author: Ed. F. McFaddin, Associate Justice. George Rose Smith, J.,

text:
    Hulsizer v. Johnson-Brennan Construction Co.
    5-2178
    339 S. W. 2d 116
    Opinion delivered October 17, 1960.

      Little $ Enfield, for appellant.

      Pearson & Pearson, for appellee.
   Ed. F. McFaddin, Associate Justice.

This is a Workmen’s Compensation case. Mrs. Alta Hulsizer filed claim because of the death of her husband, Ivan Hulsizer, who suffered an attack and died while employed by Johnson-Brennan Construction Company at Rogers, Arkansas. The Referee allowed the claim; the Full Commission, reversing the Referee, disallowed the claim; the Circuit Court affirmed the Full Commission; and Mrs. Hulsizer appeals to this Court. Appellant recognizes the long established rule that if there be substantial competent evidence to support the finding of the Full Commission, then we will affirm such finding.

The appellant points out, however, that the Full Commission reversed the Referee and decided the case against Mrs. Hulsizer because of the testimony of Dr. Riggall; and the appellant urges that Dr. Riggall’s testimony was not competent evidence because, in answering a hypothetical question, he assumed facts not contained in the question or otherwise shown in the record. We reach the conclusion that the appellant is correct and the Circuit Court judgment must be reversed.

In allowing the claim the Referee delivered a written opinion from which we copy pertinent excerpts:

“The deceased, Ivan Hulsizer, was 51 years of age on the morning of September 27, 1957, and reported to work at his usual hour of 7:30 A.M. at Rogers, Arkansas. He was employed as a common laborer for said construction company and had been employed by it for a period of two years prior to the date of his death . . . On the morning of September 27,1957, the deceased commenced his work at 7:30 A.M. and continued his work until approximately 8:15 A.M., when he collapsed at work and was taken by ambulance to the Rogers Memorial Hospital in Rogers, Arkansas where he expired a few minutes after arrival in the emergency room of said hospital. An autopsy was performed on the body of the deceased and a finding was made by Dr. Grier Warren that the deceased had died from a cerebral hemorrhage . . . On the morning of September 27, 1957, the deceased, along with co-workers, was carrying and stacking wet or damp lumber tbat had been used in the laying of concrete floors and foundations. These pieces of lumber carried individually by the workers weighed from sixty to seventy pounds and were picked up from the floor and carried approximately twelve to sixteen feet where they were stacked. The deceased was in the process of carrying one of these pieces of lumber when he collapsed on the job. The death certificate, along with the autopsy report and various medical reports, was introduced and made a part of the record in this claim. This evidence, together with the testimony of Dr. John Eollow, Dr. Grier Warren, Dr. Neal Compton, Dr. Stewart Wilson, and Dr. D. H. Butler, together with the claimant’s widow and two lay witnesses, was presented for the benefit of the Eeferee in this claim . . .
“A great deal of time and effort have been devoted to reading and studying all of the testimony and evidence introduced and made a part of the record in this claim. The Eeferee is of the opinion that two decisions of the Arkansas Workmen’s Compensation Commission and of the Supreme Court of the State of Arkansas are determining factors in the decision of this claim. In the well known case of Bryant Stave Company v. White, 227 Ark. 147, 296 S. W. 2d 436, the Supreme Court defined the term ‘accidental injury’ to cover the condition of the deceased in this claim. In the later case of E. P. Bettendorf & Co. v. Kelly, 229 Ark. 672, 317 S. W. 2d 708, the Court went further in making a determination of what is an accidental injury arising out of and in the course of employment.
“A study of the evidence in this claim, taken together with the medical testimony, shows, in the opinion of the Eeferee, that the worker had a pre-existing condition which taken together with the work load that the deceased was undertaking on September 27, 1957, and the resulting death were all related to his work and that his work was the causal connection in his death. The medical evidence shows that if the claimant did have a preexisting condition it was a weakening of one of the vesseis near the brain which weakness was ruptured by the heavy work and stress and strain that were placed upon the workman on the date of his death causing his instant death. ’ ’

The cases cited by the Referee clearly sustained his conclusions. The facts here are strikingly similar to those in Bettendorf v. Kelly, 229 Ark. 672, 317 S. W. 2d 708, wherein we reaffirmed our unanimous holding in Bryant Stave Co. v. White, 227 Ark. 147, 296 S. W. 2d 438, and also said:

“Every time a mortal is born everyone knows that some time the mortal will die, so the death of a mortal is never unforeseen or unexpected in the light of human existence. But just when the death will occur and under what circumstances, is certainly unforeseeable and unpredictable. So it was with the heart attack of Mr. Kelly in the case at bar: no one could tell when it would occur. He was engaged in a line of work, he was exerting himself by the driving of nails into the pallets, he collapsed: his death was, therefore, accidental and within the scope of his employment.”

One of the witnesses who testified before the Referee was Dr. Grier "Warren, who made the autopsy of Ivan Hulsizer; and the portion of that report germane to the issue here is as follows:

“BRAIN: The skull was opened and there was evidence of intra-cranial bleeding throughout. There was no evidence of fracture as noted on the entire surface of the skull which was smooth. Blood covered the whole area of the brain and extended down into the spinal column. The blood vessels could not be traced out due to the amount of blood and hematomas on the upper surfaces. No areas of hemorrhage or softening are noted on the cut surfaces of the brain.
' “GROSS PATHOLOGY: Specimen of brain revealed evidence of intra-cranial bleeding with large hematomas over entire surface of specimen. Entire brain was examined. No evidence of hemorrhage or softening within the brain tissue was noted.
" HIAGrNOSIS: Cerebral Hemorrhage. ’ ’ (Emphasis supplied.)

When the ease was heard before the Full Commission the transcribed testimony, heard before the Beferee, was presented and the only other additional witness was Dr. Biggall, who testified as an expert as to the cause of Ivan Hulsizer’s death. There is no claim that Dr. Biggall ever saw Ivan Hulsizer, alive or dead. The doctor stated that he had read a transcript of the testimony before the Beferee and was then asked a hypothetical question as to the cause of Ivan Hulsizer’s death. The hypothetical question incorporated in it the autopsy report about the brain of Hulsizer:

“And upon opening the cranium free blood covered the whole area of the brain and it was found throughout the cavity extending down into the spinal column. No ruptured vessels could be demonstrated and no areas indicative of previous trauma to the head were found and that death resulted from shock due to cerebral hemorrhage.” (Emphasis supplied.)

The hypothetical question ended:

‘ ‘ From the foregoing assumed facts, do you have an opinion to a reasonable medical certainty whether the work caused or contributed to the cause of the death of the hypothetical Ivan Hulsizer?”

Dr. Biggall giving an answer covering three typewritten pages concluded that Hulsizer died because of a congenital pathological defect known as a congenital aneurysm. In so concluding the doctor said:

“I find it easy to reconstruct the picture and I am certain from those facts that death occurred from the rupture of a congenital aneurysm of one of the internal carotid vessels and this was not found by the matter of the post mortem, because it is on the floor of the brain and could not be seen unless the brain had been removed and that is the usual method of showing this lesion. (Emphasis supplied.)

Promptly the attorney for Mrs. Hulsizer objected, saying:

“I object and ask that the entire answer be stricken from the record for the specific reason that the autopsy report and report of the autopsy surgeon does not show such defect. He is assuming such defect to be there and that the autopsy surgeon did not do a proper job of autopsy and is presupposing facts without the record and the whole response should be stricken from the record.” The Commission allowed the doctor’s answer to remain; and therein we consider reversible error to have occurred. It is readily apparent when the autopsy report is compared with Hr. Riggall’s answer — as we have emphasized the portions —- that he assumed a fact contrary to the autopsy report: i.e., that a blood vessel had ruptured in a portion of the brain not discovered by the doctor making the autopsy. On this assumption — contrary to the autopsy report — Dr. Riggall predicated his conclusion. Dr. Riggall’s testimony must be discarded as stating something to be a fact that was not shown on the autopsy report. Dr. Riggall’s entire testimony is bottomed on his position that because of his medical experience he knew more about the brain than did the physician who made the autopsy report and that certain facts had to be true as regards the autopsy even though such facts were not shown. Superior knowledge is a wonderful attribute; but an expert in answering a hypothetical question must base the answer on admitted facts and cannot assume facts contrary to or in addition to the admitted facts. That is the vice of Dr. Riggall’s testimony.

There are two sources from which an expert can gain facts in a case like this. One is from a personal examination, and the other is the factual statement in the hypothetical question. As previously stated, Dr. Riggall never saw Ivan Hulsizer, alive or dead: so Dr. Riggall’s only source from which he could gain facts on which to testify must be the facts stated in the hypothetical question. As the Supreme Court of Washington stated in Clayton v. Dept. of Labor, 48 Wash. 2d 754, 296 P. 2d 676:

“If his opinion is based upon a hypothetical question and he assumes the existence of material conditions not established by the evidence or not included in the question or inferable therefrom, he destroys the validity of his answer . . .”

The same Court in Berndt v. Dept. of Labor, 44 Wash. 2d 138, 265 P. 2d 1037, said:

“It is equally clear that, when an expert who knowns nothing about an individual except what is included in a hypothetical question assumes the existence of certain conditions not included in that question and not necessarily inferable therefrom, he destroys the validity of his answer. See Rich v. Philadelphia Abattoir Co., 1947, 160 Pa. Super. 200, 50 A. 2d 534. In that case the expert assumed the existence of arteriosclerosis, which was not established by the evidence. In this case, the expert assumes worries about economic security and a diseased coronary artery, neither of which was established by the evidence or included in the hypothetical question.”

In Atlantic Coast Line R. Co. v. Shouse, 83 Fla. 156, 91 So. 90, the Supreme Court of Florida said:

‘ ‘ The answer of an expert witness to a hypothetical question must be given upon the basis of the facts stated in the question, and without recourse to other facts within his own knowledge. See Fuller v. City of Jackson, 92 Mich. 197, 52 N. W. 1075; City of Wichita v. Coggshall, 3 Kan. App. 540, 43 Pac. 842; Link v. Sheldon, 136 N. Y. 1, 32 N. E. 696; Burns’ Ex’r. v. Barenfield, 84 Ind. 43. But the witness in this case not only declined to answer the question upon the basis of the facts stated, but had recourse, not to facts within his own knowledge, but to an imaginary case of his own construction, built in part from some of the facts embraced in the question, his deductions from conflicting evidence referred to in the question, and in part from his imagination, and a case which had no basis whatever in the record. ’ ’

Other courts have recognized the same rule. See Fidelity & Gas. Co. v. Van Arsdale, Tex. Civ. App., 108 S. W. 2d 550; Mounsey v. Bower, 78 Ind. App. 647, 136 N. E. 41 and Ballance v. Dunnington, 241 Mich. 383, 217 N. W. 329, 57 A. L. R. 262. See also Rogers on “Expert Testimony”, 3rd Ed. § 54; and 32 C. J. S. 366 et seq., “Evidence”, § 557 et seq.

The Commission committed error in allowing Dr. Riggall’s answer as competent. Therefore, the judgment of the Circuit Court affirming the Commission is reversed and the cause is remanded to the Circuit Court with directions to reverse the Commission’s award and remand the cause to the Commission for further proceedings in accordance with this opinion.

George Rose Smith and Robinson, JJ., dissent.

George Rose Smith, J.,

dissenting. I agree that the opinion of an expert witness cannot properly be based upon a set of hypothetical facts for which there is no proof in the record. For instance, in Payne v. Thurston, 148 Ark. 456, 230 S. W. 561, a medical witness was asked a hypothetical question which included an assumption that the plaintiff had suffered an injury to her left side. There was actually no evidence of such an injury. It was correctly held that the question was defective, for neither the jury nor the court could possibly determine the extent to which the witness’s opinion was based upon the fact that was assumed but not proved.

That is not the situation in the case at bar. Here the physician performing the autopsy concluded that the cause of death was cerebral hemorrhage, but he did not attempt to specify the exact spot at which the hemorrhage occurred. On this point he merely reported that the entire brain was examined and that no evidence of hemorrhage within the brain was noted.

Dr. Riggall simply attempted by a process of reasoning to determine the situs of the hemorrhage. He stated that within the cranium there are only three arteries of sufficient size to produce a hemorrhage such as that, disclosed by the autopsy. Two of these arteries are so situated that the jet of blood from a fatal hemorrhage would plow a channel within the brain tissue so. large that it could not be missed at the post mortem examination. But, reasoned Dr. Riggall, if the rupture occurred in the third artery — the internal carotid artery — it would account for the condition actually found and yet might not be observed by the maker of the post mortem, as the rupture would be on the floor of the brain and not readily discernible. From this conclusion Dr. Riggall went on to give his basis for thinking that the decedent’s work would not have contributed to a hemorrhage within the internal carotid artery.

I think the majority are misapplying the rule which precludes an expert witness from basing his opinion upon a fact not in evidence. If, for instance, this autopsy had contained a positive finding that the hemorrhage took place in one of the two arteries first mentioned by Dr. Riggall, then of course he could not have based his opinion upon an assumption that the damage happened within the internal carotid artery. In that situation the rule in question would be properly applied.

But this is not the case at hand. The autopsy actually contained an affirmative finding of a cerebral hemorrhage, and by definition such a hemorrhage must occur within the brain. But the author of the post mortem report did not attempt to say just where within the brain the hemorrhage took place; he merely stated that no evidence of the hemorrhage within the brain was noted. All that Dr. Riggall did was to attempt by a chain of logic to demonstrate where the hemorrhage probably occurred. His opinion was of course open to contradiction by other testimony and to rejection for want of persuasiveness, but it was clearly admissible. Otherwise we are driven to the patently untenable position that is being adopted by the majority. That position boils down to this: (1) If the autopsy report affirmatively shows the situs of the hemorrhage that fact cannot he disputed by expert opinion, for that would contradict the report. But (2) if the autopsy report fails to show the situs of the hemorrhage the missing fact cannot be supplied by expert opinion, for that too would contradict the report. Thus it makes no difference whether or not the post mortem examiner makes a finding of the cause of death, for in either case his report constitutes the final word. I cannot agree with such questionable logic and therefore dissent.

Robinson, J., joins in this dissent.


source: Caselaw Access Project

author: George Rose Smith, J.

license: Public Domain

text:
    Gentry v. Little Rock Road Machinery Co.
    5-2218
    339 S. W. 2d 101
    Opinion delivered October 17, 1960.

      Jeff Duty and Wayne Foster, for appellant.

      Moore, Ghowning, Mitchell, Hamilton <& Burrow, for appellee.
   George Rose Smith, J.

This is a suit by the appellant for rescission of a conditional sales contract by which he bought a secondhand tractor from the appellee, for $6,875. The complaint asserted two grounds for cancellation of the contract: First, that the seller had made false representations about the condition of the tractor, and, secondly, that there had been a breach of an express or implied warranty. The chancellor granted rescission upon the second ground and entered a decree canceling the contract and adjusting the account between the parties. An appeal and cross appeal bring the whole case up for review in the form of a trial de novo.

The really basic issue is the appellant’s right to a cancellation of the agreement, either for fraud or breach of warranty. Gentry testified that in making the purchase he cautioned the appellant’s salesman that he knew nothing about this kind of tractor and that he was relying upon the salesman’s word as to the condition of the machine. Gentry says that the salesman, after receiving this warning, assured him that the tractor was in A-l condition. The salesman disputes Gentry’s testimony, but the chancellor found that the representation was actually made, and this finding cannot be said to be against the weight of the evidence.

The proof shows clearly enough that the tractor was not in A-l condition and that the seller’s repeated efforts to repair it were unavailing. We need not discuss this evidence, for the appellee does not, and indeed could not, contend that the machine was in A-l condition.

The chancellor set aside the contract for breach of warranty despite the fact that the written agreement recites that the seller makes no express warranty with respect to the property and that the buyer waives any warranty implied by law. The appellee relies upon this contractual disclaimer of all warranties to support its argument that the trial court erred in decreeing a rescission of the agreement for breach of warranty.

It is true that we held in Moss v. Gardner, 228 Ark. 828, 310 S. W. 2d 491, that § 71 of the Uniform Sales Act permits the parties to agree that all implied warranties will be excluded from their agreement. Ark. Stats. 1947, § 68-1471. The Moss case involved a conditional sales contract, but we overlooked § 76 c of our Sales Act, by which the legislature expressly excepted conditional sales from the operation of the statute. Ark. Stats., § 68-1479; Cloud Oak Flooring Co. v. J. A. Riggs Tractor Co., 223 Ark. 447, 266 S. W. 2d 284. Hence § 71 of our Sales Act is not properly applicable to the conditional sales contract now before us.

We do not find it necessary to analyze in detail the appellant’s asserted cause of action for breach of warranty, for we are convinced that the cancellation decree should in any event be affirmed upon the alternative ground of misrepresentation by the seller. In the circumstances of this case, where the purchaser was paying a very substantial sum, amounting to about 40 per cent of the price for a brand-new tractor, we do not regard the seller’s representation as a mere expression of opinion and therefore not actionable. See Cannaday v. Cossey, 228 Ark. 1119, 312 S. W. 2d 442. A representation that a used truck was in A-l condition has been held to be a statement of fact and hence a warranty rather than a mere expression of opinion. Maurice v. Chaffin, 219 Ark. 273, 241 S. W. 2d 257. By the same reasoning sneh a representation, when falsely made, gives rise to a cause of action in tort. Fausett & Co. v. Bullard, 217 Ark. 176, 229 S. W. 2d 490.

As a subsidiary argument the appellee insists that the appellant waived his right to rescission by not bringing suit until one year after the sale, Jones v. Gregg, 226 Ark. 595, 293 S. W. 2d 545. This defense was not raised in the appellee’s answer, which consisted only of a general denial. There was thus no occasion for the appellant to offer proof of facts tending to excuse his delay, and it would be manifestly unfair to reject his cause of action upon a ground that was not developed at the trial and appears to be raised for the first time on appeal.

The remaining points relate to the accounting between the parties after the contract has been set aside. The appellant made one monthly payment of $593.06 upon the contract, but the chancellor refused to allow him to recover this amount, finding that it constituted a reasonable rental for the machine during the time that the purchaser used it. The record contains no evidence at all relating to the rental value of the tractor, nor is there any proof that the plaintiff derived any benefit from his vain attempts to operate the machine. The decree will therefore be modified to permit the appellant to recover the amount of his cash payment, with interest.

The appellant also sought to recover the value of a small used tractor that he traded in upon the one purchased. The written contract allowed the purchaser a credit of $1,250 for the machine traded in, but the appellee sold it six months later for only $470. We cannot say that the chancellor was in error in limiting the appellant’s recovery to the smaller figure. The issue is the market value of the little tractor on the date that it was traded in. Its actual selling price a few months later, as determined in a transaction apparently entered into at arm’s length, was competent evidence of value. Perkins v. Ewan, 66 Ark. 175, 49 S. W. 569. On the other hand, it is well known that a trade-in allowance may have little relation to the true valne of the property. “The difference between a cash price and a trade in price is too marked and too familiar to require discussion.” Lawrence Const. Co. v. Harnisch-Feger Sales Corp., 164 Tenn. 651, 51 S. W. 2d 837. The parties were content to present only the scanty evidence of value that we have mentioned, and the chancellor was justified in accepting the actual selling price as the more reliable of the two figures suggested.

Finally, the appellant seeks to recover damages for a loss of business that occurred as a result of his inability to operate the tractor that he bought. The machine was to have been used in the operation of a limestone quarry, and its repeated break-downs caused the appellant to lose certain orders for agricultural lime. The appellant merely proved the gross selling price represented by these orders, with no proof whatever touching upon the costs that would have been involved in filling the orders. His evidence is therefore fatally defective, for there is no way for the court to estimate the amount of profits that were lost. Singer Mfg. Co. v. W. D. Reeves Lbr. Co., 95 Ark. 363, 129 S. W. 805.

Modified as indicated and affirmed.


author: Paul Ward, Associate Justice.

text:
    Parker v. Walrath.
    5-2204
    339 S. W. 2d 121
    Opinion delivered October 17, 1960.

      Richard Motley, for appellant.

      Gannaway & Gannaway, for appellee.
   Paul Ward, Associate Justice.

The question posed by this appeal is whether the plaintiff who was under guardianship can dismiss a complaint filed in her name. The trial court held that she could, and the guardian prosecutes this appeal for a reversal. The Revenue Commissioner is a nominal party and will be guided by this opinion. Hereafter the word “appellee” will refer only to Mrs. Walrath.

Much of the background of this case is found in a former appeal to this court involving the same parties. See: Parker v. Parker, 231 Ark. 635, 331 S. W. 2d 694. A summary statement of the evidence leading up to this litigation will be helpful to a proper understanding of the issues involved.

On October 23, 1956, Mrs. John M. Parker (appellant) executed an assignment to her daughter, Mrs. Johnie Parker Walrath (appellee), purporting to convey title to a 1955 model Oldsmobile. On September 30, 1957, Mrs. Parker’s son (Parker Parker) was appointed guardian of the estate but not of the person of Mrs. Parker. On October 23, 1957, Mrs. Parker filed a suit in chancery court asking to have the assignment can-celled.

Set out hereafter is a brief summary of what occurred at the hearing before the chancellor. Numerous statements made and letters written by Mrs. Parker prior to the filing of the complaint were introduced on interrogatories to show that Mrs. Parker did not intend to give the automobile to her daughter, that she thought her daughter was taking an unfair advantage of her, and that she wanted to regain possession of the automobile. At the hearing all parties gave testimony in open court. Appellee’s testimony was to the effect that her mother did give her the automobile, that she executed the assignment to her, and that she used the automobile for the pleasure of her mother, that it was available to her mother at any time she wanted it, and that she did not intend to take exclusive possession of the automobile until after her mother’s death. Mrs. Parker testified emphatically that she wanted her daughter to have the automobile and that she wanted the complaint dismissed. Mrs. Parker’s son and guardian, Parker Parker, was made a party plaintiff and objected strenuously to the action of the court in dismissing the complaint.

The principal contention of the guardian on appeal is that the Chancellor had no right or authority to dismiss the complaint, citing as authority Arkansas Statutes, Sections 57-626, 57-627 and 57-628. In substance, as related to this case, these sections of the statutes are as presently set out. Section 57-626 provides that the guardian of an estate shall take possession of all of the ward’s personal property, the title to which shall be in the ward and not in the guardian. Section 57-627 provides that all actions between the ward or the guardian and third persons shall be prosecuted by or against the guardian. Section 57-628 provides that all contracts for the sale of personal property entered into by a person subsequently put under guardianship may be approved or rejected by a court of proper jurisdiction.

We think it is clear that the first two mentioned statutes are not controlling under the facts of this case for the reason that Mrs. Parker assigned the automobile to her daughter (appellee) a year before she was declared incompetent. The last mentioned statute would not apply because we are not herein dealing with a contract to sell but with a completed gift.

Mrs. Parker was competent to testify. Without referring to any of our decisions which hold that the trial judge, within the exercise of sound discretion, can determine who is or who is not competent to testify, this matter is settled by Ark. Stats. § 28-601, which provides in substance as follows: All persons of unsound mind at the time of being produced as witnesses shall be incompetent to testify in a civil action provided how-, ever “that no person shall be denied the right to testify who is in possession of his or her mental faculties during a lucid interval, and provided further that it shall be within the sound discretion of the Trial Court to permit any person to testify who understands the obligation of an oath and who has sufficient understanding, and the fact that such person has been adjudged of unsound mind shall only affect his or her credibility as a witness, . . .” The record in this case discloses several facts and circumstances which lead us to conclude that the trial court did not abuse its sound discretion in allowing Mrs. Parker to testify, and also in attaching significance to the testimony which she gave. The reason given by the Probate Court for appointing a guardian for Mrs. Parker was that sbe “is suffering from hypertension, arteriosclerosis and cardiovascular disease which prevents her from being able to personally manage her farm and city property.” In the same order the court stated that it found Mrs. Parker “is not physically able to see after her large number of rent houses and farm property.” Apparently an effort was made to have a guardian appointed for the person of Mrs. Parker but the court found that it was not necessary to do so. Also, a reading of Mrs. Parker’s testimony leaves the impression that she was in full control of her mental faculties and that she had definite and sound reasons for assigning the automobile to her daughter.

In view of the above it is our conclusion that the judgment of the Trial Court should be, and it is hereby, affirmed.

Affirmed.


author: Sam Robinson, Associate Justice.

text:
    Keeton, Admr., v. Bozark.
    5-2205
    339 S. W. 2d 123
    Opinion delivered October 17, 1960.

      Kirsch, Cathey & Brown and Frierson, Walker & Snellgrove, for appellant.

      Robert Branch, for appellee.
   Sam Robinson, Associate Justice.

This appeal is from an order of the probate court allowing the claim of appellee, Annie Bozark, against the estate of William Franklin Irvin, deceased. Appellee filed a claim for $2,570.00 for furnishing room, board, nursing care, ambulance service and medical expense to deceased. The administrator refused to allow the claim, and after hearing the court allowed $1,275 for services rendered and $20 for ambulance and medical expense.

Appellee lives in Marmaduke, where she owns her home. In May of 1957, the deceased, who was appellee’s uncle, moved his house trailer onto appellee’s property immediately behind her house, and lived there until September of the same year. In the spring of 1958 deceased returned to Marmaduke and shortly thereafter once again moved his trailer into appellee’s back yard. He lived there until his death on April 5, 1959, except for an interval of two weeks while he stayed in Paragould.

Deceased was past 80 years of age when he died. It is abundantly clear that during the time he lived on appellee’s property he was unable to care for himself and needed a great deal of attention. It was necessary for appellee, with the help of her son, to prepare his meals, wash and iron his clothes, clean his trailer and care for him almost constantly. During cold weather deceased moved into appellee’s home so he would be more comfortable. There is ample testimony to the effect that deceased was an elderly feeble person who required someone to look after him. There is sufficient evidence to support the court’s finding that the services were performed by appellee.

Appellant argues that the services of appellee to the deceased were gratuitous at the time they were rendered and she cannot now say there was an implied contract to pay for them. We agree with the ruling of the court below that this case comes within the fundamental principle that where a party accepts the beneficial results of another’s services the law implies a previous request and a subsequent promise to pay for them. Nissen v. Flournoy, 160 Ark. 311, 254 S. W. 540. Appellant also urges that there is a presumption that the services are gratuitous where they are rendered by members of the deceased’s family. Appellee was 49 years of age and her uncle was over 80. They had not seen each other for fifteen years prior to 1957. We have said the presumption urged by appellant is less strong where the relationship becomes more remote. Capps v. Cline, 227 Ark. 201, 297 S. W. 2d 654. We cannot say that all of the elements which give rise to the presumption were present here.

Appellant further argues that the allowance of the claim was excessive. Deceased had two bank accounts totaling about $9,800 when he died. He was receiving each month $100 from a teachers’ retirement fund, $45 from one daughter and approximately $150 from another daughter, both of whom lived in California. Despite this income, he showed miserly qualities and contributed very little, if any, to his own support. On the other hand, appellee worked as a waitress for as little as $12 per week, yet it appears that she paid for practically all of deceased’s support. The award of the court was on the basis of $75 per month for 17 months. We cannot say this was in excess of the value of the services rendered. In this same vein appellant questions the admissibility of the testimony of Martha Newberry, who appeared as an expert on the value of services in caring for elderly people. Her testimony is challenged on the ground that the services rendered by appellee were not similar to the services used by the witness in setting the value. Whether or not the qualification of a witness with respect to knowledge or special experience is sufficiently established is a matter resting in the discretion of the court, whose determination is usually final and will not be disturbed by an appellate court except in extreme eases where it is manifest that the trial court has fallen into error or has abused its discretion and that prejudice to the complaining party has resulted. Firemen’s Ins. Co. v. Little, 189 Ark. 640, 74 S. W. 2d 777. We find no error here.

Affirmed.


author: Jim Johnson, Associate Justice.

text:
    Hood v. Hunt.
    5-2197
    339 S. W. 2d 97
    Opinion delivered October 17, 1960.

      Spitzberg, Bonner, Mitchell & Hays, for appellant.

      Rose, Meeh, House, Barron <& Nash, for appellee.
   Jim Johnson, Associate Justice.

This case involves an offer and disputed acceptance for the sale of a house and lot. The appellees are the joint owners in an estate by the entirety of a one story, two bedroom house located at 1716 South Buchanan Street in Little Rock. On August 13, 1959, appellees gave an exclusive listing for the sale of this property at $14,500 to Jack Collier East Company, Inc., a real estate firm. The listing was signed by Mr. Hunt as the owner and by Mrs. Hunt, as wife, who agreed to execute a warranty deed conveying her dower and homestead in the property. On August 22, 1959, appellants were shown the property by a salesman employed by the real estate firm and while still on the premises the appellants executed an offer to purchase the property at $14,500 upon the customary printed real estate form furnished them by the salesman and earnest money in the amount of $202.50 in the form of a check was tendered with the offer. The offer was then presented to the appellee, Mr. Hunt, and he accepted the offer by signing his name. Mrs. Hunt was not at home while this transaction was taking place. Before leaving, Dr. Hood and Mr. Hunt went into the back yard where Mr. Hunt called attention to the fact that a part of the wire fence had been removed and that he planned to replace it with a white picket fence. Mr. Hunt offered to build the picket fence but Dr. Hood said he preferred the wire fence to be replaced since he had a dog. Mr. Hunt agreed to replace the wire fence and in accordance with this agreement did replace it.

When Mrs. Hunt returned home later that afternoon she was informed of the sale. She inquired about the necessity of her signing the acceptance and was told by the salesman for the real estate firm that this was not necessary since she had already signed the listing in which she obligated herself to execute a deed should a purchaser be found in accordance with the listing.

After the Hoods left (August 22nd) other prospects came by to see the house but Mrs. Hunt informed them that the house had been sold and did not show it to them.

The Hunts, thinking that their house was sold, purchased another residence and signed the papers therefor either on Wednesday or Thursday following the Hoods’ offer on Saturday. On the following Friday morning Mrs. Hunt phoned Mrs. Hood that mail had come for the Hoods. It turned out that the Hoods had bank checks printed showing their new address to be 1716 South Buchanan and this was the mail which had arrived. In the course of that conversation Mrs. Hunt informed Mrs. Hood that they could have possession on September 1st, which was agreeable with Mrs. Hood. In the meantime, Mrs. Hunt had communicated her acceptance of the offer to the representative of Jack Collier East Company, Inc., who were the agents for the Hoods in making the offer. On Friday afternoon when Mrs. Hood came by to pick up the mail, she informed Mrs. Hunt that Dr. Hood had been transferred to another city where they would be furnished living quarters. The Hoods refused to go through with the transaction. Appellees filed a complaint in the Pulaski Chancery Court to specifically enforce a sale of the property. Abstract of title and a proper deed were tendered by appellees. The Chancellor granted specific performance and this appeal followed.

The only real question presented here is whether the contract lacked mutuality of remedy.

Appellants very persuasively argue that since Mrs. Hunt did not sign the acceptance and because this was an estate by the entirety, Mrs. Hunt was not bound, and since she was not bound, neither were the Hoods. However, the record reveals that it is undisputed that Mr. Hunt did actually sign the acceptance of the Hood offer thereby making him legally obligated to give a good conveyance; consequently there was mutuality as between Mr. Hunt and the Hoods. It is further undisputed that he tendered such a conveyance in which his wife joined as grantor. Based upon these facts we are bound by our rule that it was sufficient that Hunt was able to make a good conveyance any time before the decree for specific performance was rendered. See: Drennan v. Boyer, 5 Ark. 497; Chrisman v. Partee and Wife, 38 Ark. 31; Elliott v. Hogue, 113 Ark. 599, 168 S. W. 1097. Also see: 49 Am. Jur. Specific Performance, § 37; 81 C. J. S. Specific Performance, § 11, p. 429; 5 Corbin Contract, 1185 and 1195.

The Chrisman case, supra, is directly in point and the doctrine it enunciates has been followed and approved by this Court repeatedly, the most recent case being Ray v. Robben, 225 Ark. 824. 285 S. W. 2d 907.

The record further reveals that not only did Mrs. Hunt join in the execution of a deed with her husband, which was tendered to the appellants, but she also joined in the suit as a plaintiff and thus ratified her husband’s acceptance. The above cited authorities hold that her joining in the deed was enough to supply mutuality but the fact that she submitted herself to the jurisdiction of the court likewise supplied mutuality. See: Vance v. Newman, 72 Ark. 359, 80 S. W. 574.

The Chrisman case, supra, holds that the incapacity to perform a contract must be judged not at the time the contract is made but at the time its performance is sought. Consequently, when one comes into court seeking specific performance and submits himself to the jurisdiction of the Court, “the institution of the suit supplies the mutuality which was wanting in the first instance. ’ ’

Affirmed.

George Rose Smith, J., not participating.


author: Carleton Harris, Chief Justice.

text:
    Hobbs v. Cobb.
    5-2199
    339 S. W. 2d 318
    Opinion delivered October 24, 1960.

      B. W. Thomas and Robert D. Ridgeway, for appellant.

      G. A. Stanfield, for appellee.
   Carleton Harris, Chief Justice.

Jennie Sherman, a resident of Hot Springs, executed her last will and testament on December 4, 1953, and died the following July at Miami Beach, Florida. The will was admitted to probate by the Garland Probate Court July 14, 1954, and letters testamentary were issued to the appellant executor, Richard W. Hobbs. The deceased was survived by her husband, Samuel Sherman, a son, Nathan Sherman, and a daughter, Edna Karp Cobb, also called ‘ ‘ Ginger”; two sisters, Becky Hunt and Mildred Shapiro, and two granddaughters, Joyce Karp and Ellen Sherman.

A short time prior to her death, Mrs. Sherman purchased a hotel in Hot Springs, and this hotel, known as the Sherman Hotel, was devised to her trustee, Richard W. Hobbs, in trust, granting the power to retain this hotel, or to sell, lease, mortgage, or dispose of the property or any part thereof, and to re-invest in securities or other properties which the trustee might deem advisable. However, the instrument provided that in the event of the sale of the hotel, the trustee should pay to the testatrix’ son and daughter the sum of $55,000, each to share equally, the payment to the son to be made in a lump sum, and the daughter, appellee herein, to be paid at the rate of $300 per month until she should reach the age of 35 years, at which time the balance of her share would be paid to her in a lump sum. Item 7 then directs the trustee to distribute the remainder of the balance of the pur chase price over and above the sum of $55,000 as follows:

“$1,000.00 to be given and paid unto my sister, Becky Hunt; $1,000.00 to be given and paid unto my sister, Mildred Shapiro; $200.00 unto the Iiadassah Medical Organization of Hot Springs, Arkansas; $300.00 to the Jewish Temple of which I may be a member at the time of my death.”

Item 8 then provides that after payment of the aforementioned bequests, the remaining balance shall be disposed of by paying one-half to her husband, and one-half to her grandchildren, Joyce Karp and Ellen Sherman.

On July 17, 1956, Mrs. Cobb (then Karp) filed a petition asking the court to construe the will, and alleging the invalidity of the provisions vesting title to the hotel property in Hobbs, as trustee; the invalidity of the section conferring upon the trustee the right to retain, sell, lease or mortgage the property, and asserting the provisions to be contrary to public policy and the law against perpetuities. In August, the executor filed a petition requesting authority to sell the hotel, and also setting forth that the best interests of the estate would be served by compromising and settling certain lawsuits filed against the estate by Samuel Sherman in Florida, and suits filed by the estate against Sherman. The order sought was granted by the court, and the executor was directed to sell the hotel for $85,000; from such amount, Samuel Sherman was to be paid $17,300 in full settlement of his claims, the balance of the money to be held subject to the orders of the court. On November 7, 1956, the court passed upon the petition filed by Mrs. Karp in July, and entered its order finding that the provisions of the trust relative to appellee were null and void, and that she should share under the proceeds of the estate in the same manner as her brother; the executor was directed to pay to appellee her share of the estate. Subsequent thereto, the executor filed his petition for partial distribution of the estate, and for the payment of executor’s and attorneys’ fees, and on November 14th, the court entered its order directing the payment of these fees, and ordered the balance of the monies in said estate, less $1,000 (for possible expenses), to be paid to Nathan Sherman and Mrs. Karp. On March 25, 1957, the executor filed a written motion, setting up that the petition for partial distribution was in error, and that the order entered thereon should be amended nunc pro tunc to show, inter alia, that the parties had agreed that it was their intent to pay the special bequests, heretofore set out in paragraph two of this opinion. The executor further stated that Mrs. Karp had been overpaid in the amount of $533.33, and that this amount was due to the estate from Mrs. Karp. In compliance with the petition, the court entered its order finding that the order entered November 14th should be amended to provide, inter alia, for the payment of the items reflected in the petition, and on June 24th, an order was entered directing Mrs. Karp to refund the sum of $500 to the estate, finding “that there are not sufficient funds or assets in the hands of the executor to pay the debts of the estate and the special bequests mentioned therein.”

On July 11th, the executor filed his accounting with the court, and on July 15th, appellee and Nathan Sherman, through their attorneys, P. E. Dobbs and Michael B. Heindl, filed a second petition to construe Mrs. Sherman’s will, alleging that the accounting filed by the executor provided for the payment of the special bequests, and that they (petitioners) were entitled to all of the proceeds remaining in the hands of said executor which had been derived from the sale of the hotel, in that the petitioners had not received a sum equal to $55,000. The executor filed his response to this petition, asserting that petitioners had previously asked for a construction of the will, “were bound to raise all questions pertaining to the construction of the will at that time, and therefore are estopped to raise further issues as to the construction of said will”; that partial distribution of the estate had already been made, such distribution being based on a settlement between petitioners and Samuel Sherman, the settlement also including the provision that the special bequests in the amount of $2,500 would be paid to the several legatees. The latter, through their attorney, also filed a response to the petition, setting up that they had approved the compromise settlement, and “that said heirs are estopped to raise any question relative to the special bequests by reason of the aforementioned settlement.” Mrs. Karp, on November 10, 1958, then filed a motion asking that the order requiring her to refund $500 be set aside. Following a hearing, and the taking of testimony, the court, on February 1, I960, entered its order quashing the prior order wherein appellee was ordered to repay $500, and further finding “that the petition to construe the will as providing that the contingent beneficiaries mentioned in paragraph seven take nothing thereunder until after petitioners are paid the sum of $55,000, should be granted. ’ ’ From this order, the executor brings this appeal.

While the recitation of pertinent facts is rather lengthy, the litigation can really be disposed of through determination of one issue, vis., have the provisions of the will been superseded by what is commonly known as a family settlement? Family settlements are recognized and enforced in Arkansas. See Sursa v. Wynn, 137 Ark. 117, 207 S. W. 209; Pfaff, Administratrix v. Clements, 213 Ark. 852, 213 S. W. 2d 356 (1948). The executor, Hobbs, testified that all the parties agreed to the payment of the special bequests, and that this agreement was reached on the basis of a compromise between the children and husband of the deceased; that appellee and her brother were not on good terms, and that Samuel Sherman, the surviving spouse, and step-father of Edna and Nathan, “was fighting both of the children.” Hobbs stated that the two children desired the bequests paid, since close relatives were the recipients, and likewise agreed to the payment of the bequests to the Jewish Medical Association and Temple since such bequests were in small amounts. According to his testimony, the payment of the special bequests was approved by both appellee and her attorney, Mr. Heindl. Robert Ridgeway and B. W. Thomas, attorneys for the estate, likewise testified that the agreement was reached. The only testimony offered on the part of appellee was by Mr. Heindl. He testified that he made no agreement with respect to the contingent beneficiaries being paid, nor did he definitely understand that they were to be paid. Mr. Heindl did agree that, through error, appellee had been overpaid to the extent of $500. Appellant offered in evidence copies of two letters, one dated September 19, 1956, and the other, March 21, 1957. The former letter was directed to Mr. Heindl by Mr. Hobbs, and set out, first, that the hotel could be sold for $85,000 cash; thereafter, listing the charges against this amount, including the figure for special bequests, and finally, stating the balance to be divided between appellee and her brother. The latter letter, directed to Mr. Heindl and Mr. Dobbs, stated:

“I am enclosing herewith a copy of a Motion to Amend Order for Partial Distribution in the above styled cause which we will ask an order to be entered on Monday, March 25, 1957, at 10:00 A.M. I am also enclosing herein a copy of the Order which the Court will be asked to enter and in the event either of you, as attorneys for G-inger Sherman and Nat Sherman, have any objections to the motion and order, Mr. Thomas and I request that they be raised at that time.”

Mr. Heindl stated that he presumed he received both of these letters. He admitted that he made no objection to the suggested order, stating: “I never saw any necessity for it, if I was satisfied there was a clear understanding between all of the lawyers involved that the special bequests would lay dormant until such time involving the two children and the father were taken care of, and this took care of the two children and the father.”

The testimony aside, we think the agreement was clearly established. The record reflects that the amount which Samuel Sherman was to receive under the agreement, $17,300, was paid to him on November 15, 1956, and Mr. Sherman had executed a Renunciation on September 13th, renouncing all rights under the will. It will be recalled that, since the property was sold, Mr. Sherman, under the terms of the will, “came behind” the legatees who were to receive the $2,500, i.e., he was to receive nothing under the instrument until these bequests had been paid. It is therefore apparent that the provisions of the will were disregarded, and the money distributed in accordance with some agreement. It is also obvious that Samuel Sherman could not have been paid, as herein stated, except with the approval of the legatees of the smaller bequests.

It is true that the amount received by Mrs. Karp and her brother was considerably less than $55,000, and it is likewise true that the other bequests were not to be paid under the terms of the will until Mrs. Sherman’s children had received that amount. It cannot, however, be successfully argued that the beneficiaries of the lesser amounts, incurred no detriment under the compromise, because they would not have taken anything under the will itself, and therefore suffered no loss. In Pfaff, Administratrix v. Clements, supra, it is stated:

“Likewise, it is not essential that the strict mutuality of obligation or the strict legal sufficiency of consideration — as required in ordinary contracts — be present in family settlements. It is sufficient that the members of the family want to settle the estate: one person may receive more or less than the law allows; one person may surrender property and receive no quid pro quo. Thus, in Turner v. Davis, 41 Ark. 270, there was claimed that one — Watkins — had no interest in the property sufficient to support a family settlement; but in disposing of that contention, Mr. Justice Eakin said: ‘We cannot go behind the agreement to ascertain the interest of Watkins. It is a matter of no consequence whether he had curtesy or had nothing . . . The agreement stands on the ground of family settlements . . . They are supposed to be the result of mutual good will, and imply a disposition to concession for the purpose, regardless of strict legal rights; always excepting cases of fraud, of which nothing, in this case, appears.’ ”

While the persons directly affected by the court’s order, which occasions this appeal, are those who were recipients of the bequests, the executor was a proper party to act in behalf of these beneficiaries. As stated in Corpus Juris Secundum, Vol. 33, § 142, p. 1099:

“An executor or an administrator acts in a representative capacity, representing and acting for all parties and all interests in the estate. It is said that he occupies a double role, being not only the personal representative of decedent, but also, to a very great extent, the representative of the creditors, and of the heirs, legatees, or distributees.”

Mr. Hobbs was under a $10,000 bond. Certainly, with particular regard to the fact that Samuel Sherman, who, under the terms of the will, was to receive nothing from the proceeds of the sale until after the payment of these legacies, the executor acted circumspectly and properly in seeking to carry out the provisions of the agreement.

The order of the court of February 1, 1960, wherein that court quashed the prior order directing appellee to refund $500 to the estate, and further holding that the “contingent” beneficiaries take nothing until “petitioners are paid the sum of $55,000”, is hereby reversed, annulled, and set aside, and the cause is remanded to the Garland Probate Court with directions to reinstate the order of June 24th, 1957 (wherein appellee was directed to refund the amount of $500), and to authorize the executor to pay the bequests to the “contingent” beneficiaries heretofore mentioned.

Costs of this appeal are to be borne by appellee.

       Nathan Sherman had been paid $15,068.18, and appellee had been paid $16,601.51.

       Why the order was entered for $500 instead of $533.33 is not explained in the record.

       The record does not reflect the reason for the 16 months lapse from the time of the filing of the second petition to construe the will, and the filing of the motion by appellee to quash the order requiring her to refund $500; nor is there any explanation for the 15 months lapse between the time of the filing of this motion and the time of hearing.

       The bequests, as mentioned in the will and which are involved in this litigation, totaled $2,500, but the various motions, petitions, and accounting sometimes use the figure $2,500, and at other times, the figure $2,300.

       According to the record, Mr. Sherman held legal title to an undivided one-half interest in the hotel property. However, as shown by the testimony, he did not pay any of the purchase price for the hotel, and had executed a promissory note in the amount of $55,000, payable to his wife, together with a mortgage covering his interest in the property. Following the filing of a petition by the executor, the court found that Sherman was in default on the note and mortgage in the sum of $55,000; also, that other sums were due and payable to the estate by Sherman, and authorized the executor to institute suit. Sherman’s possible interest, under the deed, is immaterial in this litigation, for the record reflects that the payment of $17,300 was at least partly in settlement of his claims under the will. In the instrument of Renunciation, Sherman states that for and in consideration of the sum of $17,300, he does “finally renounce and reject for myself and my heirs, legatees, devisees and legal representatives any and all bequests, gifts and share in the Estate of my wife, Jennie Sherman, Deceased, which I might have under the last will and testament of my said wife, Jennie Sherman, Deceased, who died on or about the 3rd day of July, * * * And I further renounce and reject any and all provisions for my benefit under said last will and testament above mentioned and referred to, with any and all interest in the Estate of my deceased wife under said will, and in the Estate of my said wife however such interest may arise, and I refuse to accept any and all provisions of said will.”


author: J. Seaborn Holt, Associate Justice.

text:
    Ash v. Morgan.
    5-2209
    339 S. W. 2d 309
    Opinion delivered October 24, 1950.

      Reinberger £ Eilbott and Don H. Smith, for appellant.

      Brockman £ Brockman, for appellees.
   J. Seaborn Holt, Associate Justice.

This appeal is from the judgment of the Jefferson County Probate Court denying appellant’s motion to probate the alleged will of Mattie Bikard.

Mattie Bikard, aged 79, died on April 27, 1959, after having purportedly executed a will on April 14, 1959, at the home of Dan Ash, sole beneficiary under the will. An objection was made to the probate of the will and a hearing was held, at which time the only question considered by the lower court was whether the will was properly executed or not. Questions of undue influence, fraud, or mental capacity of the testatrix, were not considered. At this hearing it was stipulated by the parties that the two attesting witnesses, Mrs. Ira Dean and B. Z. Hillis, were not present when Mattie Bikard signed the will by her mark, nor were they in the presence of each other, nor did the testatrix acknowledge her signature in their presence.

Our applicable statute relative to the proper execution and attestation of a will is § 60-403, Ark. Stats. 1947 Ann., which provides:

“Execution, — The execution of a will, other than holographic, must be by the signature of the testator and of at least two witnesses as follows:
“a. TESTATOB. The testator shall declare to the attesting witnesses that the instrument is his will and either
“ (1) Himself sign; or
“ (2) Acknowledge his signature already made; or
“ (3) Sign by mark, his name being written near it and witnessed by a person who writes his own name as witness to the signature; or
“(4) At Ms discretion and in Ms presence have someone else sign his name for him, (the person so signing shall write his own name and state that he signed the testator’s name at the request of the testator); and
“ (5) In any of the above cases the signature must be at the end of the instrument and the act must be done in the presence of two or more attesting witnesses.
“b. WITNESSES. The attesting witnesses must sign at the request and in the presence of the testator.”

We think it evident from the above admitted facts that the sections of § 60-403 specifically requiring that a will to be valid must be executed “in the presence of two or more attesting witnesses . . . [and] the attesting witnesses must sign at the request and in the presence of the testator”, were not complied with, and therefore the will must be and is declared invalid.

But, says appellant, there was substantial compliance with the statute here involved (Ark. Stats. § 60-403). What constitutes substantial compliance with a statute is a matter depending on the facts of each particular case. Here neither of the alleged attesting witnesses signed in the presence of the testator, nor in the presence of each other. And at the trial neither of them was called to testify, nor did the proponent of the will offer any explanation as to their absence or failure to testify. Under the facts of the case at bar we hold that the will was not validly executed in the presence of the two persons who signed their names as subscribing witnesses.

Despite the fact that the subscribing witnesses were not pesent when the will was executed the appellant contends that the will can be proved by the testimony of two other persons, Sylvia Ash and Laura Woods, who were present when the will was executed but who did not sign their names as attesting witnesses. This contention is not sound. The statute requires that the attesting witnesses sign the will. Ark. Stats. 1947, § 60-403. “It is essential to due execution of a will that it be signed or subscribed by the number of witnesses required by tbe law governing tbe particular will being made, and subscription by fewer renders tbe transaction a nullity. ’ ’ Thompson on Wills (2d Ed.), § 116. See also Page on Wills (1960 Ed.), § 19.75, and Johnson v. Hinton, 130 Ark. 394, 197 S. W. 706. We therefore conclude that tbe will in question was not executed and attested in tbe manner required by tbe statute.

Affirmed.


author: Ed. F. McFaddin, Associate Justice.

text:
    Cousins v. Cooper.
    5-2180
    339 S. W. 2d 316
    Opinion delivered October 24, 1960.

      Wright, Harrison, Lindsey & Upton, for appellant.

      Murphy & Arnold and Alton Bittle, for appellee.
   Ed. F. McFaddin, Associate Justice.

Cooper (appellee) was injured in a traffic mishap while riding in Cousins’ (appellant’s) car. Cooper sued Cousins for damages, and recovered judgment; and this appeal ensued. Appellant urges only one point: that he was entitled to an instructed verdict in his favor. All other questions are waived.

Cousins claims that he was entitled to an instructed verdict because of: (a) the Arkansas Guest Statutes, which are Act No. 61 of 1935 and Act No. 179 of 1935 (§§ 75-913 and 75-915 Ark. Stats.); or (b) assumption of risk by Cooper as under our holding in Bugh v. Webb, 231 Ark. 27, 328 S. W. 2d 379. In testing a case on the claim for an instructed verdict, the evidence must be given its strongest probative force in favor of the side against whom the instructed verdict is asked. Barrentime v. Henry Wrape Co., 120 Ark. 206, 179 S. W. 328; St. L. S. W. Ry. Co. v. Britton, 107 Ark. 158, 154 S. W. 215. With this rule in mind, we state the uncontradicted facts. Cooper, aged 22, and Cousins, aged 16, drove from Cleburne County into White County, obtained whiskey, drank some, and started back to the point of origin, which was the settlement of Concord in Cleburne County. Enroute home they chanced to overtake, on Ramsey Mountain outside of Batesville, Samuel Lambert, aged 21, who was driving his car. The three stopped, each had a drink of liquor; and Lambert, going toward Concord, departed in his ear. Cousins, driving his car, with Cooper seated therein, followed Lambert for several miles. Finally, Cousins undertook to pass Lambert, but just at that time Lambert was overtaking and passing a car driven by Baker. In attempting to pass Lambert, Cousins lost control of his car and it was overturned, and Cooper was injured. Originally Cooper sued Lambert for damages and later added Cousins as an additional defendant. Lambert was exonerated by the jury, Cousins held liable.

Cousins is faced with difficult problems of evidence. In the traffic mishap Cooper suffered several injuries. He was unconscious for a number of days, and suffered from retrograde amnesia, so that he remembered nothing of being with Cousins, or anything else connected with the entire mishap. Cooper could not testify as to the relationship or status of the parties and the pleadings contained a denial. Since Cousins is one of the parties in the litigation, his testimony cannot be regarded as undisputed in testing its legal sufficiency. In Metcalf v. Jelks, 177 Ark. 1023, 8 S. W. 2d 462, we said:

“Another rule established by this court is that the testimony of a party to an action, who is interested in the result, will not be regarded as undisputed in determining the legal sufficiency of the evidence. K.C.S.R. Co. v. Cockrell, 169 Ark. 698, 277 S. W. 7; Gish v. Scantland, 151 Ark. 594, 237 S. W. 98.”

As to whether Cooper was a guest or a passenger: we have no undisputed evidence on that issue. As to whether Cousins was guilty of willful and wanton negligence even if Cooper was a guest: there was evidence to show that Cousins was traveling between 80 and 90 miles an hour when he tried to pass Lambert, and also that there was fog which, to some extent, might have obstructed the vision. So without detailing the other evidence, we conclude that there was sufficient evidence to take the question of willful and wanton negligence to the jury, even if Cooper had been a guest, which is itself not undisputed in this case.

The next point is whether Cooper, if a guest, was guilty of assumption of risk as a matter of law, within the rule of Bugh v. Webb, 231 Ark. 27, 328 S. W. 2d 379. Cousins argues that there was a joint enterprise on a drinking expedition and that Cooper assumed the risk. (See annotation, in 15 A. L. R. 2d 1165). "Whether there was a joint enterprise is not undisputed. Assumption of risk is generally a question of fact for the jury unless the facts are undisputed and present a situation so plain that the minds of intelligent men could not draw different conclusions to the effect thereof. St. L. I. M. & S. Ry. Co. v. Hawkins, 88 Ark. 548, 115 S. W. 175. It is only in the rarest of cases, like Bugh v. Webb, supra, where the essential facts were undisputed, that the assumption of risk appears as a matter of law. With Cooper suffering from retrograde amnesia and unable to affirm or deny any of the facts, and with Cousins’ testimony disputed as a matter of law, it brings into effect the well established rule that assumption of risk is a question of fact.

Without reviewing our numerous cases on the Gruest Statutes, we conclude that under the peculiar situation here existing Cousins was not entitled to an instructed verdict; and that is the only question presented.

Affirmed.

       Maloy’s Medical Dictionary for Lawyers defines retrograde amnesia as, “a form which prevents the patient from recalling memories which have been acquired previously, resulting in loss of memory for events that occurred before the onset of amnesia.”


text:
    Crossett Chemical Company v. Sedberry.
    5-2213
    339 S. W. 2d 426
    Opinion delivered October 24, 1960.
    [Rehearing denied November 21, 1960.]

      Paul Sullins and Robert R. Wright, for appellant.

      Ovid Switzer and Roy Finch, Jr., for appellee.
   George Rose Smith, J.

This is a death claim under the workmen’s compensation law, filed by the appellee as the widow of Guy Sedberry. The commission allowed the claim, finding that Sedberry’s death from a heart attack arose out of and in the course of his employment by the appellant. This appeal is from the circuit court’s affirmance of the award.

The only material conflict in the evidence is in the medical testimony. Sedberry had worked for the appellant for fifteen years. At the time of his death he was the senior member of a maintenance crew. On the afternoon of December 18, 1958, the crew finished repairing a heavy cooler and moved it back into position. The proof indicates that this work was not unusually strenuous and did not involve extraordinary exertion. After resting a few minutes Sedberry began to write out a list of things his crew needed in its work. While so engaged Sedberry suffered a coronary occlusion, was taken to a clinic, and died within an hour after the onset of the attack.

As witnesses for the employer Dr. Agar and Dr. Kahn, specialists in internal medicine, testified that in their opinion the decedent’s coronary occlusion was the result of a diseased condition within the heart and was not caused or contributed to by his work on the day of his death. On the other hand Dr. Hamilton, another internist testifying for the claimant, believed that Sedberry’s work caused the attack or contributed to it. The opposing views of the medical witnesses cannot be reconciled.

The case is controlled by our decision in Bryant Stave & Heading Co. v. White, 227 Ark. 147, 296 S. W. 2d 436, where we upheld an award of compensation based upon proof that the claimant’s ordinary work, without unusual strain or exertion, had aggravated a pre-existing condition. The principle has since been followed in cases involving heart seizures. Safeway Stores v. Harrison, 231 Ark. 10, 328 S. W. 2d 131; Reynolds Metal Co. v. Robbins, 231 Ark. 158, 328 S. W. 2d 489.

The appellant insists that in the case at bar the commission’s opinion discloses a misunderstanding of our recent decisions, in that the commission regards any heart attack occurring on the job as being automatically compensable. Such a view would indeed be a mistake, for the Sryant case stressed the necessity of there being a causal connection between the claimant’s work and his disability. See also Ark. Power & Light Co. v. Scroggins, 230 Ark. 936, 328 S. W. 2d 97. But we have carefully studied the commission’s opinion in the case at hand, and we do not find that it reflects any misconception of the law as announced by this court. To the contrary, the commission discussed the matter of causation, reviewed the conflicting medical testimony, and explained its reasons for accepting the opinion of Dr. Hamilton, “whose unequivocal view,” said the commission, “is that there was a causal relationship between the heart attack of G-uy Sedberry and his exertions on the day of his death.” The question before the commission was fundamentally one of fact, and we find its decision to be supported by substantial evidence. This concludes our inquiry.

Affirmed.


text:
    Wyatt v. W. B. Smith Hatchery, Inc.
    5-2224
    339 S. W. 2d 323
    Opinion delivered October 24, 1960.

      W. M. Thompson, for appellants.

      Caldwell T. Bennett, for appellee.
   Paul Ward, Associate Justice.

One of the principal questions involved on this appeal is whether the trial court erred in refusing to allow appellants (defendants below) to join a third party defendant. Correlative to that question is the trial court’s refusal to grant a continuance at the request of appellants.

A summary statement of the pleadings and proceedings involved in the litigation will be sufficient for an understanding of the issues hereafter discussed.

On May 22, 1958, appellees, W. B. Smith Hatchery, Inc., filed a complaint against Wayne Wyatt, d/b/a Wayne Wyatt Co., to collect the sum of $4,879.61 for approximately 25,000 chicks sold to Wyatt at divers times. (Later Wyatt’s wife was made a party defendant and hereafter we refer to them as appellants). On June 10, 1958, appellants (by an attorney not now of record) entered a general denial. No further steps were taken until November 17, 1958, when appellants filed an Answer and a Cross-Complaint alleging that they had been damaged in the amount of $5,412.37 because of defective chicks sold to them by appellees or because of defective feed sold to them by the Quaker Oats Company. Among other things, the Answer contained this statement: ‘ ‘ That it is true that the plaintiff by its invoices hereinafter set forth sold and delivered to the defendant the following listed checks: ” Following the above was listed the same number of chicks as listed in the complaint. Also in their Answer was a statement to the effect that had the chicks been good quality, and had they not been fed poison feed, the profit on their operation would have been in excess of $10,000, and also that the defendants have sued Quaker Oats Company for damages for poison feed, and that their loss was due either to defective chicks furnished by plaintiff or defective feed furnished by the Quaker Oats Company or both and that the Quaker Oats Company should be made a party to this suit or this suit should be consolidated with the suit now pending in the Federal Court in Little Rock. According’ to the record it was the contention of appellee, concurred in by the trial judge that appellants abandoned their request to have the Quaker Oats Company made a party to the litigation. The present attorney for appellants was of the opinion that no such withdrawal was made.

On April 20, 1959, on Motion by appellants’ attorney (who had replaced the former attorney) a continuance was secured until the fall term of court. On October 19, 1959, when the court met in preparation for the opening of the fall term of court to be held on October 27, 1959, the present attorney for appellants (the third attorney to appear for appellants in the case) filed an Amended Answer and Cross-Complaint in which appellants again requested to have the Quaker Oats Company made a party defendant. After considerable discussion by the attorneys before the trial judge, the court stated that it would allow appellants to bring the Quaker Oats Company into court as a defendant provided they could do so by October 27, 1959, but that no continuance would be granted at that time if they were not successful in doing so. When the case was called for trial appellants filed a Motion for a Continuance on the ground that they had been unable to get the Quaker Oats Company in court since said company was allowed twenty days after service of summons in which to file an answer.

It may be admitted that if appellants had a right to have Quaker Oats Company made a party defendant, then the court was in error in refusing to grant a continuance. It is our opinion, however, based on the record before us, that appellants had no such right.

Ark. Stats. § 27-814, in all material parts, reads as follows: “. . . when a determination of the controversy between the parties before the court cannot be made without the presence of other parties, the court must order them to be brought in.” In construing the above statute in the case of Smith v. Moore, 49 Ark. 100, 4 S. W. 282, the court said: “The obvious intention of the statute is to require all persons to be made parties to an action who will be necessarily and materially affected by its result, . . .” The court then held that a joinder was necessary under the facts of that case. However, in the case of Thompson v. Grace, 91 Ark. 52, 120 S. W. 397, the court found that a joinder was not necessary because “Appellee was in no wise concerned with any grievance that appellant claimed to have against Jacoway.” Paraphrasing the above quoted language, we likewise find from the record here that appellee was in no wise concerned with any grievance Wyatt had with the Quaker Oats Company. The record reflects that the Quaker Oats Company had sued appellants and others in the Federal Court for feed furnished but Wyatt’s own testimony shows that that suit was completely divorced from the one before this court now. The court asked Wyatt this question: “There is a suit in Federal District Court involving an account that Quaker Oats Company says you owe them for this same feed that was used to feed the chicks for which Smith Hatchery is suing you now?” Answer, “No Sir, the feed they sued me on don’t have nothing to do with the feed that went into these particular chicks; it is a different suit altogether. ’ ’ From the foregoing we are unable to see why the Quaker Oats Company was a necessary party to the present litigation.

Another point raised by appellants is that the court erred in refusing to allow them to show their losses. This point is not stressed in argument, no authorities are cited, and no erroneous ruling by the court is pointed out to us. On the other hand, the record reflects that Wyatt testified at great length in support of his claim, but his testimony reveals that he was referring to a large flock of defective chicks, some of which were furnished by appellee and some furnished by someone else. There was no error on the part of the court in refusing to admit testimony of this kind.

Finally it is contended by appellants that the court erred in not allowing their attorney to make the opening and closing argument to the jury, but we are unable to agree with this contention. The rule that this court has many times recognized is well stated in 53 Am. Jur., p. 71, § 69, as follows: “The true rule, however, except as modified by statute, ... is that the party holding the affirmative of the issues joined in the pleadings and who would be defeated if no evidence were given on either side has the right to open and close the evidence and the argument, . . .” Ark. Stats. § 27-1727, subsection “Sixth” reads: “In the argument the party having the burden of proof shall have the opening and conclusion; . . .” As heretofore stated the appellants first entered a general denial. Later they admitted that they got the number of chicks which appellees claim to have sold them but they did not admit the price agreed on. The record also shows that William B. Smith, Jr., a member of appellee corporation, was called to the stand as the first witness and testified at length without objection upon the part of the appellants. The only logical conclusion to be drawn from this is that appellants themselves considered appellee was charged with the burden of proof, and we think rightly so.

In accordance with what we have heretofore said, the judgment of the trial court should be, and it is hereby, affirmed.

Affirmed.