text:
    Arkansas Louisiana Gas Company v. Ralph A. Moffitt, et al
    5-4719
    436 S.W. 2d 91
    Opinion Delivered January 20, 1969

      Charles W. Baker for appellant.

      Murphy & Arnold by H. David Blair for appellees.
   J. Fred Jones, Justice.

This is a materialmen’s lien case presented to this court on appeal by the Arkansas Louisiana Gas Company from a decree of the Cleburne County Chancery Court denying a lien on real property belonging to appellees, Ralph and Gladys Moffitt.

The record reveals the following facts: In early 1966, John E. Bryant and Sons Lumber Company, Inc. contracted with appellees, Ralph A. and Gladys L. Moffitt, to build an air conditioned motel for the Moffitts near Heber Springs, Arkansas. Bryant subcontracted the electrical and plumbing work, which included the air conditioning portion of the original contract, to appellee Hayden. On March 10, 1966, Hayden purchased from the appellant air conditioning equipment for installation in the motel. As a general policy, in the sale of its air conditioning equipment, the appellant furnished supervision and advice on installation without additional cost to contractors and other purchasers of equipment. The equipment sold to Hayden was delivered on June 3 and installed by Hayden. Appellant supervised and instructed Hayden in how to wire thermostats on the equipment and in connection with other items during the period of installation. The motel was open for business on July 1, 1966, and the air conditioning equipment was in operation on that date. On July 6, 1966, the equipment which controlled the regularity with which the blowers came on was recalibrated under the supervision of appellant. Hayden failed to pay the appellant for the equipment and on November 3, 1966, appellant filed a lien account claiming a materialmen’s lien against the motel property. The question presented to the chancellor was whether appellant’s lien account was timely filed. The chancellor held that it was not and the appellant relies on the following point for reversal :

“The chancellor’s finding that Appellant is not entitled to a lien is against the preponderance of the evidence and should be reversed.”

Memorandum of the transaction between the appellant and Hayden was evidenced by two instruments dated March 10,1966. One, a purchase order No. 5 was signed by Horace Hayden, and the other, designated in writing, “memo contract” was on a printed security agreement form and was signed by E. O. Allen, sales representative for the appellant. The purchase order No. 5 appears in the record as follows:

“Ref Ralph Moffitt
Motel Heber Springs Ark — Job #2402
Please go ahead with order for Equip on above job.
Thanhs
Horace Hayden
2477.00 + Tax 69.91
$ 2546.81”
The memo contract on the security agreement form appears as follows:
“ Memo Contract
Security Agreement
The Arkansas Louisiana Has Company agrees to sell and the undersigned purchaser agrees to buy the following described property:
1 — EE 42-96, AYS — 105, w/PK-WM,
1 — Model 428, AYS-86 & PK-86 & T’stat
1 — Lot Chiller Controls
6 — Lots Coil Controls 2327.00
Tax 69.81 Freight & Del. 150.00
2546.81
Two Cabildo Haslites & 2 yrs. service free # # #
Property purchased will be installed at Moffitt Motel — Heber Springs. Property will remain in possession of purchaser at the address in installation until the entire purchase price is paid.
No verbal agreements or warranties have been made by the parties hereto relative to this sale, it being ■understood that this written contract, including the conditions printed on the back hereof, embodies the entire agreement.”

The lien account, exhibit #2, bears no filing date and the record does not reveal where or when the lien account was filed, but it appears agreed that the original records revealed the filing date to be November 3, 1966. The place of filing and sufficiency of the lien account are not questioned. The lien account was dated October 27, 1966, and contained language as follows:

“That said Arkansas Louisiana Gas Company sold and delivered to Hayden’s Plumbing & Electric Service, beginning March 25, 1966, and continuing through July 6, 1966, under a single contract and continuous account, air conditioning equipment and materials for construction of buildings and improvements on [description] for an agreed price and sum and having a value of Two Thousand Five Hundred Forty-Six Dollars and Eighty-one cents ($2,546.81), after allowing all credits thereon;
That said air conditioning equipment and materials consisted of one EE-42-96 Servel Unit; one Model 428 Unit; one 105 AYS Tower; one 86 AYS Tower with coils, controls and necessary equipment and materials for installation; labor of installation.
That a copy of each invoice itemizing and describing said air conditioning equipment and materials was delivered to the said Hayden’s Plumbing & Electric Service at the time that said equipment and materials were purchased by them and that all of said equipment and materials were furnished for and used in the construction of the said buildings and improvements located on the land described above;
That said equipment and materials were delivered to said real estate for Ralph A. Moffitt and Gladys L. Moffitt, who are the owners of the fee simple title to said real estate, a verified statement of which is attached.
That the foregoing is a just and true account of the demand due and owing to said Arkansas Louisiana Gas Company by said Hayden’s Plumbing & Electric Service and that there is now justly due and owing on said account, after allowing all credits, the sum of $2,546.81 with interest thereon at 6% per annum.
That said Arkansas Louisiana Gas Company claims a lien ...”

As a part of the lien account, filed on November 3, 1966, the appellant attached an invoice or account statement on appellant letterhead stationery, as follows:

“Invoice No. 22-1-05-02-0084-0
Job 8495 Co 72097
Date: October 17, 1966 Order No. 5
Sold To: Hayden’s Plumbing & Electric Service P. O. Box 812 Batesville, Arkansas
Installed at: Moffett [sic] Motel
Heber Springs, Arkansas
Terms: Cash on Job Completion
7-6-66 1 — RE 42-96 AYS — 105 w/PKWM
1 — Model 428 ATS — 86 & PK-86 & T’sfat 1 — Lot Chiller Controls
6 — -Lots Coil Controls $2,327.00
Freight & Delivery 150.00
2 — -Years Free Service n/c
2 — Cabilo Gaslites n/c
Sales Tax 69.81
TOTAL $2,548.81
RE 42-96 Chiller — Serial No. 600184 — Rfg. 61473 428 Arida Unit — Serial 600102 — Rfg. 8152 105 AYS Tower — Serial 52781 86 AYS Tower — Serial 51876 Start up Date 7-6-66
Warranty Service Contract Expires 7-6-68
* «S #
[Signed] W. Robert Nease W. Robert Nease”

Mr. W. A. Harkey, district manager for the appellant, testified that the sale was according to regular procedure and was for cash 30 days after completion of the job.

Mr. Reedy, appellant’s plant manager, testified concerning the advice and supervision given by appellant in connection with the installation of the equipment. According to Mr. Reedy, the air conditioning equipment was delivered on June 2, 1966. The gas meter ivas set on June 7, and on June 8 the outside units were set on concrete slabs. On June 13 the plumbing and wiring were checked. On June 15 the contractor was advised on how to set air handlers in the rooms and pipe the condensate drains. On June 23 additional check was made with the electricians on the thermostat wires. On June 28 the units had been started but were not cooling properly, so the coils were refilled with water, its temperature tested, and found to be cooling to a satisfactory forty-one degrees. Mr. Reedy testified that he returned to the job on July 6 and that the installation of the equipment was finally completed on that date.

“Q. What did you do on that day?
A. I checked with the electrician and advised him how to level the thermostats and made adjustments of recalibration at that time to final completion of the job.
Q. You stated that that was the final completion of the job.
A. Yes.
Q. And it is your statement that the installation was completed on that date?
A. Yes.
Q. And that was July 6, of 1966?
A. July 6, 1966.
Q. And what is a calibration of a thermostat?
A. Well, of course, the temperature itself could be off; they could not be level; they have a mercury bulb in there that causes the fans in the fan coils to come on and go off at certain intervals; and they have to be recalibrated and leveled in order to make them function properly-
Q. After your visit out there on that day, did you then notify anyone that the job was completed?
A. Yes. Of course, Mr. Harkey, the district manager in Conway, was notified, and at that time our custom order was initialed by me and sent to him for billing.
Q. And it is at that date that the service warranty comes into effect?
A. Yes.
Q. Mr. Needy, if you know, when were these units first turned on and placed into operation for testing ?
A. On June 7, we set the meter and, of course, the plumbers and electrician at that time were on the job and doing the necessary plumbing and wiring for the testing of this equipment at that time, and we were starting them up and getting them ready for use during that time.
Q. When did you receive a deposit on your meter?
A. I got the deposit from Mrs. Moffitt. Mrs. Ralph Moffitt, on July 1, 1966.
Q. Did you set the meter on June 2 — or 7 ?
A. June 2.”

The recalibration on July 6, 1966, was the only act performed by Hayden in connection with the equipment within 120 days from the date the lien account was filed. Appellant contends that July 6, 1966, was the date on which the installation of the air conditioning equipment was finally completed and was the date on which its last item of supervision occurred, and that the time for filing its materialmen’s lien account started running from that date. The chancellor did not agree with this contention and neither do we.

Arkansas Statute Annotated § 51-601 (1947) provides as follows:

“Every mechanic, builder, artisan, workman, laborer or other person who shall do or perform any work upon, or furnish any material, fixtures, engine, boiler or machinery for any building, erection, improvement upon land, or upon any boat or vessel of any kind, or for repairing same, under or by virtue of any contract with the owner or proprietor thereof, or his agent, trustee, contractor or subcontractor, upon complying -with the provisions with this act, shall have for his work or labor done, or materials, fixtures, . . . furnished a lien upon such building, erection or improvement, and upon the land belonging to such owner or proprietor on which the same are situated ...”

Arkansas Statute Annotated § 51-613 (Supp. 1967) provides as follows:

“It shall be the duty of every person who wishes to avail himself of this act [§§ 51-601, 51-604 —51-626] to file with the clerk of the circuit court of the county in which the building, erection or other improvement to be charged with the lien is situated, and within one hundred and twenty (120) days after the things aforesaid shall have been furnished or the work or labor done or performed, a just and true account of the demand due or owing to him, after allowing all credits, and containing a correct description of the property to be charged with said lien, verified by affidavit.”

It is readily seen that the “memo contract” simply sets out the agreement to “sell and to buy” and makes no reference whatever to installation or supervision of installation. The appellant was a materialman under the provisions of its contract, and the material consisting of the air conditioning equipment was furnished by the appellant when it was delivered to Hayden on June 3, 1966. No work or labor was called for in the contract, no work or labor was done or performed by appellant, and appellant’s voluntary supervision and advice, without additional pay and without request or demand, did not toll the time for filing the lien for the things furnished. The date on which materials are actually furnished or work or labor is actually done or performed is the date from which lien time is to be reckoned under our statute, and not the date on which the materialman considers the construction or installation job completed by the purchaser and the account due and payable.

Appellant points out that the chancellor found that appellant’s supervision and advice in the proper installation of the equipment was a part of the agreement of sale in this case. Even so, the lien time of 120 days ran from the date when the materials were furnished or the work or labor done or performed, and not from the date the final installation was considered complete.

The appellant did not agree, and was not obligated to install the equipment it sold. It only contends that by side agreement, and general custom, it supervised the installation of the equipment it sold and was so engaged at the recalibration of the equipment on July 6, 1966. Appellant cites no case, and we have found none, in which the gratuitous time spent by the seller of equipment in advising the purchaser of the proper manner of installing it, has been held to extend the time for filing a materialmen’s lien account under a statute similar to our own. Granting that supervision over the installation was a part of the contract of sale in this case, we conclude that the recalibration of the equipment on July 6 constituted no part of the installation.

In 143 A.L.R. 1190 under annotations pertaining to mechanic’s lien — servicing of fixtures is found the following :

“With but few exceptions, it has been held, in the cases considering the question, that after the installation of fixtures, machinery, or attachments in a building, services in the form of examination or regulation of, or repairs to, such fixtures, machinery, or attachments, performed by the seller or the one making the installation, should not be regarded as a part of the act of sale or installation, so as to make the time within which to file a mechanic’s lien based on such original act run from the time or performance of such additional services. ’ ’

In the case of Breeding v. Melson, 143 Atl. 23, 60 A.L.R. 1252, a lien was filed under a contract between the parties for the furnishings of labor and superintending in the erection of a moving picture theater and for furnishing materials for the erection of the theater. The lien was filed under a statute that provided for the filing of a mechanic’s lien statement “within 30 days after the expiration of 90 days from completion of the building, house or structure contracted by him and upon which he desires to secure a lien.” In that case the court said:

“There is no conflict between the authorities as to proposition that the time for filing a claim in a mechanic’s lien proceeding is computed from the date when the last item of work, labor or materials is done, performed or furnished, and that principle is, undoubtedly, correct. But the work performed and materials furnished must be required by the contract, and whatever is done must be done in good faith for the purpose of fully performing the obligations of such contract, and not for the mere purpose of extending the time for filing lien proceed-
Therefore the performance of labor or the furnishing of materials of a trivial character which are not expressly provided for by such contract and after it has been substantially performed will not ordinarily extend the time for filing a mechanic’s lien; this is especially true if such performance has been considered and treated by the parties as final and complete.”

The record is not perfectly clear as to the exact date the last of the equipment was delivered to the motel job site or the exact date the last part of the equipment was installed, but certainly all of the equipment had been installed and was in operation on July 1, 1966, and the chancellor’s decree so finding is not against the preponderance of the ,evidence.

We do not question appellant’s good faith in this case. We simply conclude that the recalibration of the equipment by Hayden on July 6, 1966, amounted to an adjustment of equipment already installed and hold that appellant’s supervision of that operation did not extend the period for filing its materialmen’s lien account beyond the date of last delivery nor for work done beyond the date of actual installation which was complete at least prior to July 1, 1966. Turner-McCoy, Inc. v. Hardy, 230 Ark. 410, 323 S.W. 2d 562.

The decree is affirmed.

Fogleman, J., disqualified and not participating.


source: Caselaw Access Project

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

license: Public Domain

text:
    Commercial Standard Insurance Companies v. Ashley R. Coffman, et al
    5-4787
    436 S.W. 2d 83
    Opinion Delivered January 20, 1969

      Wright, Lindsey & Jennings for appellant.

      Jones & Stratton and Terral, Rawlings, Matthews & Purtle for appellees.
   Conley Byrd, Justice.

The issue on this appeal is whether the notice given by the insured to appellant Commercial Standard Insurance Companies constitutes a substantial compliance with the policy provision requiring written notice of an accident to the company or any of its authorized agents as soon as practicable.

The record shows that Commercial through its agent Charles Perry had issued a liability policy to Gfuy H. Jones Sr. and that the policy was in force on March 1, 1967 when Senator Jones’ son, Casey, hacked the Senator’s car into an automobile belonging to appellee Ashley R. Coffman. The damages to Mr. Coffman’s car were $72.21.

The Senator testified that when he learned of the accident, he called Mr. Perry’s office and reported it to one of Perry’s secretaries. On April 28, 1967 and again on July 3, 1967 Mr. Coffman wrote letters to the Senator requesting his check for $72.21 to cover the loss. Mr. Perry, at the same time, had some problems with the Insurance Commissioner and was being represented by the Senator. The Senator admits that he did not give written notice over his signature but says that he may have shown Mr. Coffman’s letters to Mr. Perry in his office, but thinks that he sent them on to Mr. Perry.

Jack Henderson, an adjuster for Mr. Coffman’s insurance carrier, took the repair estimates for Mr. Coffman’s car to Senator Jones. When he learned that the Senator had his insurance with Mr. Perry, he took the estimates to Mr. Perry’s office at the Senator’s request. When Mr. Henderson offered the estimates to Mr. Perry’s office help, he was informed that the Senator did not have insurance there at that time and that there was no coverage for the car and driver involved in the collision with Mr. Coffman.

When Mr. Coffman brought suit against Casey Jones under the small claims statute, the summons was given to Mr. Robert Ott, Commercial agent succeeding Mr. Peny, but Commercial denied liability and refused to defend. The Senator’s law partner, appellee Phil Stratton, was employed to defend Casey in Mr. Coffman’s suit.

When Mr. Coffman’s judgment against Casey was not paid, he brought this action directly against Commercial, pursuant to Ark. Stat. Ann. § 66-4001 (Repl. 1966), for the amount of the judgment, statutory penalty and attorney’s fees. Mr. Stratton intervened claiming $150.00 Attorney’s fee for defending Mr. Coffman’s action against Casey. 'The trial court found that there was substantial compliance with the written notice provision and entered judgment as prayed together with an attorney’s fee of $225.00.

For reversal Commercial relies upon the following-two points:

1. The trial court erred in ruling that Guy H. Jones Sr. had complied with the terms and conditions of his policy regarding written notice of the accident, and
2. That trial court erred in awarding judgment to intervenor, Phil Stratton, for legal services performed on behalf of Casey R. Jones.

Commercial does not argue the latter point and we consider it waived. The first point we consider to be without merit.

Commercial’s policy, on the issue of notice provides: “In the event of an accident, occurrence or loss, written notice containing particulars sufficient to identify the insured and also reasonably obtainable information with respect to the time, place and circumstances thereof, and the names and addresses of the injured and of available witnesses, shall be given by or for the insured to the company or any of its authorized agents as soon as practicable____”

Mr. Coffman’s letter of April 28th, to Senator Jones reads:

“Dear Mr. Jones,
I have tried to reach you by phone on numerous occasions to ask you for a check for $72.21 to cover the costs of repairs to my Pontiac when your son, Casey, backed into it at the Tasty Freeze Wednesday, March 1, 1967. The police have a complete record of the accident in case you want to check into the matter.
I am enclosing a duplicate copy of the bill. Will you be kind enough to let me have a check for this amount?
Sincerely,
Ashley R. Coffman.”

Obviously Mr. Coffman’s letter would comply with the written notice requirements of the policy if it bad been turned over to Commercial’s agent. Whether the letter was turned over to the agent was an issue of fact before the trial court. On that issue the trial court found against Commercial and, as we have shown, there is substantial evidence in the record to support such finding.

Affirmed. Appellee’s Counsel are granted an additional fee of $250.00 for their services on this appeal.

Brown and Fogleman, JJ., dissent.

John A. Fogleman, Justice.

I respectfully dissent. I feel that the majority has either ignored or eliminated a clause from the policy of insurance on which this action was brought. This clause is quoted in the majority opinion, in part. Another clause makes full compliance with the terms of the policy a condition precedent to an action upon it.

The parties had a right to iuelude this clause in the contract. Presumably, the form of the policy has been approved by the insurance commissioner. See Ark. Stat. Ann. § 66-3209.

There is no reason why such a clause is against public policy. It does not contravene any statute. Insurance companies are entitled to prompt notice of an occurrence which may result in liability on their part. They are also entitled to as many details of the occurrence as can reasonably be given. Obviously, a reason for such a requirement is that the company, which not only may be liable to a third party but is required to provide a defense to any action brought against its insured, should be given the background as expeditiously and thoroughly as reasonably possible. This is necessary in order that it may conduct a prompt and comprehensive investigation. Another reason is to prevent fraud. National Casualty Co. v. Johnson, 226 Ark. 737, 293 S.W. 2d 703. The requirement that the notice be in 'writing is for the purpose of eliminating the possibility of the common failures of the human memory and avoiding any question as to the nature and content of the notice.

I agree that substantial compliance with the notice requirement is sufficient.

The burden of showing compliance was on appellees. American Fidelity and Casualty Co. v. Northeast Ark. Bus Lines, Inc., 201 Ark. 622, 146 S.W. 2d 165. The burden of showing that no prejudice resulted was also upon appellee. Home Indemnity Co. v. Banfield Bros. Packing Co., Inc., 188 Ark. 683, 67 S.W. 2d 203.

It is well settled that clauses of this character are reasonable and valid, and that oral notice is not sufficient. Business Men’s Assur. Co. v. Selvidge, 187 Ark. 1040, 63 S.W. 2d 640. This holding is supported by an overwhelming weight of authority, under which notice by telephone is also held insufficient. See 8, Appleman, Insurance Law and Practize, 47, § 47:37; 13 Couch on Insurance, 654. § 49:30; 45 C.J.S. 1284, Insurance, § 1057; 29A Am. Jur. 513, § 1400; Annot., 76 A.L.R. 23 @ 40 et. seq.; Annot., 18 A.L.R. 443 @ 459; Aetna Insurance Co. v. Durbin, 417 S.W. 2d 485 (1967, Tex. Ct. Civ. App.).

The insured, Guy H. Jones, was quite candid in his testimony. He stated that, after calling and notifying the soliciting- agent’s office by telephone, he did not do anything else, that he knew of, until after the summons was served on him in Coffman’s suit. He did not believe that he ever gave written notice of the accident. He “believed” that he referred Coffman’s letters to the insurance agent who sold the policy. He said that he “may have forwarded” the letters to the agent or “may have shown them to him.” His is the only testimony on the subject. Neither Perry, formerly a soliciting agent of appellant and a good friend and client of the insured, nor any of his employees testified in the case. No reason for their absence or unavailability appears. On this state of the record, I cannot find substantial evidence of substantial compliance. There is no evidence of nonprejudiee. I would reverse and dismiss.

I am authorized to state that Brown, J., joins in this dissent.


author: Carleton Harris, Chief Justice.

text:
    John Henry Andrews, et al v. Buford Martin, et al
    5-4777
    436 S.W. 2d 285
    Opinion Delivered January 27, 1969

      Lee Ward for appellants.

      Frierson, Walker & Snellgrave for appellees.
   Carleton Harris, Chief Justice.

In the latter part of 1964, appellee John Shipp contacted appellants, a negro couple of Jonesboro, relative to making certain improvements on their home. The terms of the agreement are very much in dispute, but it is established that two separate contracts were entered into between Shipp and the Andrewses. The first contract provided for the installation of white wood grain aluminum siding on the entire exterior of the home, the installation of two aluminum storm doors, the placing of aluminum screens on windows, and some other items, at an agreed price of $2,250.00. Soon after the job was commenced, it was decided that additional work should be done, including a carport, a concrete driveway, the front porch being replaced with aluminum roof, a concrete floor, and certain other repairs, which, • according to Shipp, totaled $1,250.00. The total cost of the entire job, according to this appellee, was $3,500.00. Shipp testified that appellants desired that a debt owed a Jonesboro bank on the property be added to the indebtedness, although the exact amount due was not known by the Andrewses. Shipp said he then contacted Buford Martin, the other appellee herein, relative to whether the latter would “finance” the transaction. On December 22, 1964, appellants and Shipp executed a contract calling for an expenditure of $2,250.00. Shipp testified that shortly thereafter, the second contract, calling for the expenditure of $1,250.00, was executed. Shipp thereafter took the two contracts to a Blytheville attorney who regularly represented Martin, and directed that attorney to prepare a note and mortgage in the total amount of the two contracts, plus the indebtedness due the bank, plus the fee for abstract work, the fee for preparing the instrument, and the cost of recording the deed of trust. The attorney complied with these directions, and prepared a note in the amount of $4,306.15; a deed of trust was executed to secure that amount. The note and deed of trust were dated January 20, 1965, and bore interest at the rate of 10% per annum, payments to be made in monthly installments. On the next day, the instruments were assigned to Martin. In February, 1967, Martin filed suit, seeking judgment for the alleged balance due, and asking for foreclosure if it were not paid. The Andrewses answered, asserting that Shipp had been guilty of fraud; that they executed the papers (contract) given them by Shipp in blank, and that he had inserted as the price an amount not agreed upon; that he had altered the documents signed, and they denied that Marlin was a holder in due course. Usury was pleaded, and appellants filed a cross-complaint against Shipp, asking for relief against him in case Martin was given judgment against them. He answered, denying any fraud or misrepresentation. Martin then replied to the An-drowses by asserting that he was a holder in due course of the note and deed of trust; that he had no notice of any defect, nor of any alleged usury in the original transaction. On trial, the court rendered judgment for Martin in the sum of $5,797.38, representing the balance due on the principal, interest accrued to the date of hearing, abstract and insurance premiums paid by Martin, and an attorney’s fee of $510.00, allowed under the provisions of the note. It was directed that, if the sum be not paid within 10 days, the property be sold by the commissioner of the court. From the decree so entered, appellants bring this appeal.

Three points are relied upon for reversal, but since we have concluded that the note was void because of usury, there is no need to discuss the other two contentions. The finding of usury is based upon the following facts:

Shipp testified that the first contract called for an expenditure of $2,250.00. lie also definitely stated tliat the second contract called for an expenditure of $1,250.00. The evidence established that the pay-off of the indebtedness due the bank amounted to $705.60. The abstracting amounted to $22.00, legal services (in preparing the note and deed of trust), $20.00, and the charge for the recording of the deed of trust was $2.50. These items total $4,250.19. It is immediately apparent that this total is $55.96 less than the $4,306.15 called for by the note. The note itself provides for interest at 10% per annum from date until paid. Consequently, if all amounts mentioned are correct, a prima facie ease of usury is made. The first contract was offered in evidence, and the amount of $2,250.00 is correct. There is no question but that the amount of the indebtedness to the bank was $705.69; nor is there any question but that the amounts listed for abstracting, legal services, and the recording of the deed of trust, are correct. Accordingly, the decisive item is the amount of the second contract. This contract was not offered into evidence; Shipp, however, stated definitely that it was in the sum of $1,250.00. Counsel for appellee Martin argues that there was testimony which indicates that the second contract was for a larger amount than that stated by Shipp, and he says simply that Shipp, relying on his memory, was in error in stating the amount called for in that agreement. The evidence that counsel refers to was given by Martin himself, who stated that he was present in the Andrews home when appellants, and Shipp were discussing terms of the proposed agreement(s). From Martin’s testimony:

“Well, of course, Mr. Shipp was talking to the Andrews about what was going to be done and I was interested, too, in what was going to be done as well since I was going to consider buying the paper from John Shipp so they was talking about what was going to be done in length, you know.”

When asked if he recalled the amount that was mentioned as the cost of the improvements, he replied:

“It was somewhere — it was $3,550.00, around $3,550.00. There was something said about $3,-550.00, then there was a question about a front door or something that they was talking about and I never did get that clear just what it was but there was $3,550.00 plus the pay off at the bank and I understood it was about- — around or between $600.00 and $700.00 owed to the bank. * * *
“I remember $3,550.00 and then I remember them mentioning something additional but I don’t know what that amounted to. * * *
“Yes, sir, Mr. Shipp and the Andrews talked about it and what I understood it was $3,500.00 for the repair on the house and then there was something else that they talked about afterwards.”

We do not agree that this testimony is sufficient to show that the amount agreed upon was other than as testified to by Shipp. In the first place, appellants and Shipp were apparently discussing various items that might be included in the agreement, no definite figure being established at that time. Of course, there is nothing definite about a front door — and the figure relative to the bank indebtedness mentioned by Martin was certainly incorrect. It will also be observed that Martin finally said that he understood “it was $3,500.00 for the repair on the house and then there was something else that they talked about afterwards.” This evidence falls far short of constituting proof that the second contract was for more than $1,250.00, or that the total on both contracts was more than $3,500.00. We are thus left with the figures relied upon by appellants to sustain the charge of usury, with no evidence in the record to contradict that contention. No effort was made to offer the second contract, nor was any reason given for its not being offered. This instrument, of course, would have clearly shown the amount agreed upon. The attorney who drew the note and mortgage testified that he prepared same in accordance with the two contracts handed him by Shipp, but he was never asked the amount set out in either agreement. There being no evidence that the contracts were for a greater amount than $3,-500.00, the note was usurious on its face, and it was incumbent upon Martin to show otherwise. This is the effect of the holding in Universal C.I.T. Credit Corporation v. Lackey, 228 Ark. 101, 305 S.W. 2d 858. In Jones v. Jones, 227 Ark. 836, 301 S.W. 2d 737, we held that the trier of the facts is justified in assuming, until convinced by proof to the contrary, that the difference between the principal of the loan and the face amount of the contract (note) represents interest on the debt.

We also point out that neither appellee, in either the pleadings or the proof, asserted that a mistake was made, and that an erroneous amount was sought because of inadvertent error.

Of course, even a holder in due course, i.e., one who takes an instrument for value, in good faith, and without notice of any defect, cannot rely upon this fact to defend against a claim of usury. If there is usury in the original instrument then the transfer of that, instrument to a third party does not eliminate the maker’s right to plead usury. Lyles v. Union Planters National Bank, 239 Ark. 738, 393 S.W. 2d 867. Actually, though not pertinent to this decision, it is doubtful that Martin could claim the status of a bona fide holder of the note, since he was really somewhat of a participant before the note and deed of trust were ever executed.

For the reasons stated herein, the decree is reversed.

It is so ordered.

      The record is quite confusing as to the name of appellants. Frequently, it is termed “Andrews,” and about as frequently, termed “Andrew.” The two names were even used during their testimony.

      Appellants denied signing a second contract.

      Not the same attorney representing appellee in this litigation.

      According to Martin’s bookkeeper, the Andrewses had only-paid $74.26 on the principal, although the Martin complaint set out that a total oí $720.00 had been paid on the note.

      The attorney who prepared the instruments testified that this was the amount of the check that Martin paid to the bank


author: George Rose Smith, Justice.

text:
    Southern Farm Bureau Casualty Insurance Company v. Frank McGibboney
    5-4737
    436 S.W. 2d 824
    Opinion Delivered January 27, 1969
    [Rehearing denied March 3, 1969.]

      Hodges, Hodges & Hodges for appellant.

      Lightle & Tedder for appellee.
   George Rose Smith, Justice.

In a case decided in 1967 the appellee, Frank McGibboney, obtained a $1,350 judgment against Raymond Reed as damages arising from a traffic collision. Reed v. McGibboney, 243 Ark. 789, 422 S.W. 2d 115 (1967). Under our direct action statute, Ark. Stat. Ann. § 66-4001 (Repl. 1966), McGibboney brought this suit against Southern Farm Bureau Casualty Insurance Company, which is alleged to have been Reed’s liability insurance carrier on the date of the collision, August 23, 1965.

Southern Farm denied liability on the ground that Reed’s policy expired on July 18, 1965, and was not reinstated until August 25 — two days after the accident. The trial court, sitting without a jury, took the case under advisement and later entered judgment for the plaintiff upon a general finding that “Policy #320934, insuring Raymond Reed, was in force on August 23, 1965.” Upon such a general finding the case stands as if a properly instructed jury had returned a verdict for the appellee. Blass v. Anderson, 57 Ark. 483, 22 S.W. 94 (1893). Hence the single question here is whether there is substantial evidence to support the trial court’s finding of fact.

Before discussing the merits of the case we pause to answer the appellant’s contention that the venue should have been laid in Randolph county, where Reed lives, rather than in White county, where McGibboney lives. The objection was waived, because Southern Farm entered its appearance by filing a general demurrer to the complaint before raising any question about the venue. Murdock Acceptance Corp. v. Speer, 225 Ark. 948, 286 S.W. 2d 485 (1956); Greer v. Newbill, 89 Ark. 509, 117 S.W. 531 (1909).

On the merits it is possible that the trial court reached its general conclusion upon any or all of three findings of fact: (a) That Reed paid the premium on August 2, 1965, thereby reinstating the policy; (b) that the company should have applied funds in its possession, belonging to Reed, to pay the premium when it became due; and (c) that the company itself elected to treat the policy as having been reinstated as of August 21, 1965 — two days before the accident occurred. “VVe find the third ground to be a sufficient basis for the trial court’s judgment and therefore confine our discussion to that point.

Reed was in the insurance business at Pocahontas and had been Southern Farm’s agent for several years. He admittedly received notice that the liability policy on his Ford car expired on July 18, 1965. On August 25 — two days after the accident' — he sent a check to the company for the premium, with an application for reinstatement.

On the following day the company executed what appears to have been a printed form entitled Amended Declaration. That instrument identified Reed’s policy and recited that the declarations in the policy were amended to provide that the term of the policy ‘ ‘ shall be from the effective date August 25, 1965 to February 25, 1966 12:01 A.M. . . . and for such succeeding terms of six calendar months hereafter as the required renewal premium is paid by the insured on or before the expiration of the current term and accepted by the Company.” It is recognized by both litigants that the foregoing Amended Declaration effectively reinstated the policy as of August 25, 1965.

In October of that year Reed bought a second car, a Rambler. Under the company’s regulations Reed was entitled to a reduced premium rate upon each vehicle if he carried a policy on each one. On the first car the reduction would take effect when the policy was renewed at the expiration of its six-month term, in February, 1966.

Reed accordingly applied for liability coverage on the Rambler. The company issued a policy on that car and also executed and sent to Reed another Amended Declaration with respect to the first policy, which recited that the term of the policy “shall be from the 'effective date 08/21/65 to 02/25/66 12:01 A.M.,” etc., and that the renewal premium would be $26.75 (instead of $29.50). It will be noted that under this amended declaration the term of the policy began on August 21.

Southern Farm insists that the insertion of the date 08/21/65 was a mistake on its part and that the instrument should be construed to read 08/25/65, as in the earlier amended declaration. Ordinarily such a defense would be raised by a motion to transfer the case to equity, where the company would have the burden of proving its right to reformation by clear and convincing proof of a mutual mistake. Calvert Fire Ins. Co. v. Hardwicke, 232 Ark. 466, 338 S.W. 2d 329 (1960); Arkansas Mui. Fire Ins. Co. v. Witham, 82 Ark. 226, 101 S.W. 721 (1907). On the other hand, the contention can also be made in a court of law, in which ease the plea is not for an actual reformation of the contract but rather for an interpretation of its meaning in the light of all the attendant circumstances. Restatement, Contracts, § 507 (1932).

At the outset it is clear that MeGfibboney made a prima facie case when he introduced the second amended declaration, which expressly fixed August 21 as the effective date of the contract. The burden of overcoming the plaintiff’s prima facie showing then shifted to the defendant. In this court the question is whether the company’s rebutting proof is so conclusive that a jury of fairminded men would be forced to believe that the August 21 date should be disregarded as a mere typographical error.

We do not find the proof to be that conclusive. The controverted date, August 21, does not appear only in the second amended declaration, a copy of which was sent to the insured and relied upon by him. The cor-reeled date was also inserted in ink in the company’s file copy of the earlier amended declaration. It seems to be inherently unlikely that a mere typographical error would have been deliberately entered upon the earlier record.

Some explanation was evidently called for, but the insurer’s proof in that respect is markedly deficient. The only witness called to testify about the matter was Jack L. Simmons, the company’s office manager. Simmons had nothing whatever to do with the actual mistake, if there was one. He testified: “In looking at the figures, not having made this change myself, all 1 can do is try to determine what the coding clerk did... The only thing I can determine, she made a clerical error.” It is significant that the coding clerk, who alone appears to have had firsthand information about the matter, was not called as a witness, giving rise to an inference that her testimony would have been unfavorable to the insurer. National Life Co. v. Brennecke, 195 Ark. 1088, 115 S.W. 2d 855 (1938). On the record as a whole we cannot say that there is no substantial evidence to support the trial court’s finding of fact.

Counsel for the appellee are allowed an additional fee of $300 for their services on appeal.

Affirmed.

Fogleman, J., disqualified.

Brown and Jones, JJ., dissent.


text:
    R. L. Lovegrove v. Missouri Pacific Railroad Company
    5-4799
    436 S.W. 2d 798
    Opinion Delivered January 27, 1969

      Robinson & Booth for appellant.

      . William J. Smith, and Michael G. Thompson for appellee.
   George Rose Smith, Justice.

In the court below Lovegrove obtained judgment for $225 — the amount sued for — as the value of a calf killed by a Missouri-Pacific freight train. By appeal he contends that he is entitled to double damages. Ark. Stat. Ann. § 73-1005 (Supp. 1967). By cross appeal the railroad company insists that it was entitled to a directed verdict, because there was no proof of negligence on its part.

We turn first to the cross appeal, which if successful would be decisive of the case. The locomotive engineer testified that he first saw a cow on the track about 350 feet ahead of the train. He started blowing his whistle, and the cow left the track. When he was about 75 feet from the spot where the cow had been the calf ran onto the track and was killed. The engineer said that he did not have time either to blow his whistle or to apply his brakes before the locomotive struck the calf.

When the asserted negligence is a failure to keep a constant lookout the carrier is entitled to a directed verdict if the undisputed testimony of the train crew shows that such a lookout was being kept. Si. Louis-San Francisco Ry. v. Spencer, 231 Ark. 221, 328 S.W. 2d 858 (1959). But the jury may disregard the crew’s testimony when it is inconsistent within itself or contrary to other accepted testimony in the case. Railway Co. v. Chambliss, 54 Ark. 214, 15 S.W. 469 (1891).

Here we cannot say that the engineer’s testimony was wholly undisputed. Pie testified that he whistled at the cow, but Lovegrove, who was within earshot, stated that he heard the train whistle for a public crossing but did not hear any other whistling. The engineer’s testimony about the moderate speed of’ the train was not consistent with his statement of the time when he left Van Burén, eight miles away. In view of the discrepancies in the engineer’s testimony the jury was not compelled to believe Ms statement that he was keeping a constant lookout and did not have time to blow the whistle when he first saw the calf. Upon similar proof we have held that there was substantial evidence to support a finding of liability. Chicago, R.I. & P. R.R. v. Williams, 221 Ark. 404, 253 S.W. 2d 349 (1952). Moreover, in the case at bar the jury could have found from Lovegrove’s testimony that the railroad’s maintenance employees carelessly damaged the fence along the right of way, allowing the cow and calf to reach the tracks.

The appellee also complains of the court’s action in giving this instruction: “You are instructed that if the operator could have seen the animal before it came upon the track in time by the use of the stock alarm or other necessary precautions, in the exercise of ordinary care, to have avoided killing it, and failed to do so, you may consider such as evidence of negligence.” The instruction was evidently based upon a sentence in the court’s opinion in St. Louis S.W. Ry. v. Costello, 68 Ark. 32, 56 S.W. 270 (1900).

We do not approve the instruction as a model of clarity, but at the trial counsel for the railroad made only a specific objection that the instruction was not justified by the evidence, because the engineer testified without contradiction that he was blowing the whistle and keeping a lookout and did not have time after the calf ran in front of the engine to avoid striking it. Wchave already shown that the engineer’s testimony was not uncontroverted; so the objection to the instruction was not well founded.

On direct appeal it is argued that the court should have entered judgment for twice the amount of the verdict, under the statute allowing double damages if the railroad company fails to post notice of the killing of livestock within a week or to pay the owner’s claim within 30 days. Section 73-1005.

There are two answers to this argument. First, the complaint made no reference to a failure to post notice or to any delay in the payment of the claim, nor was there a prayer for double damages. Those allegations are essential to a recovery under the statute, with the plaintiff having the burden of proof. Kansas City, S. & M. R.R. v. Summers, 45 Ark. 295 (1885). Second, the complaint cannot be treated as amended to conform to the proof, as in Kansas City S. Ry. v. Rogers, 146 Ark. 232, 225 S.W. 640 (1920). There is no proof whatever that the required notice was not posted. Nor is it shown that the railroad failed to pay the claim within 30 days after receiving notice from the owner. The calf was killed on April 10, but the suit was filed on May 9 and was therefore premature, that being the thirtieth day. It is immaterial that a cause of action may have accrued later, because the rights and liabilities of the parties depend upon the facts as they existed at the commencement of the action. Winn v. Collins, 207 Ark. 946, 183 S.W. 2d 593 (1944). In fact, here the statute explicitly applies when the owner of the stock “shall bring suit against such railroad after the thirty days have expired.” Section 73-1005. Thus in any view of the matter the penalty is not recoverable.

Affirmed.

Byrd, J., concurs.


author: Lyle Brown, Justice.

text:
    Alfred Wallis v. State of Arkansas
    5381
    436 S.W. 2d 273
    Opinion Delivered January 27, 1969

      Henry S. Wilson for appellant.

      Joe Purcell, Atty. Gen.; Don Langston, Asst. Atty. Gen. for appellee.
   Lyle Brown, Justice.

Alfred Wallis appeals from a conviction of the felonious theft of 350 bushels of soybeans. He argues (1) that his purported confession should have been suppressed; (2) that the State failed to prove ownership of the stolen property; and (3) that there was no corroboration of the extrajudicial confession to the effect that a crime had been committed.

Mid-South Grain Company’s operation at Harrisburg is completely fenced. Entrance and exit are made through a gate which is locked at night. On Monday morning, January 9, 1967, Charles Burrow, Mid-South’s manager, discovered one of Mid-South’s trucks turned over in a highway ditch a short distance from the gate. It was loaded with approximately 350 bushels of soybeans. The Company’s gate was open and the lock was broken. The truck has been removed from under a seed house at the end of an elevator. Seed could be loaded from the house into the truck by pulling a lever and opening two doors. Beans had been loaded into the seed house on the previous Friday. Mr. Burrow inspected the house and found that “beans in the seed house had tunneled down which indicated beans had been taken from it.” Burrow was not able to state of his own knowledge that the beans found in the truck came from Mid-South’s seed house.

Appellant, a Mid-South employee, became a suspect. When the suspicion developed, Wallis was apparently working out of the State in a new occupation and was not arrested until some two months after the incident. He had returned for a week-end visit when apprehended. He was taken to the sheriff’s office and questioned by Deputy Sheriff Reese and Lieut. Speer of the State Police. Wallis signed a waiver worded as follows:

Before we ask you any questions, you must understand your rights. You have the right to remain silent. Anything you say can be used against you in court. You have the right to talk to a lawyer for advice before we ask you any questions and to have him with you during questioning. You have the right to the advice and presence of a lawyer even if you cannot afford to hire one. We have no way of giving you a lawyer, but one will be appointed for you, if you wish, if and when you go to court. If you wish to answer questions now without a lawyer present, you have the right to stop answering questions at any time. You also have the right to stop at any time until you talk with a lawyer.

The statement contained a detailed account of breaking the lock on the gate, the loading of the truck, and the one-car accident when Wallis failed to negotiate a sharp turn. According to Wallis, the beans were to be disposed of through prearranged plans -with a named confederate. The statement further recounted a previous theft from Mid-South and knowledge of other unlawful practices by other employees.

In the in-chambers hearing, Wallis conceded that Officer Speer read the waiver to him before it was signed. Wallis described the procedure relative to the statement. The accused would make a statement and ‘ ‘ Speer would type up something and ask me if that was similar to what I said.” Then the statement, when completed, was read to Wallis by Speer, and Wallis signed it. Wallis’ main challenge to the admissibility of the statement is that he was told his failure to sign would necessitate his being returned to jail to await a hearing two or three days later. He asserted that the delay would have jeopardized his new job. Bond could be made immediately, so he asserted he was told, if he would sign the confession. Additionally, he complained that he was told he could have a lawyer but did not need one.

The two investigating officers testified for the State in the Denno hearing. Both officers denied Wallis’ version of wrongful acts on their part. Officer Reese testified that the question concerning a bond came up after the statement was completed. Wallis’ wife and her father, who had learned of Wallis’ whereabouts, came to the courthouse and signed his bond before he was taken back to jail. There was some dispute about when the amount of the bond was fixed and by whom. Wallis contended it was fixed by the deputy sheriff rather than a magistrate. It developed that the amount of the bond was in fact approved by Judge Mosby, but again the time element is not clear. It is Wallis ’ theory that the fixing of the amount of the bond by the officers lends credence to his assertion that the promise of an immediate release was the prerequisite for his signature to the confession.

Appellant insists that the waiver, which we have copied verbatim, did not advise him of his right to an attorney prior to any questioning. He was told he had a right to talk to a lawyer before any questions were asked; that a lawyer could be present during the questioning; and he was told he had a right to the advice and presence of a lawyer “even if you cannot afford to hire one.” There is this sentence in the waiver which could have been better phrased: “We have no way of giving you a lawyer, hut one will be appointed for you, if you wish, if and when you go to court.” Yet when that sentence is harmonized with the full contents of the waiver, we find no problem. The officers were telling the accused that they had no authority to appoint a lawyer for him, which was a correct statement; at the same time they were telling him that if he desired a lawyer before questioning, then he would be taken before a magistrate who would appoint counsel if he was unable to afford employment. Any other interpretation of the quoted sentence would render the remainder of the waiver meaningless.

After a careful review of the testimony given in the Denno hearing, it is not at all difficult to hold that the trial court was correct in denying appellant’s motion to suppress.

Appellant’s second point for reversal is that the State failed to prove ownership of the soybeans. We cannot agree. It is not disputed that the soybeans stored in the seed house belonged to Mid-South. Its truck was left parked for the week-end under the seed house. That house had been loaded with beans on Friday, the last day of the weekly operation. Inspection of the seed house revealed that beans had been tunneled down. The truck, loaded with soybeans, was found just outside the Company’s fence. Entrance and exit had been gained by the breaking of a lock. Positive testimony that the load of beans came from the seed house was not available. However, substantial circumstantial evidence of the ownership of property allegedly stolen is sufficient. Rynes v. State, 99 Ark. 121, 137 S.W. 800 (1911). Appellant finally relies for reversal on Ark. Stat. Ann. § 43-2115 (Repl. 1964). It is there provided that an extrajudicial confession will not warrant a conviction unless there is other proof that an offense was committed. We have many times held that such a confession will sustain a conviction if there is proof that the offense was committed by someone. Hargett v. State, 235 Ark. 189, 357 S.W. 2d 533 (1962). From our analysis of the circumstances under appellant’s second point, it is evident that a crime bad in fact been committed.

Affirmed.

Fogleman, J., not participating.


author: John A. Fogleman, Justice. George Rose Smith, J.,

text:
    Old Republic Insurance Company v. H. W. Alexander
    5-4772
    436 S.W. 2d 829
    Opinion Delivered January 27, 1969
    [Rehearing denied March 3, 1989)]

      Arnold, Hamilton & Streetman for appellant.

      Drew & Hollotvay for appellee.
   John A. Fogleman, Justice.

Appellant seeks reversal of a decree refusing rescission of an accident insurance policy issued by it to appellee and granting judgment in favor of appellee for the accidental loss of a foot. Determination of the appeal depends on the propriety of the chancellor’s finding that recovery was not barred by any misrepresentation, concealment or omissions by appellee. Wc find no reversible error in the chancellor’s decree.

Appellee Alexander applied for the policy of accident indemnity insurance in October 1966. He suffered the loss of his left leg below the knee by reason of an accidental gunshot would to the left foot in December 1966. When a claim was asserted, appellant instituted this action for rescission of the contract on the grounds that issuance of the policy was based on misrepresentation, misstatement and omission of facts in the application therefor. Appellee counterclaimed for benefits for loss of a limb as a result of an accidental gunshot wound.

Appellant contends that the decree of the chancellor should be reversed because of misrepresentation, omissions and concealment of facts, and incorrect statements by appellee which were material to the acceptance of tlie risk and because it would, in good faith, not have issued the policy if the true facts had been known to it. Appellant relies on the failure of Alexander to disclose previous diagnosis of heart disease and failure to mention exploratory heart surgery to support this contention.

The application was filled out by Alexander himself. The material portions thereof were as follows:

United States Navy Department records indicate that an electrocardiogram given Alexander April 15, 1928, was essentially negative and that he had no heart lesion on June 7, 1928. Later, an electrocardiogram administered to Alexander suggested some myocardial changes. He was discharged on December 13, 1928, with a diagnosis of chronic myocarditis. Navy medical reports indicate that Alexander had been first treated on an original diagnosis of malaria, but that subsequent tests for this disease were repeatedly negative. These records also indicate that Navy medical authorities believed Alexander had tuberculosis at the time of his discharge, in spite of repeated negative results of tests and x-rays examination.

It was also shown that Alexander had undergone surgery consisting of exploratory paricardotomy, exploratory thoracotomy, and biopsy of a lung, in Denver in September 1954, after a pre-operative or provisional diagnosis of constrictive pericarditis. The postoperative diagnosis was “undetermined,” and the final diagnosis was disseminated lupus erythematosus. A diagnosis of mild pulmonary emphysema was made from the lung biopsy. The medical reports indicate that the surgical exploration revealed no indication of pericarditis. Alexander testified that the surgeon had told him after the operation there was nothing wrong with his heart.

Other hospital reports record, a previous diagnosis of myocarditis as medical history. An inference might well be drawn that Alexander furnished the information upon which these records were made.

Appellant relies heavily upon the failure of Alexander to respond affirmatively to the interrogatory in his application relating to heart trouble. We find no basis for their contention in this respect. The evidence does not disclose any misrepresentation, omission, concealment or incorrect statements on the part of Alexander in answering this question in the negative. The application required a “yes” or “no” answer to a question which asked the applicant to state, to the best of his knowledge and belief, whether he had ever had certain diseases including heart trouble. Although there is no doubt that previous diagnoses had indicated that Alexander might have had heart trouble of some nature, the evidence relating to this exploratory heart surgery and testimony of Dr. Allen Talbott, who had been Alexander’s physician since 1951, justify a finding that the previous diagnoses were erroneous. The application form did not ask the applicant to state whether he had ever been examined for heart trouble, whether he had been subjected to tests for heart disease or whether any diagnosis of heart trouble had ever been made. See Reserve Life Ins. Co. v. Baker, 245 Ark. 854, S.W. 2d. We take the term “heart trouble” to be the equivalent of “heart disease.” See Webster’s New International Dictionary, Second Edition. Dr. Talbott’s testimony, after he had been examined extensively with reference to previous diagnoses indicating Alexander had myocar ditis or pericarditis and with reference to the surgery performed in Denver, was that Alexander had not ever had heart trouble, to his knowledge. He further testified that the reports of the heart surgeon in Denver indicated that Alexander’s heart was perfectly normal, that there had been no evidence of heart disease since that surgery, and that it is very likely that Alexander would not have been living at the time of trial if he actually had had the heart condition suspected when the surgery was performed. In view of this testimony, the answer given by Alexander as to his knowledge and belief cannot be said to have been incorrect.

Where, as here, answers are not warranties, an applicant for insurance is not required to enlarge upon the interrogatories in an application nor to interpret them in any sense other than that which the language employed and the circumstance of the inquiry suggest. Federal Life Insurance Company v. Hase, 193 Ark. 816, 102 S.W. 2d 841. In tlie opinion in that case, Cooley’s Briefs on Insurance was quoted to the effect that a mere layman cannot be presumed to know the existence of a disease which a physician cannot discover, or about which physicians differ in opinion.

Another basis of appellant’s argument that rescission should be granted is that Alexander’s failure to disclose the surgery he underwent in Denver in 1954 wms a concealment or omission, under provisions of Ark. Stat. Ann. § 66-3208 (Repl. 1966). Furthermore appellant says that the concealment or omission was material to the risk assumed by it, and such that it in good faith would not have accepted the risk if correctly apprised of the facts.

The application does show that Alexander failed to disclose this surgery. In his testimony during the trial, he said that he did not notice the inquiry as to details relating to operations when he filled out the application. If we assume that this was a concealment or omission sufficient to constitute a defense to the counterclaim or justifying rescission, still we cannot say as a matter of law that the fact that Alexander had this surgery was material to the risk. The materiality to the risk of a fact misrepresented, omitted or concealed is a question of fact so long as the matter is debatable. It is a question of law only when so obvious that a contrary inference is not permissible. Union Trust Co. of Maryland v. Kansas City Life Insurance Company, 300 F. 2d 606 (4th Cir. 1962), National Security Ins. Co. v. Tellis, 39 Ala. App. 445, 104 So. 2d 483 (1958); Prudential Insurance of America v. Gourley, 267 F. 2d 156 (5th Cir. 1959); Metropolitan Life Ins. Co. v. Milton, 74 Ga. App. 160, 38 S.E. 2d 885 (1946); Blazek b. North American Life & Casualty Company, 251 Minn. 130, 87 N.W. 2d 36 (1957); Sullivan v. John Hancock Mutual Life Insurance Co., 342 Mass. 649, 174 N.E. 2d 771 (1961); Mooney v. Underwriters at Lloyd’s, 33 Ill. 566, 213 N.E. 2d 283 (1966). This principle is applied to questions pertaining to acceptance of the risk as well as to those relating to the hazard assumed. National Casualty Co. v. Johnson, 219 Miss. 1, 67 So. 2d 865 (1953).

The burden was on appellant to sustain its contentions that the facts not disclosed were material to the risk assumed by it, or that, it in good faith, would not have issued the policy. To sustain this burden, appellant offered the testimony of the underwriter for its general agent. This underwriter stated that he had responsibility for acceptance or rejection of all health and accident insurance applications submitted to appellant since 1963. He stated that if Alexander’s application had shown that he had been treated for heart trouble in the Navy for myocarditis or operated on in 1954 for suspected constricted pericarditis, it would not have been accepted. The witness’ answers to questions relating to materiality to the risk and underwriting practices were as follows:

Q. With specific reference to heart conditions, what is the — does the company, and do you, as its underwriting agency, have any policy with respect to the acceptance of heart cases, or suspective heart cases, for health and accident insurance ?
A. Yes, we do.
Q. What is that policy?
A. We do not issue the policy. —On applications, where there is suspeetive or heart conditions acknowledged.
Q. What is the reason for that policy of the company?
A. We feel that a person with a heart condition could become involved in an accident where we would have extreme difficulties trying to prove that death occurred through natural causes or that death occurred as a result of the accident. So, we do not want to put ourselves in the position of having to determine that.
Q. Is this type of insurance a low premium low income type insurance so far as the company is concerned?
A. Yes sir.
Q. From an underwriter’s standpoint, in determining whether or not the coverage would be accepted, is it material that the insurance applicant indicate whether or not he has had any previous medical treatment or surgery involving chest or heart surgery?
A. Yes, it is.

In support of his testimony, the underwriter introduced 54 applicants for accidental indemnity insurance rejected by him. Among these were some cases where applications indicated previous heart disease from which there had been full recovery, blood pressure variations, possible heart trouble, high blood pressure, or slight heart trouble. No applications for policies which were accepted were offered, and it is not shown whether appellant accepted risks of this nature on other applications.

As pointed out by the chancellor in his comprehensive opinion, the failure of Alexander to fill in the blank provided for details as to operations was obvious. Alexander admitted in a discovery deposition that it was his intention to utilize the space following the inquiry about claims for previous injuries or sickness to answer that question as well as the preceding one about surgery details. The underwriter stated that he so treated the application. Even so, the manner of handling the application is not wholly consistent with appellant’s present contentions. Not only was there no further inquiry about this obvious deficiency in the application before the underwriter reached his conclusion as to the applicant’s intention, but it seems that this application was treated differently from the usual one. Appellant’s underwriter testified that an exception was made in the acceptance of the application because Alexander worked for one of appellant’s agents in spite of the fact that he had been rejected by other insurance companies. Included in the examples of rejections introduced through him, are several over the signature of the witness that indicate rather flexible underwriting standards in cases such as this. For example:

“After reviewing your application for this coverage we very much regret that because of your past medical history and that both you and your wife’s ages exceed our underwriting limits, we cannot issue the policy. For your information we generally restrict coverage to white collar occupations in the age group of 18 through 65.”
“As you know, we normally decline requests for this coverage received from people with coronary histories. Mr. Tanner stated on his application that he had a heart attack in May, 1965. Therefore, would it be possible for you to obtain the Attending Physician’s Statement concerning this illness. This should include copies of any EKG-’s chest X-Rays, etc.”
(This application was rejected after the applicant was described as “worse than the average coronary risk.”)
“To begin, please understand that if I bent any underwriting rule, it would be for you because of our long and most pleasant business association. In this instance, I discussed your client’s heart condition with our Medical Director before declining the application. It was his opinion from a medical position, we should not write the policy. Further, it was doubted that your client could pass future FAA medical examinations. This, of course, is between ourselves and should not be discussed with the client.”
(This applicant stated that he had made possibly one claim per year for sickness or injury for the last 10 years.)
“Don, I am aware of Mr. Clark being one of your preferred clients and was willing to bend every rule in the underwriting booh to issue this coverage. I discussed this case with our medical director and it was his opinion we again reject Mr. Clark’s application due to his previous medical history.”
“Tour client stated in his application that he had a light coronary in 1960. While we would normally reject his application because of this, as a favor to you, we promise to explore every possibility of issuing the policy. Would you kindly have the attached Special Coronary Questionnaire completed and returned to us as quickly as possible.”
“Our underwriting regulations normally do not permit us to issue policies on individuals having a past history of heart trouble.”
“Normally, your blood pressure problem would prohibit us from issuing any form of accident coverage, but because you were formally one of our policy holders, we might be willing to make an exception in your case. Would you kindly obtain a. statement from your physician, outlining your present state of health, with particular attention to the blood pressure problem. Copies of any recent electrocardiograms would be extremely helpful.”
(All emphasis ours.)

It is significant, as pointed out by the chancellor, that appellant produced no record of its own underwriting standards, nor did it attempt to show general standards in the underwriting profession or insurance trade by disinterested witnesses. It relied solely on the retrospective and possibly self-serving declarations of conclusions by this witness. It would be only natural if such a witness were subconsciously influenced by the defensive mechanism possessed by human beings to forestall criticism of his underwriting decision. At any rate, his testimony cannot be considered as that of a disinterested witness. In weighing testimony, courts must consider the interest of a witness in the matter in controversy. Wasson v. Lightle, 188 Ark. 440, 66 S.W. 2d 652. Facts established by the testimony of an interested witness, or one whose testimony might be biased, cannot be considered as undisputed or uncontradicted. Sykes v. Carmack, 211 Ark. 828, 202 S.W. 2d 761; Skillern v. Baker, 82 Ark. 86, 100 S.W. 764. While the testimony of such a witness may not be arbitrarily disregarded, a trier of facts is not required to accept any statement as true merely because so testified. St. Louis-San Francisco Ry. Co. v. Grant, 185 Ark. 222, 46 S.W. 2d 640. It cannot be said that such testimony is arbitrarily disregarded when it is not consistent with other evidence in the case, or unreasonable in its nature or is contradicted. St. Louis-San Francisco Ry. Co. v. Grant, supra; Sykes v. Carmack, supra. Nor is it arbitrarily disregarded where facts are shown which might bias the testimony or from which an inference may be drawn unfavorable to the witness’ testimony or against the fact testified to by him. Missouri Pacific Railroad Co. v. Trotter, 184 Ark. 790, 43 S.W. 2d 762; Bullock v. Miner, 225 Ark. 897, 286 S.W. 2d 328. When the conduct of any witness is clearily inconsistent with his testimony and not satisfactorily explained, the trier of facts is justified in disbelieving the testimony. Feild v. Koonce, 178 Ark. 862, 12 S.W. 2d 772. In the opinion in the cited case, we quoted from 2 Moore on Facts § 1136, where Lord Stowell was, in turn, quoted as follows :

“* * * ‘I am not deaf to the fair pretensions of human testimony, but at the same time I cannot shut my senses against the ordinary course of human conduct. Conduct of a witness clearly inconsistent with his testimony and not satisfactorily explained is one of the most fatal species of impeachment,- because the trier of facts is thus justified in disbelieving the testimony without in any degree reflecting upon the integrity of the witness, who, it may be presumed, is a victim of the proverbial fickleness of memory — especially after considerable time has elapsed — or of various perturbing psychological influences which affect men of the highest probity as well as those of indifferent moral natures and operate with peculiar force if the witness is interested or otherwise biased.’ ”

These principles are applicable where the issue of fact, upon which the testimony is given, is the good faith of one of the parties. Holland Banking Co. v. Booth, 121 Ark. 171, 180 S.W. 978.

The chancellor did not consider the underwriter’s testimony on the question of materiality to the risk and rejected it on the issue of good faith. We cannot say that he was not justified in so doing. When we consider that appellant had the burden of proving that the omitted or concealed facts were material to the risk, or that it, in good faith, would not have issued the policy, the facts indicating possible bias in the testimony of the underwriter, the possibility of drawing inferences from the conduct of the underwriter in making exceptions inconsistent with the underwriting practices about which lie testified, and the retrospective nature of the testimony, we cannot say that the findings of the trial judge are against the preponderance of the evidence.

Appellant also contends that the attorney’s fee of $6,000 allowed by the trial court was exorbitantly excessive. It correctly states that the fee contemplated is not a speculative or contingent fee but such a fee as would be reasonable for a litigant to pay his attorney for prosecuting such a case. It is not correct, however, as suggested by appellant that the mere time involved is the only factor to be considered. The purpose of the statute allowing recovery of attorney’s fees is to permit an insured to obtain the services of a competent attorney. Mutual Life Ins. Co. of New York v. Owen, 111 Ark. 554, 164 S.W. 720. The amount of the fee allowed should be such that well prepared attorneys will not avoid this class of litigation or fail to devote sufficient time for thorough preparation. It should not only be commensurate with the time and amount of work required but also with the ability present and necessary to meet the issues that arise. John Hancock Mutual Life Insurance Company v. Magers, 199 Ark. 104, 132 S.W. 2d 841. Also, we have often considered the sum recovered or the amount involved in an action in allowing fees or in considering fees allowed by trial courts. See e.g., Old Colony Life Ins. Co. v. Julian, 175 Ark. 359, 299 S.W. 366; American National Ins. Co. v. Westerfield, 189 Ark. 476, 73 S.W. 2d 155; Commercial Union Assurance Co. v. Leftwich, 191 Ark. 656, 87 S.W. 2d 55; New York Life Insurance Co. v. Thweatt, 221 Ark. 478, 254 S.W. 2d 68. The statute requires that we do so in cases, such as this, where the insurance company brings suit to cancel a policy. Ark. Stat. Ann. § 66-3239 (Bepl. 3966). It is also appropriate that consideration be given to the trial judge’s acquaintance with the record and the quality of service rendered in the case. American Equitable Assur. Co. of New York v. Showers, 195 Ark. 521, 113 S.W. 2d 91. When we consider from an inspection of the record the nature of the cause, the novelty of some of the questions presented, the heat of the contest, the time necessary for preparation of the case, the standing and ability of the attorneys on both sides, and the knowledge of the trial court of the nature and extent of the services rendered, we can- . not say that this allowance on a recovery of $51,000 and interest was excessive.

Appellee took a cross-appeal from the action of the trial court allowing interest from May 1, 1967, the date on which appellant refused to pay appellee’s claim. He contends that interest should run from February 17, 1967, 60 days after the loss occurred. Interest accrues as a matter of law from the date the amount due became payable under the policy. Missouri State Life Ins. Co. v. Fodrea, 185 Ark. 155, 46 S.W. 2d 638; Hartford Fire Insurance Co. v. Enoch, 79 Ark. 475, 96 S.W. 393; Phoenix Ins. Co. v. Public Parks Amusement Co., 63 Ark. 187, 37 S.W. 959; Southern Insurance Co. v. White, 58 Ark. 277, 24 S.W. 425. The policy provides that indemnities such as this will be paid immediately upon receipt of proof of loss. It also contains a clause prohibiting the bringing of any action on the policy prior to the expiration of 60 days after proof of loss has been furnished. The allowance of interest from a date about 60 days later than the date on which the proof was submitted lias been held to allow a reasonable and sufficient time for payment. American National Insurance Co. v. Westerfield, 189 Ark. 476, 73 S.W. 2d 155. Appellee was entitled to interest beginning 60 days after the submission of proof of loss, at the latest.

Appellee prays for the allowance of additional attorney’s fees on this appeal. After considering the fee allowed by the trial court, the briefs filed here, the oral arguments made, and other factors proper for consideration, appellee is allowed an additional sum of $1,500 for attorney’s fees on this appeal.

The judgment is affirmed on appeal and reversed on cross-appeal. The judgment is modified to provide for interest on the $51,000 recovery from the 17th day of February, 1967.

Holt, J., not participating.

Harris, C.J., and George Rose Smith, J., concur.

George Rose Smith, J.,

concurring. This litigation involves two distinct causes of action: First, the insurer’s suit to rescind the policy for misrepresentations by the insured in his application for the policy; second, the insured’s counterclaim for the $50,000 indemnity for the loss of his leg in a hunting accident. The majority opinion seems to imply, or at least it can be understood to mean, that the insurance company would have prevailed upon both causes of action had it succeeded in proving that Alexander concealed the existence of heart trouble when he applied for the policy. I write these concurring remarks to make it clear that I do not join in that view, because in any event I would affirm Alexander’s judgment upon his counterclaim.

My reasoning is simple. According to the proof, the condition of Alexander’s heart had nothing whatever to do with his shooting himself in the leg. I do not construe the Insurance Code to mean than an insurance company, after a loss has occurred, can refuse to pay the claim on the ground that the application for the policy contained a misrepresentation about some fact that had absolutely no causal connection with the actual loss. Such a construction of the Code would encourage ex post facto litigation and would provide insurers with a windfall amounting to unjust enrichment.

To me the statute is clear. Section 275 of the Code reads in part:

Misrepresentations, omissions, concealment of facts, and incorrect statements shall not prevent a recovery [my italics] under the policy or contract unless either:
(a) Fraudulent; or
(b) Material either to the acceptance of the risk, or to the hazard assumed by the insurer; or
(c) The insurer in good faith [would not have issued the policy that it did issue] if the true facts had been known... [Ark. Stat. Ann. § 66-3208 (Repl. 1966).]

All the statute says is that misrepresentations and the like “shall not prevent a recovery” unless they are fraudulent, material, and so forth. Such a statement merely provides a minimum prerequisite to the insurer’s successful defense; that is, the misrepresentation must have been fraudulent, material, etc. That is by no means the equivalent of saying that every fraudulent or material misrepresentation shall ipso facto prevent a recovery. To illustrate, a statute which provides that no contract shall be enforceable unless it is in writing certainly does not mean that every contract which is in writing is thereby necessarily enforceable.

To construe the statute more narrowly than I am suggesting runs counter to common sense and justice. Suppose, for example, that the insured fails to mention in his application a stomach ulcer that was treated with complete success. A year and a half later, within the period of contestability, he is instantly killed by lightning. Surely the legislature did not mean to enable the insurance company to defeat a recovery upon the policy by dredging up the irrelevant and harmless misstatement about the stomach condition. Such an interpretation of the Code would permit the insurer to repudiate the policy whenever a loss occurred but to pocket the premiums with impunity when the policy proved to be of no value to the insured or his beneficiaries.

I should add that I do not consider our holding in Dopson v. Metropolitan Life Ins. Co., 244 Ark. 659, 426 S.W. 2d 410 (1968), to be contrary to this concurring opinion. There the applicant concealed an earlier instance of back trouble, and the claim that was asserted in the case was for hospitalization due to a back problem. Hence the necessary causal connection between the misrepresentation and the loss was shown to exist.

Harris, C.J., joins in this concurrence.


author: J. Fred Jones, Justice.

text:
    Noble McChristian, et al v. Tommy Hooten, et al
    5-4771
    436 S.W. 2d 844
    Opinion Delivered January 27, 1969
    [Rehearing denied March 3, 1969.]

      Dobbs, Pryor & Shaver for appellants.

      Hardin, Barton, Hardin & Jesson for appellees.
   J. Fred Jones, Justice.

Tommy, Bhoda and Michael Hooten filed suit in the Sebastian County Circuit Court against Joseph B. Marlow and Noble McChristian for personal injuries and property damages sustained as a result of an automobile collision in Madison Comity, Arkansas. McChristian cross-complained against Mar-low for contribution as a joint tort feasor, and Marlow cross-complained against McChristian for his property damage. Tommy Hooten alleged damages in the amount of $35,000.00 for personal injuries and $3,500.00 for property damages to his automobile.

A jury trial resulted in a verdict against McChristian for $40,000.00 in favor of Tommy Hooten; for $1,-200.00 in favor of Bhoda Hooten and for $118.00 in fav- or of Michael Hooten. Tommy Hooten only proved $1,-400.00 damage to his automobile, so upon a voluntary remittitur of $3,600.00, judgment was entered in his favor for $36,400.00. Judgment was entered on the verdict for Bhoda and Michael Hooten. McChristian has appealed and relies on the following points for reversal:

“The court should have granted the request for a directed verdict.
Only eight jurors found McChristian liable for all of the $40,000.00 verdict, and the answers to the interrogatories are inconsistent and conflicting.
The verdict is excessive and the result of passion and prejudice, and a new trial should have been granted.”

The record reveals that on February 12, 1967, Tommy, Rhoda and Michael Hooten were riding in an automobile belonging to Tommy and being driven by a friend, Jerry Parker. . They were traveling west and slightly upgrade on state highway 74 near Huntsville, Arkansas. Marlow was driving his automobile east and downgrade on the same highway, meeting the Hooten automobile. McChristian drove his pickup truck south from a side road into highway 74 and turned east onto the highway between the oncoming Hooten and Marlow automobiles. In an effort to avoid colliding with the McChristian vehicle, the Marlow vehicle skidded approximately 462 feet from the crest of a hill, went off the pavement into the gravel on the south side of the highway behind the McChristian vehicle. It then cut back across the south side of the highway immediately behind the McChristian vehicle; went around the McChristian vehicle, and collided head-on with the Hooten automobile on the north side of the highway a few feet east, and in front of, the McChristian vehicle.

The testimony is in conflict as to whether the McChristian vehicle stopped before entering the highway and whether it had completely cleared the north side of the highway and had completely straightened out on its south and proper side of the highway when the collision occurred. McChristian testified that he stopped his vehicle and looked both ways before entering the highway and that he saw no vehicle approaching from either direction. He testified that he had completely crossed the north side of the highway and had turned his vehicle straight into the south lane and his proper side of the highway when the collision occurred. Marlow and the driver of the Hooten automobile testified that they saw McChristian drive slowly from the side road out into the highway between the two oncoming automobiles and that they did not see him stop before ¡entering the highway. They testified that the left rear wheel of his pickup was about on the center line of the highway when the collision occurred.

The case was submitted to the jury upon interrogatories signed by jurors as follows :

“1. Do you find from a preponderance of the evidence that James Marlow was guilty of negligence which was a proximate cause of the occurrence?
Answer: No (yes or no)

/s/ Mrs. N. D. Lawrence

/s/ Mrs. Phil Hatcher

/s/ Mrs. L. Hobbs

/s/ Mrs. E. G-. Dooley

/s/ Floyd E. Evans

/s/ Mrs. Leland Duncan

/s/ Dale Moore

/s/ Harley A. Wilson

/s/ Robert L. Taylor

2. Do you find from a preponderance of the evidence that Noble McChristian was guilty of negligence which was a proximate cause of the occurrence?
Answer: Yes (yes or no)

/s/ Mrs. N. D. Lawrence

,/s/ Mrs. Phil Hatcher

/s/ Mrs. L. Hobbs

/s/ Mrs. E. Gr. Dooley

/s/ Floyd E. Evans

/s/ Mrs. Leland Duncan

/s/ Luther H. Hodges

/s/ Dale Moore

/s/ E. Y. Swift

/s/ Harley A. Wilson

/s/ Robert L. Taylor

3. If you have answered ‘yes’ to either interrogatory 1 or 2 then answer this interrogatory:
Using 100% to represent the total responsibility for the occurrence and any injuries or damages resulting from it, apportion the responsibility between Mr. Marlow and Mr. McChristian.
Answer: Mr. Joseph R. Marlow %
Mr. Noble McChrisiian 100%

/s/ Mrs. N. D. Lawrence

/s/ Mrs. Phil Hatcher

,/s/ Mrs. L. Hobbs

/s/ Mrs. E. Gr. Dooley

/s/ Floyd E. Evans

/s/ Mrs. Leland Duncan

/s/ Dale Moore

/s/ Harley A. Wilson

/s/ Robert L. Taylor

4. State the amount of any damages which you find from a preponderance if the evidence were sustained by Tommy Hooten.
Answer: $40,000.00

/s/ Mrs. N. D. Lawrence

/s/ Mrs. Phil Hatcher

/s/ Mrs. L. Plobbs

/s/ Mrs. E. Gr. Dooley

/s/ Mrs. Leland Dnncan

/s/ Luther PI. Hodges

/s/ Dale Moore

/s/ E. V. Swift

/s/ Harley A. Wilson

/s/ Robert L. Taylor

5. State the amount of any damages which you find from a preponderance if the evidence were sustained by Rhoda Hooten.
Answer: $1,200.00

/s/ Robert L. Taylor Foreman

6. State the amount of damages which you find from a preponderance if the evidence were sustained by Michael Hooten.
Answer: $118.00

/s/ Robert L. Taylor Foreman

7. State the amount of any damages which you find from a preponderance if the evidence were sustained by James Marlow.
Answer: $ NO

/s/ Robert L. Taylor Foreman”

We now discuss appellants’ points in the order designated. The appellants’ motion for directed verdict was presented in the form of requested instructions which were denied by the trial court. In passing on assignment of error in refusing to direct a verdict for the defendant in Hawkins v. Missouri Pacific Railroad Company, Thompson, Trustee, 217 Ark. 42, 228 S.W. 2d 642, this court said:

“A directed verdict for the defendant is proper only when there is no substantial evidence from which the jurors as reasonable men could possibly find the issues for the plaintiff. In such circumstances the trial judge must give to the plaintiff’s evidence its highest probative value, taking into account all reasonable inferences that may sensibly be deduced from it, and may grant the motion only if the evidence viewed in that light would be so insubstantial as to require him to set aside a verdict for the plaintiff should such a verdict be returned by the jury. ’ ’

And again in St. Louis, I.M. & S. Ry. Co. v. Fuqua, 114 Ark. 112, 169 S.W. 786, we said:

“The rule is that where fair-minded men might honestly differ as to the conclusion to be drawn from facts, whether controverted or uncontroverted, the question at issue should go to the jury. ’ ’

We conclude that the trial court was correct in denying appellants’ motion for a directed verdict.

In arguing his second point the appellants would disqualify two of the ten jurors who found that Tommy Hooten’s damages amounted to $40,000.00, because these two jurors failed to sign interrogatories 1 and 3 finding Marlow not guilty of negligence and apportioning the negligence all to the appellant McChristian. The appellants cite cases from Wisconsin in support of their contention, but we conclude that the laws of Arkansas make no such distinction.

The Wisconsin constitution, as cited by the appellants, authorizes the legislature to provide £ £ that a valid verdict in civil cases, may be based on the votes of a specified number of the jury not less than five-sixths thereof(Emphasis supplied.) The legislature of Wisconsin by statute provided ££a verdict, finding or answer agreed to by five-sixth of the jurors shall be the verdict, finding or answer of the jury.” (Emphasis supplied.)

The number of jurors required to return a verdict in Arkansas is fixed by the constitution, Amendment 16 to Art. 2, § 7, which provides:

££ ... [I]n all jury trials in civil cases, where as many as nine of the jurors agree upon a verdict, the verdict so agreed upon shall be returned as the verdict of such jury, provided, however, that where a verdict is returned by less than twelve jurors all the jurors consenting to such verdict shall sign the same.”

As to special verdicts, Ark. Stat. Ann. § 27-1741.2 (Eepl. 1962) provides:

££A court may require a jury in a civil action to return only a special verdict in the form of a special written finding upon each issue of fact.”

We shall not attempt a fine distinction between the constitutional provisions and statutory laws of Wisconsin and those of Arkansas for the reason that the difference in the language used makes the distinction obvious; and for the further and primary reason, that we find no conflict between the findings of the jurors under the interrogatories 1, 2, 3 and 4 in this case. Interrogatory No. 4 simply asks for a determination of the damages sustained by Tommy Hooten. It stands alone and is not dependent upon answers to any other interrogatories at all. Certainly there was no conflict, and actually no connection, in assessing’ the amount of damages sustained by Hooten in the collision and apportioning the percentage of negligence between the parties causing the collision. There might be considerable damage without negligence in an automobile collision, and there might be considerable negligence without damage. The crus of appellants’ argument is that all interrogatories in special verdicts must be signed by the same nine jurors before that part of the verdict becomes legal and binding.

The trial court gave the jury the following instruction:

“Ladies and gentlemen, as you know, this case is being submitted to you on interrogatories, and you- should consider each of these interrogatories as a separate verdict. If your answer to any interrogatory is unanimous, then only your foreman need sign it. But if nine or more of you agree on a particular answer, then each of you who agrees must sign the answer, and those of you who disagree need not sign. You will understand that in order to answer any interrogatory, at least nine of you must agree. And I feel that I should tell you, you should, of course, take No. 1 and go right straight on through.” (Emphasis supplied.)

We are of the opinion that this instruction was proper. We construe “as many as nine of the jurors,” as used in constitutional Amendment 16 to Art. 2, § 7, supra, to mean any nine of the jurors and not necessarily the same nine jurors where more than one issue of fact is presented on special verdict to be returned by the jury. We, therefore, hold that the answer to each interrogatory in special verdicts is to be considered as a separate verdict on that particular issue of fact, and that where as many as any nine of the jurors agree upon the finding as to the particular fact in issue, such agreement constitutes the verdict of the jury on such issue.

As to appellants’ third point, the jury returned a verdict for $40,000.00 damages which was properly reduced by a remittitur of $3,600.00 on the motion of appellee, and judgment was entered for $36,400.00. The verdict of the jury was based upon evidence that the appellee Tommy Hooten suffered a skull fracture and was rendered unconscious; that he suffered a severe fragmentation fracture of the head of the left humerus and spent some twenty days in the hospital, the first week of which was in intensive care. There was evidence that the appellee Hooten underwent surgery by open reduction for the repair of the fractured humerus and that he had difficulty sleeping and remained under medication for pain in his arm for approximately two months after leaving the hospital. There is uncontradicted evidence that approximately sixteen weeks following the initial surgery, the appellee was rehospitalized and surgery again performed in order to remove the rod which had been inserted in the humerus during the initial surgery, and that the open reduction surgery resulted in extensive scar tissue winch was still draining at the time of trial. The X-ray exhibits clearly show that the head of the humerus was fragmented and displaced. There was medical evidence that there would be permanent partial disability of 15% in the loss of use of appellee’s left arm.

Appellee’s medical expenditures amounted to $2,-636.00, his loss of wages amounted to $2,300.00, and his property damage amounted to $1,400.00. The remainder of the $36,400.00 was necessarily apportioned to pain and suffering, future medical expenses, physical disfigurement, permanent injury and loss of future earning capacity. The appellee was twenty-three years of age at the time of his injury.

As was said in the similar case of Fred’s Dolla Store v. Adams, 238 Ark. 468, 382 S.W. 2d 592:

“In a case of this kind precedents are of scam value. No two cases are so nearly identical that essential points of difference cannot be found. The ultimate question is whether the verdict shocks the conscience of the court or demonstrates that the jurors were motivated by passion or prejudice. ’ ’

Upon consideration of all the evidence before the jury in this case, we are unable to say that the verdict of the jury, as reduced by the remittitur, was excessive.

The judgment is affirmed.