declines to insure any one of them. If insurance is approved for any one of them other than as applied for, insurance shall be effective according to the paragraph immediately above.

On April 1, 1977, Charles fractured his left leg while riding a bicycle and incurred a medical expense of $2,780.95.

On April 12, 1977, appellee’s agent delivered policy numbered D-026436 to appellant covering appellant and Charles, but appellee elected not to insure Annetta because she suffered from congenital Rubella Syndrome. On April 15, 1977, appellant, at the request of appellee, executed an amended application which contained only the names of appellant and Charles requesting insurance coverage. Appellee refunded to appellant a portion of the premium.

Appellee denied appellant’s claim for the medical expense in connection with Charles’ injuries on the ground that the provision in the “Conditions Precedent” which states: “no insurance shall be effective for any person proposed for insurance in the application if MFA . . . declines to insure any one of them” relieves appellee of any liability since it had declined to insure Annetta.

The trial judge, sitting without a jury, made the following findings:

. “(2) That Policy no. D-026436 issued by defendant was not in effect at the time Charles Rickey Willis suffered the injury for which claim under the policy was made.
“IT IS, THEREFORE, BY THE COURT CONSIDERED, ORDERED and ADJUDGED that the complaint be dismissed with prejudice. Defendant is awarded its costs.

It is settled law that ambiguities in insurance contracts will be construed against the insurer who prepared it. Binding or conditional receipts are subject to this rule of construction. Union Life Insurance Co. v. Rhinehart, 229 Ark. 388, 315 S.W. 2d 920; Ross v. Equitable Life Assurance Society, 237 Ark. 643, 375 S.W. 2d 222; Firemen’s Insurance Company of Newark, N.J. v. Motley, 222 Ark. 968, 264 S.W. 2d 418.

In Firemen’s Insurance Company of Newark, N.J. v. Motley, supra, the Arkansas Supreme Court said:

‘Under well-settled principles, where the provisions of a policy are susceptible of two equally reasonable constructions, one favorable to the insurer and the other to the insured, the latter will be adopted. This is because the language is chosen by the insurer with the aid of experts employed for the purpose of writing the policy, and the insured has no voice in the matter. Therefore, where either of the two constructions may be adopted, it is fair that that which will sustain the claim and cover the loss will be chosen.’

It is undisputed that appellant complied with Condition No. 1 by submitting a premium of $88.14 with her application. Condition No. 2 provided that appellee was required to determine to. its satisfaction that as of the later date of the application or medical examination form, if required, that appellant and her two children were insurable at the rate of the initial premium, under the plan desired as well as the amount of coverage sought. Appellee did not require a medical examination of either appellant or her children. Given this circumstance, Condtion No. 2 is subject to two interpretations: (a) Appellant and her children having been relieved of the requirement of a physical examination and having paid the necessary premium in advance would be justified in interpreting the provision as affording coverage effective March 22, 1977, the date of her application; (b) on the other hand, the same provision subjected to a strict construction supports the view that the binding receipt afforded no coverage until appellee had accepted and approved the application although physical examinations had been dispensed with.

Had appellee, under the circumstances, intended the latter interpretation, appellee could have spelled this out to appellant who, obviously, was a person unfamiliar with insurance.

Another ambiguity is illustrated by the posture taken by both appellant and appellee with reference to the last two sentences in the final paragraph of the “Conditions Precedent.” Appellee argues that only the first sentence is pertinent to the issue at hand; that it is clear that no insurance coverage shall be afforded “any persons” named in the application if appellee declines to insure “any one of them.” In other words, since Annetta was not accepted as a risk by appellee, Charles, under the binding receipt, was not covered on the date of his injury on April 2, 1977. On the other hand, appellant emphasizes that the final sentence which provides “if insurance is approved for any one of them other than as applied for, insurance shall be effective according to the paragraph immediately above,” relates to the provisions designated “Effective Date of Insurance” and “Maximum Amount of Insurance;” and that these provisions were intended to be considered together. “Otherwise,” argues appellant, “the final sentence of the ‘conditions Precedent’ makes no sense whatsoever.”

We are persuaded that when all the terms and conditions of the “Conditions Precedent” are considered, there is ambiguity as to when appellant and her children were insurable. We construe the provision against the appellee.

We are convinced that appellant did not waive any rights of coverage claimed under the “Conditions Precedent.” The amendment to the original application was executed, at the request of the appellee, in order to delete the name of Annetta and not to make any material changes in the application affecting appellant or Charles. Moreover, it is settled law that the binding receipt, application and the policy itself are to be considered together as a whole in resolving an issue of the dimension here. Cooksey v. Mutual Life Insurance Co., 73 Ark. 118, 83 S.W. 317; Jenkins v. International Life Insurance Co., 149 Ark. 247.

We are not persuaded that appellant’s appeal should be dismissed for failure to comply with Rule 9. While appellant did not abstract the exhibits and the testimony of the appellant and appellee’s agent, appellant and appellee did set out the relevant portions of the record in their briefs.

Accordingly, we revese the trial court and remand for proceedings not inconsistent with this opinion.

Reversed and remanded.


source: Caselaw Access Project

author: David Newbern, Judge.

license: Public Domain

text:
    Gordon ZIMMERMAN v. Zetta ASHCRAFT, Administratrix of the Estate of Lonnie ASHCRAFT, Deceased
    CA 79-92
    597 S.W. 2d 99
    Court of Appeals of Arkansas
    Opinion delivered March 12, 1980
    Petition for review denied April 14, 1980
    Released for publication April 16, 1980

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

      Nathan Gordon, for appellee.
   David Newbern, Judge.

After a verdict was rendered for the appellant in this wrongful death action, counsel for the appellee was gtanted a new trial on the ground of juror misconduct. The misconduct alleged was that two jurors failed to respond when the court asked all the jurors if they had litigation pending in the circuit court or were involved in litigation in which the lawyers for either side in this case were participants. The appellant asks us to set aside the new trial order. We decline to do so.

The judgment based on the jury verdict was rendered February 9, 1978. The new trial motion was filed February 17, 1978. The judge took the motion under advisement on March 15, 1978, but reached no decision prior to his retirement from the bench. His successor granted the motion after a hearing.

No record was made of the voir dire of the jurors. In his verified motion for new trial, however, the appellant’s counsel stated the court asked the jurors if any of them had litigation pending before it or were involved in litigation in which counsel in this case were participants. He further stated that the two jurors in question made no answer. No counter-affidavit or other evidence on this matter was presented by the appellant.

An affidavit of the circuit clerk was presented by the appellee showing the two jurors were parties to cases pending before the court, and that their interests were being opposed in those cases by counsel representing the defendant (appellee).

The appellant argues the granting of the new trial motion was improper because (1) the appellee’s counsel did not show diligence in discovering the facts with respect to the jurors, (2) no prejudice occurred to the appellee, and (3) there was no record from which the court could ascertain the question asked or the answers given or not given.

1. Diligence

We agree with the appellee’s counsel that it would be unreasonable to require counsel to check the entire docket of the court to assure jurors are not parties to cases before the court or shown on the record as having a relationship to counsel in the case. We hold the diligence requirement of A. R. Civ. P. 59 and superseded Ark. Stat. Ann. § 27-1901 (Repl. 1972), does not go that far.

2. Prejudice

The appellant says the appellee was not prejudiced here because both of the jurors had interests opposed to the counsel for the appellant. Unlike the juror in the case of Big Rock Stone & Material Co. v. Hoffman, 233 Ark. 342, 344 S.W. 2d 585 (1961), these jurors certainly could have been aware they were not answering truthfully. The controlling cases are Ark. State Highway Commission v. A. L. Young, 241 Ark. 765, 410 S. W. 2d 120 (1967), and Hot Springs Street Railway Co. v. Adams, 216 Ark. 506, 226 S.W. 2d 354 (1950), in which our supreme court made it clear that even the appearance of juror misconduct will be enough to warrant relief. Thus, we are unwilling to say that, even if we could be certain these jurors would not have been predjudiced by their relationships to counsel, we would find the granting of a new trial to have been improper.

3. Lack of Record

This point troubles us more than the others. The appellant correctly says the trial court had no record before it from which it could ascertain the questions asked the jurors or the answers given. That is correct to the extent it is the same as saying no transcript was made at the trial of the voir dire of the jurors. However, the trial court did have, in addition to the clerk’s affidavit showing the jurors as parties in pending cases, the verified new trial motion, sworn by the appellee’s lawyer, which said, in part:

At the commencement of the trial after the jury had been sworn to answer questions concerning their qualifications, the Court had asked the jury if any of them had a case now pending before the Circuit Court of Conway County. That none of the jurors either answered or in any way indicated that they had any case now pending before the Circuit Court. That in truth and in fact, the juror, Wanda J. Alvey, has a case pending in the Circuit Court of Conway County, the style of the case being .... That the juror, Joe R. Johnson, has a case pending in the Circuit Court of Conway County, said case being styled.....

The appellant contends this was “testimony” on the part of counsel for a party and thus not to be allowed. We are aware of the rule of the many cases the appellant has cited on this point that one should not be allowed to take the witness stand in a case in which one acts as counsel. We cannot ignore, however, the cases in which, after a trial is over, and there is need to “reconstruct” the record counsel’s affidavits, and indeed their oral testimony, are properly considered. E.g., Lemley v. Fricks, 251 Ark. 923, 475 S.W. 2d 702 (1972); Kane v. Erich, 250 Ark. 448, 465 S.W. 2d 327 (1971).

In this case the judge said he would assume the facts were as stated in the verified motion. We do not find that to be an unwarranted assumption in view of the fact that the motion was made by an officer of the court stating facts under oath. Although the appellant says the facts were in dispute as to what was asked to the jurors, we find no evidence offered in any form which contradicts the appellee’s counsel’s statements in the motion.

We hold the statements in the verified motion are substantial evidence, and the burden was thereby cast upon the appellee to overcome it. It is troublesome that the judge who granted the motion was not the one who heard the voir dire, but we cannot say that fact should change the outcome. Had the original judge heard the motion, the evidentiary requirement and the inadequacy of the voir dire record would have been the same. The lack of a complete record on the matter as to which error is alleged is no impediment to appeal. See A.R. App. P. 6(d). We hold it should not be a bar to a new trial when substantial evidence of what transpired is before the trial court even though the judge may not have presided over the original proceedings.

Affirmed.


text:
    ARKANSAS POWER AND LIGHT COMPANY v. Joe E. LLEWELLYN and Nora LLEWELLYN, his wife, and J. B. MASSEY and Laura C. MASSEY, his wife
    CA 79-293
    595 S.W. 2d 712
    Court of Appeals of Arkansas
    Opinion delivered March 12, 1980
    Released for publication April 2, 1980

      House, Holmes & Jewell, for appellant.

      Reed & Irwin, P.A., for appellees.
   David Newbern, Judge.

In this condemnation case, the judge refused to allow the appellant to present testimony showing the amount the landowners had paid for the land some five years before the condemnation. We reverse because the evidence should have been admitted.

The landowners, in 1972, bought 259 acres fronting the Little Red River for $62,500. In 1977, the appellant condemned 2.94 acres of that land and erected a power transmission line through it. One of the landowners, Joe Llewellyn, testified the appellant had taken land worth $81,320. That sum apparently included severance damages. The appellant contended the landowners were damaged only to the extent of $1,650, which was the value of the land taken. The jury awarded $27,500.

In deciding to exclude the evidence of the purchase price, the judge relied on State Highway Commission v. Hubach, 257. Ark. 117, 514 S.W. 2d 386 (1974). The important language in the case is a quotation from Nichols on Eminent Domain, § 12.311 [1], p. 118 (3d ed. 1974), as follows:

When a parcel of land is taken by eminent domain, the price which the owner paid for it when he acquired it is one of the most important pieces of evidence in determining its present value. However, this assumes that the sale was recent, was a voluntary transaction between the parties each of whom was capable and desirous of protecting his own interests, and that no change in conditions or marked fluctuation in values has occurred since the sale. A price paid under such condition is a circumstance which a prospective purchaser would seriously consider in determining what he himself should pay for the property. As evidence before a jury, it consumes little time in introduction and raises few collateral issues, so that every argument is in favor of its admissibility. [256 Ark. at 118]

The judge took judicial notice that the rise in river front land value, of late, had been “astronomical.” In our view, the question becomes whether the changes in value of the land “are such as to make the transaction [purchase by the condemnees] substantially useless in determining the present day value.” State Highway Commission v. Hubach, supra, at p. 119.

The Hubach case was cited below as dictum at best, as its result was precisely the opposite of the trial judge’s holding in this case. There the supreme court said the lower court should have permitted the evidence of the sale price to the landowner, which occurred some four years and four months before the condemnation, to have been admitted.

We hold the evidence of the purchase price was admissible. There were no “fluctuations” in the value of the land in the sense that it had gone up and down since 1972. It was all up, and the appellant presented evidence that agricultural land values had gone up 15% to 20% per year between 1972 and 1977. That testimony would have put the purchase price, had its introduction been allowed, in perspective. Although a subdivision plan for the land had been approved by the county planning commission, there is no doubt that at the time of the taking the property was planted in beans. The actual use of the land at the time of taking was evidence relevant to its value. The highest and best use, which was disputed at the trial, is another factual determination which bears on value.

Given this context, we hold the purchase price evidence would not have been unduly prejudicial to the landowners. If the landowners had wanted to show the increases to have been greater, they could have introduced evidence to that effect. See, Ark. Highway Comm. v. Warnock, 241 Ark. 998, 411 S.W. 2d 283 (1967).

The landowners’ argument is that the jury would have been unduly prejudiced had it learned that they got such a “good deal.” Whether they got a “good deal” is really one way of stating the issue in this case, and it should have been up to the jury to determine that with all the relevant evidence before it.

Other issues raised by the appellant are not likely to arise on retrial, thus we decline to address them.

Reversed and remanded.

Hays, J., not participating.


author: Ernie E. Wright, Chief Judge.

text:
    Larry Joe NORMAN v. Nancy Alyce NORMAN
    CA 79-197
    596 S.W. 2d 361
    Court of Appeals of Arkansas
    Opinion delivered March 19, 1980
    Released for publication April 9, 1980

      Wallace, Hilburn, Clayton, May & Calhoun, Ltd., by: Charles E. Smith, for appellant.

      Murphy & Carlisle, for appellee.
   Ernie E. Wright, Chief Judge.

The appellee was awarded a decree of divorce from appellant on September 24, 1971, by the Washington Chancery Court. Custody of the two minor daughters was awarded to appellee, and appellant was required to pay child support pursuant to the agreement approved by the decree. The appellee and children moved to the Phoenix area after the divorce and the appellant has exercised visitation rights by having the children with him for two months during the summer and during certain holidays. Appellant was fully aware of the move of appellee to Arizona, and his visitation rights have been facilitated, in spite of the distance, by reason of his employment with an airline and the courtesy free travel enjoyed by appellant and the children.

The appellee is a career analyst employed by the State of Arizona and earns $13,000.00 per year. She owns a four bedroom condominium town house in Tempe where she and the minor daughters reside.

The children went to appellant’s home in Little Rock for their regular visit in the summer of 1978, and the appellant did not return the children to the appellee at the end of the two months visitation period. The appellee came to Little Rock and succeeded in taking custody of the younger daughter, Shelby, but the older daughter, Sha, became hysterical and she was unable to take Sha back to Arizona.

The appellee petitioned the trial court for an order citing appellant to show cause why he had not complied with the child custody and support provisions of the divorce decree, seeking increased child support and praying for attorney fees and costs. A contempt citation was issued against the appellant for his alleged failure to comply with the decree. The appellant answered the petition and filed a petition for change of custody of both children to him.

The issues were tried in February, 1979, and resulted in an order finding appellant in contempt of court for failure to return the daughter Sha to appellee following the 1978 summer visit, allowing amendment of appellee’s petition to include prayer for recovery of all costs incurred by appellee in seeking and obtaining return of the daughter to appellee, awarding appellee $700.00 arrears in child support, increasing the child support to be paid by appellant from $100.00 per month to $58.00 per week, awarding appellee judgment for $3600.00 for expenditures and income loss by appellee in recovering custody of the minor daughter, requiring appellant to pay appellee’s unpaid attorney fees, the court costs, and remanding appellee to jail until the delinquent child support should be paid and the daughter returned to appellee.

First, appellant argues for reversal there was inconsistency in some of the testimony of the appellee, that her testimony was not substantiated by other evidence, and that appellant met the burden of presenting adequate evidence to show it was for the best interest of the older daughter that her custody be‘awarded to appellant.

We have carefully examined the testimony upon which the appellant bases his first assertion of error and we are unable to say the findings of the chancellor are contrary to a preponderance of the evidence. On appeal from the chancery decree findings of fact made by the court stand unless they are against the preponderance of the evidence, and where the issue is predominately one of credibility between interested parties the chancellor’s judgment will be upheld. Marine Mart, Inc. v. L. D. Pearce, 252 Ark. 601, 480 S.W. 2d 133 (1972).

Appellant argues that the court accepted uncorroborated testimony of the appellee. The rule is the trial court is not required to accept as uncontradicted the testimony of a party to the case. However, this does not mean the trial court must reject uncorroborated testimony. Stovall v. Stovall, 228 Ark. 1077, 312 S.W. 2d 337 (1958).

Appellant contends the trial court abused its discretion in awarding custody of the children to appellee and expenses and costs of the suit against the appellant.

The custody of the children was awarded by the divorce decree to appellee pursuant to the agreement of the parties. In the present proceeding appellant sought to have the original decree modified to change the custody to him. The appellant had the burden of proof to show changes in circumstances warranting change of custody. Taliaferro v. Taliaferro, 252 Ark. 1078, 483 S.W. 2d 189 (1972). There is no evidence in the record showing that the appellee has neglected the children or that she is in any way a less suitable custodian of the children than at the time of the original decree. Appellant argues the original settlement agreement provided each party would pay their respective attorney’s fee. Clearly the trial court did not construe this provision as applicable to this supplemental proceeding initiated as a result of appellant’s violation of the original decree, and we likewise deem the provision limited to the attorney fees incident to the original divorce proceeding. The award of attorney fees in a child custody case is within the sound discretion of the chancellor, and we find no abuse of that discretion. Hydrick v. Hydrick, 224 Ark. 712, 275 S.W. 2d 878 (1955). We also find no error in the court requiring appellant to pay the expenses and losses sustained by appellee as a result of appellant violating the court decree.

Appellant argues the court abused its discretion in refusing to permit the minor daughter Sha, age 12 years and in the 7th grade, to testify as to her preference for parental custodian.

The daughter did testify and expressed dislike for her step father Mr. Klukas, stating he was mean to them and too strict. She testified she liked living with her father and disliked living with her mother. The judge stated he would not listen to conclusions, but counsel could question the witness about specifics, such as bad actions. The court sustained an objection to the following questions of counsel for appellant: “Would you look at the judge and tell him where you wish to live?”, and also to the question, “Now, Sha, do you wish to return to Arizona?” To the last question the witness answered, “No”, before the objection was made and sustained. Appellant made no motion to strike the answer. The evidence showed the appellee had obtained a divorce from Mr. Klukas in the summer of 1978, and as there was no other substantial specific evidence of circumstances unsatisfactory to the daughter in the home of the mother, other than the step father, we do not find prejudicial error in the court’s rulings with respect to the testimony of the daughter. In Moore v. Smith, 255 Ark. 249, 499 S.W. 2d 634 (1973), the court approved the trial court giving consideration to the emphatic testimony of a twelve year old son that he preferred to live with his father. However, the son had given lengthy specific testimony about unsatisfactory conditions in the home of the mother, including a man to whom the mother was not married living in the house with the mother. The court pointed out that the attitude and wishes of the child, although not controlling, are a proper consideration in making an award of custody.

We review the chancellor’s decision de novo on appeal, and in doing so we construe the testimony of the daughter Sha as expressing a preference to live with her father. However, the only specific objection she expressed about the home of her mother related to the step father, and the mother and step father were divorced several months prior to trial.

We find no basis in the evidence for changing custody.

Affirmed.


text:
    Mary B. WALLIN et al v. INSURANCE COMPANY OF NORTH AMERICA and FEDERAL GUARANTY LIFE INSURANCE COMPANY
    CA 79-214
    596 S.W. 2d 716
    Court of Appeals of Arkansas
    Opinion delivered March 19, 1980
    Released for publication April 9, 1980

      Sharpe & Morledge, P.A., for appellants.

      Penix, Penix & Mixon and Butler, Hicky & Hicky, for appellees.
   Ernie E. Wright, Chief Judge.

This is an appeal from a verdict and judgment in favor of each of the appellees, Insurance Company of North America and Federated Guaranty Life Insurance Company, in suits against them by appellants who were the beneficiaries under a separate insurance policy issued by each of the appellants insuring the life of Keith W. Wallin.

The suit against Federated sought recovery of $25,-000.00, the face amount of a life insurance policy, and the suit against INA sought recovery of $50,000.00, the face amount of an accidental death policy.

Separate suits were filed against each appellee and were later consolidated for trial.

The insured was found dead in his motel room in Fort Lauderdale, Florida on the morning of November 15, 1974, by a motel housekeeper. His body was lying across the bed, he was fully clothed and there was a gunshot wound in his left chest. The bullet had passed through the left chest and exited from his back. A revolver containing four live rounds of ammunition and one spent shell was lying in the floor about six or seven feet from the body. The room was in order and showed no evidence of violence other than the results of the single gunshot. The motel door was locked with the lock in the door knob that locks automatically when the door is closed, and the housekeeper gained entrance by use of a key after there was no response to her knock on the door.

. The motel manager, Sheriffs Office and the County Medical Examiner were notified. The motel manager went to the room and viewed the body before the officers arrived.

Both policies contained a suicide exclusion clause and both defendants asserted suicide as a defense. Suicide is the intentional taking of one’s own life. There is a presumption against suicide and this presumption arises even where it is shown by proof that the death was self-inflicted. The death is presumed to have been accidental until the contrary is made to appear. The burden is upon the one interposing the defense of suicide to establish the fact of suicide by a preponderance of the evidence.

Since the INA policy was an accidental death policy the burden was on the appellants to establish that the death was accidental.

The evidence leaves no room for doubt that the insured died as a result of a gunshot wound in his left chest. The crucial decision for the jury was whether the insured died as a result of suicide or whether the death was the result of accident or possibly homicide at the hands of an unknown person. Determination of the ultimate issue was for the jury, and of necessity, the determination had to be made upon circumstantial evidence and competent opinion evidence.

Dr. Geoffrey Mann, a pathologist and Chief Medical Examiner for the 17th Judicial District of Florida, which includes Fort Lauderdale, investigated the death in the discharge of his official duties. A test was performed for blood alcohol content and it showed an alcohol content of 0.17 per cent. In Dr. Mann’s opinion the deceased was intoxicated at the time of his death. He testified the deceased was lying diagonally across the bed, there was a gunshot wound in the left chest, the bullet had passed through the body and exited in the back, the bullet had gone through the wall after passing through deceased’s body and was found in the bathtub where it had dropped after passing through the wall, that it was obvious the deceased had been sitting on the bed when he fired the shot and the gun had been held tightly against his chest. There were extensive powder burns and the chest wound was jagged and burned, it was obviously a contact shot. There was no sign of any disturbance in the room. It was his conclusion the subject died as a result of a self-inflicted gunshot wound in the left chest, and that the bullet had gone through the heart.

There was testimony by Dr. John Bimmerle, a psychiatrist on the staff of Coral Ridge Psychiatric Hospital who treated the deceased while he was hospitalized there from November 2, 1974, to November 14, 1974. He testified the deceased showed a depressive and anxiety state. The patient was treated with medications to relieve depression and anxiety. He improved and was discharged November 14, 1974, to continue as an out patient with Henderson Clinic. He was given a pass some three days prior to discharge and resumed his work. His history showed a denial of sucidal ideation or any attempts at suicide. He was satisfied Mr. Wallin wanted to live when he discharged him from the hospital. He did not have a psychotic depressive reaction. He was not in a severe depressive state when he came into the hospital and he was improved at the time of discharge.

Wendell Wallin, father of the deceased, and one of the appellants, testified the deceased never talked about suicide, and that he “loved living about as well as anybody I knew.”

Mary Wallin, mother of the deceased, and a plaintiff in the suit against each of appellees, testified Keith was age 26 at the time of his death, that he had gone to Florida in July, 1974, that she and her husband talked to him by telephone every two or three days. Her husband was fixing up a Cadillac for him that he was to pick up when he came home for Christmas. At the time of this death he had $94.00 in a bank in Fort Lauderdale, several hundred dollars in the Cross County Bank, and $2000.00 or $3000.00 in the Wynne Federal Savings & Loan Association. He had two pay checks for over $100.00 each at his place of work he had not picked up. He “loved life more than anybody I had ever known.”

Giles Charette, a deputy sheriff who investigated the death, testified. Incident to his testimony his written report of the investigation was read in evidence. The following portions of the report were received in evidence over the objections of appellants that the statements were incompetent as hearsay:

. . . Mr. Brawner stated that his nephew had been treated for mental disorder for the past three or four years and had been admitted in several hospitals in regard to that situation, and also had an extremely long past of DWI type accidents and. reckless driving.
. . . The driver of the vehicle, above victim, was charged and cited by Trooper Peterson for driving while intoxicated and careless driving. The victim was then booked at the Broward County Sheriffs Jail by Trooper Peterson on the above charges.
. . . This writer talked to the maid who stated that approximately 10:30 a.m. on the date in question, 15th of November, 1974, she was contacted by the desk clerk Orrin Silverstein who told her that he was in contact with the victim’s supervisor Richard Ricones and Ricones advised him that he tried to make contact with the victim by phoning the victim’s room and was unable to reach him, so he asked the desk clerk if he would send one of the maids or someone to the room to see if he could make physical contact with the subject because the victim had been very depressed in the past and everything else, and he was afraid that something could have happened to him.
. . . Further investigation at the scene, after talking to the supervisor of the victim, indicated that the victim had been released from Coral Ridge Hospital on the 14th of November, 1974, and had been there under psychiatric help.
. . . This writer contacted the Coral Ridge Hospital where it was verified that the victim was admitted into the hospital on the 1st of November, 1974, same day as the accident, and was being treated for mental disorders, and that the victim was being released on the morning of the 14th of November, 1974.

The court overruled the objection and held the above statements from the report were admissible as an exception to the hearsay rule on the ground the report was a business record and admissible under Rule 803(6) of the Uniform Rules of Evidence.

Appellants assert as a ground for reversal that the court erred in admitting this evidence and point out that subdivision (8) of Rule 803 specifically provides for the admissibility of public records and reports as an exception to the hearsay rule, but specifically provides that, “Investigative reports by police and other law enforcement personnel”, are not within this exception to the hearsay rule.

It was a fact question for the jury to determine whether the insured died as a result of suicide. The burden of proof was upon the defendants to prove that death was a result of suicide.

We hold the ruling of the court in receiving in evidence the above quoted portions of the report of Officer Charette over the objections of appellants was error requiring reversal. The challenged excerpts of the report are clearly hearsay and the report is not admissible as a business record under Rule 803(6) of the Uniform Rules of Evidence. Subsection (6) of the rule does not mention a public office under the definition of “business”, and Rule 803(8) deals specifically with the admissibility of public records and reports, and specifically excludes the admissibility of investigative reports by the police and law enforcement personnel.

Appellees argue that even if it should be determined that the evidence was erroneously admitted, it was merely cumulative and harmless error not requiring reversal. We do not agree. The hearsay statement in the report attributed to Mr. Brawner was substantially stronger against the plaintiff's case than other evidence in the record concerning prior hospitalizations for mental disorders and past history of DWI type accidents and reckless driving. The error in admitting this incompetent evidence was compounded by permitting the hearsay statement by Mr. Brawner to be singled out and separately reread to the jury.

The appellants assert error in the admission of certain testimony by Mr. Berwig, the motel manager. The deposition of Mr. Berwig was read in evidence including the statement, “I remember that the time I walked into the room I had the impression that he had committed suicide.” The appellants specifically objected to the admission of the “impression” which was received over objections and without reasons given by the witness for the impression. We hold the ruling of the court was error and prejudicial when the witness did not give the reasons for the opinion.

While unquestionably there was ample competent evidence in the record to sustain the verdict of the jury, we could only speculate or surmise as to whether the incompetent evidence influenced the jury in finding for the appellees. Under such circumstances we cannot say the ultimate result was not affected and that there was no prejudice to appellants. The rule is that error in the trial is presumed to be prejudicial unless the court on appeal can say with assurance the error is harmless. International Harvester Corp. v. Hardin, 264 Ark. 717, 574 S.W. 2d 260 (1978). Arkansas State Highway Comm. v. Fougerousse et ux, 248 Ark. 310, 451 S.W. 2d 459 (1970). Arkansas State Highway Comm. v. Roberts, 246 Ark. 1216, 441 S.W. 2d 808. State National Bank of Texarkana v. Birmingham, 166 Ark. 446, 266 S.W. 76 (1924). St. Louis, Iron Mountain & Southern Railway Company v. Williams, 108 Ark. 387, 158 S.W. 494 (1913).

As to appellants’ asserted error in the ruling of the court admitting the Social Service History of the deceased incident to his admission to Coral Ridge Psychiatric Hospital, we hold the report was adequately identified by the associate medical director of the hospital as being a part of the hospital record made for the purpose of medical diagnosis and treatment, and is admissible under Rule 803(4) and 803(6).

Reversed and remanded.

Penix, J., not participating.


text:
    Thomas H. PATTERSON v. Charles L. DANIELS, Director of Labor and REYNOLDS ALUMINUM
    CA 79-380
    596 S.W. 2d 355
    Court of Appeals of Arkansas
    Opinion delivered March 19, 1980
    Released for publication April 9, 1980
    Appellant, pro se.

      Herrn Northcutt, for appellees.
   Ernie E. Wright, Chief Judge.

The claimant appeals from a decision of the Arkansas Board of Review upholding the Appeal Tribunal in denying unemployment benefits on the ground claimant was discharged from his last employment for misconduct connected with his work. •

The claimant was last employed by Reynolds Aluminum and was discharged September 6, 1979, for what the company classified as insubordination. He was employed in March, 1978, as a general laborer to work in any area of the plant as necessary. He had been working a shift that started at 8:00 a.m. since February 17, 1979. He was instructed to come to work on September 6, 1979, at 7:00 a.m. instead of 8:00 a.m. He indicated he would not report for work at the earlier hour. He did not report to work until 8:00 a.m. and was fired.

The agency determined the claimant to be ineligible for benefits because of misconduct connected with the work. The Appeals Referee upheld the agency determination and the Board of Review affirmed.

Section 5(b)(1) of the Arkansas Employment Security Law provides that an employee who is discharged for misconduct in connection with the work should be disqualified for unemployment benefits for eight weeks.

In applying for unemployment benefits the claimant signed a statement that he was discharged because he refused to work a rotating shift and that his doctor had advised him to work first shift. The statement also admits that according to his union contract procedures he should have accepted the change and then filed a grievance. He did not accept the change, and reported for work on his prior schedule at 8:00 a.m. The claimant was then discharged. He was previously warned he would be fired if he did not report at 7:00 a.m. as directed.

The claimant would have been working in a different department and from 7:00 a.m. to 3:00 p.m., rather than from 8:00 a.m. to 4:00 p.m. He had worked in the department before and was qualified to do the work.

In his appeal from the agency determination the claimant stated that under the union contract he had certain seniority rights which permitted him to turn down the job change. Mr. Demarco, an official of the employer, testified before the Appeals Referee that the claimant was classified as a laborer and that laborers do not have a contractual right to refuse a particular shift.

At the hearing the claimant requested a postponement because his union representative was not present. He did not state which arrangements he had made, if any, for the union representative to be present, and the hearing date had previously been changed at the request of the claimant. The referee declined to grant a postponement. In his petition for appeal to the Board of Review he sought a new hearing because of his union steward not being present at the hearing.

The claimant failed to show diligence in arranging to have his union steward at the hearing, and we find no error in the failure of the Board of Review to order a new hearing.

On appeal the law is well settled that the decision of the Board of Review must be affirmed if it is supported by substantial evidence. Clearly there is substantial evidence to support the decision that the claimant was discharged for misconduct in refusing to report to work as directed.


author: M. Steele Hays, Judge.

text:
    Gilbert HART and Mary HART v. MFA INSURANCE COMPANY
    CA 79-11
    597 S.W. 2d 105
    Court of Appeals of Arkansas
    Opinion delivered March 19, 1980
    Released for publication April 23, 1980

      Ponder & Jarboe, for appellants.

      Barrett, Wheatley, Smith & Deacon, by: Stephen M. Reasoner, for appellee.
   M. Steele Hays, Judge.

This case presents a question of insurance coverage in connection with a fire loss. On July 11, 1975 MFA Insurance Co. issued a policy of fire insurance covering the home and contents of Gilbert and Mary Hart. The policy provided coverage of $8,000.00 on the dwelling and $4,000.00 on the contents for a period of three years. The total premium was $300.00 and was payable in semi-annual installments of $50.00 each. One installment, apparently the fifth, became due on July 11, 1977, and a premium statement was mailed to the Harts by MFA approximately twenty days earlier and received by them ten days prior to July 11. On the reverse side of the notice the following sentence was printed:

1. FIRE, HOMEOWNERS AND INLAND MARINE POLICIES UNDER DPP PLAN
“If the premium due is an installment under Deferred Premium Payment Plan, and payment is not received by due date, notice is hereby given that such policy is cancelled on due date.”

The premium was not paid on or before the due date and six days thereafter, on July 17, the Hart dwelling and contents were heavily damaged by fire. The damage to the dwelling was stipulated to be $7,606.29 and to the contents, $4,-000.00. MFA refused the claim, contending that the policy lapsed on July 11, for non-payment of the premium due on that date. The Harts contend, rather, that under the terms of the policy they were entitled to ten days notice of cancellation and, therefore, the insurance was still in force. The cause was submitted to the trial court sitting as a jury and judgment was rendered for the company.

The Harts argue three points for reversal: that the trial court erred in ruling that MFA was not required to give ten days notice of cancellation after the Harts failed to pay the premium; that the Court erred in ruling that the cancellation notice was conspicuous; and that the Court erred in ruling that the notice of cancellation was not a conditional notice.

We need not consider whether the notice in the premium statement was sufficiently conspicuous or whether it was unconditional, as we find the clear import of the language in the policy gave the Harts the right to assume that a notice of cancellation for failure to pay the premium when due was required. Indeed, that is precisely what the policy states. The appropriate section reads as follows:

1. CANCELLATION FOR NON PAYMENT OF PREMIUM.
“This policy may be cancelled by this company at any time during the policy period for failure to pay any premium when due whether such premium is payable directly or indirectly under any premium finance plan or extension of credit by mailing or delivering to the insured written notice stating when not less than ten days thereafter such cancellation shall be effective.” (emphasis supplied)

MFA argues that the notice by cancellation need not wait until the premium is past due and unpaid, but may be sent at any time during the policy period. Thus, appellee argues the notice sent out approximately twenty days before July 11 notifying the Harts that the premium was due operated as the cancellation notice in the event the insured failed to send in the premium by the due date. But we cannot arrive at the same interpretation MFA does of this provision, because if we gave literal effect to the language, as MFA urges us to do, it would mean that the company could issue a policy under a deferred payment plan, as here, and immediately send out a notice that if any subsequent installment of premium was not paid on the due date the insurance would be cancelled on the date the premium was due. Of course, there is nothing improper about such a procedure provided it does not circumvent a provision in the policy which gives the policy holder the right to assume that he will receive a notice of cancellation after he has failed to pay one of the premiums on the due date. That is exactly what we believe occurred in the instant case. The Harts believed, and so testified, that if the July 11 premium was not paid promptly then the policy was not automatically cancelled on the 11th, but was subject to cancellation if the company so elected. We think that assumption was not inconsistent with the clear inference of the provision.

While we are required under settled law to give a reasonable interpretation to the clear meaning of words used in a policy, we are not required to do so when such interpretation leads to an improbable end, as would the literal interpretation urged by MFA.

Appellee’s interpretation is founded on the words “at any time during the policy period”, and if these words were eliminated from the sentence, it is clear that MFA’s interpretation would not be possible, as the pertinent provision would then read:

This policy may be cancelled by this company . . . for failure to pay any premium when due... by mailing ... to the insured written notice stating when not less than 10 days thereafter such cancellation should be effective.

Thus, appellee interprets the words “at any time during the policy period” as relating to notice, that is to say that the words are intended to relate to or modify, when notice may be sent out, i.e., at any time during the policy period. As we have said, if this were so, then the company in 1975 (or at any time) could send a notice that if the premium due on December 11, 1978, nearly three years later, were not paid on the due date, the policy was immediately cancelled. We are unwilling to reach so contrived a conclusion. What we do conclude seems far more plausible and that is that the words “at any time during the policy period” are intended to differentiate between cancellation because of failure to pay premiums and cancellation upon other grounds. When the section of the policy in which the above quoted provision appears is examined in full (it is too lengthy to be set out herein), it readily appears that there are 3, perhaps 4, separate conditions under which the company reserves the right to cancel, which vary depending on the grounds for cancellation and on the length of time the policy has been in force. Thus, under paragraph 2, if the policy has been in force for 60 days or more, the company reserves the right of cancellation for the reasons listed therein, by giving thirty days notice. Similarly, paragraph 3 deals with cancellation procedures in cases where the policy is for a term of more than one year. Thus, the right of cancellation and the method of cancellation vary depending upon the ground on which cancellation is based and whether the policy has been force a certain period of time. The right of cancellation which is derived from failure to pay any premium installment is reserved to the company at any time during the policy period and we think it clear that it was to distinguish between cancellation for failure to pay premiums and cancellation for other reasons, that the words “at any time during the policy period” appear. The words, we hold, are intended to modify cancellation and not notice.

Appellee relies upon cases cited in Appleman, Law of Insurance, § 4185, Vol. 6-A, p. 543, for the following statement of the law with respect to notice:

“A notice stating that if a premium was not paid by a certain time, the policy would stand cancelled without further notice, was deemed to be a proper notice and not a mere expression of an intention to cancel at a future date.”

We have no quarrel with the quoted section as representing the law, generally, in this area, but the notice referred to, at least in the context of cases footnoted, Russell v. Starr, 65 N.M. 49, 239 P. 2d 735 (1952); Johnson v. Nationwide Mutual Insurance Company, 276 F. 2d 574 (1960); Lievers v. National Insurance Underwriters, 257 Minn. 268, 101 N.W. 2d 817 (1960) and Ralston v. Royal Insurance Company, 79 Wash. 557, 140 P. 552 (1914), are not in point, as they deal with different factual situations and therefore are not controlling of the issue before us. So far as we can determine from the opinions in the cases cited, in every instance the notice of cancellation was sent out after the premium was due and unpaid, rather than before. This distinction is telling.

In Russell, the language of the policy provision is not revealed (the court noted that “the policies are not before us”) and the issue was whether a cancellation notice which purported to shorten the amount of notice stated in the policy was void altogether, or simply operated to conform to the policy. In other words, Russell holds that where the policy provided for five days notice, and the notice given provided only four days, the insured actually has the full five days before coverage lapses. That, of course, is not the issue before us. In the Johnson case, the premium was due on August 10 and on July 20 the insurer sent a premium statement. Payment was not received and on August 15, a cancellation notice was sent by registered mail informing the insured that at 12:01 A.M. 17 days thereafter his coverage would be cancelled. As in Russell, the notice was sent after the premium due date.

Similarly, in Ralston and Lievers, the disputed notice of cancellation was sent after the failure to pay the premium, so these cases are not authority for the issue before us.

Appellant relies on Priest v. Banker’s Life Association, 161 Pac. 631, which appellee argues is not persuasive because it turns on the interpretation of a Kansas statute. Whether the Priest opinion is distinguishable because a statutory requirement of notice was involved need not be examined in depth, for the case at least has some application and the rationale behind the decision is pertinent to the case at bar. The statute required notice by fraternal benefit insurance companies of cancellation for non-payment of any premium “due and unpaid”. The premium was not due until July 1 and a notice was sent to the insured on June 23 which, the company contended, constituted notice of cancellation. The argument was rejected and the court used reasoning not inappropriate to the issue before us:

“. . . the notice required is not notice of a contingent intention to forfeit which may possibly be entertained in the future. It is notice of an actual intention to forfeit because premium has not been paid. Such an intention cannot exist until cause for forfeiture arises. Causes for forfeiture cannot arise during the time within which payment may rightfully be made. That time must expire and the premium be unpaid.”

It makes no great difference that the provision is statutory on the one hand (the Priest case), and contractual on the other, Hart v. MFA, the logic is interchangeable.

Appellee next urges that this interpretation of the policy would result in the “strange situation” that an insurance company would always have to give an insured at least ten days free insurance. Whether that result is strange need not be debated, because it is enough to say that if ten days of free insurance does result, as it well could, it is because the policy is so drafted — and drafted by the company. There is no rule of statute or regulation of which we are aware that requires the insurer fo include such a provision as here presented. The company chose to include the provision and we are persuaded that the customary and ordinary usages of the words in this provision reasonably conveys to the policy holder that if he fails to pay an installment of his premium the company may (not shall) elect to cancel the policy by giving him ten days notice. We emphasize the word “may” used in the policy because we believe it further reinforces the impression by the policy holder that a failure to pay the premium on or before the due date does not automatically result in cancellation, but merely gives rise to the possibility. The word “shall” would have been a much clearer message to the policy holder.

It is a cardinal rule of insurance law that words used in the policy are to be taken and understood in their plain, ordinary and usual sense. 44 CJS § 294. The rule has been stated and restated many times in Arkansas State Farm Mutual Insurance Co. v. Belshe, 195 Ark. 460. Daugherty v. General American Life Insurance Co., 190 Ark. 245.

Furthermore it is to be construed liberally in favor of the insured. National Life & Accident Insurance Co. v. Whitfield, 186 Ark. 198, and any doubts resolved in favor of the insured. Southern Surety Co. v. Penzel, 164 Ark. 365. State Farm Mutual Insurance Co. v. Baker, 239 Ark. 298.

Moreover, under the equally settled view that cancellation provisions must be strictly complied with (Merrimack Mutual Fire Insurance Co. v. Scott, 219 Ark. 159), we find that the policy as drafted required that the company, if it elected to cancel for failure by the Harts to pay the July 11, 1977, installment, was obligated to notify in accordance with the language expressed.

Reversed and remanded with instructions to enter judgment consistent with this opinion, including penalty and a reasonable attorney’s fee pursuant to statute. In view of the brevity of the record a fee of $750.00 is awarded for the services of appellants’ attorney in this court.


author: James H. Pilkinton, Judge.

text:
    Gerald Dale PIERCE v. Margie PIERCE (ORTNER)
    CA 79-25
    596 S.W. 2d 364
    Court of Appeals of Arkansas
    Opinion delivered March 19, 1980
    Released for publication April 9, 1980

      Thurman Ragar, Jr., for appellant.
    No brief for appellee.
   James H. Pilkinton, Judge.

This is an appeal from a denial of a petition for reduction of child support payments.

A divorce decree was entered on March 30, 1971, by the Chancery Court in which appellant was ordered to pay $25.00 per week toward the support of his minor child who was then six years of age. Appellant fell behind in his payments. A hearing was held and by an order dated September 16, 1976, appellant was found to be in arrears in the amount of $420.00; and he was also adjudged to be in contempt of court. The punishment for contempt by incarceration was withheld conditionally upon Mr. Pierce complying with the orders by paying the regular $25.00 weekly payments as they came due, and by paying an additional sum of $3.00 per week on the arrearage until the past-due child support was paid in full. He is still paying under this arrangement, including the extra $3.00 per week on the arrearage which hás not been liquidated. By this present action appellant seeks to have his payments being made toward the support of his child, who is now fourteen years of age, reduced from $25.00 per week to $10.00 weekly. Appellant has alleged and attempted to prove certain changes in circumstances since 1971 when the divorce decree was entered.

After a hearing, the Chancellor denied the petition to modify holding that appellant had failed to show such a change in circumstances that would justify a reduction of the amount presently being paid toward the support of the minor child. From that order comes this appeal.

It is clear that the $25.00 which appellant-father now contributes is not sufficient in itself to feed, clothe and otherwise support this child. The appellee-mother also works and of necessity supplies whatever other funds are needed to fully support the child. The record shows that appellant is self-employed. Mr. Pierce and his father established a business known as Pierce and Son Construction, which was apparently a partnership. However, the father has since retired from the business and the enterprise is now operated by appellant as his own. Appellant owns a dump truck and hauls dirt and gravel as a private contractor. He also works part-time as a carpenter. His testimony shows, however, that he prefers to do carpenter work only when he cannot haul soil, gravel or other material. Claiming reduced income, appellant introduced a copy of his 1978 federal tax return showing an income, for tax purposes, of only $2,892.12 for that year. He owns two front-end loaders and a dump truck. The partnership, although inactive, owns other equipment which is available to him. Appellant also builds and repairs driveways, furnishes fill dirt for yards, and does some landscaping. The record shows that he is thirty-three years of age.

Appellant admitted on cross-examination that he took in $15,001.61 in 1978, and admitted including in his deductions for tax purposes an item of $4,930.61 for depreciation on equipment. It is clear from this and other evidence in the record that the tax return alone is not an accurate indicator of his available expendable income for 1978.

It is admitted by all that the Chancery Court has the unquestioned power to alter the allowance of child support at any time, being governed by the circumstances of the particular case. A decree for maintenance and support is always subject to modification by application of either party upon a showing of change of circumstances. Perry v. Perry, 229 Ark. 202, 313 S.W. 2d 851 (1958); Barnes v. Barnes, 246 Ark. 624, 439 S.W. 2d 37 (1969); Ark. Stat. Ann. § 34-1213 (Supp. 1979).

After a careful review of the record on trial de novo, we conclude that the circumstances of this particular case do not warrant a reduction in the amount of child support now being paid by the fathér as a contribution toward the support of the child. In reaching this conclusion we have not overlooked the fact that appellant has remarried and that his income must be divided between the support of his present family and this child by a former marriage. It is only realistic that remarriages happen and such an occurrence is a circumstance to be considered in determining a change in circumstances. McCutcheon v. McCutcheon, 226 Ark. 276, 289 S.W. 2d 521 (1956). In the case before us, the evidence shows that Mr. Pierce is capable of earning money at other activities in which he is skilled when the bad weather prevents his usual activities with his trucks. He admits that he is not physically disabled from work and says that he is able to make as much money as he did two years ago if he can get the work. Appellant testified that he had seven or eight jobs waiting on him at the time of trial. The only uncertainty which he mentioned in connection with them was the weather. He continually emphasized in his testimony that “If I was to get sick or something I am not sure I could get the work done.” As stated above, he was not sick or physically disabled at the time of the hearing and, if that should occur, the matter could be reviewed upon the then-existing circumstances.

The evidence shows that Mr. Pierce belongs to a hunting club, and he goes hunting several times a year. He also spends some time fishing. The record indicates that Mr. Pierce and his present wife do not maintain separate business and personal bank accounts. Mrs. Lois Pierce, the appellant’s wife, testified that they do not have a personal bank account but use the business account to pay for all of the family expenditures. As the Chancellor pointed out, the cost of living today is substantially higher than in 1971. Appellant has been in the same type of business since the date of the decree. The Chancellor noted that Mr. Pierce had elected to follow a business that he likes and plans to stay with although it is seasonal and is affected by weather. It is clearly shown that appellant can earn additional income as a carpenter in bad weather, or when his trucks are not running, if he desires to work seriously at that endeavor. The Chancellor pointed out that the amount of child support had not been increased since 1971, even though the needs of this child have increased, and the value of the dollar has declined in purchase power. The Chancellor held that after considering all factors he could not in good conscience reduce the amount of child support now being paid by Mr. Pierce; and that appellant must remain bound by the amount set out in the decree of Márch 30, 1971, and as amended pertaining to arrearage by the order dated September 16, 1976. The state of the record being thus, we cannot escape the conclusion that the order of the trial court was correct.

Affirmed.


text:
    John A. DeCLERK and Wilma J. DeCLERK v. Darrell E. JOHNSON and Norma Sue JOHNSON
    CA 79-200
    596 S.W. 2d 359
    Court of Appeals of Arkansas
    Opinion delivered March 19, 1980
    Released for Publication April 9, 1980

      Wilson & Grider, by: Murrey L. Grider, for appellants.

      King & King, by: Jim King, for appellees.
   James H. Pilkinton, Judge.

Appellants and appellees own contiguous tracts of property situated in Randolph County, Arkansas. This case is a boundary line dispute between them. Involved also is whether or not there was a prescriptive easement across a portion of the real property claimed by appellees in the event the court should determine that the appellants were not the owners of the property across which they claim access to their land.

The Chancery Court found that the appellees had record title to the real property in question; and that the appellants had failed to show that they had acquired and now owned a part of appellees’ land by acquiescence, adverse possession or by an agreement as to boundary lines. The court further found that the appellants had failed to establish an easement by prescription. The decree was for the appellees on all issues submitted, and appellants have appealed.

I

Appellants first argue that the court erred in finding that appellants did not own the real property in dispute by adverse possession. It is well settled that adverse possession will ripen into ownership only if such possession is actual, open, notorious, continuous, hostile and exclusive. The possession must be in derogation of the rights of the record owner. Appellants had the burden of establishing that they had adversely possessed the lands to which the appellees clearly held record title. Ark. Stat. Ann. § 37-101 (Repl. 1962). Utley v. Ruff, 255 Ark. 824, 502 S.W. 2d 629 (1973).

The quantum of proof necessary for a trespasser to establish title to land by adverse possession is greater where he has no color of title. When one is claiming without color of title, as in the case before us, the trespassing claimant must show pedal or actual possession to the extent of the claimed boundaries for the required seven years. Hill v. Surratt, 240 Ark. 122, 398 S.W. 2d 225 (1966). In the case at bar, the record title of neither appellants nor appellees is questioned. An inspection of the conveyance to appellants, and of the conveyance to appellees, shows that they correctly describe each adjoining tract. There are no overlaps or discrepancies in the described boundary lines. It is clear that appellants’ deed does not describe any of the lands of appellees. There is no proof that appellants have color title in any manner. There is also no evidence in the record to show that appellants have adversely possessed a specific portion of appellees’ real property. The learned Chancellor was correct in his finding that appellants did not adversely possess, within the meaning of the law, any of the property to which the appellees held record title.

II

The Chancellor was also correct in finding that there was no agreed boundary line between appellants and appellees different from the true survey line. Both sides seem to rely on the case of Jones v. Seward, 265 Ark. 225, 578 S.W. 2d 16 (1979). In the Jones case the Arkansas Supreme Court said:

In order for there to be a valid boundary line agreement, certain factors must be present: (1) there must be an uncertainty or dispute about the boundary line; (2) the agreement must be between the adjoining land owners; (3) the line fixed by the agreement must be definite and certain; (4) there must be possession following the agreement.

In the case before us, while the boundary line had not been physically located by the parties, the record discloses that the boundary line in question could be located. It simply had not previously been fixed upon the ground. Even the testimony of the appellant, John DeClerk, is devoid of any indication of an agreed boundary. Rex Tyler, appellees’ predecessor in title, testified specifically that no agreement was ever entered into as to this boundary line. Only one witness, Hershel Wicker, an employee of appellant John DeClerk, testified that there was an agreement of any kind. He said that there was an understanding as to the approximate location of the line, and that this agreement had been made between appellant John DeClerk and Rex Tyler. As indicated, Mr. Tyler specifically denied that there was any understanding or agreement. Mr. Wicker’s testimony is not supported by the testimony of appellant John DeClerk and is disputed by Rex Tyler. In any event, when carefully considered, Mr. Wicker’s testimony does not indicate a definite and certain line, but at most deals with an approximate point at the southwest corner of appellants’ land. Also there is no proof that appellants possessed the property claimed. The evidence does not, with any certainty, establish the alleged southwest corner of appellants’ land, much less the entire western line.

111

Appellants also argue that the Chancellor was incorrect in finding that the appellants had not established a right to a prescriptive easement across appellees’ real property. In advancing this argument, appellants failed to take into consideration that the continuous use must be adverse to the party against whom the easement is claimed and not permissive in nature. Wilson v. Brandenburg, 252 Ark. 921, 481 S.W. 2d 715 (1972). There is no evidence here that there was any adverse use of appellees’ land for a period of years. The testimony of William Michael Jones indicated that, while a tenant in appellants’ building, he may have crossed appellees’ lands for a period of about six months prior to June or July, 1977. Harold Armstrong testified he entered the building of appellants on the west side thereof while a tenant from May of 1977 until February or March of 1978. Mr. Armstrong said that he . was not aware of where the boundary line was located, and that he asked Rex Tyler, appellees’ predecessor in title, for permission to cross Mr. Tyler’s land. Even appellant, John DeClerk, testified that he requested permission from Mr. Tyler to modify the curbing. Mr. Tyler testified that he leased appellants’ property until February, 1975, and that he purchased the property now owned by appellees in June of 1970. There is no substantial evidence of adverse use of appellees’ land by appellants. We find no merit in appellants’ argument that the proof offered by them was sufficient to establish an easement by prescription.

IV

The correctness of the survey made by Bernard DeClerk is supported by the evidence. This survey correctly shows the lands of appellants as described in the deed by which they took title; and also correctly describes and shows the lands of appellees according to their deed. The Chancellor properly found and established the true and correct boundary line between the real property of the parties. See Sun Ray DX Oil Company v. Mahaffey and Associates, 251 Ark. 632, 474 S.W. 2d 119 (1971). It is well established that the findings of fact of the Chancellor will not be reversed unless they are against the preponderance of the evidence, even though the case is heard de novo on appeal. Gibson v. Heiman, 261 Ark. 236, 547 S.W. 2d 111 (1977). In the case before us, the findings of the Chancery Court are not against the preponderance of the evidence, but are, in fact, fully supported by the proof and are correct on this record.

Affirmed.


author: Marian F. Penix, Judge.

text:
    Janice Ann GIDEON v. Eugene Chester GIDEON
    CA 79-212
    596 S.W.2d 367
    Court of Appeals of Arkansas
    Opinion delivered March 19, 1980
    Released for publication April 9, 1980

      Lanny K. Solloway, P.A., for appellant.

      Richard N. Moore, Jr., of Dodds, Kidd & Ryan, for appellee.
   Marian F. Penix, Judge.

In December, 1976, the parties were involved in an altercation which led to the appellant’s (Janice) leaving the state with their two minor children. She took the 8 year old daughter and 3 year old son to Florida. On January 7, 1977 the appellee (Eugene) sued for divorce. A warning order was issued and an attorney ad litem appointed. The attorney ad litem enclosed a certified receipt for his letter, which was signed by Janice Gideon upon a receipt of the complaint. A Florida detective also slipped a complaint under Janice’s door at Janice’s request; she would not open the door for him. Janice gave the complaint and summons to her Florida counsel. A hearing was held May 3, 1977 at which time Eugene was granted a divorce, the full proceeds of a savings account held jointly by the parties, and custody of the children. The Court also reduced the homestead to a tenancy-in-common. Janice did not respond to the complaint nor the summons, nor did she appear at the hearing. No appeal was taken from this decree.

In July, 1977, Janice filed a petition for divorce in Florida. On December 7, 1977, an order was entered by the Florida Court making the Arkansas decree of May 3, 1977, a judgment of the Court, and ordering Janice to surrender the children to Eugene. Both parties were present. No appeal was taken.

On March 3, 1978, Janice petitioned to vacate the May 3 decree. Two days of evidence were heard on December 6 and December 29, 1978. The Court found no showing of fraud, alleged by Janice, which would justify vacating, modifying or setting aside the May 3 decree. The Court found Janice had received personal service on the original complaint and summons and had failed to timely respond. The Court also found the awarding of the proceeds of the joint savings account to Eugene to be protected by the principle of res judicata. The Court allowed the custody of the children to remain with Eugene with restricted visitation allowed Janice. Janice appeals and alleges error in the Court’s finding that res judicata was a bar for change of custody, and for vacating or modifying the decree. She also alleged error in the Court’s failure to award her statutory interest in the parties’ joint savings account. Janice contends the visitation is unreasonable and unconscionable.

Janice relies upon Keneipp v. Phillips, 210 Ark. 264, 196 S.W. 2d 220 (1946) which provides:

A judgment of a Court of one State awarding the custody of minor children in a divorce proceedings is not res judicata in a proceeding before a Court of another State, except as to facts and conditions before the Court on the rendition of the foreign decree. As to facts and conditions arising subsequently thereto, it has no controlling force, and the Courts of other States are not bound thereby.

Keneipp finds a prior judgment of a Court of one state is res judicata as to facts and conditions before the Court on the rendition of the foreign decree. Keneipp finds any additional facts and conditions which might arise after the rendition of the foreign decree have no controlling force on the Courts of other states.

In the instant case there were no subsequent facts or conditions shown. On December 7, 1977 there were two final orders of two separate courts, one in the state of Arkansas and one in the state of Florida, from which no appeal was ever taken.

From the record it appears Janice was constructively served. Whether the Arkansas trial court correctly found Janice had received personal service is an issue we need not address. Any defects in this service were cured by her appearance in the Florida court. It appears from the record she did not take the advice of her Florida counsel when he told her she must respond to the Arkansas divorce action. She chose to ignore the Arkansas proceeding. When the Florida court gave full faith and credit to the Arkansas decree she did not appeal.

The Court cited Aldrich v. Aldrich, 378 U.S. 540 (1964). This case held that when an erroneous judgment becomes final, it is conclusive, as any other, and is protected by the common law principle of res judicata. The Court acknowledged it may have been mistaken in awarding the proceeds of the joint savings account to Eugene in their entirety, but indicated such an error of law, if any, could have been discovered had Janice participated in the original hearing, or if she had brought timely appeals.

Janice did not apply for a new trial within 15 days. She relies upon Ark. Stat. Ann. § 29-506 which allows vacating or modifying a judgment by the trial court after the expiration of the term of court if certain grounds are proved. Janice alleges fraud in obtaining the judgment. We find no evidence of fraud from the record. Janice acknowledged she was personally served in Florida, that she did retain a lawyer in Florida who in turn talked to W. J. Walker, an Arkansas lawyer.

Where one has notice of the pendency of an action for divorce and fails to appear and defend, a motion to vacate the decree, will be denied where there is negligence or a lack of diligence shown. McCormick v. McCormick, 246 Ark. 348, 438 S.W. 2d 23 (1969); Sariego v. Sariego, 231 Ark. 35, 328 S.W. 2d 136 (1959).

The original decree of May 3, 1977 became a final judgment. It was not appealed to the Arkansas Supreme Court even though Janice had actual notice of the action more than 3 months prior to the time of the decree. The issues and orders of the decree cannot now be collaterally attacked. See Taylor v. Taylor, 153 Ark. 206, 240 S.W. 6 (1922).

Janice alleges the visitation with the children allowed her is unreasonable and unconscionable. The Court opined there is still an obvious threat Janice may attempt to take the children to another jurisdiction. Because of this threat he found the visitation between Janice and the children should be in the company of a neutral third party. The time and manner in which Janice is afforded visitation with her children is a matter better solved by the Chancellor.

Two long days of hearing evidence placed the Court in a position to judge the credibility of all the witnesses, to assess the weight to be given to each witness and to make a finding as to what the visitation rights of Janice should be. The Court made this determination after carefully reviewing all the evidence. This appellate court finds no evidence which would cause us to modify the visitation rights from those awarded by the lower court.

Affirmed.


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    Karen BERCHER v. David G. BERCHER
    CA 79-220
    596 S.W. 2d 369
    Court of Appeals of Arkansas
    Opinion delivered March 19, 1980
    Released for publication April 9, 1980

      Janet B. Dyer, Western Arkansas Legal Services, for appellant.

      Wiggins, Christian & Garner, for appellee.
   George Howard, Jr., Judge.

Appellant was granted an absolute divorce from appellee on May 3, 1977. The decree incorporated a property settlement between the parties which provided that appellant shall have possession of the homeplace — the property was owned as an estate by the entirety and was subject to a mortgage which appellant was required to assume — as long as she used the homeplace as a residence, or until the parties’ minor child reached her eighteenth birthday; upon the occurrence of either event, the property was to be sold and the proceeds divided equally between the parties.

During 1977, appellant was laid off from her job and missed three house notes.

Appellant testified that appellee encouraged her to execute a quitclaim deed to him conveying her interest, in the homeplace, in return for appellee’s agreement to make the payments current. Appellant stated that she felt this was necessary in order to avoid being “kicked out in the streets;” that she felt by executing the deed “this would guarantee that I would stay in the house;” that she wanted to check with her attorney before signing the document, but appellee said “I didn’t have time for that;” that after she executed the deed, appellee tried to sell the house, but she advised all prospective purchasers that the property was not for sale. Appellant concedes that she was not making the house payments as directed by the trial court’s decree because she had no income and appellee was not making his support payments as directed.

Appellant’s response to interrogatories submitted by appellee stated that while appellant acknowledged executing a document, she does not know what kind of deed it was because she was “crying profusely at the time the deed was signed by her.”

The trial court held, among other things, pursuant to appellee’s request for an order requiring appellant to surrender possession of the homeplace:

“The parties’ homeplace is herein ordered sold and after payment of the mortgage and costs of sale, the proceeds shall be divided as follows:
“(a) The husband shall first be reimbursed for his payments paid on the principal plus one-half (V2) of the amount husband paid on taxes, insurance and interest. The defendant husband shall maintain the payments on the house until it is sold.
“(b) The plaintiff wife shall receive credit on payments she has made on the principal and one-half (xh) of the taxes, insurance and interest payments.
“The parties shall be permitted to have a private realtor attempt to sell the homeplace for a period of ninety (90) days and if not sold in said period, then either party may petition the Court ... to sell this property.
“. . . [A] 11 remaining equity and proceeds derived from said sale shall be divided equally between plaintiff and defendant.”

The difficulty we encounter at the outset is the failure of the trial court to make findings articulating the following critical questions that are central to a resolution of this controversy:

1. What was the agreement between the parties culminating in the execution of the quitclaim deed by appellant conveying her equity in the property to appellee?
2. Who was required to make the mortgage payments after appellee brought the account current?
3. What were appellant’s possessory rights to the homeplace after she executed the quitclaim deed to appellee?
4. If a sale of the property was contemplated by the parties, how were the net proceeds to be divided?
5. Did the trial court have power to order a sale of the homeplace?
6. If the property rights of the parties vested under the divorce decree, could the trial court modify these rights?
7. The decree did not vacate the quitclaim deed, nor did the pleadings seek cancellation of the instrument. Why did the court fail to recognize or give force and effect to the quitclaim deed?
8. Did appellant convey her equity in the homeplace in consideration of appellee assuming the entire balance remaining under the mortgage?

While a chancery court proceeding is heard de novo on appellate review, appellate courts will affirm unless the holding of the trial court is against a preponderance of the evidence. Moore v. Smith, 255 Ark. 249, 499 S.W. 2d 634 (1973). However, when the record is not fully developed and the appellate court can not determine what the equities are, the appellate court will remand the proceeding to the trial court instead of proceeding to consider the merits and rendering a decree as should have been entered below. Lenderman v. Lenderman, 266 Ark. 1000, 588 S.W. 2d 707 (Ark. App. 1979); Arkansas National Bank v. Cleburne County Bank, 258 Ark. 329, 525 S.W. 2d 82 (1975).

Accordingly, we reverse and remand to the trial court for a hearing consistent with this opinion.


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    Murray G. McCULLOUGH v. Mildred M. OGAN and Joe W. OGAN
    CA 79-171
    596 S.W. 2d 356
    Court of Appeals of Arkansas
    Opinion delivered March 19, 1980
    Released for publication April 9, 1980

      Spitzberg, Mitchell & Gill, by: William L. Owen, for appellant.

      Laser, Sharp, Haley, Young & Huckabay, P.A., for appellees.
   David Newbern, Judge.

The appellant asks us to hold that because there was no evidence, medical or otherwise, showing the appellee Mildred M. Ogan’s injuries and certain .medical bills were the proximate results of a collision between vehicles operated by the appellant and her, the judge, who tried the case without a jury, erred in refusing to dismiss the case. The judgment awarded $2000 to Mrs. Ogan for her injuries and $213.21 to her husband, Joe W. Ogan, for injury to the vehicle Mrs. Ogan was driving. Although the appellant asks us to reverse the whole judgment, the only part argued is the award to Mrs. Ogan. We consider the appellees’ evidence sufficient to have presented a prima facie case of negligence and resulting damages, and thus we affirm.

It is undisputed that the appellant’s car struck the left rear of the one operated by Mrs. Ogan. Mrs. Ogan testified she was thrown forward into a window crank and sustained a bruise to her left shoulder. The day after the accident she began to experience pain in her forehead and neck. She put off medical treatment for a week, hoping the pain would go away.

As time passed, the pain became more intense. She began seeing physicians, and at one point she was hospitalized. The accident occurred in 1972, and the case was tried in 1979. As of the time of the trial, Mrs. Ogan testified she was still experiencing some pain, but that it had become less intense. She testified she had been in no other accident. No physician testified.

At the end of the appellees’ case, the appellant moved for a “directed verdict,” contending there was no evidence of negligence and no evidence the injuries alleged were proximately caused by the collision. The judge denied the first part of the motion and said the appellees had presented a prima facie case of negligence. He took under advisement the second part. The matter was resolved in the judgment, in which the judge stated:

That as a further result of the collision the plaintiff Mildred M. Ogan sustained personal injuries and incurred miscellaneous medical expenses damaging her in the total sum of $2000.00.

The duty of the trial court, sitting without a jury, when asked to give a “directed verdict” at the close of the plaintiff’s case, is to consider whether the plaintiff’s evidence, given its strongest probative force, presents a prima facie case. Werbe v. Holt, 217 Ark. 198, 229 S.W. 2d 225 (1950). Even if, when the motion is renewed at the end of all the evidence, the judge is in a position to weigh the evidence to determine the preponderance, his determination of the preponderance will not be disturbed unless there is no reasonable probability the facts as found could have occurred. Fanning v. Hembree Oil Co., Inc., 245 Ark. 825, 434 S.W. 2d 822 (1968). See also, A.R. Civ. P. 52.

The appellant complains that no medical evidence was presented, citing Broomfield v. Broomfield, 242 Ark. 355, 413 S.W. 2d 657 (1967), for the proposition that when a witness who had knowledge of a particular transaction is not presented the court may assume the witness’ testimony would have been unfavorable to the party who would logically have presented him. The Broomfield case was one in which a party failed to appear, and thus it cannot fairly be cited here. In addition, the court there said the absence of the party could be considered in making an overall determination of where the preponderance of the evidence lay. That was, of course, not the issue when the motion was made at the end of the plaintiffs case, and even if a party had failed to testify that would hardly have been controlling, although we agree the judge could have considered it in his assessment of the preponderance of evidence.

The appellant also cites Davis v. Kemp, 252 Ark. 925, 481 S.W. 2d 712 (1972), and McKim v. Northwestern National Casualty Co., 256 Ark. 109, 505 S.W. 2d 756 (1974), on the quantum of evidence needed to show proximate cause. Davis was a medical malpractice case in which there was no evidence whatever of any “complications” or worsening of the injury treated by the defendant. Here we certainly have evidence of injury after the collision. The McKim case merely says there must be a reasonable probability of proximate cause shown by substantial evidence. We find that present here from Mildred Ogan’s testimony, both as to the injury and the medical bills.

The appellant also says we should take judicial notice that Mrs. Ogan would have been thrown backwards by the collision rather than forward into the window crank, citing Ellsworth Bro. Truck Line v. Canady, 245 Ark. 1055, 437 S.W. 2d 243 (1969). In that case, the supreme court did indeed choose to disregard testimony of a plaintiff that she was injured by being thrown forward when her vehicle was struck from the rear. But there, the rear end collision occurred immediately after the plaintiffs car had slid into a ditch and come to a sudden halt from a speed of 45 to 50 miles per hour. Thus the court had before it strong evidence the injury occurred before the rear end collision.

While we do not disagree with the supreme court’s conclusion that victims of rear end collisions are thrown back initially, our own “common knowledge” is that their statement does not go far enough. A person whose vehicle is struck from the rear also is pitched forward after the initial impact, thus the flexion-extension or “whiplash” injury. Belli, Modern Trials, § 87, pp. 605, et seq. (1954). See also, Turchi v. Shepherd, 230 Ark. 899, 327 S.W. 2d 553 (1959), in which our supreme court affirmed damages resulting from a whiplash injury where there was clear evidence part of the injury resulted from the plaintiff being thrown forward after being hit from the rear, and Heacock v. Town, 419 P. 2d 622 (Alaska 1966), in which the Alaska Supreme Court apparently takes judicial notice that the head of a whiplash victim is thrown backward and then forward after being struck from the rear.

The appellant exclaims that “no person purporting to be a practitioner of the healing arts testified!” No case is cited, however, for the proposition that lack of such testimony is fatal, and we believe it is not. This is not a malpractice case like Broomfield v. Broomfield, supra, or one involving a mysterious infection such as we dealt with in St. Paul Fire & Marine Ins. v. Prothro, 266 Ark. 1020, 590 S.W. 2d 35 (Ark. App. 1979). Mrs. Ogan’s testimony showed the onset of her symptoms followed closely the bruise she said she received in the physical trauma of the accident. Medical testimony would have been useless on the issue of negligence, and we hold it was not necessary to a showing of the injury to the appellee, in view of her clear testimony showing the proximity of the collision to the onset of her symptoms and her lack of previous injury or similar symptoms. Likewise, we hold the trier of fact was at liberty to accept Mrs. Ogan’s testimony that her medical expenses were for treatment of the symptoms she described.

Affirmed.

Hays, J., not participating.


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    William F. HORN et al v. Guy BLANEY et al
    CA 79-247
    597 S.W. 2d 109
    Court of Appeals of Arkansas
    Opinion delivered March 26, 1980
    Released for publication April 16, 1980

      Richard L. Peel, for appellants.

      Gardner & Gardner, for appellees.
   Ernie E. Wright, Chief Judge.

The appellants, heirs at law of William F. Horn, deceased, bring this appeal from a decree of the trial court quieting and confirming title to the E */2 of the NW lA, Section 8, Township 12 North, Range 17 West, in Pope County in the appellees.

William F. Horn and his family started homestead improvements upon the above described land in 1931. A patent was issued to Mr. Horn in 1935. He dug a well, built a two room cabin, a barn and corn crib on the property. He cleared about an acre or acre and a half, built a rail fence around the clearing and the family resided on the homestead until the house burned in about 1940. The family then moved to California and never thereafter occupied or utilized the land.

The land, although not subject to taxation as it belonged to the United States Government, forfeited for 1905 taxes and in 1950 was sold by the State Land Commissioner to Guy Blaney and his three brothers. The deed from the Land Commissioner to the appellees was duly filed and recorded in Pope County in 1950.

The appellants answered the petition, claimed ownership as the heirs of William F. Horn, deceased, and asked that the appellees’ petition be denied and dismissed.

The decree found the land is wild, unimproved and unenclosed, that taxes had been continuously paid by the appellees for 29 consecutive years, and that title should be quieted and confirmed in appellees.

Appellants assert for reversal that the evidence did not show the taxes had been paid by appellees or that the land was wild, unimproved and unenclosed.

From a review of the evidence we conclude the finding of the chancellor that the land was wild, unimproved and unenclosed was not contrary to the preponderance of the evidence. The property was abandoned about the year 1940 when the homestead cabin burned and it has not been in the actual possession of anyone since that time. The old dug well covered with brush is still on the property, but the rail fence around the small clearing and the limited buildings have long been gone. The property was permitted to substantially revert to its natural state. Moore v. Morris, 118 Ark. 516, 177 S.W. 6 (1915).

It is clear the appellees have color of title to the land by virtue of the 1950 deed from the State Land Commissioner even though the land belonged to the United States in 1905 and the tax sale was void. Fuller v. Terrill, 226 Ark. 1040, 295 S.W. 2d 625 (1956). Therefore, the appellees would have been entitled to a decree quieting title upon proof of payment of taxes for seven years continuously after obtaining the Commissioner’s deed, Towson v. Denson, 74 Ark. 302, 86 S.W. 661 (1905). Ark. Stat. Ann. § 37-102 (Repl. 1962), provides:

Unimproved and unenclosed land shall be deemed and held to be in possession of the person who pays the taxes thereon if he have color of title thereto, but no person shall be entitled to invoke the benefit of this act unless he and those under whom he claims shall have paid such taxes for at least seven years in succession, and not less than three of such payments must be made subsequent to the passage of this act.

Likewise appellees upon proof of payment of taxes for 15 consecutive years would have been entitled to a decree quieting title under Ark. Stat. Ann. § 37-103 (Repl. 1962), which provides:

Payment of taxes on wild and unimproved land in this State by any person or his predecessor in title, for a period of fifteen consecutive years (at least one of said payments being made after the passage of this act), shall create a presumption of law that such person, or his predecessor in title, held color of title to said land prior to the first payment of taxes made as aforesaid, and that all such payments were made under color of title.

However, we find the evidence as to who actually paid the taxes from 1950 to 1978 was not fully developed. It was merely shown by the county clerk that the land was assessed during that period in the name “Blaney Brothers” and that the taxes had been paid. There was no proof as to who actually paid the taxes and the clerk stated he was not testifying as to who paid the taxes. Proof that appellees paid the taxes for at least seven consecutive years after obtaining their deed is essential to invoke the benefit of § 37-102, and proof that appellees paid the taxes for 15 consecutive years is required to permit quieting title under § 37-103. Mere proof the taxes were paid does not suffice.

As it is apparent the record was not fully developed on this point, and we are unable to determine that appellees in fact paid the taxes for the required time, we exercise our discretion and remand the case with directions that the parties be permitted to offer further evidence on this point. Worthen Bank and Trust v. United Underwriters, 251 Ark. 454, 474 S.W. 2d 899 (1971). Arnett et ux v. Lillard, 247 Ark. 931, 448 S.W. 2d 626 (1970).

Reversed and remanded.