author: Jim Johnson, Associate Justice.

text:
    Moorehead v. Universal C.I.T. Credit Corp.
    5-1899
    327 S. W. 2d 385
    Opinion Delivered September 21, 1959.

      William H. Drew, for appellant.

      Carlton Currie, for appellee.
   Jim Johnson, Associate Justice.

This is an appeal from a judgment of the Chicot Circuit Court wherein judgment was rendered for possession of a 1955 Dodge half-ton Express V-8 truck in favor of appellee, Universal C.I.T. Credit Corporation.

The facts are briefly as follows:

The truck was purchased iu February 1955. Mr. Orville Moorehead, husband of appellee, negotiated with the dealer for it; at his instruction the conditional sales contract was made in the name of his wife, Mrs. Jerry Moorehead, appellant. She signed the contract. The contract was assigned to appellee by the dealer, Wagner Motor Company of Dermott.

The Mooreheads kept the vehicle until late December 1955, or early January 1956, when both brought it back to the dealer for extensive repairs. At that time Mrs. Moorehead, appellant, insisted that a new contract, including the cost of repairs, should be executed on the truck in order that there would be only one monthly payment to make. Wagner made the repairs.

When the truck was repaired and ready for redelivery, Mr. Moorehead came to get it. Mr. James Wagner, Manager of the Wagner Motor Company, testified that: “Orville Moorehead came back by himself and said that he had carried his wife around to the dentist’s office having some teeth made and he wanted to pick up the truck ... I told him his wife would have to sign the new contract; that it was in her name. He said the truck was in his name now, that he wanted a new contract issued in his name so he would have insurance on his life in case he happened to die or get killed.” Mr. Moore-head then executed a bill of sale to Wagner, and signed the new contract including the life insurance election, the cost of repairs having also been included in the indebtedness. This contract was assigned to appellee.

No payments were made by either Mrs. Moorehead, appellant, or Mr. Moorehead after the truck was secured from the dealer. Suit was filed on April 30, 1956, to recover the truck.

The cause was submitted to the Circuit Judge for the trial of the facts as well as the law, both parties expressly waiving trial by jury. The court found for the appellee and judgment was entered accordingly.

For reversal, appellant relies on the following points:

1. The Court erred in ruling that an act of appellant’s husband was an act of appellant, and by reason thereof, title passed by virtue of “Bill of Sale” from appellant’s husband to Wagner Motor Company, Dermott, Arkansas, evidenced by Exhibit C.

2. Appellee cancelled contract marked Exhibit A through its fraud on appellant and cannot now profit by its fraud, by attempting to reinstate this contract.

3. The contract marked Exhibit B is a debt of Orville Moorehead,' not appellant, Jerry Moorehead.

4. The appellee converted appellant’s vehicle to its use and by reason thereof, the appellant is entitled to its value at the time of the conversion.

The trial court found that Orville Moorehead referred to the truck as “my truck.” The trial court further found: “The testimony is that he and his wife bought it together. He put it in his wife’s name. All of us husbands do that frequently ... I just can’t believe that under that state of facts and dealings with the same dealer for the repairs, same parties ... I say that in this transaction an act of his was an act of hers and an act of hers was an act of his as I view it . . .” From the extemporaneous findings of fact by the trial court and a careful review of this record, we have no choice but to conclude that there is no merit in appellant’s four points relied on for reversal since this was clearly a case of estoppel in pais.

It has long been the general rule that an estoppel in pais may be set up in actions at law as well as in suits in equity. They are called equitable estoppel because they arise upon facts which render their application in the protection of rights equitable and just. The principle is that a party who, by his acts, declarations or admissions, either deliberately or with willful disregard of the interests of another, induces him to conduct or dealings which he would not have otherwise entered upon, is estopped to assert his rights afterwards to the injury of the party so misled. See: Jowers v. Phelps, 33 Ark. 465; Merchants & Planters Bank, v. Citizens’ Bank, 175 Ark. 417, 299 S. W. 753; Thomas v. Spires, 180 Ark. 671, 22 S. W. 2d 553; Vaughn v. Dossett, 219 Ark. 505, 243 S. W. 2d 565.

Equitable estoppel was not specifically pleaded or argued in this case. However, evidence supporting such a defense was received without objection and is binding on appellant on the merits of this controversy. Keylon v. Arnold, 213 Ark. 130, 209 S. W. 2d 459.

The testimony of James Wagner relative to the presence and participation of appellant at the time her husband purchased the truck and requested that it be put in her name, and the further presence and participation of appellant at the time the Motor Company was requested to repair the truck, and the further insistence of appellant that a new contract be made to include the cost of repairing the truck in order that only one payment per month would be necessary is evidence of such a substantial nature that we cannot under our rule disturb the findings of the trial court sitting as a jury.

Affirmed.


source: Caselaw Access Project

author: Carretón Harris, Chief Justice.

license: Public Domain

text:
    Turchi v. Shepherd.
    5-1904
    327 S. W. 2d 553
    Opinion delivered September 28, 1959.

      McMillan & McMillan, for appellant.

      Lookadoo, Gooch $ Lookadoo, for appellee.
   Carretón Harris, Chief Justice.

The sole question in this litigation is whether a judgment of $3,500, rendered for appellee against appellant, is excessive.

On September 27, 1957, appellee, Thomas Shepherd, was riding in the back seat of an automobile, which had stopped for a stop light in Pine Bluff, Arkansas. Appellant, Prank Turchi, struck the rear of a car immediately behind the vehicle in which Shepherd was riding, knocking that car forward into the Shepherd vehicle. Suit was instituted by Shepherd for injuries alleged to have been sustained as a result of this occurrence. A “whip-lash” injury to the neck, strained tendons in the neck and shoulders, spinal injury, shock to the nervous system, and a general soreness over the body for a number of weeks, were alleged. $10,000 damages was sought. After the filing of a general denial, the cause proceeded to trial on November 7, 1958, before the court, sitting as a jury. Additional medical testimony was taken a week later, and at the conclusion of the evidence, the court entered its findings and rendered judgment in the amount heretofore mentioned.

Appellee’s evidence was substantially as follows. Shepherd, age 60, was working in August and September of 1957, as a pipe fitter on construction of the International Paper Company in Pine Bluff, earning $3.50 per hour, or $28 per day. He had previously been involved in a similar collision on September 5th, near Sheridan, but testified that he was “practically well” when the collision in Pine Bluff took place. The evidence reflected that he lost no time from work following the Sheridan incident, and that he was paid $75 in settlement of that claim. With reference to the injury sustained in the present instance, appellee testified that when the car hit the back of the vehicle, his head struck the edge of the seat, and popped the chin strap to the safety hat he was wearing at the time. According to his evidence, he was sick at his stomach all during the night . . . worked next day, but was given a lighter job because he did not feel like performing his regular duties . . . worked on until the 2nd or 3rd of May until the job was completed. Admittedly, he worked at the same rate of pay, and lost no time, though the duties were lighter. Shepherd stated that he consulted Dr. Eli Gary, a general physician of Arkadelphia, three or four days after receiving the injury, at a time when Dr. Gary was out at his home treating another member of the family, and that he had subsequently seen Gary several times,' and finally had x-rays taken on August 16, 1958.

Dr. Gary testified that after Shepherd complained so long, he took x-rays on the above date, but did not find any evidence of a fracture, though it was his opinion that Shepherd suffered a whiplash injury, i.e., his neck had been slapped backward and forward, causing pain and a decompression after injury. Dr. R. V. Bennett, a practicing physician of Hot Springs, testified that in his opinion, Shepherd had suffered a fracture of the first cervical vertebrae, and a basilar impression, both injuries being at the base of the skull. He testified that basilar impressions are very rare, since most receiving such injury are killed instantly, and “as far as I know, only thirty-eight now that are walking around * * * that Mr. Shepherd’s condition would grow progressively worse with time, and the basilar impression would necessitate an operation. He testified that Shepherd had suffered a permanent injury. The witness stated that the injury probably happened more than three months prior to the examination, but he could not pin-point it as occurring on September 5th, 27th, or any particular date.

Appellant’s medical evidence consisted of the testimony of Dr. J. W. Kennedy of Arkadelphia, who testified that Shepherd consulted him on September 7th (two days after the wreck at Sheridan), and that Shepherd complained of pain between his neck and shoulders and “that part of his neck located at the base of the skull.” The doctor’s diagnosis was “possible traumatic cervical vertebrae injury which could possibly cause traumatic arthritis at a later date”, though he stated “that is all hypothetical, as we had no x-ray, no way of knowing”. He testified that recent x-rays showed no fractures, but some arthritic change from the 3rd to 6th vertebrae, and that there was no indication of any basilar impression. Dr. T. M. Durham, an orthopedic surgeon of Hot Springs, testified that he found no fracture, or basilar impression, as testified to by Dr. Bennett, and further testified that he had never seen or heard of a traumatic basilar impression; that if Shepherd had received a traumatic basilar impression, the result likely would have been death.

The court found, and we concur with such finding, that it was not preponderantly shown that Shepherd suffered a basilar impression. Further findings were as follows:

“It is preponderantly shown, and the Court so finds, that in the wreck of September 27th at Pine Bluff, plaintiff received an impact of substantial force — of sufficient ‘popping’ effect to break the strap on his safety hat. At that time he was not a young man. Dr. Gary’s x-rays showed arthritic changes ‘from the second down’. Dr. Kennedy found ‘some spurring’. Dr. Durham found evidence of chronic cervical syndrome and narrowing of the fourth cervical disc; likewise he found degenerative arthritis and abnormality of motion in the spine about the fourth cervical space.

Whereas a young and able-bodied person could have escaped the collision with only minor soreness, it is entirely logical that one of Shepherd’s age and condition could not experience such a quick, whipping and unsuspected jar without suffering telling effects. * * * The doctors do not agree that there was a fracture. If not, there was certainly such a strain on the spine and its components as to produce results comparable to the pains of such a fracture.

The complaint of the plaintiff as to continued pain to the date of trial is not inconsistent with the over-all medical testimony and the physical facts involved in the impact. However, the evidence is not sufficient to show the same to be permanent, or to show that plaintiff is entirely disabled from following a livelihood. * * * J 5

The court also made reference to the September 5th wreck, and stated:

“At the time of the wreck in Pine Bluff, he may have had some residual of the Sheridan wreck; if so, the severity of the blow from the rear by Turchi would certainly have served to aggravate any condition existing from the experience of September 5 at Sheridan. So it appears to the court that the present major complaints preponderantly appear to have originated from the experience at Pine Bluff.”

Appellant, in seeking a reduction of the amount of judgment, summarizes the evidence of injury as follows: appellee sustained a temporary injury to the muscles of the neck, with accompanying pain and headache; a previous injury had been received three weeks before from which appellee had not completely recovered; no medical treatment until after the suit was filed, other than consultations with the family doctor a few times and some tablets for pain, and no loss of time from his work until the job was finished in May, 1958, some eight months after the alleged injury was sustained. Appellant points out that the only evidence as to permanent injury came from Dr. Bennett’s testimony that appellee had suffered a basilar impression — and that this was rejected by the court. He concludes by saying:

“No broken bones — -no loss of consciousness — no loss of time — no outstanding evidence of bruises or contusions, but only subjective symptoms testified to by Plaintiff himself — at best, only an aggravation of an admitted injury to the identical area only three weeks before.”

Appellant then cites a number of cases to substantiate his argument that the award was excessive.

We agree that permanent injury was not established, and are further of the opinion that the award was liberal, but it does not follow that a reduction of the judgment is justified. A comparison of awards made in other cases is a most unsatisfactory method of determining a proper award in a particular case, not only because' the degree of injury is rarely the same, but also because the dollar no longer has its prior value. Even as far back as 1928, in the case of Missouri-Pacific Railroad Company v. Elvins, 176 Ark. 737, 4 S. W. 2d 528, this Court said:

“In this connection it may be also stated that the jury may consider to some extent that money today has much less purchasing power than it had twenty or even fifteen years ago. This is a matter of common knowledge to all, of which courts and juries may take judicial notice.”

Certainly, it is a matter of common knowledge that today’s dollar has greatly diminished in value during the past several years. Be that as it may, we do not agree with appellant’s statement that the evidence shows no loss of time. The transcript reflects the following evidence on the part of Mr. Shepherd:

“Q. What have"you done since the 2nd day of May?
A. Have not worked a bit.
Q. Could you have gotten employment ?
A. Called me before I left to go on another job but I couldn’t.
Q. Why?
A. My neck was in too bad a shape.
Q. What has kept you from working?
A. My neck has kept me from working.”

As previously stated, Shepherd testified that he earned $28 a day; accordingly, he would only have to lose 125 working days to equal the amount of the judgment, and this, of course, disregards entirely any pain and suffering. According to the quoted testimony, he had lost 134 working days (Monday through Friday) at the time of the trial, and this ■ testimony was undisputed.

We are unable to say that the amount awarded was excessive, and it follows that the judgment of the Clark Circuit Court should be, and is, affirmed.

       A forcing of the spinal cord up and into the skull,

       Referring to the basilar impression.

       Examination was made on October 31, 1958.

         Of course, the testimony of a party to the litigation is considered disputed as a matter of law, and therefore, standing alone, will not support a peremptory instruction in his favor, hut such testimony constitutes substantial evidence to support a jury verdict; this case, of course, was tried by the court, sitting as a jury.


author: J. Seaborn Holt, Associate Justice.

text:
    United Interchange, Inc. v. Rowe.
    5-1905
    327 S. W. 2d 547
    Opinion delivered September 28, 1959.

      B. Scott Campbell, for appellant.
    No brief filed for appellee.
   J. Seaborn Holt, Associate Justice.

The record in this case shows that appellant, United Interchange, Inc., on January 14, 1958, filed the following complaint in the Garland County Circuit Court: “Comes United Interchange, Inc., plaintiff, herein, and for his cause of action against the defendant, L. Y. Rowe, states: Plaintiff is a corporation, organized and existing under the laws of the State of Texas. On the 23rd day of December, 1955, plaintiff and defendant entered into a contract whereby defendant was to advertise for sale the Rowe Clinic for an agreed consideration of $275.00; that plaintiff fully performed said contract by publishing the advertisement as per the terms of the contract; that defendant neglects and refuses to pay the plaintiff the sum of $275.00 due under the terms of the contract despite demands. Wherefore, premises considered plaintiff prays judgment against defendant for the sum of $275.00, for its costs herein expended and all other proper relief.” January 28, 1958, this complaint was amended to make a part thereof the contract referred to in the complaint, which contract recites: “To: United Interchange, Inc., 4232 Herschel Ave., Dallas, Texas Date- — -Dee. 23, 1955 Gentlemen: Rowe Clinic, 407 Ouachita Ave., Hot Springs, Ark. I authorize you to. advertise the sale of the above business or property and for that purpose reserve space as follows: You are to place the sales information on my business or property in the hands of hundreds of brokers throughout the nation by publication in the next issue of the U. I. Brokers Bulletin. You are also to advertise the sale of my business or property directly to potential buyers throughout the nation by publication of a 1/8 page advertisement in the next issue of the U. I. Buyers Digest. For this reserved space, I will pay you the sum of $275.00 at Dallas in Dallas County, Texas, three (3) months from the date of your acceptance of this advertising agreement, unless I enter into an agreement to sell my business or property prior to that time, in which event this sum shall become immediately due and payable. If I default in payment and you commence legal action for collection, I agree to pay reasonable attorney’s fees and court costs in such action. All the terms of this agreement are specifically set forth herein. Please use the information furnished by me on the accompanying date sheet in preparing advertising for me. This agreement shall become effective only when accepted by your office in Dallas, Texas. You shall notify me of such acceptance by letter. I acknowledge receipt of a copy of this advertising agreement. /s/ Dr. L. Y. Rowe (Advertiser) Advertising Agreement Accepted at Dallas, Texas, Dec. 30, 1955 for: UNIT INTERCHANGE, INC. by: /s/ C. Gordon”

Thereafter, appellee, Rowe, filed the following Motion To Dismiss: “Comes now the Defendant, Dr. L. V. Rowe, also variously known as L. Y. Rowe and L. Y. Rowe, D. C., doing business as ROWE CLINIC and ROWE CHIROPRACTIC CLINIC, and respectfully moves the court to dismiss the complaint herein for the following reasons: (1) The Contract upon which this suit is brought is illegal, and therefore, unenforceable. A copy of said contract being attached hereto and made a part hereof as fully as though set out word for word herein. (2) The Contract in question is unenforceable because the Plaintiff herein is a foreign corporation, namely licensed to do business under the laws of the State of Texas and is not licensed to do business in the State of Arkansas. (3) The Contract is unenforceable because the Plaintiff is not a licensed real estate broker in the State of Arkansas and is attempting to effect the sale of real estate in the State of Arkansas without being licensed therefor. WHEREFORE, movant prays for the foregoing reasons that this Court •dismiss the Complaint herein, and, that he have his costs and any and all other relief to which he may be entitled, /s/ L. Y. Rowe By: /s/ B. W. Thomas”

On December 15, 1958, the Circuit Court granted appellee’s motion to dismiss on the sole ground that appellant, “United Interchange, Inc., was in fact acting as a real estate broker without having been licensed to do business in the State of Arkansas, and by reason thereof, the Court does hereby sustain Defendant’s Motion to Dismiss.”

Appellee filed no answer. The only evidence in this case was a stipulation by counsel of the respective parties, during the hearing on the above motion to dismiss, that United Interchange, Inc., a foreign corporation was not licensed to do business in Arkansas.

The Motion to Dismiss here is, in effect, a demurrer and we so treat it. “A ‘motion to dismiss’ is in fact a demurrer to the complaint and reply, in the eonsideration of which, the pleadings alone are involved.” Hosler v. Ireland, C. C. A. Colo., 219 F. 489, 491, and Nikola v. Campus Towers Apartment Bldg., Corporation, 303 Ill. App. 516. ‘ ‘ * * # a demurrer to a complaint admits the truth of the allegations, and all reasonable inferences which can be drawn therefrom. Life & Casualty Ins. Co. of Tenn. v. Ford, 172 Ark. 1098, 292 S. W. 389. It is also true that a demurrer admits only those facts which are well pleaded. Ready v. Ozan Investment Co., ante p. 506, and cases there cited It does not admit conclusions of law * * *” Herndon v. Gregory, 190 Ark. 702, 81 S. W. 2d 849. We have concluded that appellant’s contention that, “The Circuit Court did not have sufficient evidence before it on which to base its judgment” must be sustained.

Both the complaint and contract recite that the parties have entered into an advertising agreement. Appellee has offered no evidence to show that the relationship between him and appellant was that of a client and a real estate broker. There is no evidence that appellant entered into the negotiations for the sale of real estate. As far as the record shows, neither the appellant nor any of its employees have ever been in the State of Arkansas.

Accordingly, the judgment is reversed and the cause remanded.


author: Ed. F. McFaddin, Associate Justice.

text:
    Weeks v. City of Paragould.
    4951
    328 S. W. 2d 81
    Opinion delivered September 28, 1959.
    [Rehearing denied November 2, 1959]

      Howard A. Mayes, for appellant.

      Robert Branch, for appellee.
   Ed. F. McFaddin, Associate Justice.

The appellant challenges the validity of Sections 1 and 3 of Initiated Ordinance No. 1 of the City of Paragould, adopted by vote of the People of that City on November 4, 1958. These questioned sections read:

“SECTION 1: It shall be unlawful for the owner of any dog living within the corporate limits of the City of Paragould, Arkansas, to allow or permit such dog to run at large within the corporate limits of said City. It shall be the duty of the owner of every dog to keep said dog safely and securely restrained at all times.
“SECTION 3: It is hereby declared to be a misdemeanor for the owner of any dog to allow or permit his dog to run at large within the corporate limits of the City of Paragould. Any person violating any provisions of this ordinance shall be fined in a sum not less than $5.00 and more than $25.00.”

Appellant was fined $5.00 in the Municipal Court for allowing her dog to run at large in violation of the above quoted ordinance. On appeal to the Circuit Court, appellant demurred to the charge, claiming that the City was without power to adopt such an ordinance. The Circuit Court overruled the demurrer and affirmed the Municipal Court judgment when appellant refused to plead further. This appeal ensued.

The only question is the power of the appellee City to enact the ordinance heretofore copied. Act No. 1 of 1875 is captioned, “An Act for the Incorporation, Organization, and Government of Municipal Corporations”. Section 16 of that Act states, concerning the powers of municipal corporations: “They shall have the power ... to prevent the running at large of dogs, and injuries and annoyances therefrom, and to authorize the destruction of the same, when at large, contrary to any prohibition to that effect”. The quoted language from the 1875 Act is now found in § 19-2502 Ark. Stats. There have been several subsequent legislative enactments concerning the procedure for impounding, holding, and disposing of animals running at large. But the general power of the municipal corporation to prevent the running at large of dogs has existed continuously since 1875; and Section 23 of the Act No. 1 of 1875 (as now found in § 19-2408 Ark. Stats.) says: “By-laws and ordinances of municipal corporations may be enforced by the imposition of fines, forfeitures, and penalties on any person or persons offending against or violating such by-laws or ordinances, or any of them . . .”; and Section 24 of Act No. 1 of 1875 (as now found in § 19-2409 Ark. Stats.) prescribes the permissible extent of the fines that may be levied.

Since municipal corporations have power to prevent the running at large of dogs and to prescribe fines against persons who violate the ordinance, it necessarily follows that the City of Paragould had the power to adopt Sections 1 and 3 of the Initiated Ordinance No. 1 here involved. The fact that the dog might be impounded does not prevent the City from levying a fine against the person who permitted the dog to run at large. See Gibson v. Town of Harrison, 69 Ark. 385, 63 S. W. 999. Affirmed.

       Section 2 of the Initiated Ordinance No. 1 relates to impounding dogs and procedure thereafter. Consideration of that section is not necessary to a decision of the present case.

       Some of these are: Act No. 137 of 1895; Act No. 122 of 1899; Act No. 172 of 1901; and Act No. 299 of 1921.


author: George Rose Smith, J.

text:
    Hartley v. Calif. Western States Life Insurance Co.
    5-1907
    327 S. W. 2d 556
    Opinion delivered September 28, 1959.

      Van Johnson, Boyd Tackett and Howard Waldrop, for appellant.

      Thomas 8. Arnold, for appellee.
   George Rose Smith, J.

This is a suit by the appellants, Dr. Hartley and his wife, for the reinstatement of a life insurance policy and for the recovery of hospital benefits under a sickness and accident policy. As the parties were in agreement about the material facts the complaint was so drawn as to permit all issues to be raised by demurrer. The chancellor sustained the defendant’s demurrer, on the ground that the admitted facts do not give rise to any cause of action, and' this appeal is from the order dismissing the complaint.

Dr. Hartley was insured under two companion group policies taken out by his employer, an optical company in Dallas, Texas. The life insurance policy, which we will consider first, provided a principal death benefit of $5,000 and certain medical benefits that need not be detailed. The contract also provided that if an employee, “while insured and while under age sixty, becomes totally disabled from bodily injury or disease,” that employee’s insurance would be continued in force without the further payment of premiums. Dr. Hartley was nearly sixty-one years old when the policy was issued, and he became totally disabled a year and a half later, at the age of sixty-two. When he became disabled Dr. Hartley stopped paying the monthly premium on his certificate, and two months later the optical company discontinued the master policy. Dr. Hartley now contends that he is entitled to have his certificate reinstated and continued in force without the payment of premiums, on the theory that the appellee, by accepting his application after he was past sixty, waived the provision that disability must occur while the insured is under the age of sixty.

This contention is without merit. In Texas, whose law is conceded to be controlling, an insurer does not waive the age limitation upon disability benefits by issuing a policy to one already past that age if the contract contains other benefits forming a consideration for the payment of premiums. Home Benefit Ass’n v. Griffin, Tex. Civ. App., 10 S. W. 2d 568; and see Appleman on Insurance, § 9448. The appellee’s promise to pay the principal sum of $5,000 upon the death of the insured was a sufficient consideration for the premiums received. The decision in Pan American Life Ins. Co. v. Garrett, Tex. Civ. App., 199 S. W. 2d 819, relied on by the appellants, is clearly distinguishable. There a group policy provided that the coverage would terminate upon the employee’s leaving the employment of the company to which the policy was issued. The court held that the insurer could not take advantage of this provision after accepting premiums with knowledge that the employees were working for a new employer. It would evidently be inconsistent for the insurance company to accept premiums on the theory that the policy was in force and then to avoid liability on the theory that the contract had terminated for a reason the insurer knew about when it received the premiums. There is no similar inconsistency in the case at bar. The appellee does not say that the entire policy was ineffective as to Dr. Hartley when it was originally issued; it merely says that by the express language of the contract Dr. Hartley was not entitled to a waiver of premiums for a disability arising after be was past tbe age of sixty. It should perhaps be added that the contract did not specify a separate or additional consideration for the insertion of the waiver-of-premium clause, as this provision was not an option that could be accepted or rejected by the various employees of the optical company.

The appellants have abstracted the record with reference to that part of the complaint relating to the sickness and accident policy, but in their brief they present no argument upon this issue. In view of the facts admitted by the demurrer we perceive no basis upon which the appellants are entitled to recover hospital expenses incurred some sixteen months after Dr. Hartley’s certificate had lapsed for nonpayment of premiums.

Affirmed.


author: Paul Ward, Associate Justice.

text:
    Harral v. Helton.
    5-1867
    327 S. W. 2d 549
    Opinion delivered September 28, 1959.

      G. P. Houston and Chas. F. Cole, for appellant.

      Leon Reed and Alton Rittle, for appellee.
   Paul Ward, Associate Justice.

This appeal comes from a decree of the Cleburne County Chancery Court cancelling a deed executed by one Charles W. Helton on May 18, 1957, conveying certain real property in Heber Springs to appellants, R. L. Harral and his wife Pearl Harral. The suit to cancel said deed was brought by the daughter of C. W. Helton, Ruth M. Cody, as his next friend. After a lengthy hearing the trial court cancelled said deed on the ground that C. W. Helton did not have sufficient mental capacity to execute same. Appellants forcefully contend here that the decree of the trial court should be reversed, basing such contention on three separate grounds, to-wit: One. The lower court erred in not requiring the appellees, plaintiffs below, to execute a bond for cost; Two. Appellees’ action should have been brought in the name of C. W. Helton and not in the name of Mrs. Ruth Cody as his next friend, and; Three. The evidence does not sustain the lower court’s finding that C. W. Helton lacked the mental capacity to execute said deed.

One. O. W. Helton was a resident of Clebnrne County for several years before he executed the deed in question, but about a month before this suit was filed his daughter, Mrs. Ruth Cody, took him to her home in Elmhurst, Illinois, to live with her. He was therefore required, by the first sentence of Ark. Stat. 27-2301, to file a cost bond in the Clerk’s office before commencing this litigation. The latter sentence of said statute, however, provides that in lieu of filing such bond “the plaintiff may deposit with the Clerk of the Court a sum of money sufficient to pay all costs that have accrued or will probably accrue . . . subject to said sum being increased at anytime the court may deem necessary and by its order required.” In this case we think there was a substantial compliance with the latter portion of the above-mentioned statute. At Page 400 of the record we find the following docket entry: “The Plaintiff at the time of filing his petition in this action instead of filing a bond for costs elected to make a cash bond which was done, and plaintiff paid $10.00 cash which was sufficient to pay the costs then accrued, or will probably accrue in such action, /s/ Alvie Heffington, Clerk.”

It is admitted by appellants that the failure to file a proper cost bond at the proper time is a matter of abatement and does not go to the merits of the case. It appears obvious that the $10.00 deposit was insufficient and the trial court might well have required appellees to increase the bond. Not having done so, however, is not a sufficient reason or ground for this court to dismiss the cause of action. We could , however, require the bond to be increased, if, by doing so, it would afford any protection to the appellants, but in view of the disposition we hereafter make we deem it unnecessary to do so.

Two. We find no merit in appellants’ contention that the cause of action should have been dismissed by the trial court because the complaint was brought by Ruth Cody as next friend for C. W. Helton. This issue has been decided adversely to appellants’ contention by former decisions of this court. In the case of Peters v. Townsend, 93 Ark. 103, 124 S. W. 255, where the same issue arose the court stated: “The statute refers in express words only to persons judicially found to be of unsound mind; but it is not to be doubted that the Legislature intended to give equal protection to persons of unsound mind in actions by or against them, though not judicially decreed to be such.” The same issue arose again in the case of Banks v. Howell, 220 Ark. 439, 248 S. W. 2d 95, where the court stated the facts to be that “Here, appellee had no guardian when suit was filed and had not been judicially found incompetent.” Then the court cited with approval the statement which we have copied from the Townsend case, supra, and the court also quoted with approval the following language: “The statutes of this State confer ample protection to the rights of insane litigants, either plaintiff or defendant, by requiring the court in which the action by or against such person is pending to see that he is represented by next friend or guardian.” So, here, if in fact C. W. Helton was incompetent as the trial court held, it was not only proper to allow Ruth Cody to sue as next friend but it would have been the court’s duty to appoint her or someone else to act as his next friend.

Three. Finally, it is ably insisted by appellants that the evidence is insufficient to support the trial court’s finding of C. W. Helton’s incompetency to execute the deed in question. To begin with, appellants are in error in their contention that the proof must be clear, cogent, and convincing. To sustain their contention the case of Levy v. Meyere, Administrator, 208 Ark. 389, 186 S. W. 2d 427, is cited. An analysis of the facts in this case, however, reveals that the clear, cogent and convincing evidence rule was used in connection with a suit to set aside a deed for fraud. The correct rule in a case of this kind is stated in Fikes v. Lee, 225 Ark. 192, 280 S. W. 2d 230, where we held that the trial court’s finding must be supported by merely a preponderance of the evidence. The cases relied on to sustain the rule announced by this court in the Hikes case are set forth at Page 197 of the Arkansas Reports.

The testimony regarding C. W. Helton’s mental capacity to execute the deed in question is conflicting and by no means completely convincing either way. Mr. U. S. Hensley, who is a banker in Heber Springs testified that he was well-acquainted with Mr. Helton and that he did business at his bank; that he had seen him frequently and had observed his conduct and demeanor and thought he was peculiar before the deed was executed; that he would have to ask Mr. Helton the same question three or four times, and he did not appear to be normal; that at times when he did business with the bank he would come back later and ask what had been done and that he was forgetful; and, based on those observations it was his opinion that Mr. Helton was not qualified to transact business. It is admitted that appellants paid Mr. Helton $1,250.00 for the property in question but Mr. Hensley, who is in charge of real estate and loans at the bank and is required to know the fair market value of property, stated that in his opinion the property in question was worth $6,500.00 to $8,000.00. There was somewhat similar testimony given by Mr. Harvey Parish who owns the Harvey Hotel at Heber Springs. The substance of his testimony was that he did not think that Mr. Helton was competent to attend to business and that the property in question was worth around $7,000.00, and that at one time he offered him $5,500.00 cash for it. Dr. Gerald Pearce testified that he had treated Mr. Helton for skin cancer and that in his opinion Mr. Helton was mentally confused at times; this witness also testified that he observed Mr. Helton in 1955 and also in July of 1957 and that in his opinion Mr. Helton was not competent to attend to business. Several other witnesses gave testimony similar to that set forth above and some stated that the property was worth as much as $7,500.00.

On behalf of the appellants it was shown by a very large number of people who knew Mr. Helton and associated with him frequently that they had not noted anything abnormal about him and that in their opinion they thought he was competent to transact business. Appellants attached special importance to the testimony of Mr. Roy Raywinkle who is in the abstract business in Heber Springs and who took the acknowledgment of Mr. Helton, to the deed in question. On direct examination, among other things, this witness stated:

“Q. Now, in your opinion was he cognizant and knew and appreciated what he was doing when he executed the deed?
A. Well, of course, I just know Mr. Helton when I see him. I never had any personal contact with him or any personal conversation with him. My natural presumption was that he knew what he was doing but, of course, as I tell you, I — I just knew him when I saw him. I never had any personal contact or any personal conversation with him.
Q. I’ll ask you this way: If there had been any question in your mind about it, Mr. Raywinkle, would you have executed the deed?
A. No, sir; I would not.”

It is argued by appellants that the testimony of a Notary Public who takes an acknowledgment to a deed is entitled to more weight than that of other witnesses and they cite as authority Carter v. Williams, 224 Ark. 378, 273 S. W. 2d 531. We do find in the second headnote of the cited case the statement that such testimony “is entitled to great weight”. We do not find anything in the opinion, however, which attaches any special significance to that character of testimony.

After carefully reviewing the testimony of the numerous witnesses, both for appellants and appellees, we are unable to see that the trial court’s finding regarding the incompetency of Helton to execute the deed in question is contrary to the weight of the evidence. We reach this conclusion particularly in view of the fact that the trial judge had an opportunity which we do not have to observe the witnesses and evaluate their testimony. The trial court was also entitled to take into consideration the fact, as shown by the weight of the testimony, that appellants did not pay what the property was worth. It would have been justified in finding that the property was worth three or four times what appellants paid for it. In the Fikes case, supra, where the question of the mental capacity of the grantor was involved and where he received $3,000.00 for certain property, this court said: “. . . the Chancellor may well have found it (the property) was worth considerably more than $3,000.00, and, if so, was a circumstance which the chancellor had the right to take into consideration in his over — all view of the case. ’ ’ In the same case it was likewise stated that an inadequate consideration is a circumstance to be considered in determining whether relief shall be granted in a case of this kind.

Affirmed.


text:
    Gland-O-Lac Co. v. Creekmore, Judge.
    5-1884-1885
    327 S. W. 2d 558
    Opinion delivered September 28, 1959.

      Shaw, Jones & Shaw, for petitioner.

      Dale L. Bumpers and Mark E. Woolsey, for respondent.
   Jim Johnson, Associate Justice.

Petitioner asks us to grant writs of prohibition against the Judge of the Circuit Court of Franklin County, Charleston District, directing him to proceed no further with trial of two causes pending in said court wherein Junior Moore is plaintiff in one action and the petitioner, Gland-O-Lac Company, is defendant; and the other wherein Everett Neighbors is plaintiff and the petitioner is defendant.

The suits were commenced by the plaintiffs in the Circuit court of Franklin County, Charleston District, against the petitioner for damages for alleged breach of implied warranty alleged as having been sustained by plaintiffs as a result of the use and administration by them upon their respective flocks of chickens of certain serums and vaccines alleged by plaintiffs as having been manufactured by petitioner and sold by it to the plaintiffs under an implied warranty that such preparations were safe, suitable and effective for the purpose of preventing the disease of larynogtracheitis in and among their chickens; when, in fact, said preparations were not safe, suitable or effective for such use and purpose.

It was shown that the serums and vaccines were sold to plaintiffs by petitioner through its agents from a stock of petitioner’s serums, vaccines and other preparations kept by it for sale in a warehouse, rented by it in Springdale, Washington County, upon orders from plaintiffs and that said vaccines and serums were to be delivered by petitioner to plaintiffs, at Moore’s Electric Hatchery located in Charleston.

After the sale of the serums and vaccines to plaintiffs, they were used and administered by plaintiffs and under their supervision to their respective flocks of chickens at their respective farms, each located in Sebastian County.

Service of process was obtained upon petitioner in each of the cases under the provisions of § 27-340, Ark. Stats., by serving the Secretary of State, it being alleged that petitioner is a foreign corporation engaged in the general business of manufacturing and selling serums and vaccines and other medicines and supplies for the treatment of poultry and for the prevention of diseases in poultry; that the petitioner was not qualified under the Constitution and laws of the State of Arkansas as to doing business in this state; and that notwithstanding that petitioner has not qualified under our Constitution and laws as to the doing of business, petitioner is actually engaged in doing business in the State of Arkansas.

After the filing of the suits and the obtaining of service upon the Secretary of State, petitioner filed in each of the cases its Special Appearance and Motion to Quash Service alleging that Summons was not issued, served, returned or filed in the time and manner required by law; that petitioner is a foreign corporation not authorised to do business in the State of Arkansas and has not designated an agent for service of process in this State; and that petitioner is not, and teas not at the■ times alleged in plaintiff’s complaint, doing business in the State of Arkansas. (Emphasis supplied).

After hearing testimony upon these motions and the responses thereto by plaintiffs, the trial court overruled the motions.

After the motions to quash had been overruled, petitioner filed in each of the cases a demurrer to the complaint reserving its objection to the jurisdiction of the court previously made by Special Appearance and Motion to Quash Service, which was by the trial court overruled, and discovery depositions of each of the plaintiffs were then taken by petitioner.

After taking the discovery depositions, petitioner filed in each of the cases its motion to dismiss for improper venue alleging that venue is governed either by § 27-611 or § 27-612, Ark. Stats. The motion in each case was overruled by the trial court, and thereafter petitioner filed an amendment to each of its motions to dismiss in which it alleged in the alternative that if neither § 27-611 nor § 27-612, Ark. Stats., determines venue, then in such event venue is governed by § 27-608 or § 27-613, Ark. Stats. This amendment was also overruled by the trial court. The petitioner then filed in this Court its present petitions for writs of prohibition.

The points relied on by petitioner for reversal are:

1. Yenue of these actions is controlled by § 27-dll, Ark. Stats.

2. In the alternative, the venue of these actions is controlled by § 27-612, Ark. Stats. (1947).

3. If § 27-611 or § 27-612, Ark. Stats. (1947) is not applicable, then the venue of these actions must be governed by § 27-613, Ark. Stats. (1947).

4. If § 3 of Act 347 of 1947 is construed to permit an action against a foreign corporation to be brought in any county in the State upon service of the Secretary of State, said Act is unconstitutional and void.

5. The petitioner has not waived its objection to the jurisdiction of the court of its person.

Point 4 relied upon by petitioner for reversal will be discussed first.

Section 3 of Act 347 of 1947, § 27-340, Ark. Stats, provides:

“Service of summons when obtained upon any such non-resident as above provided for the service of process herein shall be deemed sufficient service of summons and process to give to any of the courts of this State jurisdiction over the cause of action and over such non-resident defendant or defendants, and shall warrant and authorize personal judgment against such non-resident defendant, or defendants, in the event that the plaintiff prevails in the action.”

Petitioner contends that if § 3 of Act 347, being part of § 27-340, Ark. Stats., is construed to permit an action against a non-resident corporation in any county in the state upon service on the Secretary of State, then it is violative of the provisions of the 14th Amendment to the Federal Constitution as construed by the Supreme Court of the United States in the case of Power Manufacturing Co. v. Saunders, 274 U. S. 490, 47 S. Ct. 678, 71 L. Ed. 1165, holding § 1829 of Crawford & Moses’ Digest unconstitutional on the ground that it discriminated against foreign corporations and in favor of domestic corporations and individuals.

In that case we find the following language of the United States Supreme Court:

“The clause in the Fourteenth Amendment forbidding a state to deny any person within its jurisdiction the equal protection of the laws is a pledge of the protection of equal laws ... it does not prevent a State from adjusting its legislation to differences in situation or forbid classification in that connection, but it does require that the classification be not arbitrary, but based on a real and substantial difference, having a reasonable relation to the subject of the particular legislation . . .”

A state is thus permitted to make reasonable, but not arbitrary classifications. Section 3 of Act 347 of 1947 applies only where any foreign corporation not qualified under the Constitution and laws of this state as to doing business herein, shall do any business or perform any character of work or service in this state, and it applies then only to actions accruing from the unauthorized doing of such business, or as an incident thereto.

This is not an arbitrary classification against a non-resident defendant, but is a reasonable one based on a real and substantial difference, and having a reasonable relation to the subject of the particular legislation, and is thus permitted by the Fourteenth Amendment to the Constitution of the United States as held by the Supreme Court of the United States in the Power Manufacturing Company case, supra.

Even petitioner agrees in his argument that § 3 of Act 347 is not intended to be a venue provision. This section confers jurisdiction.

After a careful review of the record we find that there is no merit to petitioner’s points 1, 2, and 3, relied on for reversal, since these points questioning venue were not raised until after petitioner had filed in each of the cases a demurrer. The filing by the petitioner of the demurrer in each of the cases, even though petitioner reserved its prior Motion to Quash as set out above, was a general entry of its appearance in each case, constituting a waiver of its right to object to improper venue and conferring upon the court jurisdiction of petitioner’s person. This further pleading by petitioner accomplished the reverse of petitioner’s 5th point relied on for reversal, i.e., waived its objection to the jurisdiction of the court of its person.

In reaching our conclusion upon the question of the right of a defendant to waive an objection to wrong or improper venue, we bear in mind the distinction between venue and jurisdiction, venue meaning the place, that is the county or district wherein a cause is to be tried; and jurisdiction meaning, not the place of trial, but the power of the court to hear and determine a cause, including the power to enforce its judgment, 56 Am. Jur. Yenue, § 2; 14 Am. Jur. Courts, § 160-161.

It is well settled that jurisdiction of the subject matter of an action can neither be conferred nor waived by the parties; but jurisdiction of the person may be both conferred and waived by them. See: Strahan v. Atlanta Nat. Bank of Atlanta, Texas, 206 Ark. 522, 176 S. W. 2d 236; Coffelt v. Nicholson, 224 Ark. 176, 272 S. W. 2d 309; Purnell v. Nichol, 173 Ark. 496, 292 S. W. 686.

Therefore, finding no error, the writs of prohibition are denied.


author: J. Seaborn Holt, Associate Justice. Jim Johnson, Associate Justice,

text:
    White v. First Electric Cooperative Corp.
    5-1983
    327 S. W. 2d 720
    Opinion Delivered October 5, 1959.

      Mehaffy, Smith & Williams and Robert V. Light, for appellant.

      Riclclich Riff el, for appellee.
   J. Seaborn Holt, Associate Justice.

Appellant, Buster White, while in the employ of appellee, First Electric Cooperative Corporation, was injured in the course of his employment, on June 21, 1956. Appellee’s insurance carrier, Employers Mutual Liability Insurance Company of Wisconsin, on the day following the injury began paying compensation to White at the prescribed rate of $35.00 per week, along with proper medical care through February 10, 1958, a period of 85 4/7ths weeks, in the total amount of $2,139.29, it having been determined and agreed that his healing period had terminated on February 10, 1958. Appellant had a permanent 25 per cent disability. On February 20, 1958, appellant stipulated that his healing period had terminated and asked the Workmen’s Compensation Commission for a lump sum settlement of the remaining 1121/2 weeks beyond the healing period, amounting to $1,685.77, and this sum was allowed and paid to him on the basis of a 25 per cent permanent partial disability, being the remaining compensation to which he was entitled because of that disability. Up to this point a total of $4,837.77 had been paid to appellant.

In April 1958, proceeding under Section 26, Sec. 81-1326 of 1947 Ark. Stats. Supp., appellant asked the Commission for additional benefits on the grounds that lie had experienced a change in his physical condition since February 20,1958, that is, that there had developed in his spine pseudarthrosis, defined as a “false joint,” as a result of operations performed to correct his original injury. On June 12, 1958, a hearing was had before a Referee of the Workmen’s Compensation Commission and on September 5th, appellant’s claim for additional benefits was denied. On appeal to the full Commission, after reviewing the evidence before the Referee and some additional testimony, the Commission, on December 8, 1958, found that appellant had not shown a change in physical condition which would warrant additional benefits, but stated that, “claimant might be helped by a course of physiotherapy given over a period of about one month” and directed appellee to provide such treatment which it immediately did. Thereafter, the appellant appealed to the Circuit Court of Pulaski County from the Commission’s decision denying his petition and on May 15, 1959, that court affirmed the order of the Commission and this appeal followed.

For reversal appellant says: “The central issue presented by this appeal is whether there is substantial evidence in the record to support the finding of the Commission that the claimant did not sustain a worsening of his condition subsequent to February 10, 1958, which would entitle him to a resumption of payments and medical treatment under the terms of the Workmen’s Compensation Act. Specifically, the question is whether there is substantial evidence to support the finding that claimant did not have a pseudo-arthrosis at the site of the second operation.” In short, says appellant, the issue presented “resolves itself into the question of whether there was a pseudo-arthrosis (false joint) at the site of the operation.”

Under our long established rule, if we find any substantial evidence in the record to support the findings and order of the Commission and the judgment of the trial court, we must affirm. “Under our Workmen’s Compensation Law the Commission acts as a trier of the facts — i.e., a jury — in drawing the inferences and reaching the conclusions from the facts. We have repeatedly held that the finding of the Commission is entitled to the same force and effect as a jury verdict,” Wren v. D. F. Jones Construction Company, 210 Ark. 40, 194 S. W. 2d 896.

After a careful review of the evidence presented, we have concluded that there is substantial evidence that appellant did not sustain a worsening of his condition subsequent to February 10, 1958, and did not have pseudarthrosis at the site of the second operation. The evidence is in conflict.

Due to the accident suffered by appellant on June 21, 1956, the evidence shows that he received an injury to his back diagnosed as a ruptured intervertebral disc. In an effort to correct this condition, he was operated on at his employer’s expense, and a metal object, or button, placed in his back. This operation appeared unsuccessful since the metal object corroded and on June 11, 1957,. Dr. Hundley, orthopedist, performed a second operation to remove the button and to fuse the two vertebrae adjacent to the area. This operation was designed to make appellant’s back, at this level, rigid. After approximately 9 months’ convalescence, Dr. Hundley released appellant from his care on February 10, 1958, it being Dr. Hundley’s opinion that appellant had reached a point where he no longer needed medical care but that because of his injury and subsequent operations, he estimated that appellant had a permanent partial disability of 25 per cent to his body as a whole. On July 1, 1958, x-rays were made of appellant by Dr. Barton A. Rhine-hart, roentgenologist. Dr. Rhinehart’s report on these x-rays contained this recital: ‘ ‘ The films show a spinal graft between the 5th lumbar and second sacral segments. The graft appears to be solid and there is no evidence of motion between the 5th lumbar and first sacral segments. Light motion, however, is present between the 4th and 5th lumbar segments. Conclusions: Spinal grafts with immobilization between the 5th lumbar vertebra and the sacrum, motion is present between the 4th and 5th lumbar segments.”

On July 24, 1958, Dr. Khinekart, at tke request of Dr. Wm. L. Steele, orthopedist, made additional x-rays of appellant in an effort to ascertain if a true pseudarthrosis existed and on this second examination his report was as follows: “Anteroposterior standing erect views of the lumbar spine and pelvis were made both with the patient bending to the right and bending to the left. When these films are superimposed there is no evidence of motion between the 4th and 5th lumbar segments and between the 5th lumbar and first sacral segment. Spinal grafts of osseous density are visible between L-4 and S-l. Lateral views were taken in flexion and extension positions. When these views were superimposed no evidence of motion can be seen between L-4 and S-l. The spinal graft appears to be well affixed and shows no evidence of pseudarthrosis. Conclusions: Bone graft between the 4th lumbar and first sacral segments with no evidence of motion on these films.”

After examining appellant and considering Dr. Rhinehart’s x-ray findings, Dr. Steele testified: “In summary then, this patient has a long standing low back difficulty, instituted while at work, followed by multiple surgical procedures within a two year period. As near as I can determine, the physical findings and history reveal outstanding low back stiffness, complains of low back pain and occasional leg pain, however, not accompanied by any outstanding evidence of muscle atrophy or outstanding nerve root distribution sensory defects. This is in an obese patient who is, understandably, by this time, poorly conditioned to the effects of operative procedures, and x-rays of which only suggest, but to my mind do not definitely prove, the presence of a pseudarthrosis. The idea of any surgical procedure would be to make him better than he is at the present time. Therefore, to me the presence of a pseudarthrosis would have to be more apparent than it is to me now. Secondly, the patient would have to lose weight and gain some mobility of his back; since none of these conditions are met at this time I would not recommend any surgical procedure. ’ ’

Dr. Hundley, who as indicated, had performed the fusion operation on appellant, and had observed and treated him for nine months prior to February 1959, after reviewing the reports of Dr. Ehinehart, stated: “I think it is conclusive that there is no definite pseudarthrosis of this man’s spinal fusion, and certainly at this time there would be no reason to entertain the idea of performing a bone graft as of present status.” It thus appears that of the physicians who examined and treated appellant to ascertain whether he had pseudarthrosis, one physician offered by appellant gave it as his opinion that appellant had pseudarthrosis, while Dr. Hundley testified, in effect, that none was present and Dr. Steele testified, after examining the appellant and the x-rays, that he was unable to find the presence of pseudarthrosis. Both Drs. Hundley and Steele testified that additional surgical intervention was not warranted in view of their examinations of appellant.

As indicated, we cannot say that the above testimony on behalf of appellees was not substantial and therefore, the judgment must be and is affirmed.

Johnson, J., dissents.

Jim Johnson, Associate Justice,

dissents. The issue presented here is whether there was substantial evidence in the record to support the findings and order of the Commission and the judgment of the trial court. The question to be resolved is whether claimant had a change in his physical condition.

For reversal, appellant says: ‘£ The central issue presented by this appeal is whether there is substantial evidence in the record to support the finding of the Commission that claimant did not sustain a worsening of his condition subsequent to February 10,1958, which would entitle him to a resumption of payments and medical treatment under the terms of the Workmen’s Compensation Act. Specifically, the question is whether there is substantial evidence to support the finding that claimant did not have a pseudo-arthrosis at the site of the second operation.” In short, ££Whether there was a pseudo-arthrosis (false joint) at the site of the operation.”

The healing period was terminated February 10,1958, by Dr. Hundley on the premise that the last operation had been successful and that the bone graft was sound. In July, Dr. Carruthers found it to be so unsound as to recommend immediate surgical correction. Dr. Steele found a suggestion of a pseudo-arthrosis. Dr. Hundley is uncertain relative to the existence of sufficient bony material in the graft and relative to the existence of a pseudo-arthrosis.

Appellant argues: “Where in the record can support be found for the Commission’s finding of an unchanged condition? The appeal turns on the question of whether there is a change in condition for the worse which either was not present when the healing period was terminated, or if present, was not known to, nor considered by Dr. Hundley in terminating the medical healing period. Dr. Hundley had terminated the healing period on the premise that the operation had been a success — that it had resulted in a sound joint. If then, a pseudo-arthrosis developed, that is an undesired and unexpected change of condition.” (Emphasis supplied).

The essence of the medical testimony is that Dr. Steele and Dr. Hundley frankly admitted that they didn’t know whether a pseudo-arthrosis had developed. Dr. Carruthers definitely testified that there was a pseudo-arthrosis. In Easton v. E. Boker & Co., 226 Ark. 687, 292 S. W. 2d 257, this Court quoted with approval the following language of Judge Sanborn:

“A reviewing court however, is not always required to accept as substantial evidence the opinion of experts, ‘Where it clearly appears that an expert’s opinion is opposed to physical facts or to common knowledge or to the dictates of common sense or is just speculation, such an opinion will not be regarded as substantial evidence.’ ”

On December 8, 1958, the Commission found that claimant had not shown a change of physical condition which would warrant awarding him additional compensation benefits. However, it did state that ‘ ‘ claimant might be helped by a course of physiotherapy given over a period of about one month.” The Commission directed respondents to provide such physiotherapy which respondents immediately provided for appellant.

It is to be inferred from the above facts' that the Commission believed, and based their award'upon such belief, that the claimant had sustained a sufficient change in condition to justify the medical treatment ordered. Therefore, the Commission’s finding that he was in need of medical treatment for which the respondent is liable is inconsistent with, and does not support the order and award denying additional compensation payments.

For the reasons stated above, I respectfully dissent.


text:
    Motors Insurance Corp. v. Williams.
    5-1906
    327 S. W. 2d 723
    Opinion Delivered October 5, 1959.

      Knox Kinney, for appellant.

      Harold Sharpe, for appellee.
   Ed. F. McFaddin, Associate Justice.

This is a suit brought by appellees, Williams and wife, to set aside an insurance settlement on the grounds of fraud in procurement, and to recover from appellant the amount claimed to be due on the insurance policy. From a chancery decree granting the prayed relief as to the settlement and awarding appellees a net amount of $122.10, appellant brings this app eal.

In July, 1957, the appellees purchased a used 1953 Buiek car, and foi the balance of the purchase money and insurance preño Lum, they executed a conditional sales contract for $1,591.02, which was duly transferred to General Motors Acceptance Corporation (hereinafter called “GMAC”). The insurance policy issued by appellant, and here involved, afforded protection to appellees and GMAC for collision damage to the full value of the car, less $50.00. Appellees’ car was damaged in a collision on July 21, 1958, while the said policy was in force and while there was still due GMAC a balance in excess of $500.00 on the conditional sales contract.

On July 29, 1958, the adjuster of appellant went to see Williams and wife and obtained from them the title papers of the car and a full release of all claims against appellant insurance company. On September 4,1958, the appellees filed the present suit in the Chancery Court, alleging that the adjuster for the Insurance Company had been guilty of fraud in the said July 29th transaction, and praying for recovery of the true amount due the plaintiffs on the insurance policy. The answer denied the allegations of the complaint. At the beginning of the chancery trial, this occurred:

“THE COURT: This action, as I understand it, is brought to cancel the release on the grounds of fraud.
‘ ‘ MR. KINNEY: That is exactly right. The action is brought on the policy, and the company pleads payment under the policy terms, and offers the settlement agreement to them.”

So the issue was pinpointed on the basis of fraud in the procurement of the release.

We have many cases discussing the materiality of the misrepresentations in order for the settlement to be held to have been fraudulently obtained. Some such cases are: St. L. I. M. & S. Ry. Co. v. Hambright, 87 Ark. 614, 113 S. W. 803; Mo. P. RR. Co. v. Treece, 188 Ark. 68, 64 S. W. 2d 561; and Wilson v. Southwest Cas. Ins. Co., 228 Ark. 59, 305 S. W. 2d 677. With the rule of these cases understood, we proceed to the evidence offered in the case at bar, which was heard ore tenus by the Chancery Court. The appellees were ignorant Negroes and almost illiterate: Braxton Williams, the man, was unable to read or write, except to sign his name; Octavia Williams, the woman, was barely able to read and write. The adjuster for the appellant company went to the Williams home while Octavia was away. It was raining, so the adjuster and Braxton sat in the front seat of the adjuster’s car. The adjuster obtained from Braxton the “pink slip” or evidence of title to the car; prepared an instrument transferring the title of the damaged car to the appellant company; and prepared an instrument giving the insurance company a full release on the insurance policy for $500.00, all of which was to be paid to GMAC. The adjuster had the papers all prepared for signature when Octavia returned home. She was seated in the back seat of the car; and the papers were signed.

Both of the appellees insist that the adjuster told them that they would get another ear for the damaged car; and that the car was a total loss. Braxton Williams testified:

“A. He told me it was — the car was a total loss.
Q. You wanted insurance on your car for a total loss?
A. Yes, sir.
Q. And he told you it was a total loss?
A. Yes, sir. . . .
Q. And you understood when you put your signature to that thing you were settling up with the insurance company, didn’t you?
A. I didn’t; no, sir.
Q. You didn’t understand that? Then why did you sign it?
A. Well, I signed it for the insurance company, to get another car.”

Octavia Williams testified:

‘ ‘ Q. When you were signing this you knew you were signing it to settle up for the car, didn’t you?
A. No, sir; I didn’t know it. I wouldn’t have signed nothing if I knew we wasn’t going to get another car.
Q. Didn’t you hear him say it wasn’t good enough to have repaired; that he wasn’t going to have it repaired, and that it was a total loss?
A. He said then it was tore up so it couldn’t be repaired. I'knew it was tore up, but I thought he was going to give us another car if it couldn’t be fixed.”

The adjuster himself admitted that he told the Negroes the car was a total loss. At one place he testified :

“I went to the Williams’ house to contact the insured. They were both named as insureds on our policy. Braxton was there. He asked me — I told him who I was, introduced myself, and I told him his car was a total loss and couldn’t be economically repaired.”

And again he testified:

“I don’t think I said anything about the bill of sale. I explained it, and told them the car was a total loss, and that we could only pay $500.00 for it. And I explained to them how I arrived at that figure, that being the market value.”

It developed in the testimony that the car was not a,total loss-. The adjuster admitted after “settling” with the appellees he was able to get a bid of $159.75 for the salvage value of the car; and the car was sold. So when the adjuster told the appellees that the car was a total loss he misrepresented the facts, certainly to the extent of $159.75; and this was a material fact within the knowledge of the appellant company and certainly not within the knowledge of the ignorant Negroes.

Furthermore, the adjuster admitted that he told the appellees that the total value of the car before the collision was $550.00; and that it would cost more than that amount to repair the car. Yet the adjuster later admitted in his testimony that he knew all along that the ear could have been completely repaired for $443.44, of which amount the insurance company would only have paid $393.44 because of the $50.00 deductible provision. It is clear that this misrepresentation was made because of the close relationship between the appellant insurance company and GMAC, which had already notified this adjuster that it wanted its money rather than a continuing conditional sales contract on a repaired car.

Finally, the adjuster represented to the appellees that the value of the car before the collision was $550.00. He made the $50.00 deductible and had the Negroes sign a full release and bill of sale of the car for $500.00, all of which was to go to GMAC and still leave a balance due by the appellees. The learned Chancellor knew human characteristics and psychology well enough to know that these appellees would never have ‘ ‘ signed away everything” on any such understanding. The Chancellor necessarily found that the matters had been misrepresented to the appellees, and so the Chancery Court gave the judgment for an amount sufficient to equal what they should have rightfully received under the insurance policy.

Affirmed.