text:
    State, ex rel. Publicity & Parks Commission v. Earl.
    5-2309
    345 S. W. 2d 20
    Opinion delivered March 27, 1961.
    [Rehearing denied May 1, 1961.]

      Phillip H. Loh, for appellant.

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

Incident to a condemnation suit by tbe Arkansas Publicity and Parks Commission (brought in tbe name of tbe State) to obtain a fee in certain lands and a permanent easement in adjacent lands for tbe purpose . of constructing an airport on Petit Jean Mountain, tbe issues arising related to tbe amount of compensation and damages due to tbe landowners.

Tbe factual background preceding this litigation wil be helpful to an understanding of tbe several questions presented. On January 12, 1954, Billie Earl and bis wife executed to Winthrop Rockefeller a 20 year lease on 15.4 acres of land situated in tbe Southeast Quarter of Section 28, Township 6 North, Range 18 West, on Petit Jean Mountain, for tbe location and construction of an airport. Tbe exact location and dimensions of tbe land are shown in a surveyor’s plat attached to tbe lease. Rockefeller paid $500 as rent and as part of tbe consideration be agreed to sod tbe runway with bermuda grass and to keep tbe bay cut and deliver one-half thereof to tbe lessor; be further agreed to provide necessary artificial drainage, to provide adequate fencing around said property to protect it from cattle grazing in adjoining pastures, to provide a passageway around tbe southwest end of said air strip for tbe movement of cattle from one side of tbe strip to tbe other, and to preserve adequate roads across tbe lands. The lease specifically gave Rockefeller the right to execute an assignment to the “Arkansas State Publicity and Parks Commission, the Morrilton Chamber of Commerce, or other civic groups for the purpose of maintaining a proper air strip as a public service and convenience.” Soon after the execution of the lease Rockefeller graded and levelled off the air strip, sodded it with bermuda and made certain other improvements. (It is noted here that the above named Billie Earl did not own the leased lands, actually held and owned by the appellees, but the evidence shows that the money was divided among appellees and no question of ownership has been raised.)

On October 8, 1954, Rockefeller executed an assignment of the said lease to the Arkansas State Forestry and Parks Commission. This commission is now superseded by the Publicity and Parks Commission by virtue of Act 330 of 1955.

On February 7, 1960, appellant filed a complaint in the Circuit Court against Billie Earl, Jr., Billie Earl, R. D. Earl, Jr., and C. H. Earl and their wives, alleging that it was the “owner and or the lessee” of the lands above described, and that it was operating and maintaining upon said land an air strip and airport facilities. It was further alleged that the defendants owned certain other property adjacent to aforesaid lands and located in the Northeast Quarter of the Southeast Quarter of Section 28; the Southeast Quarter of the Southeast Quarter in Section 28; and the Northwest Quarter of the Southeast Quarter in Section 27, all in the Township and Range above set out. The exact location and dimensions of said lands being shown in a surveyor’s plat attached to the complaint and made a part thereof. It was further alleged that appellant desired to improve and expand said airport facilities by lengthening and hard surfacing said air strip, and that in order to make said improvements it will be necessary to go upon the property of the defendants and acquire thereon a continuing easement for present and future construction. It was further alleged that, in order to conform with the Civil Aeronautics Administration zoning requirements, an “easement over a 400-foot-wide strip of territory on each side of the runway is required to keep trees trimmed and prevent obstruction to air navigation.” In the prayer of the complaint appellant asked to condemn a lee in a parcel of land consisting of 21,57 acres described by metes and bounds. (It is noted that the above described lands constitute the southwest portion of the landing strip, which is 3b0 feet wide and runs in a northernsierly and southwesterly direction.) The described lauds included the 15.4 acres mentioned in the lease and in addition thereto 6.17 acres lying in the extreme southwest end of the air strip. In the prayer appellant also asked the court to “grant a permanent easement over a 400-foot-wide strip of territory on each side of the said runway to keep trees trimmed and prevent obstruction to air navigation.”

On June 3, 1957, appellees filed an “Answer and Claim for Damages,” including a general denial of all allegations in the complaint. After setting out the several obligations imposed upon Rockefeller by the terms of the lease, appellees stated that they “fully expected to enjoy the benefits which enured to them under said lease for a period of twenty years and further expected to re-enter the premises at the expiration of the 20 years . . .; ” that the improvements belong to the defendants, subject to the lessee’s right to use and eni'oy them under the terms of the lease for twenty years. Then the appellees asked to recover in the following-amounts and particulars:

(a) For the 15.4 acres contained in the original lease, $400 per acre or a total of $6,160.00;

(b) For the 6.7 acres described above at $200 per acre or a total of $1,234.00;

(c) For the permanent easement in the 400-foot strip mentioned above, amounting to 44.12 acres, valued at $200 per acre or a total amount of $8,824.00;

(d) For severance damages caused by the air strip separating appellees’ lands in the amount of $2,000.00;

(e) For obstruction to natural drainages of $1,000.00;

(f) For timber that will be destroyed, $500.00;

(g) Destruction of crops of hay and grass $1,000.00.

In accordance with the above the appellee asked for a total damage of $20,718.00.

On June 10, 1957, appellees filed an “Amendment to Answer and Claim for Damages” in which they state, under Item (c) above that they are entitled to the full market value of 45.01 acres in the amount of $9,002.00.

On September 29, 1958, appellees filed a “Second Amendment to Answer and Claim for Damages” in which, in general, it was alleged that their lands had been used as a stock farm as a unit; that Highway 154 ran approximately one-half mile south of said lands; that a black-topped county road was located to the north approximately one-half mile; that Lake Bailey covered a portion of the lands on the south side; that there was a stock pond on the Southeast Quarter of the Southeast Quarter of Section 28; that said lands were best suited for building purposes; that it is approximately 7,000 feet from the south end of the runway to Lake Bailey; that there was no other place on Petit Jean Mountain which had the advantages of appellees’ land for the construction of an airport; that said lands were best suited for an airport and had a value of $500 per acre; that appellees are entitled to the sum of $8,000 for the depreciation of other lands outside of the lands actually taken; that appellant has not obstructed any natural drains, nor has it destroyed any merchantable timber, but appellees are entitled to the sum of $1,000.00 for the loss of hay crops. Appellees ask for a total amount of $42,290. Appellant filed a reply denying all allegations in the Amended Answer.

Upon the issues above set forth a trial was had before the Circuit Judge sitting as a jury. Voluminous testimony was introduced by witnesses for both sides concerning the value of appellees’ lands and the several elements of damages that have been heretofore itemized. The trial court with the consent of both sides made a personal inspection of the property involved. At the conclusion of the trial, the trial Judge issued a carefully prepared “Findings of Facts and Conclusions of Law,” covering 37 pages in the record. It would serve no useful purpose to reiterate in detail the testimony supporting the trial Judge’s findings. However, if necessity requires, we will hereafter refer to portions of the testimony as we discuss the several points relied on by appellant for a reversal on direct appeal and by appellees on cross-appeal. Suffice to say, at this time, that the trial court considered testimony pertaining to the value of appellees’ lands based on its use for agricultural, grazing, housing and subdivision, and availability for airport purposes. Some witnesses valued the land as low as $25.00 per acre and others fixed a much higher value. The trial court found the highest value for the land was for the purpose of an airport, and fixed the value at $200 per acre, taking into consideration such matters as severance, access roads and loss of crops. The trial court then rendered judgment in favor of Billie Earl, Jr., in the amount of $9,811.68 with interest thereon at the rate of 6% per annum from July 23, 1960, until paid; and judgment in favor of the other three defendants (Billie Earl, B. D. Earl, Jr., and C. H. Earl) in the sum of $7,376.92, with interest as stated above.

For a reversal appellant relies upon four separate and distinct grounds which we shall now discuss in the order presented in its brief.

1. Appellant states that ‘ ‘ The court erred in fixing the valuation of the easement as if it were a taking in fee.” It will be recalled that appellant sought to obtain a fee in the 350-foot strip of land to be used for a runway, but asked for only a permanent easement as to the 400-foot strip on each side of the said runway. The trial court concluded that appellant’s use of the said strip destroyed permanently all use and benefit to appellees, and therefore that appellees should be paid full value. After careful consideration we have concluded that the trial court was correct. Although the exact issue here presented has never been passed on by our court we do find support for the trial, court’s determination in the case of Baucum v. Arkansas Power & Light Co., 179 Ark. 154, 15 S. W. 2d 399; Texas Illinois Natural Gas Pipeline Co. v. Lawhon, 220 Ark. 932, 251 S. W. 2d 477; and Arkansas Power & Light Co. v. Morris, 221 Ark. 576, 254 S. W. 2d 684. In the Baucum case above cited, we find this statement: “We adopt the view of the Supreme Court of Tennessee in the case of Kentucky-Tennessee Light & Power Co. v. Beard, 152 Tenn. 348, 277 S. W. 889, where it was held, after a review of the authorities (which we do not repeat), that, where an electric light and power company, in condemnation proceedings, acquired a permanent easement across the land of another, it became liable for the full value of the right-of-way as if the fee had been taken.” In the Lawhon case above cited this court said: “Under the law of this State, the owner of land is entitled to be paid the full value of the land embraced within the right-of-way easement, as if the fee had been taken even though the landowner, after the pipe line was constructed, had the right to continue using the surface of the right-of-way for farming or other purposes not inconsistent with the use of the easement.” The Morris case above cited repeats the citation in the Lawhon case. We recognize the general rule to be as stated in Keith v. Drainage District No. 7 of Poinsett County, 183 Ark. 384, 36 S. W. 2d 59, “that the measure of damages is the difference between the market value of the land before the alleged taking of the land and its value, if any, after that time; . . .” This rule is not necessarily in conflict with the holding in the above cited cases. They appear to be based on the ground that the condemnor theoretically has the right to make complete use of the land, thereby leaving no valuable use for the owner after the taking. The Keith case moreover - recognizes the doctrine announced by Mr. Angelí in his work on water courses, Section 465, where it is stated “that a serious interruption to the common and necessary use of property is equivalent to the taking of it, . . .”

Applying these announced rules to' the case under consideration we are unable to say that there is no substantial evidence to support the trial Judge’s findings, as a matter of fact, that appellant’s taking destroyed the common and ordinary uses of appellees in the said 400-foot strips. There is no testimony in the record showing the market value of these strips before the taking and the market value of said strips after the taking. The testimony upon which the trial court made its finding was involved and somewhat complicated. It was attempted to show that appellant had exclusive use above certain horizontal planes extending a certain height above a certain point on the runway. There was also testimony indicating that, due to the terrain of the land, the plane would be at different heights above the ground at different points on appellees’ land, thus leaving a hopeless state of uncertainty and confusion. There was testimony that the land could be used for raising cattle and testimony to the contrary. It was definitely shown by the testimony that there was great uncertainty as to what extent, if any, appellees would use the lands, and for what purposes. Therefore we conclude that the trial court was correct in rendering judgment for the full value for the said 400-foot strips of land.

2. Appellant next contends: “The court erred in placing valuation for airport purposes.” "We are not impressed with appellant’s argument on this point. The court correctly allowed appellees compensation for the lands based on their best and most valuable use. We have many times announced the rule, reaffirmed in the case of Burford v. Upton, 232 Ark. 456, 338 S. W. 2d 929, that, in condemnation procedures, the landowner is entitled to be reimbursed for his land on the basis of the best and most valuable use for which it is suited. There is substantial evidence in the record to support the trial court’s finding that appellees’ lands were most valuable for use as an airport. The very fact that the lands are now being used for an airport is some indication that they are fitted for that purpose. Also, there is testimony in the record stating that the land’s most valuable use was for airport purposes. In view of this the trial court’s finding must be sustained.

3. It is also appellant’s contention that “The court erred in not permitting the introduction of a comparable sale.” We see no merit in this contention. In the first place, the trial court found (and we have agreed) that appellees’ lands were best suited for an airport, consequently the value of other lands on Petit Jean Mountain for agricultural or stock raising purposes would have little if any bearing on the value of these lands for an air strip. Also, the record shows the court did allow considerable testimony regarding the market value of lands in that area, and so any additional testimony would have been merely accumulative. If introduced it could have had no bearing upon the findings of the trial court regarding the value of appellees’ lands for airport purposes. It would serve no useful purpose to reiterate the testimony relating to this point.

4. Finally appellant contends that ‘ ‘ The court erred in declaring zoning ordinance ineffective.” The record shows that in January, 1958, the City Council of Morrilton passed Ordinance No. 58-1 purporting to zone appellees’ property adjacent to the aforementioned air strip. The council passed the ordinance pursuant to the provisions of Act No. 116 of 1941, which is set out in Ark. Stats., §7 74-301 to 79-319. The trial court did not hold that the ordinance was invalid but did hold that it “constitutes an unreasonable and arbitrary exercise of the police power afforded by Act 116 of 1941,” and that it bore no reasonable relation to the general safety and welfare of the people of Morrilton. We think the trial court was correct in so holding. It is pointed out that Morrilton is approximately 18 miles distant from the airport here involved, and there is no showing that very many if any people from Morrilton use the airport or that the airport in any way served the people of. Morrilton. Section No. 1(2) of said Act 116 states that a city is “served” by an airport if such airport is used for private flying or otherwise as a point of arrival or departure. Also, Section 2 of said act states, in effect, that in order to protect the life or property of users of airports and occupiers of land in their vicinity, and to promote the public health, safety and general welfare, cities are given the power to promulgate zoning regulations with respect to any airport by which the cities are served. Under the record in this case we find nothing to justify the conclusion that said airport served the City of Morrilton or the inhabitants thereof or that it is necessary to promote their safety or .general welfare.

Cross Appeal. On cross appeal appellees contend that they should have been given judgment for loss of access roads and for the hay which they would have received from the land if the lease agreement with Rockefeller had remained in full force and effect. The trial court, at some length, reviewed the testimony relative to these two items and concluded that it was insufficient to support an award. We have reviewed the testimony and find that there is substantial evidence to support the trial court’s findings.

The most serious contention on the part of appellees is that they are entitled to recover an additional sum based on the value of the improvements placed on the lands by Mr. Rockefeller. It is not denied that these improvements amounted to several thousands of dollars. One witness testified that the air strip with the improvements placed thereon had a value of $25,000, and appellees contend that they should have been awarded compensation in that amount. Appellees.’ argument is that, had the lease agreement remained in effect, they would, at the end of twenty years, have received back the lands with improvements thereon, because the lease did not give Rockefeller the right to remove the improvements. We have carefully reviewed this contention along with applicable rules of law and have concluded that appellees are not entitled to more than the amount allowed by the trial court as heretofore stated. Our reasons for this conclusion are hereafter set out.

The exact question here presented has not heretofore been decided by this court. Mr. Orgel in his Second Edition on Valuation Under Eminent Domain, in Chapter 7, discusses the subject of Valuation of Improvements made by a Condemner on Property Prior to Its Condemnation, after discussing the difficulties presented in cases of this nature, among other things, says:

“Cases of this kind seem to present the court with a dilemma. On the one hand, if the court adheres either to market value or to a value to the owner as the basis of compensation, it must ordinarily refuse to sanction any increased compensation because of the improvements, and it would often be obliged to require a decreased compensation because the improvements have reduced the value of the property both to the owner and in the general market. On the other hand, if the court allows the full value of the property to the taker, it violates its general doctrine that value to the taker is not the proper basis of compensation, and it sanctions a payment to the owner which may be far in excess of any loss which he has suffered because of the premature construction of the improvement.”

Following the above the author then says:

“This seemingly hopeless dilemma is avoided in the majority of jurisdictions by the rule that a condemner need not pay for his own improvements when they have been made prior to the act of condemnation.”

We think the rule announced in the last quoted section is sound and practical when applied to the facts in this particular case, and in the absence of any pertinent rule heretofore announced by this court, we adopt it as our own.

The nearest approach we find among our own decisions to the Orgel rule is in Newgass v. Railway Company, 54 Ark. 140, 15 S. W. 188, where we held that the Railway Company (the condemner) did not have to pay the owner for the value of the improvements placed on his land previous to the filing of the condemnation proceedings. It is admitted here that the air strip was improved before suit was filed by appellant. It might be argued here that Rockefeller is not the condemner, but we think that makes no difference. He had a right under the terms of the lease to assign it to appellant, and appellees are bound to know the land would be used as an airport. In our opinion appellant has every right in this litigation that Rockefeller would have had if he had instituted the litigation.

The peculiar facts of this case illustrate how the Orgel rule avoids the “dilemma” referred to by him. If appellees are to be given an award based on the value of the improvements then appellant would be entitled to credit for the value of the 20 year lease. Neither of these items were developed with that degree of certainty as to form a reasonable basis for a definite determination as to value. The trial court, both as judge and jury, heard all the testimony (the Judge personally viewed the property) and reached a conclusion as to the value of all the lands based on its most valuable use, as an airport. In reaching that conclusion the trial court had the right to, and so far as we know actually did, take into consideration all elements, including the ones above mentioned, affecting the proper compensation due appellees. On the whole, we are not willing to substitute our judgment for that of the trial Judge or say that his findings are not supported by substantial evidence.

Accordingly the judgment of the trial court is affirmed on both the direct and cross appeal.


source: Caselaw Access Project

author: Sam Eobinson, Associate Justice.

license: Public Domain

text:
    Dickinson v. Central Construction Co.
    5-2343
    344 S. W. 2d 599
    Opinion delivered March 27, 1961.

      McMath, Leatherman, Woods & Youngdahl, for appellant.

      8. Hubert Mayes and 8. Hubert Mayes, Jr., for appellee.
   Sam Eobinson, Associate Justice.

Appellants, employees of Central Construction Company, appellee, have appealed from an order of the Workmen’s Compensation Commission which was affirmed by the circuit court denying compensation for injuries received hy appellants while on their way to work. The issue is whether the injuries arose out of and in the course of employment within the meaning of the Workmen’s Compensation Act. Ark. Stats., § 81-1305.

Appellants are carpenters. They live at Camden and at the time of receiving the injuries for which they seek compensation they had worked for appellee for about two and one-half or three years. Although they live at Camden, they usually work at other places located 12 to 60 miles away. They drive back and forth to work each day. They each own an automobile and go to work together, taking turn about in the use of their cars. They work by the hour, the time starting when they actually commence work at the job.

Mr. William F. Sales was appellee’s superintendent of the jobs on which appellants Dickinson and Word worked as carpenters. Mr. Sales owned a pick-up truck and used it on the job for his employer and was paid $100 per month for the use of it. During the week of Thanksgiving, 1958, appellants were working on a job at Pine Bluff, going back and forth from Camden daily. Although the home of Mr. Sales, the superintendent, was in Camden, he and his wife ordinarily rented an apartment at the place where he was working and went home to Camden on weekends and holidays. On the occasion under discussion they went home for Thanksgiving, but Mr. Sales intended to return to Pine Bluff Friday, the day after Thanksgiving, to deliver payroll checks and do other things in connection with his duties as superintendent. It appears, however, that appellant’s checks were delivered to them on Wednesday. On Tuesday or Wednesday immediately preceding Thanksgiving, Sales invited appellants to ride with him in his pick-up truck when they returned to work at Pine Bluff on Friday. Sales’ wife remained in Camden, and Sales was going to return to Camden for the weekend, after he finished work at Pine Bluff on Friday. Appellants accepted Sales’ invitation to ride with him, and at about 5:30 Friday morning they met him at a service station at Camden, where appellants left their cars and got in Sales’ truck with him. After traveling a few miles Sales suggested that one of the others drive, and appellant Word took over the driving. After proceeding for several miles the truck skidded and was wrecked. Sales was killed and appellants were injured.

The question is whether the employees were being transported in a vehicle owned or operated by the employer as a result of an actual or implied contract or as an incident of the employment. Injuries sustained by an employee while going to or returning from his regular place of employment are not as a general rule deemed to arise out of and in the course of the employment. But there are exceptions to the rule, one of which is where the employee is riding in the employer’s conveyance as an incident of his employment. Blankinship Logging Co. v. Brown, 212 Ark. 871, 208 S. W. 2d 778; Ark. Power & Light Co. v. Cox, 229 Ark. 20, 313 S. W. 2d 91; American Casualty Co. v. Jones, 224 Ark. 731, 276 S. W. 2d 41; Mason v. Lauck, 232 Ark. 891, 340 S. W. 2d 575.

Here it can be said appellants were riding with Sales, the superintendent, in a truck operated by the employer, but there is substantial evidence to support a finding by the Commission that the transportation of appellants on the morning in question was not the result of an actual or implied contract and that such transportation of the employees was not an incident of the employment; that the appellants rode with Sales merely for the companionship and to save the use of their own cars. The appellant Word testified:

“Q. When and how did you make the arrangement to ride with Mr. Sales on the morning of the accident?

“A. Well, I don’t remember whether it was on a Tuesday or a Wednesday that he came to me or maybe Mr. Dickinson at the same time. I don’t know and told us boys and said, ‘Now, I am coming over here Friday. I have got to come anyway and there is no use of you all driving your all’s car that day. You just ride with me. ’ ’ ’

Mr. Word further testified that it was entirely up to him to get from his home to the job; that it had not been the custom or practice for the employer to furnish the transportation and that he was paid no expense money whatever in connection with getting to and from the job.

The appellant Dickinson testified:

“Q. And how did you know that you were going to go with Mr. Sales on Friday?

“A. I don’t know whether Tuesday afternoon or Wednesday afternoon but he told us that he was going to be at home or at Camden and that he had to come back Friday and we might as well ride with him, save the expense of onr trip.”

Mr. Dickinson further testified that it was entirely, up to him to furnish his own transportation from Camden to the jobs. He further testified that he accepted, as a favor to himself Mr. Sales’ invitation to ride. There is substantial evidence that fully sustains the finding of the Commission to the effect that appellants’ injuries did not arise out of and in the course of their employment.

Affirmed.

Harris, C. J., Ward & J ohnson, JJ., dissent.


author: Jim Johnson, Associate Justice.

text:
    Keith v. City of Cave Springs.
    5-2314
    344 S. W. 2d 591
    Opinion delivered March 27, 1961.

      Grouch, Jones, Blair & Cypert, for appellants.

      Wade & McCallister, for appellee.
   Jim Johnson, Associate Justice.

This appeal involves a mandatory injunction. Prior to September 9, 1950, the water supply and distribution system of the City of Cave Springs consisted of individual wells and pressure pumps. No city water service was available.

On September 9, 1950, the City entered into a 25 year contract prepared by E. L. Keith whereby the latter agreed to sell and deliver to the City water suitable for industrial and domestic consumption under pressure at a gate valve in the street near the northwest corner of Lake Keith (a small impounded body of water fed by a spring known as Cave Springs) at the rate of twenty cents (20$) per thousand gallons. The contract which was duly recorded on May 7, 1951, among other things, provided that E. L. Keith would “promptly repair any part of his equipment that might fail to deliver the water to the City”; and that Keith would “install and maintain an automatic chlorinator to purify said water so sold.” The contract further provided that Keith would furnish “all the water that said City wishes to purchase, subject to the capacity of his present pumping facilities,” and “if anything should happen to the spring so it will not furnish good water in sufficient quantity to operate the water wheel and supply the need of the City, that E. L. Keith is not bound to purchase additional equipment. ’ ’

The water originally acquired by the City under its contract with E. L. Keith flowed by gravity from the mouth of Cave Springs, passed through a trough and dropped downward from the end of the trough onto a water wheel located in front of the spring. A shaft extended from the water wheel into a well house where the valves, belts, and other mechanisms of a pump were housed. The turning of the water wheel pumped the water up into a storage tank situated on the top of a hill above the spring. Prom the storage tank, the water was pumped into an adjoining tower tank from where it flowed to the gate valve and thence into the City’s distribution lines.

At the time the contract was entered into, E. L. Keith was the owner of a small resort area known as Lake Keith Resort consisting principally of the spring, the lake, some dwellings, fish hatchery, apartment houses, and other resort facilities. Water for these installations flowed through private water distribution lines owned by Keith from the same water storage tank which supplied the City.

In 1950 the City had 10 to 15 water customers and its own distribution system consisted of one water main extending from Lake Keith down main street through the business district to the north end of the city limits. A year later Keith loaned the City money to extend the City’s distribution lines to the south end of town and to other places within the City.

Keith soon discovered that the water wheel would not turn fast enough in the dry summer months when the spring was low to force enough water into the elevated storage tank to supply the needs of the City as well as the needs of the Lake Keith Resort occasioned by the construction of a swimming pool. In the words of E. L. Keith, “I knew the City was using- out of it and me using and the spring- low, well we had to have some other kind of facilities to pump enough water during that real dry year.”

On or about 1952 or 1953, Keith voluntarily installed an electrical pump, which also activated the chlorination process in the well house to work in conjunction with the existing water wheel. From that time until on or about August of 1959, both the water wheel and the electric pump working together or separately forced enough water into the water storage tank to supply all of the needs of Lake Keith Resort, which included a fish hatchery, apartment houses, filling station, cafe, swimming pool, and other dwellings, obtaining water through Keith’s private distribution lines, and all of the needs of the City which included a school, business and residential establishments, chicken raisers, the City’s own fire department and other water users.

Keith operated the water supply system and related pumping facilities and supplied water to the City and to the Lake Keith Resort installations without incident from September 9, 1950, to February 15, 1957, when he and his wife sold and conveyed to Joe M. Meyer and "Wilma B. Meyer, husband and wife, the real estate upon which Lake Keith Resort and said water supply system, pumping- facilities, swimming pool, storage tanks and other installations were located. The Meyers likewise operated the water supply system and related pumping-facilities and supplied water to the City and to Lake Keith Resort installations without incident from February 15, 1957, to June 14, 1957, when they conveyed the same premises to the Northside Supply and Development Company, a Missouri corporation, which also operated the water supply system and related pumping facilities and supplied water to the City and to Lake Keith Resort installations without incident until August 1959.

The owners and incorporators of the Northside Supply and Development Company were Paul Johnson and Enrtis Johnson, residents of Springfield, Missouri, brothers of F. D. (Dee) Johnson, one of the defendants herein. Dee Johnson had arranged with his brothers to live in a room in a hotel at the resort owned by his brothers and to assist Chester McCamey who was in ■charge of the water system and related pumping facilities; Dee Johnson arrived to assume his duties at the resort on or about the middle of August 1959; he spent part of his time at the resort and part of his time in Springdale; he had authority from the Northside Supply and Development to receive check payments for water purchased by the City of Cave Springs from the water supply owned by the Northside Supply and Development Company, to endorse the checks, to get the cash on them and to deposit them in a bank at Bentonville, Arkansas, in an account owned by the Northside Supply and Development; in addition, he had authority to superintend the building of houses in Springdale and vicinity for Northside Supply and Development Company, to hire laborers, to fire them, and to pay their wages either from checks drawn by him on the same bank account or from the proceeds received from the checks received from the City and endorsed by him. Mr. Keith characterized the relationship of Dee Johnson and Northside Supply and Development Company as follows: “He is their agent here, working for them and building some houses over there is all I know.”

Ex-Mayor Bright, who had signed the contract in 1950 for the City, testified that the first report he had of a shortage of water was in August or September of 1959.

Wilbur Bolin, member of the Cave Springs City Council and Water Commissioner, testified that water users in the City had been out of water several times in the last six or eight months; that upon investigation he would find the pump shut off and the water tower dry; that he would talk to Dee Johnson about it and that eventually Johnson would get the pump started again; that this happened a lot of times twice a week; that the school had been out of water several times; that on Wednesday, April 13, 1960, lie found there wasn’t any water — that the boy (Johnson) went in there and turned some valves on, opened the water to where more would pour on the wheel but in about an hour and a half later the people would call and report that they were still out of water; that both Mrs. Pattishall and Ed Curtis reported to him that they were out of water; that Mrs. Pattishall lives east of the school house and Ed Curtis lives south of the school house; that they live on about the same elevation as the water tank and the school- — all on high ground; that the City has never run out of water except when the storage tank was dry; that on one occasion he found the electric pump shut off and observed the storage tank empty; that he and others would go get Dee Johnson when this occurred and get the pump turned on; that these incidents of water shortage occurred a dozen or two dozen times; that on the first two or three occasions when he talked to Mr. Johnson about it, Mr. Johnson’s answer was, in substance, that he was losing money on it; that the operation of the electric pump by itself was probably sufficient to keep the water storage tank full; that water shortage troubles were encountered on April 9, April 13, and April 14, 1960; that he has visited the spring several times when the trough that directed the water on to the water wheel was placed in such a manner that the water was running over the top of the water wheel without touching it; that he has visited the spring when neither the water wheel nor the electric pump were working.

Mayor Pearson testified that he told Mr. Johnson that he would like to have some water because the school children were out of water; that on one occasion he couldn’t find Dee Johnson and neither the water wheel nor the electric pump were running; that he made a visit to the pumps on Saturday, April 9, 1960, and that the water wheel was off, the moss and vegetation on the wheel were dry, the electric pump was running but there was no water in the tower; that on Wednesday, April 13, 1960, he made a trip to the spring because “we were out of water” and found that the electric pump "wasn’t pumping if it was running and the water wheel was running but wasn’t pumping”; that last Saturday "the water wheel was not running, the electric pump was running but it didn’t sound like it was pumping and there was no water.”

E. L. Keith testified that Mr. Johnson had had to make repairs to the electrical pump that he installed; that when there was no water in the tank the people living on high ground would not get water; that although he did not feel bound by the terms of the contract to do so, he purchased the electrical pump to work in conjunction with the water wheel; that the City used the money he lent them to expand the water distribution system; that in connection with the expansion of the water distribution system and the running of water from his water supply into the newly expanded system, there was no understanding between him and the City as to whether his original contract would cover the expanded system; the City continued to pay him at the contract rate for the water that went into the new system as well as the entire system as a whole.

Dee Johnson admitted that the water wheel wouldn’t keep the water supply up; that part of the time Chester McCamey would kick the electric pump in to increase the supply; that Northside Supply and Development Company had the fish hatchery leased; that even after a temporary injunction was served on him, he closed the valve where the water comes through the water pump to shut the water wheel down and let the trough down so that the water ran over the top of the water wheel; that he did this because there wasn’t any need for the water wheel if the electric pump was running; that he was told by his brothers that just the water wheel itself would furnish plenty of ivater; that he was employed by North-side Supply and Development Company; that he receives a salary from Northside Supply and Development; that he had knowledge of the fact that people in Cave Springs had been out of water; that on November 17, 1959, he learned that the school was out of water; that when he learned this, he just figured there wasn’t enough water in the tank to supply them; that the school is on higher ground; that the water wheel simply was not putting enough water into the storage tank to furnish sufficient water.

On November 19, 1959, the Benton Chancery Court entered a temporary restraining order restraining and enjoining E. L. Keith, Eurtis Johnson, Paul Johnson, Dee Johnson, and Northside Supply and Development Company, a Missouri corporation, their agents, servants, and/or employees from directly or indirectly in any way shutting off or interfering with the electrical power supply for the electric pump which pumps water from Lake Keith at Cave Springs to the elevated water storage tank which supplies water for industrial and domestic water users of the City of Cave Springs, Arkansas ; that on April 14, 1960, the Benton Chancery Court entered an order making the temporary restraining order entered on November 19, 1959, permanent as against the defendants, Dee Johnson and Northside Supply and Development Company, a Missouri corporation, their agents, servants and/or employees, be enjoined to maintain the supply of water to the City of Cave Springs, Arkansas, not only by the electrical means currently employed, but by means of the existing water wheel or both, or either, as the case may be; the North-side Supply and Development Company was further directed by the court to maintain said pumps in a reasonable state of repair.

We note from the record that the order of the trial court entered April 14, 1960, states that the temporary restraining order entered on November 19, 1959, is made permanent as against the defendant E. L. Keith; however, the order further states that the demurrer of E. L. Keith to the evidence offered by the plaintiff should be overruled. The transcript of the record reflects that the demurrer to the evidence filed by E. L. Keith was actually sustained by the trial court.

In view of this state of the record, the City of Cave Springs on appeal concedes, and we agree, that the trial court’s order of April 14, 1960, should he modified so as to vacate the permanent restraining order as against the defendant E. L. Keith.

Eor reversal appellant relies on four points. We will discuss the points in the order in which they are raised.

I.

Appellant contends that the Chancery Court did not have jurisdiction of the Northside Supply and Development Company due to improper service upon the corporation.

Service was had upon Dee Johnson as agent for Northside Supply and Development Company, a Missouri corporation.

Section 27-350 of Ark. Stats. (1947) provides:

“Where the defendant is a foreign corporation having an agent in this State, the service may he upon such agent.”

Northside Supply and Development Company did not designate its resident agent for service as required by law until January 2, 1960. However, it is well settled that the statutes requiring corporations to appoint an agent upon whom process may be served is not exclusive of other methods of service. See Lasser Cotton Company v. Yates, 69 Ark. 396, 63 S. W. 997; Henrietta Mining and Milling Co. v. Henry Johnson, 173 U. S. 221, 19 Sup. Ct. 402, 43 L. Ed. 675; Meeks v. Waggoner, 191 Ark. 189, 85 S. W. 2d 711.

In the case of Hot Springs School District No. 6 v. Surface Combustion Corporation, 222 Ark. 591, 261 S. W. 2d 769, this Court in discussing methods of obtaining service on non-resident corporations under Section 27-350 of Ark. Stats., supra, said at page 595:

“It was a question of fact for the trial court to decide whether the actions of Dillon, as disclosed by the evidence, were sufficient to constitute him an agent for service, but the trial court, as indicated above, did not pass on this question.”

In the instant case, the trial court determined as a matter of fact that the nature, character and extent of the actions of Dee Johnson were sufficient to constitute him an agent for service under Section 27-350 of Ark. Stats., supra.

Paul and Eurtis Johnson, brothers of Dee Johnson, were the incorporators and principal owners of the Northside Supply and Development Company, a Missouri corporation; Dee Johnson testified he was employed by and received a salary from Northside Supply and Development Company; that Northside Supply and Development Company owned Lake Keith Resort; that he was employed by Northside Supply and Development Company primarily for assisting Chester McCamey, who was employed by Leon Klines, who in turn was employed by Paul and Eurtis Johnson to look after the water supply equipment and electrical equipment at Lake Keith; that his brothers were the owners of Lake Keith; that they lived at Springfield, Missouri; that he received a place to live in a room at a hotel owned by his two brothers at Lake Keith in exchange for performing his duties as a caretaker for the water supply equipment at Lake Keith; that he moved to Cave Springs on or about August 15th; that he had authority from Northside Supply and Development Company to receive check payments for water purchases by the City of Cave Springs from the water supply owned by the Northside Supply and Development Company; that he had authority from Northside to endorse the checks; to get the cash on them, to deposit them in a bank account (Lake Keith Resort) which is also owned by the North-side Supply and Development Company; to superintend the building of houses in Springdale, Arkansas, for Northside Supply and Development Company, to hire and fire laborers, to pay them their wages by check drawn on the same bank account in Bentonville, Arkansas; Dee Johnson worked part time in Springdale building houses and part time at Cave Springs with no set number of hours at either place; E. L. Keith testified he sold Lake Keith Resort to the Meyers who in turn sold to the Johnson boys or Northside Supply and Development Company; that it was his intention when he sold the resort that the contract went with it; when asked if he knew whether or not Dee Johnson had any relationship with Northside Supply and Development Company, he testified as follows:

“He is their agent here, working for them and building some houses over there is all I know.”

When the water shortage problems developed, it was Dee Johnson to whom the complaints were registered by representatives of the City of Cave Springs, and no one else seemed to have anything else to do with the operation of the pump besides Dee Johnson.

Prom the facts set out above we cannot escape the conclusion that the finding of the learned Chancellor that Dee Johnson was a proper agent of the Missouri corporation for service under Section 27-350, Ark. Stats., supra, was not against the preponderance of the evidence.

II.

Appellant contends that the contract between E. L. Keith and the City of Cave Springs is not valid and enforceable due to a lack of mutuality of obligation on the part of the City of Cave Springs. To sustain this contention, appellants cite Magnolia Petroleum Co. v. Dudney, 211 Ark. 469, 200 S. W. 2d 793; Duclos v. Turner, 204 Ark. 1000, 166 S. W. 2d 251; and Harrison v. Kelly, 212 Ark. 447, 206 S. W. 2d 184. These cases hold that a contract which leaves it entirely optional with one of the parties as to whether he will perform is not binding upon the other party.

It is true that the contract here involved does not specifically set out an absolute requirement that appellee purchase water from appellant. Even so, the facts in the case at bar do not bring it within the doctrine of the cases upon which appellee relies. It is unrealistic to say that the City of Cave- Springs had an option not to purchase water, for its residential and commercial water users from the only source of water supply available to the City.

The term, “mutuality of obligation” is merely another way of saying that there must be a. valid consideration. Sargent v. Drew English, Inc., 12 Wash. 2d 320, 121 P. 2d 373; Corbin, Contracts § 152. See also Meurer Steel Barrel Co. v. Martin, 1 F. 2d 687. We think the applicable rule to such a situation as this is stated in § 157 of Corbin, Contracts, especially at the bottom of page 519 where it is stated:

“A promise to supply on stated terms all the goods or services that the promisee may thereafter order is not itself an illusory promise. Instead, it is a very definite promise that creates a large power in the promisee. It is an enforceable promise if the promisee gives any sufficient consideration for it. ’ ’

Here the promisee agreed to buy water from the appellants and to pay 20 cents per 1,000 gallon for a period of 25 years. There is certainly nothing illusory about people needing water. See also Linder v. Mid-Cont. Petrlm. Corp., 221 Ark. 241; 252 S. W. 2d 631.

Moreover, this Court has always held that where a party originally not bound has executed the contract, the doctrine relative to mutuality does not apply. El Dorado Ice & Planing Mill Co. v. Kinard, 96 Ark. 184, 131 S. W. 460; Slayden v. August Cooperage Co., 163 Ark. 638, 260 S. W. 741.

The evidence is undisputed that the City of Cave Springs has for the past ten years diligently fulfilled an implied covenant to purchase water for its residential and industrial consumers and the express convenant to pay for the water purchased. See Mooney v. Gantt, 219 Ark. 485, 243 S. W. 2d 9. Therefore, appellants cannot be permitted to accept the benefits under the contract and at the same time avoid their obligation under such agreement. Williams Mfg. Co. v. Strasberg, 229 Ark. 321, 314 S. W. 2d 500.

III. & IV.

Appellants contend that the contract between E. L. Keith and the City of Cave Springs was not properly construed by the Chancery Court and that the principle of equitable estoppel should not be invoked. It is admitted that E. L. Keith prepared the contract here in question. Following the settled rule that a contract is construed most strongly against the party who prepares it, Ark. Valley Royalty Co. v. Ark-Okla. Gas Co., 222 Ark. 213, 258 S. W. 2d 51, the Chancery Court, in its opinion, made finding that the terms of the contract between E. L. Keith and the City of Cave Springs required Northside Supply and Development Company to supply water to the residents of the City by the operation of either the electric pump or of the water wheel or both, if necessary, and to keep these facilities in a reasonable state of repair.

The two paragraphs of the contract relative to the above findings are as follows:

“The said E. L. Keith agrees to furnish said City all the water that said City wishes to purchase, subject to the capacity of his present pumping facilities.”

“It is agreed that if anything should happen to the spring so that it will not furnish good water in sufficient quantity to operate the water wheel and supply the need of the City, that E. L. Keith is not bound to purchase additional equipment.”

Certainly these provisions are both clear and unambiguous. There is no evidence that both E. L. Keith and the officials of the City of Cave Springs did not fully understand these provisions upon execution of the contract, it being admitted that the electric pump was not a part of Keith’s equipment at the time of such execution.

If there were no other evidence in this record we would have no choice hut to reverse the trial court. That is not the case here. Paragraph 5 of the contract provides :

“The said E. L. Keith agrees to promptly repair any part of his equipment that might fail to deliver the water to said City and he agrees to install and maintain an automatic chlorinator to purify said water so sold. ’ ’

And when asked how often the water was chlorinated, Dee Johnson replied:

“Well, it’s chlorinated at — in conjunction with the electric pump, and when the electric pump kicks in, it puts the chlorine right into the water.”

It is undisputed and undenied that Keith was required by the contract to chlorinate the water and the appellant, Dee Johnson, says that the water is chlorinated when the electric pump operates. Therefore, the use of the electric pump was a necessary requirement in the fulfillment of the contract.

In addition it is further undisputed that Keith encouraged the City to expand its water distribution system about the same time that he installed the electric pump in 1952 or 1953 by loaning the City money to expand the system. After the electric pump ivas installed, the water wheel was used, sometimes by itself, and sometimes the two were used in conjunction with each other to keep the elevated water storage tank sufficiently filled to allow for a gravity flow of water from the tank into the City’s expanded distribution system and into the private distribution facilities related to the Lake Keith resort. The record is clear that E. L. Keith and his successor in title fulfilled their contractual obligations during the time they owned the water supply system from the period September 1950 to August 1959 and that the City has likewise fulfilled its contractual obligations for the period from September 1950 to the present day.

When asked why he installed the electric pump, Keith testified:

“I put in the electric pump so my resort wouldn’t he out of water in the summer time. I knew the City was using out of it and me using and the spring low, well we had to have some other kind of facilities to pump enough water during that real dry year. ’ ’

Keith testified that the electric pump was installed in about 1952 or 1953 and the swimming pool was installed before the electric pump; that he had used the water wheel until he put in the swimming pool; that the swimming pool leaks; that the water which leaked from the swimming pool itself was almost as much as the water wheel would supply; that he operates the swimming pool three months in the summer; that the swimming pool was dependent upon the electric pump for an adequate water supply; that with the addition of the electric pump there was enough water for the swimming pool and the City.

In defining “waiver” this Court in Sirmon v. Roberts, 209 Ark. 586, 588, 191 S. W. 2d 824, 825, approved the following quotations from Corpus Juris, Yol. 67, pages 290, 291:

“. . . the voluntary abandonment or surrender, by a capable person, of a right known by him to exist, with the intent that such right shall be surrendered and such person forever deprived of its benefits; or such conduct as warrants an inference of the relinquishment of such right, or the intentional doing of an act inconsistent with claiming it. Thus, ‘waiver’ occurs where one in possession of a right, whether conferred by law or contract, with full knowledge of the material facts, does or forbears to do something, the doing of which or the failure or forbearance to do which is inconsistent with the right or his intention to rely upon it.”

The record is clear that although E. L. Keith did not consider himself bound by the provisions of the contract relative to installing an electric water pump, he voluntarily installed an electric pump to augment the water wheel. Since “waiver” can be defined as the voluntary relinquishment of a known right, the situation here presented is a classic example.

From what we have said above, the order of the Benton Chancery Court dated April 14, 1960, is vacated as to E. L. Keith and hereby is affirmed in all other respects except that the perpetual injunction be limited to the balance of the term of the contract.

Modified and affirmed.


author: Carleton Harris, Chief Justice.

text:
    International Paper Co. v. Myers.
    5-2349
    345 S. W. 2d 1
    Opinion delivered April 3, 1961.
    [Rehearing denied May 1, 1961.]

      Gaughan $ Laney, for appellant.

      McMath, Leatherman, Woods & Youngdahl, for appellees.
   Carleton Harris, Chief Justice.

This is a workmen’s compensation case. Fletcher Myers, age 43, was an employee of International Paper Company, having been so employed from May 15,1948, until and including the afternoon of February 26, 1958, when he suffered a heart attack about 5 p.m., and died in the ear of a neighbor, who had been called to drive him from the plant to the hospital, located in Camden. The claim for death benefits and funeral allowance under the Workmen’s Compensation Act was filed by Elizabeth Myers, the widow, in behalf of herself and two children. The claim was heard by the referee, who concluded that the death resulted from accidental injury arising out of, and in the course of employment, and awarded benefits to claimants. On appeal, the full Commission affirmed this award. The judgment of the Commission was affirmed by the Circuit Court of Ouachita County, and appellant has perfected this appeal. Five points are urged for reversal, but actually, all relate to a single question, vis., “Does the medical testimony support the finding of the Commission that there was a causal connection between the deceased’s fatal heart attack and the work he was doing on the date of his death?”

Myers worked as a tube lancer in connection with a water tube boiler. This work consisted of putting a tube, approximately 12 feet long and weighing in the neighborhood of 20 pounds, into small portholes in the side of an eight story boiler. The tube was connected to a high pressure (approximately 120 pounds) steam hose. The steam is used to remove accumulations from water pipes inside the boiler to prevent these accumulations from insulating the pipes, and lessening the steam produced. Myers generally worked as a “ second helper ” or “ port puncher” downstairs, but he had commenced this last job as a tube lancer three or four days prior to his death, though he had also previously done this type of work. During an eight hour shift, the tube lancers worked from the eighth floor down to the fifth. Buddy Sevier, who worked with Myers, explained the operation as follows: The lance tube, or rod, has two holes at the- end (on each side), which expels the steam. The steam hose brings the steam into the rod. The rod is balanced in the port and worked np and down, and then moved to the next, port. Sevier stated that- frequently a film forms, and cakes on the tubes, and "yon have to jar it off.” According to the witness, the work on the seventh floor (where' Myers was working at the time of the attack) was harder than on the other floors. As reflected by subsequent evidence, this was because more portholes on the seventh floor tended to "stop np” than on the others, and a person was required to stoop over more to get the rod into the porthole. Sevier testified that about 5 o ’clock, he and Myers stopped work in order to eat supper; that they would take time about going after the food, and it was his (Sevier’s) day to go. Myers told him that he wanted a cheeseburger, and a pint of milk, but as the witness started to leave, changed his mind, and directed Sevier to get him a full lunch and a pint of milk. He stated that as far as he knew, Myers felt all right, and that nothing had happened out of the ordinary that afternoon in connection with their work. As Sevier returned with the lunches, he saw Myers walking toward the first aid station, but did not talk with him. H. W. Ashworth, in charge of the boiler room where Myers worked, testified that the job Myers was working on at the time of the heart attack was not as difficult as the job he had been doing (second helper). O. E. Shambley, head "tube lancer,” testified that the work was “hotter and harder” downstairs, but like Myers, he preferred downstairs work because there were more people there to talk with. Shambley stated that he had never heard Myers complain about feeling bad in any way until the date of his death, when the latter, while waiting for his supper, stated, "I’m going down to first aid and get something for my indigestion.” Jeanette ■ Lemmons, employed by International as a nurse at the first aid station in the Camden mill, testified that she was on duty when Myers reported to the station, and asked for a dose of citrocarbonate; that he complained that his ulcers were “acting up;” also, "my arm is hurting me,” and that he stated the pain was radiating back in his left shoulder. Myers was insistent upon returning to work, but the nurse persuaded him that he should be examined by Dr. Perry Dalton. He requested her to call his next door neighbor, Carl Tucker, Jr., for the purpose of taking him to the hospital. Tucker responded, and testified that Myers walked out of the first aid station, got in the car, and they left immediately for the hospital; “I asked him what his trouble was. He said he had a hurting in his chest, hurting down both arms, said his fingers were tingling on both hands. I asked him if he ever had any trouble before like that and he said he did, said it had been bothering him about two weeks, especially when they were shaking those tubes he had a sharp pain in his chest." Tucker stated that Myers died after they had traveled about one mile. Elizabeth Myers, widow, was not aware of her husband being afflicted with heart trouble, and stated that he had no physical complaints during the months before he died, other than, for about two years prior to his death, he had complained many times of being “exhausted” when he came home, and would sometimes mention pain in his arms and legs.

The rules which govern this case have been reiterated with frequency, and no new question is presented. Actually, appellant’s arguments appear to be somewhat directed to an attempt to persuade the court to change its holding, as set forth in Bryant Stave and Heading Co. v. White, 227 Ark. 147, 296 S. W. 2d 436, wherein we said:

“* * * that an accidental injury arises out of the employment when the required exertion producing the injury is too great for the person undertaking the work, whatever the degree of exertion or the condition of his health, provided the exertion is either the sole or a contributing cause of the injury.”

This rule has been followed in cases involving heart seizures, but we have also repeatedly held that there must be a causal connection between the claimant’s work and the heart attack. Crossett Chemical Company v. Sedberry, 232 Ark. 608, 339 S. W. 2d 426. Appellant states, “So long as the ordinary physical exertion involved in the employee’s regular work, especially where strain and effort is not unusual, is accepted as being the contributory cause of the heart attack, there will be confusion, and the practical point of this is to make the employer the insurer. ” We do not understand why there should be confusion, since we have consistently, from the time of its rendition, followed the Bryant case. Reynolds Metals Company v. Robbins, 231 Ark. 158, 328 S. W. 2d 489, U. S. Fidelity & Guaranty Co. v. Dorman, 232 Ark. 749, 340 S. W. 2d 266, Crossett Chemical Company v. Sedberry, supra. Of course, the Commission makes the findings of fact, and we are only concerned with whether such findings are supported by substantial evidence. Reynolds Metals Company v. Robbins, supra.

Dr. Perry J. Dalton, general practitioner of Camden, and Dr. Drew F. Agar of Little Rock, specializing in internal medicine, testified on behalf of the appellant company, while Dr. Phillip T. Cullen of Little Rock, likewise specializing in internal medicine, testified on behalf of appellee.

Dr. Dalton testified that he had known Myers for eight or ten years, and had attended him and his family on several occasions. He stated that he had not seen Myers for a month or six weeks prior to his death. The doctor testified that in his opinion, death was due to a coronary occlusion; that no autopsy was made since he did not consider one necessary. The witness stated that he had never treated Myers for any heart condition, and had never observed any evidence of coronary disease. He testified that Myers had complained of indigestion at intervals over a period of six to eight years; that one can have coronary artery disease without objective symptoms. Dr. Dalton did state that undue fatigue without abnormal exertion could be a symptom of a pre-existing coronary disease. It was the doctor’s opinion that if Myers’ work was the same that he was accustomed to doing, the work would have no connection with the heart attack. Dr. Agar was of the opinion that there was no causal relationship between Myers’ death from the heart attack, and the work he was doing; that a heart attack could have happened just as easily if he had been at home on his front porch. The witness stated that there are different schools of thought on the effect of exertion on heart disease. Dr. Agar testified that the pain Myers described as ulcers or indigestion, probably was a heart pain, and the doctor stated that if Myers died of a coronary occlusion, “he had that heart disease before.”

Dr. Cullen testified that he agreed with Dr. Dalton that a cardiac condition was the immediate cause of Myers’ death. Dr. Cullen stated that physical exertion is often a contributing factor to death where there is existing cardiac disease. He said that people frequently think they are having indigestion when, in reality, the pain is caused by a heart condition. The witness testified that in his opinion, Myers had a pre-existing heart disease. ‘ ‘ The fact that he died from the heart attack in itself is enough evidence for me that he had a preexisting heart disease.” This statement was based on the doctor’s opinion that a healthy heart cannot be injured by ordinary activity or even fairly strenuous activity. He stated that it was not unusual for a person, with pre-existing heart disease, to die shortly after exertion. Dr. Cullen was of the positive opinion that the work being-performed by Myers was a causal or aggravating factor contributing to his death.

It is evident from the testimony in this case, and the testimony in the cases cited, that there is a wide divergence of views in the medical profession relative to the causes of heart attacks. These views were discussed somewhat in detail in U. S. Fidelity & Guaranty Co. v. Dorman, supra. There, too, as in the instant ease, the appeal was primarily an attempt to persuade this Court to re-examine and modify its holdings in heart attack cases. We declined to do so, stating:

“* * * we are unpersuaded that there is such unanimity of opinion among medical authorities that it can now be said, as a matter of law, that effort never, or at most, only when violent or extreme, plays any part in producing a coronary occlusion and consequent myocardial infarction. We are still of the opinion that this is a question of fact, to be decided on the basis of evidence developed at each particular hearing, and we take occasion to re-affirm our holdings in Safeway Stores v. Harrison, 231 Ark. 10, 328 S. W. 2d 131, Reynolds Metals Company v. Robbins, 231 Ark. 159, 328 S. W. 2d 489, and E. P. Bettendorf & Co., et al v. Kelly, 229 Ark. 672, 317 S. W. 2d 708.”

The Commission found for appellee, and we think there was substantial evidence to support this finding. As stated in the Sedberry case:

“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.

       This testimony was disputed by J. E. Nunn, who testified that Tucker told him there was no conversation except that Myers told him he was having trouble with his ulcer.


author: J. Seaborn Holt, Associate Justice.

text:
    Kitchens v. Ark. Appraisal Service.
    5-2360
    344 S. W. 2d 853
    Opinion delivered April 3, 1961.

      Peter A. Deisch and George K. Cracraft, Jr., for appellants.

      John L. Anderson, for appellees.
   J. Seaborn Holt, Associate Justice.

This is an appeal challenging the validity of Assessment methods used in Phillips Connty during 1959. In 1959, Phillips Connty entered into a contract with the Arkansas Appraisal Service for the reappraisal and assessment of all real and personal property within the county in order to comply with Act 153 of 1955. The appellants, landowners and taxpayers, alleged in the trial court that the assessment methods were invalid since the methods promulgated in the Assessment Manual of the Arkansas Assessment Coordination Department were not followed. The lower court found there had been substantial compliance with the procedures outlined in the manual and further held that the methods and criteria set forth in the manual for assessment of real estate promulgated by the Arkansas Coordination Bureau were directory and not mandatory. As indicated, the appellants contend for reversal that the language and methods prescribed by the manual are mandatory and not directory.

The appellants point to § 5 of Act 153, the language of which states: “It shall be the duty of the County Assessors and their deputies to use and follow the assessment manuals and standards promulgated by the Commission, and to use the forms prescribed and furnished by said Commission in making such appraisal and assessment and to collect and record the date [sic — data] thereby required. It shall also be the duty of the County Equalization Boards, in performing their duties, to recognize and follow such manuals and standards, and the County Equalization Boards shall not change an assessment made by the County Assessor unless such change is necessary to provide uniformity in the assessment of similar classes of property. It shall also be the duty of the County Judges, in hearing appeals from the County Equalization Boards, to recognize and follow such manuals and standards, and a County Judge shall not change an assessment unless such change is necessary to provide uniformity in the assessment of similar classes of property.”

It is claimed that the word “shall” makes the language of § 5 mandatory. We find it unnecessary to pass upon this, although it is true that the word “shall” is frequently used in statutes as a synonym of the word “must”. Fort Smith Gas Co. v. Kincannon, 202 Ark. 216, 150 S. W. 2d 968. Assuming that the language used is mandatory, we think that the appellees have complied with the language. It will be noted from the language quoted above in § 5 that it is the duty of the various ■ assessing bodies to use the manual. There is no dispute in the present case that the manuals were used, the only dispute is as to the methods. Appellants contend that the manual is something more than a guide line but that it is an ironclad rule to be followed with no deviation. We find such a position untenable because the very language and purpose for which the commission issued the manual was as a guide. The following language in the introduction states: ■“* * * (T)he production of this Manual is based on the recognition that Arkansas is primarily a rural state, with wide ranges of soils and economic characteristics. This manual is the ‘beginning’ and should be written and designed in simple terms calculated for general understanding. It is devised, in so far as we are able, to assist in every possible way, the one-man County Assessor’s office operating within necessary tools of his profession and with little or no personnel. No element is more important in assessing than the good judgment of the Assessor, irrespective of compiled standards. The prime purpose and objective of this Manual is to provide uniform methods endeavoring to establish equitable assessments throughout the State of Arkansas.”

Thus the very purpose of the manual was to be a guide. Indeed, if the rule which the appellants urge is correct and the language of § 5 is mandatory, then the appellees have complied with § 5. One of the witnesses for the appellees testified at length that the manual had been used as a guide and that personal independent judgment was used in arriving at land values at times. It would have been a denial of the purpose of the manual to use it in any other way than as a guide. There are many things which enter into the land besides soil classification which the manual was based upon, — condition of the land, the location, accessibility of the tract, use to which it is put, all enter into the value.

The judgment is affirmed.


author: Ed F. MoFaddin, Associate Justice.

text:
    Baumgartner v. Rogers.
    5-2334
    345 S. W. 2d 476
    Opinion delivered April 3, 1961.
    [Rehearing denied May 15, 1961.]

      Robert J. White, for appellant.

      Luke Arnett, for appellee.
   Ed F. MoFaddin, Associate Justice.

This appeal, involving a rather small parcel of accretions, is a continuation of litigation that has been in court, in one case or another, since 1936, and was before this Court in the case of Knight v. Rogers, 202 Ark. 590, 151 S. W. 2d 669, decided on June 2, 1941.

In 1936 Knight, Baumgartner, Buss, and Kleck filed an action in ejectment against W. S. Rogers in the Logan Circuit Court, claiming to be the owners of certain described lands in Logan County. The plaintiffs claimed title by deed from S. C. Howell in 1932, and by- deed from Hollenberg et al. in 1935. "W. S. Rogers denied the allegations in the Knight-Baumgartner complaint; and alleged that he (Rogers) was in possession, having acquired title by deed from the owner, Mrs. Sallie Rogers, in March, 1932. The cause was transferred to the Chancery Court of Logan County as Cause No. 1462 therein; and resulted in a decree in favor of Rogers. Thereupon, Knight, Baumgartner, et al. appealed to this Court, and the Chancery Decree in No. 1462 was affirmed in our said case of Knight v. Rogers, supra. In the said opinion of this Court the land was described and Rogers’ 1932 deed from Sallie Rogers was definitely stated.

Our mandate of affirmance was duly filed in the Logan Chancery Court; and, normally, the litigation would then have been concluded. But, on December 6, 1940, while the said appeal was pending in this Court on the Chancery Case No. 1462 as aforesaid, Baumgartner, Buss, and Kleck (having purchased the interest of their former co-plaintiff Knight) filed Case No. 1708 in the Logan Chancery Court; and that Chancery Case No. 1708 resulted in a decree of May 23, 1960, from which comes the present appeal.

At first, in Chancery Case No. 1708, Baumgartner et al. claimed title to the lands (the same lands as in Knight v. Rogers, supra) as being accretions, and also claimed title by tax payments. The complaint-in No. 1708 was dismissed by the Chancery Court for want of equity on October 20, 1941. Rogers, however, invited further litigation, because on February 23,1942, in the same case No. 1708, he filed a cross complaint in which he claimed that Baumgartner et al. had been committing trespasses on the lands and should be restrained and enjoined. This cross complaint filed by Rogers on February 23, 1942, in Chancery Case No. 1708, gave Baumgartner et al. the desired excuse to assert a title. They answered by denying that their acts were trespasses: rather, they claimed that they (Baumgartner et al.) were the owners by having acquired a deed from Sallie Rogers on December 1, 1941, which deed was recorded the following day. To this claim of acquisition of outstanding title, Rogers countered with the plea of res judicata, stating that in Case No. 1462 he proved that he had acquired title from Sallie Rogers in 1932; and that there was no outstanding title in Sallie Rogers to be acquired by Baumgartner et al. in 1941. Issues were thus joined; Baumgartner et al. claiming the acquisition of an outstanding title, and Rogers denying any outstanding title and claiming that the decree in Chancery Case No. 1462 (affirmed by this Court) made the issue res judicata. The cause was heard by the Chancery Court and a decree was rendered in favor of Rogers on May 23, 1960, from which comes the present appeal by Baumgartner et al.

So much for the recitation of the background facts. The decisive point in the present appeal is, that at the trial from which comes this appeal, Baumgartner et al. entirely failed to prove that Sallie Rogers had any title to convey to them in 1941. When Rogers introduced the record of the pleadings and decree in Chancery Case No. 1462 and established that the land in the present case was the same as in Chancery Case No. 1462, Rogers made a prima facie case of res judicata against Baumgartner et al., who had been parties in the Chancery Case No. 1462. In Mo. Pac. R.R. Co. v. McGuire, 205 Ark. 658, 169 S. W. 2d 872, we quoted the rule of res judicata from 30 Am. Jur. 908: “ ‘Briefly stated, the doctrine of res judicata is that an existing final judgment rendered upon the merits, without fraud or collusion, by a court of competent jurisdiction, is conclusive of rights, questions, and facts in issue, as to the parties and their privies, in all other actions in the same or any other judicial tribunal of concurrent jurisdiction.’ ”

To overcome Rogers’ prima facie case of res judicata, Baumgartner et al. alleged the acquisition of title from Sallie Rogers in 1941. Of course the decree in Chancery Case No. 1462 would not be res judicata as against a valid outstanding title acquired by Baumgartner et al. after the final adjudication in Chancery Case No. 1462. Wadly v. Leggitt, 82 Ark. 262, 101 S. W. 720, 118 A. S. R. 70; Barton v. Meeks, 209 Ark. 903, 193 S. W. 2d 138. Baumgartner et al., in alleging that the 1941 deed from Sallie Rogers was a valid, outstanding title, necessarily had the burden of proving the allegation. In White v. Williams, 192 Ark. 41, 89 S. W. 2d 927, we said: “. . . and it is also fundamental that the burden of proof rests upon the party litigant who makes an affirmative allegation Johnson v. Mitchell, 164 Ark. 1, 260 S. W. 710; James v. Orrell, 68 Ark. 284, 57 S. W. 931.” See also Texas Co. v. Mattocks, 211 Ark. 972, 204 S. W. 2d 176. In 20 Am. Jur. 142, “Evidence” § 137, in discussing the burden of proof as to matters pleaded in defense, the effect of the holdings is summarized: “As to affirmative defenses asserted by the defendant, he is the actor, and, hence, must establish the allegations of such defenses. In other words, the burden of proof in the true sense of the term is upon the defendant as to all affirmative defenses which he sets up in answer to the plaintiff’s claim or cause of action, upon which issue is joined, whether they relate to the whole case or only to certain issues in the case. As sometimes expressed, the burden is on the defendant to prove new matter alleged as a defense. This rule does not involve a shifting of the burden of proof, but merely means that each party must establish his own case. It imposes upon the defendant who alleges affirmative matter in avoidance of the plaintiff’s claim or cause of action, upon which issue is taken by the plaintiff, the burden of establishing the facts which are thus alleged by presenting proof in support thereof.”

When Baumgartner et al. failed to establish a valid outstanding title in Sallie Rogers in 1941, the present appellee, Rogers, was entitled to prevail on the plea of res judicata which had been established by the evidence. Therefore, in view of the record before us, the Chancery Court was correct in rendering the decree for Appellee Rogers.

Affirmed.

       It is nowhere explained just why Rogers elected to file this trespass matter as a cross complaint in Chancery Case No. 1708, rather than in Chancery Case No. 1462 (the original case affirmed by this Court) or in a case with a new number.

       During the long pendency of the case in the Chancery Court, occasioned by a variety of circumstances — possibly some legal inertia, but certainly absence of some counsel on military duty, and death of other counsel — W. S. Rogers departed this life; and the cause was revived by his administrator and heirs at law.


author: George Rose Smith, J.

text:
    International Harvester Credit Corporation v. Gill.
    5-2359
    344 S. W. 2d 851
    Opinion delivered April 3, 1961.

      Owens, McHaney & McHaney, by James M. McHaney, for appellant.

      Gardner Jt SteinsieJc, Frierson, Walker $ Snellgrove, for appellees.
   George Rose Smith, J.

Noble Gill, at his death in 1960, was indebted to the appellant upon a title-retaining contract evidencing an indebtedness of $2,905.97. By the contract the appellant purportedly retained title to an International Harvester tractor and plow that Gill had purchased in 1957. Gill’s executrix, one of the appellees, filed a petition in the prohate court asserting that the debt exceeded the value of the property and asking for authority to release the property to the appellant in return for a cancellation of the debt. The appellant later joined in the request that the property be released to it.

The executrix’s petition was resisted by the other appellee, Monette State Bank, a common creditor of the estate. The bank insisted that the appellant’s title-retaining contract was invalid and that therefore the property in question should be retained by the estate for the benefit of all the creditors. The probate court sustained the bank’s contention and entered an order denying the petition for a release of the property. The validity of the appellant’s contract is the basic issue in the case.

All the facts are stipulated. On February 15, 1957, Gill bought the property in question from Van Hooser Implement Company and executed a conditional sales contract for the unpaid balance of $5,707.11. A short time later Van Hooser fraudulently induced Gill to execute a duplicate contract, it being represented that the first copy would be returned to Gill.

On April 15, 1957, Van Hooser transferred one of the contracts to the Monette State Bank, which took the instrument in good faith and for value. On May 11, 1957, Van Hooser transferred the other contract to the appellant, also as a bona fide purchaser. It is not known which of the transferees received the copy that was first signed by Gill. It is conceded, however, that the bank, as the bona fide purchaser prior in point of time, originally acquired the superior claim to the property. Kirkpatrick v. Reed, Mo. App., 204 S. W. 1135. We infer that when Gill discovered the fraud he recognized that he had allowed himself to become liable to both transferees, for he made payments upon both contracts. It is stipulated that in 1958 Gill executed a renewal contract to the appellant after having been informed by his attorney that he was thereby recognizing the validity of the appellant ’s contract.

On June 9, 1959, the bank brought a suit at law against Gill upon its contract. It is stipulated that the bank thereby waived its retained title to the property in issue. Finally, on September 15, 1959, Gill executed a second renewal contract to the appellant for the balance of $2,905.97 then due. This agreement recites that it is a renewal of a note given for the purchase price of the equipment, which is described, and states that the title to the property shall not pass from the appellant until the renewal note has been paid in full.

"We are unable to agree with the probate court’s conclusion that the second renewal contract did not effectively vest in the appellant a valid title to the property. It must be emphasized that before that contract was executed the bank had already waived its title and, as we said in Provance v. Arnold B. & B. Supply Co., 218 Ark. 274, 235 S. W. 2d 970, “was in the same position as it would have been if title had not been retained in the first place.”

It is plain enough that neither of the contracts originally executed by Gill to Van Hooser can be said to have been void; for either instrument would become valid in all respects if it should be the first one to be transferred to a bona fide purchaser. And even the second instrument to be transferred became, in the hands of a holder in due course, a valid monetary claim against Gill, despite the fact that a superior title to the chattels had already vested in the bank. Thus it might well be argued that when the bank waived its title the appellant was thereby promoted to a position of priority as against general creditors having no specific lien. Our ruling need not be that broad, however, for in any event we think it clear that when Gill later executed the renewal contract for the unpaid balance of the original purchase price he thereby ratified the initial transaction and effectively called into being the potential validity that had been inherent in the appellant’s contract from its inception.

Reversed.


text:
    Allen v. Clark.
    5-2354
    345 S. W. 2d 371
    Opinion delivered April 3, 1961.
    [Rehearing denied May 8, 1961.]

      James M. Rowan, Jr., for appellant.

      John A. Davis and Bridges, Young & Matthews, for appellees.
   George Rose Smith, J.

This is a claim filed by the appellant, as the widow of William L. Allen, for death benefits under the workmen’s compensation law. The commission denied the claim upon the ground that the claimant had not sustained the burden of proving that her husband’s death was the result of an accidental injury arising out of and in the course of his employment. The only question before us is the sufficiency of the evidence to support the commission’s decision.'

At the time of his death on January 27, 1956, Allen was employed as an oil leasehold operator and workman by the appellee, Dr. O. W. Clark, a retired surgeon. On the preceding day Allen and two fellow employees had been engaged in building an oil-well foundation of heavy cross ties. These ties were at least six-by-eight-inch timbers, were eight feet long, and weighed about 200 pounds each. When the men quit work on the afternoon preceding Allen’s death the foundation lacked two cross ties.

The three men met at the well site on the morning of January 27, but it was raining, and they decided to come back at one o’clock. Allen went to Smackover for supplies and then returned to his home, which was about a quarter of a mile from the well. At about eleven o ’clock the rain slackened, and Allen told his wife that he was going down to the well to put some cross ties into the foundation. When Allen did not come home for lunch his wife asked a neighbor to stop by the well and see if anything had happened. The neighbor found Allen’s pick-up truck outside the jobsite tool house, which was about 300 yards on past the well. Allen’s dead body was slumped over a large bucket in the tool house; his right hand was pressed against his side. It was definitely determined that Allen had been working, as the two remaining cross ties were found to have been put in place, and both of Allen’s coworkers testified that they had not assisted in this work. A coroner’s jury, in a report referring only to the testimony of the neighbor who discovered Allen’s body, found that he came to his death “by internal hemorrhage due to overexertion.”

Dr. Clark, testifying for the claimant, was the only medical witness and the only witness to express an opinion about the cause of Allen’s death. He testified that in 1936 he operated upon Allen for a perforated stomach ulcer. In 1947 he operated upon Allen again, for a hernia caused by the abdominal weakness created by the first operation. In answer to a hypothetical question as to the cause of death Dr. Clark stated that “it would suggest to me that there had been a recurrence of this old hernia, ’ ’ and if Allen had done any straining or lifting the abdominal wall known as the omentum ‘ ‘ could pop open and . : . could break a blood vessel, and he not only would have abdominal pain but sufficient hemorrhage there he would expire.” Dr. Clark explained that the position of Allen’s body and hand indicated abdominal pain and negatived heart trouble, as a victim of a heart attack would be found “throwing himself back . . ., not bent over.”

On cross examination Dr. Clark was asked if a rupture of the omentum would immediately cause severe pain. He answered, “Yes, sir, he would have pain; and the degree of pain, the longer it goes, he might have a little breakage sufficient to cause him trouble, pain, then possibly he would go on 20 or 30 minutes, maybe an hour, and finally it might take a notion to come on out. and of course that’s intense pain . . . and if a vessel is ruptured there you can hemorrhage to death.” In effect the witness admitted that he was expressing what might have happened and that it was “speculation” in the absence of the information that would come from an autopsy. He did say, however, that such a rupture of the omentum would result in there being free blood in the abdominal cavity, and that condition was in fact found by the embalmer who prepared Allen’s body for burial and who testified in the case. No autopsy was performed.

We think the commission was in error in holding that the claimant had not sustained the burden of proof and in finding that “the cause of death is not established by competent substantial evidence.” It is shown by undisputed evidence that the two surgical operations had created an abdominal weakness that exposed Allen to the risk of an internal hemorrhage if he strained himself. It is shown by undisputed evidence that just before his death Allen singlehandedly put the two heavy cross ties into the foundation. There is no evidence whatever to suggest that Allen might have strained himself in any other way.

Dr. Clark’s testimony, even when viewed in the light most favorable to the commission’s decision, embodies the positive opinion that Allen’s death was probably due to an internal hemorrhage brought about by overexertion. This medical testimony, as we said in Clark v. Ottenheimer Bros., 229 Ark. 383, 314 S. W. 2d 497, “is not refuted nor does it seem unreasonable.” Quite the opposite, Dr. Clark’s explanation of his position is logical and convincing, and the embalmer’s uncontradicted testimony supplies strong corroboration of Dr. Clark’s opinion.

The appellees argue that if Allen had strained himself at the well site he would have been found there rather than in the tool house. We have quoted Dr. Clark’s testimony, however, which shows that the pain might have been slight at first and have become intense only after a lapse of 20 minutes or more. This interval would have allowed ample time for Allen to drive his truck to the tool house.

Dr. Clark, it is true, in effect gave an opinion as to the probable cause of death and did not assume to speak with complete omniscience. But, in the circumstances, the claimant’s proof was sufficient. “In all ■cases of this kind it is difficult to show with certainty the exact cause of death, and we do not believe that it is required by the law that the claimant should be compelled to prove the alleged cause of death to a mathematical certainty.” Herron Lbr. Co. v. Neal, 205 Ark. 1093, 172 S. W. 2d 252; see also Am. Life Ins. Co. v. Moore, 216 Ark. 44, 223 S. W. 2d 1019. The point of controlling importance is that the record does not contain ■a syllable of testimony to indicate any cause of death •other than the one thought by Dr. Clark to have been probable. The respondents offered no proof tending to rebut the affirmative case established by the claimant. The commission felt that it would have to rely upon ■speculation to hold that Allen’s death was compensable; but in our opinion it would be necessary to resort to ■speculation in order to say that Allen died from some ■cause other than the one described by Dr. Clark.

The judgment is reversed and the cause remanded "to the circuit court with instructions to remand the case io the commission for the entry of an award.