text:
    Johnson v. Norsworthy.
    5-3558
    390 S. W. 2d 439
    Opinion delivered May 24, 1965.

      Arnold & Hamilton, for appellant.

      W. P. Switzer, for appellee.
   (xene AVorsham, Special Associate Justice.

The appellees were the proponents in the Ashley County Court of a petition seeking the establishment of a sanitary sewer improvement district in a 2,514.02 acre area adjacent to the City of Crossett, a city of the first class. After proper hearing, the Ashley County Court reached the conclusion that the petitions were legally sufficient and entered an order creating the improvement district. From this order the opponents timely appealed to the Ashley Circuit Court. The findings of the County Court were modified in certain respects not germane to the issues herein, but affirmed as to the establishment of the district. From this order comes this appeal.

The principal issue is whether or not the proponents ’ petitions were legally sufficient in containing signatures of a majority in area of real property owners within the proposed improvement district. The opponents to the formation of the improvement district assert various irregularities in the computation of the acreage represented by the signatures borne on the petitions.

There seems to be no dispute that the proposed district contains 2,514.02 acres. The circuit court found that the petitions bore valid signatures of landowners who owned an aggregate of 1,259.20 acres within the district, thereby giving the proponents and appellees a majority of 2.27 acres.

The most serious question raised concerns certain corporate lands which were included in the ranks of the proponents for the formation of the district. It is conceded that the corporate names appeared nowhere on the petition.

It appears that Etheridge & Sawyer, Inc., an Arkansas corporation, holds legal title to a 37-acre subdivision within the proposed district. At the hearing below it was established that IT. A. Etheridge is the president of Etheridge & Sawyer, Inc., and that his wife, Etta Mae Etheridge, is the secretary. Mr. and Mrs. Etheridge both signed their individual signatures to the proponents’ petition. Mr. Etheridge testified that he and Mrs. Etheridge had authority to act solely in the- affairs of the corporation and to bind the corporation. That he signed the sewer district petition for the purpose of including the acreage owned by Etheridge & Sawyer, Inc. The lower court found that Mr. and Mrs. Etheridge signed the petition to bind the corporation and it was the intention of the corporation to be bound by their action.

A similar irregularity was raised by the inclusion of a .50-acre tract owned by Crossett Zero Butane G-as Company which also is a corporation, of which John Scott is the vice-president. Mr. Scott’s individual name appeared on the petition and he testified that he signed the petition as an official of the corporation for the purpose of binding the corporation, and that he had approval of the board of directors to sign the petition. The name of Crossett Zero Butane Gas Company did not appear on the petition. The court also included lands owned by the gas company among those favoring establishment of the district.

The statute under which this petition was filed (Ark. Stat. 20-701) provides:

“Upon the petition of a majority in value and of area of the owners of real property in any territory adjacent to a city of the first class * * * it shall be the duty of the county court to lay off into an improvement district the territory described in the petition * * V’

Ark. Stat. 20-702 provides:

“* * * On the day named in the notice it shall be the duty of the county court to meet and to hear said petition and to ascertain whether those signing the same constitute a majority in value and of area and if the county court determines that a majority in value and of area have petitioned for the improvement it shall enter its judgment laying off the district as defined in the petition and appointing the commissioners named in the petition * # *. If it finds that a majority in value and of area has not signed said petition, it shall enter its order denying the same.”

The principal question here is whether or not signatures on the petition constituted a majority “in area” of the owners of real property within the proposed district. If the petitions contained a majority in area of the owners, it was the clear statutory duty of the court to enter its order laying off the district. On the other hand, if the petitions were deficient in containing a majority, it was the lower court’s duty to deny the petition. We have previously held that this statutory proviso is jurisdictional. Colquitt v. Stevens, 111 Ark. 314, 163 S. W. 1411.

In this case the corporate names of Orossett Zero Gras Company and Etheridge & Sawyer, Inc. did not appear on the petition. Appellees urge that the petition should be corrected to conform to the intention and purpose of the property owners; more specifically, that the petition should be corrected to reflect that the corporate officers were acting in behalf of their respective corporations, and not in their individual capacities. Numerous cases are cited by appellee touching on the authority of corporate officers to corporate officers to bind their principal. This is not a question, however, of whether or not the officers had or lacked authority to so bind their corporations, but whether in fact they did act in a manner so as to exercise or effectuate such authority.

Appellees, among other cases, rely upon Lewis v. Forrest City Special Improvement District, 246 S. W. 867, 156 Ark. 356. In that case, however, the corporate names were duly signed to the petition and the issue was whether or not the persons affixing the corporate names to the petition had legal authority to do so. The effect of this court’s ruling in that decision was that the signing of the corporate name to the petition was within the scope of the general authority which the directors, by continued consent, permitted the persons who signed the petition in its behalf, to exercise. It was there stated:

“There was no formal meeting of the board of directors for the purpose of authorizing Nimocks to sign the petition, nor was there any such formal meeting held until during the progress of the trial in the chancery court. During a suspension of the trial this corporation, as well as all the others whose signatures appeared on the petition held directors ’ meetings, and formal resolutions were passed ratifying the action of the respective officers who had signed their names. Counsel for appellee insist that that was a timely ratification in each instance, but this court reaches the conclusion that it was too late to validate the signatures by ratification after the enactment of the ordinance, for the reason that there must be a majority in value of the property represented by authorized signatures before the council can pass the ordinance.”

The omission of the corporate owners’ names from the petition is not cured by a subsequent ratification, nor can a deficient petition be corrected by a substitution or exchange of invalid signatures for valid ones, in order that the required majority be obtained.

In the ease of Colquitt v. Stevens, 111 Ark. 314, 163 S. W. 1141, where legal title to property was held solely in the wife’s name and the husband signed the petition in his individual name, the question was raised as to whether the wife’s lands could be included. We there held:

“It is said of each of these persons, who are not-the owners of any property, but whose wives aré, that their signatures should be included because the petition was signed with the knowledge and consent of the wives of the respective petitioners, and that, if in any case this consent had not been obtained in advance, the subscriber’s act was subsequently ratified * * * It is urged that ratification cures the lack of authority, and that where the proof shows subsequent ratification it is immaterial in whose name the petition was signed, and that it is likewise'immaterial that there was no authority for the signature in the first instance. # s» #
“Here the owners of the property could not ratify the signing of their names, because their names were not signed, and there could be no ratification of a thing which had never been done. * * * It is not therefore sufficient that an owner favor the improvement, and that he did not object that some name other than his own was signed to the petition, with the intention of binding him. The statute requires, and its provisions are mandatory, that the name of the owner must be signed to these petitions, although, if the owner does not sign his own name in his own hand, he may authorize another -to do so for him, or may ratify the act of another who has signed it. ’ ’

Inasmuch as we are of the opinion that to include these corporate lands in the acreage represented on the ■ petition was error, we do not deem it necessary to a determination of this cause to discuss the other alleged errors raised by appellants.

After deducting the 37 acres owned by Etheridge & Sawyer, Inc., and the .50 acre owned by Crossett Zero Butane Gas Company from the 1,259.20 acres found by the lower court to be represented on the petition, there is a remainder of only 1,221.70 acres represented by valid signatures on the petitions, which is 35.32 acres less than a majority.

The judgment therefore is reversed and this cause remanded to the Circuit Court with direction to dismiss the petition as being deficient in containing signatures of á majority in area of the landowners within the proposed district.

Johnson, J., disqualified.


source: Caselaw Access Project

author: Carleton Harris, Chief Justice. Jim Johnson, Associate Justice,

license: Public Domain

text:
    Harwell v. Garrett
    5-3480
    393 S. W. 2d 256
    Opinion Delivered May 31, 1965.
    [Rehearing denied September 20,1965.]

      Jack Machen and McKay, Anderson & Grumpier, for appellant.

      Keith, Glegg & Eckert, for appellee.
   Carleton Harris, Chief Justice.

This is a will contest. Frank Garrett, a lifelong bachelor and resident of Columbia County, executed his will on January 21, 1950, leaving his entire estate to his brother, A. C. Garrett. Frank died on February 27, 1962, at the age of 83 years, and in due time, appellee A. C. Garrett petitioned the Columbia Probate Court for admission of the will to probate. Thereafter, appellants filed their contest. Lillie Garrett Viston and Otis Harwell, appellants herein, are respectively the sister and nephew of the testator. Following a lengthy trial, the court dismissed the contest and admitted the will to probate, and from such order comes this appeal.

For reversal, it is contended that Frank Garrett lacked testamentary capacity, and that, in executing the will, he was acting under undue influence. These contentions are so interwoven that they can hardly be discussed separately.

A factual background is in order. Frank, A. C. (Asa) and Lillie were the three surviving children of Levi Garrett, who died testate in 1946, leaving his estate to Frank and Asa. Lillie and Harwell contested that will, alleging that Levi was mentally incompetent to make a will, and that undue influence had been exercised upon him by Frank and Asa. That contest was unsuccessful. Levi had been a successful farmer, but during the 1930’s, oil was discovered on his property, and on other property owned by Asa. Frank’s estate consists of real property, bank accounts, and oil income, obtained from property which he inherited from his father.

The record in this case is voluminous, containing the testimony of sixty-three witnesses and eleven depositions. Included is the testimony of schoolmates, neighbors, business acquaintances, oil company employees, who worked on the Garrett wells, and various citizens of Magnolia. The Chancellor, at the conclusion of the evidence, rendered a comprehensive opinion, discussing the testimony of a large number of the witnesses, and this opinion will be subsequently referred to.

Winston O. Wilson, Executive Vice-President of the First National Bank of Magnolia, was one of the witnesses to the execution of the will. He testified that he saw Frank Garrett sign the instrument, and stated that Garrett said that he also wanted two others present, W. B. Gantt, Jr., and W. C. Blewster, to witness the will. Wilson testified that Gantt also signed as a witness. The will had been prepared by a Magnolia attorney in the bank building. Appellants attempt to establish that A. C. Garrett brought Frank into town for the purpose of making the will. This, in itself, of course, proves nothing, and for that matter, frequently happens, and, in some instances, beneficiaries actually take the testator to the lawyer’s office without ever being accused of exercising undue influence. One argument advanced by appellants is under the sub-heading, “Asa .wanted Frank to execute a will to him.” The proof was not very extensive on this point, but at any rate, it certainly did not establish undue influence. In Langford v. Gates, 238 Ark. 167, this court, quoting from 94 C. J.S., Section 226, Page 1075, stated:

“Every influence exerted on a testator is not undue influence, and it is well settled that influence, consisting of appeals, requests, entreaties, arguments, flattery, cajolery, persuasion, solicitations, or even importunity, is legitimate and becomes ‘undue,’ so as to invalidate the will, only when it is extended to such a degree as to override the discretion and destroy the free agency of the testator.”

Another sub-head asserts that “Frank was under the control of Asa,” and this will be hereafter'discussed.

There is no direct evidence that Frank Garrett was acting under duress at the time of the execution of the will. As long ago as 1887, in McCulloch v. Campbell, 49 Ark. 367, 5 S. W. 590, this court said:

“As we understand the rule, the fraud or undue influence, which is required to avoid a will, must be directly connected with its execution. The influence which the law condemns is not the legitimate influence which springs from natural affection, but the malign influence which results from fear, coercion or any other cause that deprives the testator of his free agency in the disposition of Ms property. And the influence must he specially directed toward the object of procuring a will in favor of particular parties. It is not sufficient that the testator was influenced by the beneficiaries in the ordinary affairs of life, or that he was surrounded by them and in confidential relations with them at the time of its execution. ’ ’

See also Rosenbaum v. Cahn, 234 Ark. 290, 351 S. W. 2d 857, and Langford v. Gates, supra.

Appellants’ strongest arguments are based on their allegations and evidence offered to the effect that Frank Garrett was mentally deficient to the extent that he did not possess testamentary capacity. Appellants strongly argue this contention, and evidence was offered to the effect that Frank had been considered dull, even in school days, probably not finishing the first or second reader; that he was rather quiet and timid, and rarely joined with the other children in the games that would be played. Testimony was introduced by appellants to the effect that Frank would not clean up, but constantly wore the same dirty clothes, “smelled bad,” liked to take a bath in the creek, spent very little for groceries, stating that a $20.00 bill “had to do him a long, long time,” was not interested in modern conveniences, and appeared to think more of his crops than his oil wells. Others testified that Frank would say that he had no money, and as authority for this statement would quote his brother, Asa, as saying, “The government got all their money,” and indicate otherwise that his opinions were formed by what Asa had to say. Oil field workers, who would see Frank off and on over several years, emphasized that he was uncommunicative, and had little to say, except to comment about crops or the weather. There was testimony that Frank would eat cheese and crackers for lunch, and a neighbor testified that one day he saw Frank hide some peanuts behind a fence “because he didn’t want Asa to know about the peanuts, he would take them away from him.” Evidence was offered that Frank lived in filth, rarely shaved, and had frequently stated that he would rather have a water well than an oil well. Frank was apparently more interested in agriculture than in oil, and this seemed strange to some of the witnesses.

The Chancellor commented on some of the testimony as follows:

“ * * * One witness, Lee Roy Hollier, who now lives at Norphlet, Arkansas, where he has lived since the latter part of 1951, testified that he formerly lived in Columbia County where he was an oil gauger; that he first met A. C. Garrett in 1939; he met Frank Garrett shortly after he met A. C. Garrett; that every time he saw Frank, with one exception, he was dirty; he never had any business transactions with him, that all of his dealings were with A. C. Garrett; that Frank seemed to be more interested in growing peas and farming than in oil wells; he saw Frank cutting trees; he never heard Frank talk about current events and in his opinion he did not believe Frank even knew, during the years 1942 and 1943 and 1944, that we were involved in AVorld War .Two and in his opinion he did not possess the mental capacity of a child of more than nine or ten years of age. He further testified that he never saAv Frank Garrett reading; also, on cross examination, he said he never read anything himself in front of Frank Garrett. Later the same day the Respondents called another oil field worker as a witness, Mr. Hartley, aaTlo testified that during the War Frank Garrett came by where he Avas working’ and during the conversation asked him if he had heard any war neAvs. Another of Respondents’ witnesses, C. B. Simmons, an oil field Avorker, testified that Frank discussed with him food rationing during the war. In the light of this evidence from Respondents’ own Avitnesses, the Court is of the opinion that Mr. Hollier’s statement as to Frank Garrett’s capacity or incapacity is not of much value.
‘ ‘ The Court certainly is not impugning the motive or credibility of people Avho testified for the Respondents, regarding the mental capacity of Frank Garrett, but at the same time the Court cannot overlook the fact that most of their opinions are based upon a few casual and brief conversations without any business dealings or transactions with Frank Garrett. One witness offered by Respondents who testified that in his opinion Frank Garrett was not capable of doing business was Mr. N. W. White but according to his testimony, he tried to sell Frank Garrett a car on one occasion while he was in the automobile business and also testified that he tried to buy royalty from him and further stated that if Frank had agreed to buy a car, he would have sold it to him and that if he had a title opinion from an attorney, he would have bought royalty from him. This Court has known Mr. . White for a long number of years and knows him to be a very high type man and, being committed to the belief that Mr. White would not take advantage of an incompetent person, I do not see how he could have concluded that Frank Garrett was not capable of transacting business when Mr. White testified that he undertook to do business with him. * * #
“ * ® * Another witness offered by Respondents for the purpose of showing mental incapacity, a Mr. Beard,' testified that in a conversation with Frank Garrett concerning damage which salt water was doing to his timber, Frank Garrett told him the number of board feet in trees which had been damaged by salt water. Harry Baker, another of Respondents’ witnesses, who is 67 years of age, testified he was born within three quarters of a mile of the Garrett place and lived there until 1918; that he has known the Garretts since he was six years old; that his family and the Garrett family visited with each other; that he ginned cotton at the Garrett’s Gin; that even though Frank Garrett was some fifteen years older than Mr. Baker, he testified they hunted together; that Frank was a good hunter; he knew the woods and he knew the Garrett land, knew when he was on their land or not on their land while in the woods hunting and that in his opinion Frank was not competent to execute a "Will or transact business. After considering testimony of this type, the Court cannot help but feel that when Respondents own witnesses testified Frank Garrett knew his land, knew that Salt Water was damaging his timber and knew how to even estimate the number of board feet in the damaged trees, certainly this is not descriptive of one who is mentally incompetent. * * *
“Wilbur and Minnie Ford, his wife, were offered as witnesses for the Respondents to show the incompetency of Frank Garrett. Mr. Ford is a former oil field worker who moved from Columbia County in 1941 and did not return until 1956 when he and his wife, while in Columbia County and driving in the vicinity of near the Garrett place, came upon Mr. Frank on the side of the road. Both Mr. and Mrs. Ford testified that Frank Garrett, without any forewarning or any prompting, recognized Mr. Ford and called him by name although he had not seen either of them for approximately fifteen years. * '* *
“Numerous witnesses also testified for the Proponent to rebut the testimony offered by the Respondents and likewise many of their witnesses were neighbors and people who were closely associated with Frank Garrett, who had worked with him and who had actually transacted business with him. Ned Baker, age eighty, was a school mate and lifelong acquaintance of Frank Garrett. He testified that he went to school with Frank and to Church singings and did the same sort of work. that Frank Garrett did and actually worked with him and had numerous conversations with him and he also testified that Frank Garrett got along in school as well as the average; that he was a good farmer and would exchange ideas with him about how to do farm work * * *
“ # * * Roy Couch, seventy years of age, testified hé had known Frank Garrett most all of his life, * * * that Frank could estimate the depth of an oil well by the number of drilling pipe that was stocked in the derrick. Mr. V. S. Parham, a witness for the Proponent and a resident of Magnolia, testified he has known the Garretts since' about 1921 or 1922 and has been engaged in the oil business since 1935; prior to that time he was in the feed and grocery business and that he has sold groceries to Frank Garrett; that Frank always knew what he wanted, made his purchases and resisted any attempt to be sold items which he did not want. This witness further testified that in November, 1937, he purchased from Levi Garrett, Frank Garrett and A. O. Garrett a mineral interest in lands owned by them; that during tbe course of this transaction, on several occasions, he talked with Frank Garrett alone about the proposed purchase, talked with Frank also in the presence of Levi and A. C. Garrett; that originally offered but finally agreed upon a price which was the highest price paid for royalty in that area; * * #
“Corbin Yelvington, formerly an employee of the Land Department of Lion Oil Company, testified he had known Frank Garrett most all of his life; that in 1928 he bought timber from Levi Garrett, the trees he bought were marked and Frank Garrett alone accompanied this witness and showed him the trees to be cut; * * *’’

The above constitutes only excerpts from a lengthy opinion, but it is apparent that the testimony was much in conflict; it is also evident that some of appellant’s own witnesses contradicted themselves at times.

It is, of course, pertinent to mention the degree of mental capacity required in executing a will. Let it first be stated that one does not have to be a genius, a college graduate, a high school graduate, or even have attended gradé school, to make a will. While a male minor, generally speaking, is unable to enter into binding contracts (he must first attain the age of 21 years), the law does not require that one be an adult before being capable of executing a will. This may be done when a minor reaches the age of 18.

In Volume 1, Page on Wills, Section 12.20, we find two cases cited on this question as follows:

“The making of a will does not require so high a degree of mental capacity as does the making of deeds or contracts. Making a will is not a matching of wits. It is giving, not bargaining. Huffnagle v. Pauley (Mo.) 219 S. W. 373.
“Where the Court gave a correct statement of what testamentary capacity was, in law, it was held not to be error to add that it required less mental powers to make a will than it did to make a contract. Gable v. Rouch, 50 S. C. 95, 27 S. E. 555.”

Again, in Section 12.37 of the same volume, we find a discussion of “eccentricity,” as follows:

“To distinguish eccentricity from insanity is easy in theory and difficult in practice. Eccentricity is deviation from the methods of conduct and behavior usual to the great mass of mankind similarly situated. Every person has slight peculiarities of his own, which may never cause-any suspicion of his testámentary capacity. It is only when they become pronounced by contrast with those about him that they become known as eccentricities, and are invoked to discredit his testamentary capacity. Eccentricity has no effect on testamentary capacity; and the wills of persons who are highly eccentric, and in some cases eccentric to the verge of insanity, have been upheld. This is especially true where eccentricity is due, not to any form of mental derangement, but to vanity, selfishness and the like. A testator may avoid the society of others and yet be sane enough to make a will.
“The fact that the testator was filthy, forgetful and eccentric, or that he was miserly and filthy, or that he was blasphemous, filthy, believed in witchcraft, and had dogs cat at the same table with him or that he was filthy, frequently refused to eat, and would lie in bed with his clothes on for two weeks at a time, or that he would leave his home only at night, and would count or recount his money, or that he was high tempered and violent, or was irritable and profane, or that testator thought that others were plotting against him and was afraid to go out in the dark, or that he was inattentive when spoken to and mumbled when trying to talk, does not establish lack of capacity.”

It is true that Frank Garrett may not have always acted in a manner consistent with what the average person considers “normal,” but the acts mentioned by appellants, we think, at most, only establish that Garrett was “peculiar,” and it might be added that, frequently, wealthy persons act as though extremely poor, and there are, of course, numerous instances where eccentric persons have lived in abject poverty, though thousands of dollars would be found on the premises. Our own court, in the case of St. Joseph’s Convent v. Garner, 66 Ark. 623, 53 S. W. 298, said:

“Over the objections of the plaintiff, Jacob Hufsteder, J. A. Luttrell and D. W. Reynolds, who did not attest the will, were allowed to testify as to the mental capacity of Ellen McKenzie. Hufsteder testified that her mind was weak and that he did not think that she understood what a contract is. Luttrell did not think that she was very bright, or that she was capable of making- wills or contracts, and testified that her teacher said that she could not learn anything-; and Reynolds said she did not have a brig'ht intellect like other children.
“The effort to impeach the testamentary capacity of Ellen McKenzie was indeed feeble. * * * The substance of it was, she was ‘weak-minded,’ ‘not bright,’ not as intelligent as other girls. * * * The fact that her mind was weak, not ‘bright,’ or that she was not as intelligent as the average girl, does not show that she did not have sufficient testamentary capacity to execute the will in question. ’ ’

Let us look at some of the other circumstances adduced by the evidence as a matter of determining if Frank Garrett possessed testamentary capacity. The record reflects that some seventy legal documents, about half of which had been recorded, were introduced into evidence, all of these documents admittedly being signed by Frank Garrett. These instruments consist of bills of sale, deeds, releases, Division Order contracts with oil companies, •Income Tax returns, checks (including checks in payment of Federal and State Income Tax), and, numerous other instruments, all signed over a period of years. During this time, not once has anyone questioned Frank Garrett’s competency to execute these instruments until the present litigation. Not one single medical witness testified that Frank Garrett was incompetent. To the contrary, the only medical witness who appeared, Dr. Joe Rushton, a respected physician of Magnolia, stated that, in his opinion, based on several conversations with Frank, the testator was competent, and it is interesting to note that the will in question was executed only twelve days after Dr. Bushton’s last conversation with Frank Garrett.

Of course, there was a close connection between the testator and the beneficiary, and it may well be that Frank, in some business matters, depended quite a bit upon the judgment of his brother, Asa. But this fact does not establish mental incompetency — or undue influence. In Dunklin v. Black, 224 Ark. 528, 275 S. W. 2d 447, we said:

‘ ‘ * * * It definitely appears that Hattie Boone was also the dominating personality — in business affairs; that her decisions were generally the ones accepted in matters relating to business.”

After stating that this is not unusual, the court went on to say that likely

“In every family,'one person’s business judgment is looked upon by members of the family as being more reliable, either because of business ability, or because of business experience, and that particular one’s opinion is generally given more weight in matters that arise for a decision. ’ ’

This is certainly not a case where an unnatural will was made. Under all the facts, it is clearly established that Frank felt closer to his brother, Asa, than to anyone else. He had been constantly associated with his brother during his entire adult life. Actually, human nature being what it is, a stronger case for incompeteney might well be made if Frank had named appellants (his sister and nephew) beneficiaries in the will. Lillie Garrett Yin-ton, the sister, had resided in St. Louis, Missouri, for the past forty years, and there is no evidence that, during all of this time, she either visited or communicated with Frank Garrett. Otis Harwell, the .nephew, had lived in Texas for the past forty-years, and did not remember ever having talked to Frank Garrett. Though he had visited in this state six or seven times, and had seen other relatives, apparently no effort was made to visit with Uncle Frank. These facts are sufficient, within themselves, to suggest why neither appellant was made a beneficiary, but there is even a more cogent reason why Frank might well have ignored these relatives. When Levi Garrett, father of Asa, Frank, Lillie, and Harwell’s mother, died, he devised and bequeathed substantially all of his property to the two boys, Asa and'Frank, leaving appellant Lillie Vinton and appellant Otis Harwell $1.00 each. These same two appellants (in the present case) contested the will of Levi Garrett, alleging in their complaint that for a long time Levi Garrett “had been under the undue influence of said Asa O. Garrett and Frank Garrett and each of them, and said Levi Garrett by reason of said undue influence did not make said instrument of his own free will in the disposition of his property, but made it, controlled by and under the influence of said Asa O. Garrett and Frank Garrett and each of them; the deceased resided with his son, Frank Garrett, and said son and Asa Garrett, another son of the deceased, looked after and had the personal care and attention of their father for a long time prior to and up to the time of his death. * * * said sons had influenced and dominated their, father as aforesaid in the execution of said instrument purporting to be his last will and testament. During the last illness of the deceased he was grossly neglected by his said sons in that they did not provide him with the necessary nourishing foods to sustain his life, or with medicines, nursing care or the adequate service of a physician as was plainly indicated by his age, feebleness and illness, and absolutely necessary for the preservation of his life, but on the contrary permitted and caused him to die for the want of such attention, and which under the facts and circumstances amounted to criminal neglect.”

Frank and Asa Garrett prevailed in this lawsuit, but harmonious family relationships' are not preserved through litigation. Certainly, Frank Garrett would have been a most unusual • person, if he had devised or bequeathed any property to appellants, who not only had accused him of exercising undue influence upon his father, but had further alleged that he and his brother had so neglected Levi Garrett that they were guilty of “criminal neglect,” and had caused the father “to die for the want of such attention.”

The inconsistency of appellants’ allegations is quite noticeable. In contesting Levi Garrett’s will, they asserted that Frank Garrett exercised undue influence over, and dominated, his father; yet, in the present complaint, they assert that Frank did not even have testamentary capacity. To say the least, it is out of the ordinary for a man characterized more or less as a simpleton (in the present litigation) to dominate a normal individual (as alleged in the first litigation).

There is certainly nothing unusual or abnormal about the will. This is not a case where a total stranger — -or an acquaintance of a short period — inherits the property. This is not a case where those who have been close to the testator, and who might have reasonably expected to be included in a will, are left with nothing. To the contrary, the man with whom Frank Garrett had been most closely associated throughout his life — Ms brother, to whom, according to all witnesses, he was quite devoted — was named the beneficiary.

We are unable to say that the Chancellor’s findings were against the preponderance of the testimony.

Affirmed.

Eobinson, Johnson and Holt, J. J., dissent.

Jim Johnson, Associate Justice,

(dissenting). I do not agree with the majority view. The following having been prepared for the majority was after prolonged discussion rejected and now appear as my dissent.

This is a will contest. The testator, Frank Garrett, executed a will on January 21, 1950, leaving his entire, estate to his brother, A. C. Garrett. The contestants (appellants) are a sister, Lillie Garrett Vinton, and a nephew (son of a deceased sister), Otis Harwell, decedent’s remaining heirs at law. Decedent died on February 27, 1962, and on March 29, 1962, appellee A. C. Garrett petitioned the Columbia Probate Court for admission of the will to probate. Thereafter appellants filed their contest. [Ark. Stat. Ann. § 62-2113 (Sup. 1963) ] After a lengthy trial the court dismissed the contest and admitted the will to probate. From this order' appellants have prosecuted this appeal.

Appellants contend that the testator lacked testamentary capacity in that he was not capable of knowing the nature and extent of his property.

This court has defined testamentary capacity as follows:

“We have often defined mental capacity such as must be possessed by a testator in order for him to make a valid will. The rule has been generally expressed that sound mind and disposing memory, constituting testamentary capacity, is (a) the ability' on the part of the testator to retain in memory without prompting the extent and condition of propei'ty to be disposed of; (b) to comprehend to whom he is giving it; and (c) to realize the deserts and relations to him of those whom he excludes from his will. Taylor v. McClintock, 87 Ark. 243, 112 S. W. 405; [and other cases cited]. ’ ’ Shippen v. Shippen, 213 Ark. 517, 211 S. W. 2d 433 [emphasis ours].

We are here dealing with the first part of this three-fold test.

Frank, Asa (A. C.) and Lillie were the three surviving children of Levi Garrett, who died in 1946 leaving a will devising his estate to A. C. and Frank. These appellants contested that will, unsuccessfully, alleging undue influence. After extensive litigation that contest was settled by payment of $4,000 to appellants when it was conceded that an apparently valid 1931 will made generally the same provisions as the later contested will. Lillie has lived in St. Louis for some forty years and Otis in Texas, with little contact with Levi, Frank or A. C.

Levi was a successful farmer and a shrewd businessman, as is his younger son Asa. Asa bought farm land from his father and others as a young man and through hard work prospered. Sometime in the 1930’s oil was discovered on Levi and Asa’s property, the well known Magnolia oil field. Frank’s vast estate includes real property, enormous bahk accounts and substantial oil income from property obtained and inherited from his father.

The briefs contain the abstract of testimony of sixty-three witnesses and eleven depositions; the record is voluminous. Testimony of neighbors, school mates, oil company employees who worked on the Garrett wells and townspeople is included.

The most favorable testimony in support of Frank’s testamentary capacity (other than A. C.’s) was that of A. C.’s doctor, a general practitioner and a well respected man. He had occasion to see Frank five times, which was at A. C.’s home in 1949 when the doctor made professional calls on A. C.’s wife while she was dying of chronic nephritis, resultant pelagra and suffering from a psychosis common to Bright’s disease. The doctor apparently visited or chatted with Frank during four of these visits, and testified that as a result of these chats he considered Frank capable of understanding the nature and extent of his property. He also testified that his talks with Frank were about crops, cotton ginning the way it used to be done, the saw mill, all of which “reminded me [the doctor] of old times. The old timer talked like my dad used to, about your having to get up when you were h kid early in the morning and go outside in the field and run the cows out. ’ ’ Frank was never a patient of the doctor’s and apparently the only contact the witness had with Frank was the casual conversations which occurred during the doctor’s treatment of Frank’s sister-in-law who at the time was at the point of death.

The bulk of the testimony in the record related to Frank’s later years, hardly surprising considering that he died in 1962 at eighty-three. However, there was testimony of at least five witnesses who had gone to school with Frank at the' ungraded Mount Nebo school. All of these witnesses were a few years younger than Frank, but the gist of the testimony is that when he did go to school, he was quiet, didn’t join the other children in games or talking, when he tried to read the teacher had to supply many or most of the ’words, that he probably didn’t finish the first or second' reader, that the other children made fun of him and considered him dull or stupid.

After growing up, Asa, six years Frank’s junior, bought land and farmed successfully, married and raised a family; Frank continued to live with his parents and did so until their deaths. His father went into partnership with Asa in a cotton gin and Frank worked there as a helper, as well as at the Garrett saw mill. There is testimony that as a young man,. Frank was quiet, and that when he ventured to say something in a conversation, his father would say with a smile, “Frank, I don’t know whether you know or not,” which would end his attempt. Years later when Frank was talking to a live stock man about pigs, A. C. told the man, “Don’t pay any attention to him, he is always talking about damned old pigs and he hasn’t got any use for them.”

Most of the testimony dealt with the period following discovery of oil on the Garrett property in the 1930’s. A number of the men who worked in the oil field testified. The trial court referred to them as “transients”. While it is true they were subject to transfer by the oil companies, we note that these workers saw and knew Frank over a period of, at a minimum, several years, and some for twenty or thirty years. These men saw Frank almost-daily since this field occupied in part the Levi Garrett farm. Frank is pictured as being as uncommunicative and inattentive as a child. Frank spent much of his time walking in the woods. When he came to the field, the men would speak to him and he would have little to say except to comment on the weather or his crop of peas. In response to their remarks relative to his wealth, he would say, “No, he didn’t have anything because the government took everything for taxes, bud (Asa) said so,” or “No, he didn’t have any money because the wells were turning to salt water, Bud said so,” or (according to one witness), “No, he didn’t have any money because it took everything to settle with Sister, Bud said so.” Frank’s attention span was so short he would then wander off back into the woods like a child. One man who lived next door to Frank for four years testified that Frank would bring him a quarter and ask Mm to buy “beefsteak, cheese and crackers” for Frank’s dinner. (Frank was then about sixty.) The man would buy all he could for the quarter and take it to Frank. This occurred a number of times, as was also testified to by the man’s wife. There was quite a bit of testimony that Frank desperately wanted a water well and a “Sunday car.” The “quarter” neighbor and his wife testified that some thirteen years after they moved from Columbia County they returned for a visit and happened to see Frank. Frank recognized his former close neighbor of many years and called him by name. When the man asked Frank what he was doing at that particular place (on the side of a new highway), Frank told him, “He come over there . . . every Thursday, and the man on the highway promised him a new automobile and he never had brought it, and he went over there every Thursday to see if he brought his new automobile.”

Another neighbor testifed about giving Frank a ride to town one day. He also picked him up on the way back and when the neighbor stopped to do a little business, Frank went to someone who was selling apples. Frank was told that the apples were five cents each or three for a dime. Frank gave him ten cents and took two apples, one for himself and one for the neighbor. When the neighbor kidded Frank about shortchanging himself, he called the neighbor a liar. Another neighbor testified that one day he gave Frank a ride and when he got near Frank’s home, Frank got out and hid peanuts under some leaves beMnd a fence, “because he didn’t want Asa to know about the peanuts, he would take them away from him.” Another man testified that one day in the woods he saw Frank hide something in a tree, and after Frank was out of sight, investigated and found peanuts in the crotch of the tree.

Almost all of the witnesses commented on Frank’s filth and aroma, especially after Levi’s death in 1946. (Levi had had a woman who cooked and washed for them.) Frank apparently never changed clothes, never washed them, and wore them until they wore out. One witness testified that Frank’s brother had said that Frank smelled so bad he and his son couldn’t eat when Frank was in the house; and another time, that they tried to get Frank to put on clean clothes, but had been unable to make him do so. Most of the witnesses agreed that Frank was odorous within conversation distance.

Several of the oil field witnesses testified that Frank told them he looked forward to warm weather so he could wash in the creek. A number of them testified that he said a number of times he would rather have a water well than the oil wells so he could water his garden and grow water “millions” (melons), which he loved.

. He lived in penury, extreme poverty. Filth was his constant companion. The simplest conveniences were denied him — running water, electricity, even gas, although he lived adjacent to an oil field. When he gave the neighbor the quarter to buy groceries, he would say that he didn’t need much. Another testified that Asa complained that he couldn’t get Frank to eat enough, that Frank wanted to save the food. A grocer testified that when Frank came in for his loaves of bread (apparently Frank’s primary food), cheese and peppermint sticks, if Frank had a bill (usually a $5, once a $20), Frank would say 1 hat had to do him a long time. When he gave her (the grocer) the $20 bill, Frank said Asa said the government got all their money so this twenty had to do him a long, long time. A passerby called a doctor to see Frank in 1956 after Frank was found collapsed by the roadside. This doctor testified in part as follows:

“I found him to have bronchial pneumonia. Someone else was there at the time, but I do not remember who they were. I know Mr. A. C. Garrett, either he or some of his sons were there. I don’t remember. Frank had a rattle in his chest and he was spitting up blood and I advised that he be sent to the City Hospital at once. I gave him a shot of penicillin and he said he didn’t like the hospital and didn’t want to go because it cost too much. Frank said that. The blankets on the bed were very filthy. There was bread in the window with syrup on it and the house was very untidy and unclean.' Frank hadn’t shaved and hadn’t had a hair cut in a long time and he had the appearance of not being clean. ’ ’

Yet there is in evidence Frank’s 1956 federal income tax return showing a taxable income for that year (after deductions) of $41,144.24.

Frank’s brother in a so-called exploratory deposition testified that Frank was quite capable of carrying on his own business, and did so regularly. However, examination of employees of various banks that housed Frank’s and Asa’s joint accounts revealed that few of them had ever seen Frank in a bank although Asa was a familiar sight, making deposits to the various accounts. It is established that Asa would deposit Frank’s oil income checks and hold out a little cash for Frank. Courthouse employees testified that they never saw Frank and that Asa took care of all assessment and other tax matters. An accountant testified that he had prepared Frank’s income tax returns for the year 1951 on, but he had never seen Frank-and had been hired and paid by Asa. A respected attorney testified that he had handled litigation for many years for the Garretts but he had never seen Frank in his office until shortly after settlement of Levi’s estate. Frank came in with Asa, and Asa told the attorney Frank wanted a will. "When the attorney asked Frank who he wanted to will his property to, Frank said, “I want to leave it to me.” The attorney explained that he (Frank) couldn’t receive his own property after his own death. The attorney testified that:

“I then asked him again, what do you want to do with your property. I don’t remember the exact words of any of the rest of the conversation, but I do remember that he said he wanted to leave something to (and he gave a feminine name). I don’t recall what the name was. He said I want to leave something to this girl and I want to leave something to brother A. C. Mr. A. C. Garrett, who was seated by'my desk, then got up and said, I am sorry but we have to go. I don’t remember the exact words, but I do know he said, we will have to go and we will come back later. They got up and walked out and to my knowledge, neither of them ever came back into our law firm again, prior to the death of Mr. Frank. ’ ’

Some months later Frank executed a will at the local bank which the bank president had had a local attorney draw at the bank’s expense. This attorney had not seen Frank, but simply drew the will on directions related to him by the bank president (who had done business with Asa for years and who had on deposit — at no interest — much of the money involved in this litigation). After the will -was executed, it was immediately placed in Asa’s lockbox in the same bank.

There are a number of instruments- — deeds, releases, agreements, etc. — of record to which Frank was a party. One notary public testified that she had seen Frank sign a particular instrument some years earlier, and then on recall testified that after reflection she' remembered that Asa had carried the instrument out of her presence to get Frank’s signature on it. There seems to be no dispute that Frank could write, or at least sign his name, but other than the will, only one or two witnesses testified that they had actually seen him sign his name, and that only because they had notarized his signature.

Asa was present during the entire trial and heard all of the myriad testimony showing the obvious lack of testamentary capacity of his brother, and chose not to take the stand to deny or refute the testimony of any of the witnesses or to subject himself to cross-examination. We have only his “exploratory” deposition which in part describes events immediately prior to Frank’s death:

“He never grunted in his life. He wasn’t sick at all before he died. He was up over there the day before he died. Ray [Asa’s son] went over there and lit the heater and the stove in there and got his breakfast on and he was in the kitchen there and he tended to it and finished it up and ate whatever he got ready. The next morning they found him dead. He wasn’t sick. Ray went over there and found him. Ray told me about it, he came back over there and told me. He lived over there by us where we could kinder look after him.”

Appellants properly offered the testimony of the undertaker as follows:

“It was stated that [he] would testify that he was called to get Mr. Frank Garrett’s body after his death, that he found him in the little house across the road from A. G. Garrett, that it was a real cold day when he went out .there and rigor mortis had completely set in; that the skin on Frank Garrett’s leg had rotted off to the bone, that three of his toes had no skin on them, and his instep bone was without skin on the top of it; that he had been excreting in his clothes for some days; that he had three pair of clothes on that were so filthy that he could not unbutton them and take them off, and they were so stiff with the filth that he had to cut them off with a knife; that it took three knives to cut them all off; that it was the only body that was so stinking that they couldn’t take care of it in the undertaking parlor and had to carry it out to the garage; that the body was so deteriorated that they were unable to obtain any circulation to embalm it and therefore, requested permission to seal the casket and such permission was granted by Mr. A. C. Garrett’s family. He will testify that the body was filthy and when he attempted to wash the body, when he touched the skin it would fall off and they were unable to clean it up. He will also testify that during his entire years in the undertaking business, which is more than fifteen years, he had never seen a body in such terrible condition even though, he had handled some bodies found three days after death, where maggots had set in, and once where a body had been submerged for a couple of days in water.”

On the whole case it is inescapable that Asa had allowed his mentally weak brother very small amounts to live upon, advising him that his sister had taken it, that the government was getting it, or that the wells were going to salt water, resulting in Frank’s firm fixation that they were practically at starvation’s door. All in all, this case presents in essence a portrait of a person of limited capabilities, looked after by his family, assigned simple jobs at the gin, the saw mill or on the farm which he was capable of doing and did do; a person of very limited intellectual scope who was completely unable to translate oil wells into a water well. That is to say Frank did not, and I think could not, visualize the oil wells (that he apparently so disliked for mining the farm) as an income-producing means of obtaining the two things that were his heart’s desire, a water well and a car.

The question here is not whether Frank Garrett would have willed his property as is provided in the instrument here involved, but rather whether he was competent to make a will. On trial de novo on the record before us, it is my view that the testator not only did not know the extent of his property but that he was incapable of so knowing, which is one of the essentials of testamentary capacity. For the lack of testamentary capacity, the decree of the court admitting the purported will to probate should be reversed.

For the reasons stated, I respectfully dissent. I am authorized to say that Justices Robinson and Holt join me in this dissent.

       Originally, the complaint also alleged that the signature of Frank Garrett was a forgery, and this issue was included in the trial below, but the allegation has been abandoned on appeal.

       Harwell is the son of a deceased daughter, Alice.

       Gantt died before the will was offered for probate. Gantt’s signature was established by the testimony of Wilson, T. A. Monroe, a vice-president of the bank, Mrs. John Dexter, former wife of Gantt, and W. C. Blewster, President of the First National Bank of Magnolia.

       Here, appellants.


author: Ed. F. McFaddin, Associate Justice.

text:
    Oliver v. Jones
    5-3606
    393 S. W. 2d 248
    Opinion Delivered May 31, 1965.
    [Rehearing denied September 20,1965.]

      H. Paul Jackson, for appellant.

      Lewis E. Epley, Jr., for appellee.
   Ed. F. McFaddin, Associate Justice.

This lawsuit stems from a traffic mishap caused by cattle being on the public highway. Appellee Jones was driving his car on State Highway No. 23 in Carroll County and suddenly came upon some cattle on the highway. Jones’ car struck or was struck, by a yearling, and the collision resulted in the death of the yearling and damage to the car. Jones filed action against appellant Oliver, as the owner of the yearling, seeking to recover the damages to the car. Oliver denied ownership of the yearling and all liability for damages. Trial to a jury resulted in a verdict and judgment in favor of Jones for $450.00 and on this appeal Oliver urges the two points which we now discuss.

I. The Insurance Matter. When plaintiff Jones was testifying, the following occurred:

“Q. Did you talk to Lynn Oliver about this after the accident?
“A. A few days after.
“0. What did he tell you?
“A. Well, he said that he went out and counted his cattle and he had none missing and I asked him if he had insurance on the cattle and he said he did, but he didn’t tell me who had it insured.
“MR. JACKSON: I am going to object to any statements about insurance.
“THE COURT: I will sustain objection about insurance. The jury will disregard it.
“MR. JACKSON: T am going to move the Court at this time for a mistrial because of the fact of the mention of liability insurance or the suspicion of any liability insurance and I ask the Court to declare a mistrial.
“THE COURT: Grentlemen of the Jury, I will sustain the objection in regard to it. I will ask you to disregard it. I will ask you further if there is any question about completely disregarding the question of insurance? It’s immaterial whether there is, or there isn’t and it has no bearing whatsoever in this case. Since I have withdrawn it from your consideration, I will ask you individually if you can accept tire ruling of the Court, or would you have a reservation in your mind that would influence your verdict in the case? Mr. Newman, can you completely disregard the statement here and the answer given and follow the instruction of the Court?
“MR. NEWMAN: (A Juror) Yes, sir.”

The Court then interrogated each juror individually and received a reply that each could and would disregard all reference to insurance.

The appellant insists that the ‘ ‘ court erred in failing to declare a mistrial when John T. Jones, appellee, while testifying, said that the defendant-appellant had disclosed to him that he had liability insurance.” As we see the record, there was no mention of the word “liability.” So far as the record here shows it merely meant that Mr. Oliver had insurance on the life of his cattle. But, regardless of that distinction, we hold that the prompt action of the Trial Court eliminated any prejudice that might have occurred because of the mention of the word “insurance.” Malco v. McLain, 196 Ark. 188, 177 S. W. 2d 455; Beatty v. Pilcher, 218 Ark. 152, 235 S. W. 2d 40; and Ragon v. Day, 228 Ark. 215, 306 S. W. 2d 687. We find no merit in appellant’s claim. '

II. Defendant’s Motion For Instructed Verdict. At the close of the entire case defendant Oliver moved that a verdict be directed in his favor; and the ruling of the Court in denying the motion for an instructed verdict is the point now urged. This point has given us considerable concern. Section 1 of Initiated Act No. 1 of 1950 (as found on page 1013 of the printed Acts of 1951) reads: “After the passage of this Act it shall be unlawful for owners of cattle, horses, mules, hogs, sheep, or goats to allow them to run at large along or on any public highway in the State of Arkansas.” The plaintiff’s theory was that the defendant had allowed his stock to run at large on the highway and that such violation of the statute was evidence of negligence. To make a jury question of defendant’s liability in this case the burden was on the plaintiff to offer substantial evidence (a) that the yearling was the property of Oliver; and (b) that Oliver was guilty of negligence in allowing his yearling to be on the highway. Briscoe v. Alfrey, 61 Ark. 196, 32 S. W. 505, L.R.A. 607; Fraser v. Hawkins, 137 Ark. 214, 208 S. W. 296; Fields v. Viraldo, 141 Ark. 32, 216 S. W. 8; Pool v. Clark, 207 Ark. 635, 182 S. W. 2d 217; and Favre v. Medlock, 212 Ark. 911, 208 S. W. 2d 439. See also the. Opinion by Judge Lemley in Poole v. Gillison, 15 Fed. Rules Dec. 194.

As to the ownership of the yearling the evidence showed: (a) that some of the cattle on the highway belonged to defendant Oliver; (b) that after the mishap some neighbors drove all the cattle (except the dead yearling) to a nearby enclosure; (c) that next morning one of Oliver’s cows went back to the scene of the mishap (which testimony was designed to show that the cow was looking for her yearling); (d) that Oliver did not mark or brand his cattle and that the dead yearling-had no mark or brand; and (e) that shortly after the mishap Oliver inquired concerning the amount of the damages to Jones’ car and remarked at the time, “It looks like I am stuck with the bill.’.’ Oliver and his witnesses denied that the yearling belonged to Oliver; but we hold that all of the five items of evidence above listed when added together were sufficient to take the case to a jury on the ownership of the yearling by Oliver.

As to Oliver’s negligence in allowing the yearling to be on the highway, we find abundant testimony to take the. case to the jury. Sheriff Dwan Treat testified that there had been a continuous complaint of cattle running at large on Highway No. 23 at the point where these cattle were. One witness testified that he had seen Oliver ’s cattle on the highway; and another witness testified that the cattle had been on the highway, at or near this place, for about five hours before the mishap.

Without further detailing the evidence, we conclude that a case was made for the jury; thus, appellant was not entitled to a directed verdict.

Affirmed.

       A motion for directed verdict was made at the close of the plaintiff’s case and denied by the Court. The defendant then introduced evidence, and such waived the motion made at the close of plaintiff’s case. Grooms v. Neff Harness Co., 79 Ark. 401, 96 S. W. 135; Ft. Smith Cotton Oil Co. v. Swift, 197 Ark. 594, 124 S. W. 2d 1; and Granite Mountain v. Schwarz, 236 Ark. 46, 364 S. W. 2d 306. At the close of entire case appellant again moved for directed verdict, and that brings the ruling before us.

       Appellant’s point reads: “Court erred in overruling appellant’s motion for directed verdict at close of plaintiff’s case and at close of all testimony and jury’s verdict was against weight of testimony and contrary to law all because there was no evidence that the cow that was struck was appellant’s and that if it was that he knowingly allowed it to run at large or negligently allowed it to escape from its enclosure.”

       Act No. 30 of 1901 and Act No. 174 of 1905 relate to livestock in Carroll County, but neither Act is applicable to the facts in this case.


author: Ed. F. MoFaddin, Associate Justice.

text:
    Jackson v. Southland Life Ins. Co.
    5-3607
    393 S. W. 2d 233
    Opinion Delivered May 31, 1965.
    [Rehearing denied September 20,1965.]

      E. L. Holloway, for appellant.

      Gus R. Gamp, for appellee.
   Ed. F. MoFaddin, Associate Justice.

This is an action brought by appellants, Mr., and Mrs. Jackson, against appellee, Southland Life Insurance Company, seeking to collect double indemnity benefits under an insurance policy on the life of their son, Gerald E. Jackson.

The policy was originally issued by Reserve Loan Life Insurance Company of Texas but was reinsured and assumed by Southland Life Insurance Company. The policy insured the life of Gerald E. Jackson for $1000.00 and also for an additional $1000.00 if death should occur through accident, etc. Gerald E. Jackson was drowned on March 12, 1964. The appellee paid the beneficiaries $1000.00 on account of the death of the insured, but denied liability for the additional $1000.00 claimed by them under the said accidental death provision. The appellants filed this action for the double indemnity of $1000.00. The answer specifically pleaded the language of the policy (hereinafter quoted) as a defense. Trial to the Court without a jury resulted in a finding and judgment for the insurance company and this appeal resulted, in which appellants list three points, being:

“1. That the court erred in finding ‘that the deceased was seized with an epileptic attack and as a result of such seizure fell into the ditch and drowned, the court concludes that the death was not the result of an accident within the meaning of the policy, and that the same was excluded under the provision of Clause 5.’
“2. That the court erred in entering a judgment for the defendant.
‘ ‘ 3. That the court erred in not entering a judgment against the defendant for the amount of one thousand dollars, with interest at 6% from date of death of decedent on March 12, 1964, together with a penalty of 12% and a reasonable attorneys fee.”

We will consolidate the three points in this Opinion. The insurance policy here involved stated that the insurance company would pay the beneficiaries the double indemnity upon ‘ ‘ due proof of the death of the insured, as the result, directly and independently of all other causes, of bodily injuries sustained through external violent and accidental means .... provided .... (5) that death shall not have been the result of self destruction, whether sane or insane, or caused or contributed to, directly or indirectly, wholly or partially by disease, or by bodily or mental infirmity; . . . .” The Company specifically pleaded the quoted language as a defense.

The facts involving the death of the insured were stipulated as follows:

“2. That on March 12, 1964, the insured Gerald E. Jackson, son of the plaintiffs, was working on a ditch near his home near Corning, Arkansas, that the said Gerald E. Jackson had been having for several years frequent epileptic seizures; and that it is agreed by and between counsel for the respective parties to this action that from the evidence found at the scene of the death of the deceased that the said Gerald E. Jackson suffered from and was seized with an epileptic attack while the said Gerald E. Jackson was near the edge of the ditch and as a result of such seizure fell into the ditch which was filled with water about four feet deep and drowned; and that the death did occur from drowning.
“3. That there is no evidence which would indicate that the deceased was morbid or that ho had any intention of taking his own 'life. ’ ’
We thus have a case in which the insured suffered an epileptic seizure by reason of which he fell in the water and was drowned. The question presented is whether for such death his beneficiaries are entitled to the double indemnity, since the - insurance company pleaded the exclusionary language that the death was “caused or contributed to, directly or indirectly, wholly or .partially by disease, or by bodily or mental infirmity. ’ ’ When the plaintiffs established that the insured met his death by drowning then the burden shifted to the insurance company to establish that the death by drowning was caused proximately by “disease or by bodily or mental infirmity.”

We have many cases of this Court involving double indemnity policies or accident policies with language similar to that contained in the policy before us. These cases begin with Fidelity & Cas. Co. v. Meyer, 106 Ark. 91, 152 S. W. 995, and continue in an unbroken line to Life & Cas. Co. v. Jones, 230 Ark. 979, 328 S. W. 2d 118. We have repeatedly held that it was a question of fact for the jury as to whether the physical infirmity was the proximate cause of the accident. In Travelers Ins. Co. v. Johnston, 204 Ark. 307, 162 S. W. 2d 480, the insured was suffering from Paget’s disease, and as he attempted to alight from a taxicab he fell and fractured his hip.- He sued on an accident policy which provided that the policy did not cover an accident "caused directly or indirectly, wholly or partly, by bodily or mental infirmity .... or by any other kind of disease.” The insurance company claimed that the injury sustained by the insured was caused by the Paget’s disease. We said the following instructions were as favorable to the insurance company "as it had the right to ask”;

"4. If you find from the evidence in this case that the plaintiff’s physical condition at the time he. was riding in the taxicab contributed or concurred either directly or indirectly, wholly or in part, to his fall, then in such event the plaintiff is not entitled to recover and you must find for the defendant. In other words, if the fall sustained by the plaintiff Avas not the direct and proximate cause of the injury, but that the same resulted in whole or in part from his physical infirmities, to-wit, Paget’s disease, then you are instructed that the plaintiff would not be entitled to recover.
"A. Proximate cause as is used in these instructions means the immediate, efficient cause without which the result could not and Avould not have happened.”

While Travelers Ins. Co. v. Johnston involved Pagent’s disease, the laAV is the same in cases wherein the insured was, as here, suffering from epilepsy. Our search, reveals the following epilepsy cases: Wadsworth v. Canadian Ry. Co., 49 Canada S. Ct. 115, Ann. Cas. 1914C, p. 306; Hughes v. Standard L. Ins. Co. (U.S.D.C.La.), 139 F. Supp. 490, also 140 F Snpp. 577, Affirmed 240 F. 2d 859, Standard L. I. Co. v. Foster (Miss.), 49 S. 2d 391; Metropolitan L. I. Co. v. Jenkins (Fla.), 12 S. 2d 374; Griffin v. Prudential Ins. Co. (Utah), 133 P. 2d 333, 144 A.L.R. 1402; New England Ins. Co. v. Fleming (Calif.), 102 F. 2d 143; Puszkrewicz v. Prudential Ins. Co. (Pa.), 55 A. 2d 431; Bennett v. Metropolitan L. I. Co. (Wash.), 212 P. 2d 790. There is a splendid anotation in 84 A.L.R. 2d entitled, “Pre-existing physical condition as affecting liability under accident policy or accident feature of life policy.” In Am. Jur. 29A, on pages 351 and 353, the general rules are stated in this clear language :'

“The general rule is that the mere fact that the insured is afflicted with some disease or infirmity at the time of an injury will not preclude recovery upon an accident insurance policy if an accident is the direct or proximate cause of death or disability, even though the policy excepts death or injury caused by disease or infirmity ...
“On the other hand, if the insured is afflicted with a disease or infirmity at the time an alleged accident occurs, which disease or infirmity proximately causes or substantially contributes to the death or injury resulting, such death or injury is not within the coverage of a policy which insures against death or bodily injury by accident or accidental means, independently of all other causes, or which excepts death or bodily injury produced by disease or infirmity. ’ ’

It is a question of fact for the jury as to whetlier the pre-existing disease was the proximate cause of the resulting accident. In the case at bar the question was submitted to the Trial Court sitting as a jury, and the Trial Court found that the pre-existing disease was the proximate cause of the drowning of the insured. Such finding of the Trial Court is supported by the stipulated facts, which, as heretofore copied, stated that “G-erald E. Jackson suffered from and was seized with an epileptic attack while .... near the edge of the ditch . . . .and was drowned.” Therefore, the Trial Court, sitting as a jury, had ample evidence to sustain the finding against the plaintiffs.

Affirmed.

       It is stated in the Opinion that the doctors define Paget’s disease as “a chronic degenerative condition of the bones, in which there is an overgrowth of part of the bones and degenerative changes in other parts of the bones, the exact cause of which is not known.”

       In Travelers Ins. Co. v. Johnston we reviewed our earlier cases in detail; and that case has been cited and approved in our subsequent cases: Metropolitan Co. v. Fairchild, 215 Ark. 416, 220 S. W. 2d 803; Duke v. Life & Cas. Co., 218 Ark. 522, 254 S. W. 2d 311; Fidelity Reserve Co. v. English, 226 Ark. 210, 288 S. W. 2d 951; and Life & Cas. Co. v. Jones, 230 Ark. 979, 328 S. W. 2d 118.

       In Malloy’s Medical Dictionary for Lawyers epilepsy is defined as follows: “[Gr. epilepsia, a seizure, stoppage — Aristotle; the falling sickness, epilepsy — Hippocrates]. A chronic disease, known for ages as the sacred disease and the falling sickness. It is characterized by-fits or attacks accompanied by loss of consciousness, and violent convulsive motions or jerking of the muscles. In some cases attacks may not occur more than once a year; others'tell about only two or three attacks in a lifetime. In other cases, however, the patient may have many attacks that follow one another until death occurs from exhaustion. Fits or paroxysms vary in length from five'to twenty minutes.” In Funk & Wagnall’s New Standard Dictionary of the English language epilepsy is defined as "... a chronic nervous disease characterized in its more violent forms (grand mal) by paroxysms recurrent at uncertain intervals, attended by loss of consciousness and sensation, facial distortion, foaming at the mouth, convulsions of the limbs, and difficult stertorous breathing and also followed by sleepiness ...”


author: George Bose Smith, J.-

text:
    Surridge v. State
    5130
    393 S. W. 2d 246
    Opinion Delivered May 31, 1965.
    [Rehearing denied September 20,1965.]

      J ohn F. Gibson, for appellant.

      Bruce Bennett, Attorney General, By: Clyde Calliotte, Asst Atty. General, for appellee.
   George Bose Smith, J.-

James Surridge appeals from a verdict and judgment finding Mm guilty of murder in the first degree and sentencing him to life imprisonment.

The decedent, Norman Dollar, owned a small motel which he occupied as his residence. On the morning of July 9, 1964, Dollar did not leave his room at his usual time. By early afternoon his employees became concerned about him and reported the matter to the McGehee chief of police. Officers broke into Dollar’s room and found his dead body lying upon a bed. He had been shot in the back of the head with a shotgun. The coroner estimated that the crime had been committed in the early morning hours.

In attempting to establish Surridge’s guilt the State offered proof that Surridge had been negotiating with Dollar for the purchase of the motel and had spent the night of July 7 there. It was shown that on the evening of July 8 Surridge borrowed a shotgun for the asserted purpose of killing a deer, although the deer-hunting season was not open. The man who lent Surridge the gun testified that after the murder was discovered Surridge said to him, “I know they are going to question me . . . don’t say nothing about that gun.” Surridge’s fingerprints were proved to have been upon an empty beer bottle that was on a table in Dollar’s room when his body was discovered. Surridge refrained from testifying, as of course he was privileged to do.

Much of the appellant’s brief is. devoted to the contention that the State’s proof was not sufficient to present a prima facie case for submission to the jury. We are of the opinion that the testimony is sufficient to support the verdict. We need not, however, discuss this point in detail, for the insufficiency of the evidence was , not carried forward as an assignment in the motion for a new trial and is therefore not available to the appellant as a-ground for reversal. Decker v. State, 234 Ark. 518, 353 S. W. 2d 168 (1962); Crouch v. Gilbert, 210 Ark. 885, 198 S. W. 2d 72 (1946). The appellant is not entitled to rely upon the statutory rule that an objection alone is sufficient in a capital case, for although charged with a capital offense, he was sentenced to life imprisonment only. Hicks v. State, 225 Ark. 916, 287 S. W. 2d 12 (1956).

The defense offered two witnesses whose testimony tended to establish an alibi, by indicating that the accused was not at Dollar’s motel on the night of his death. Counsel now complain of an instruction by which the court told the jury that they should scrutinize the testimony of the (alibi) witnesses to see if they might or might not be mistaken about dates and times, and, further, that it was proper for the jury to consider the lapse of time since the occurrence happened and whether witnesses were or were not' likely after such a lapse of time to be accurate about the precise time or hour they saw the accused. In Ware v. State, 59 Ark. 379, 27 S. W. 485 (1894), an instruction in all material respects indentical to the one now complained of was approved, in the face of the same objections now being made. Later cases have approved and followed the Ware decision. Thus the present argument is without merit.

Counsel properly preserved an objection to a statement by the witness Gershner, a police officer, that there were at police headquarters specimens of Surridge’s fingerprints in addition to those submitted for comparison in this particular case. We discern no prejudicial error, not only because the witness’s statement was invited by a question put by defense counsel but also because the court promptly admonished the jury not to consider the statement for any purpose. If the witness’s remark was in fact prejudicial we think it was plainly of the type susceptible of being effectively cured by the court’s admonition.

There is no reversible error in the record.

Affirmed.


author: George Rose Smith, J.

text:
    Ark. State Board of Pharmacy v. Gibson Products Co.
    5-3626
    390 S. W. 2d 628
    Opinion Delivered May 31, 1965.

      Warren & Bullion, for appellant.

      Harper, Harper, Young & Durden, for appellee.
   George Rose Smith, J.

Gibson Products Company of Fort Smith, a corporation, applied to the Arkansas State Board of Pharmacy for a permit to operate a pharmacy in the city of Fort Smith. Under the Board’s Regulation 33 the application was made in the name of the appellee Lee R. Whitmer, a registered pharmacist whom Gibson intended to put in charge of its pharmacy if the permit should be granted. The Board denied the application, finding that earlier in the month Whitmer had been suspended for 90 days by the Oklahoma Board of Pharmacy and was therefore not qualified “at this time” to be a supervising pharmacist in Arkansas.

Gibson and Whitmer appealed to the circuit court, which set aside the Board’s order and directed that the permit be issued to Gibson. Under the statute the circuit court tries the case de novo on the record made before the Board. Ark. Stat. Ann. § 72-1029 (Repl. 1957). In similar situations, where the circuit court hears a matter under the procedure ordinarily followed in chancery, we too review the case de novo as in appeals from courts of equity. City of Little Rock v. Newcomb, 219 Ark. 74, 239 S. W. 2d 750 (1951); Alston v. State, 216 Ark. 604, 226 S. W. 2d 988 (1950).

There is no real dispute about the facts. Whitmer was originally licensed as a pharmacist in Arkansas, in 1950. Some years later he practiced pharmacy for a short time in Oklahoma before returning to Arkansas in 1964. Both before the Oklahoma Board and in the present Arkansas proceeding Whitmer candidly admitted that he had violated a federal law in Oklahoma by refilling two prescriptions that should not have been refilled without a physician’s authorization. For this violation of law the Oklahoma Board suspended Whitmer’s license for 90 days and placed him on probation for an additional 90 days. The Arkansas Board did not attempt either to suspend or to revoke Whitmer’s Arkansas license; it merely rejected the Gibson-Whitmer application on the ground that as a result of the Oklahoma disciplinary action Whitmer was not qualified to act as a supervising pharmacist in Arkansas “at this time.” (It should be noted that the Oklahoma suspension and probationary period have long since expired.)

We are of the opinion that the Board, in utilizing its own Regulation 33 in the way that it did, exceeded its statutory authority. The statute contemplates that a person or corporation such as the Gibson company, which is not itself a registered pharmacist, may nevertheless operate a pharmacy upon obtaining a permit from the Board. It is required that the applicant be found by the Board to be qualified to conduct such a pharmacy and that the pharmacy will be under the direct supervision of a registered pharmacist. Ark. Stat. Ann. § & 72-1017.1 and 72-1018.

There is no contention that Gibson is not qualified to operate a pharmacy or that Whitmer is not a registered pharmacist in Arkansas. Thus1 if Gibson itself had applied for a permit for its proposed operation, as the statute contemplates, the Board would have had no basis under the statute for denying the application. In fact, a denial of the application would have been an arbitrary and capricious act, unsupported by the evidence.

By regulation 33 the Board required the application to be made in Whitmer’s name. It then rejected the application upon the nebulous ground that he is not qualified "at this time” to supervise a pharmacy. Thus the Board in practical effect suspended Whitmer’s license without bringing charges against him and without affording him the notice and opportunity to be heard that the statute requires. Ark. Stat. Ann. § 72-1028. Moreover, tile suspension is fatally indefinite, for no one can say what is meant by the finding that Whitmer is not qualified "at this time.” We are firmly convinced that the Board cannot in this fashion deprive a registered pharmacist of his livelihood without bringing any charges against him and without the basic requirements of notice and hearing that are essential to fair play.

On March 29 of this year, before the case was ready for submission, we granted the Board’s motion for a stay of the circuit coilrt’s order until the matter could be decided here on its merits. Now that the merits have been considered there is no further need for the stay order. To the contrary, we direct that an immediate mandate be issued, to prevent Whitmer’s wrongful suspension from being continued during the court’s summer recess. This action is of course without prejudice to the Board’s right to file a petition for rehearing. See Tassin v. Reynolds, 222 Ark. 363, 260 S. W. 2d 462 (1953).

Affirmed.


author: Paul Ward, Associate Justice.

text:
    Speights v. Ark. Savings & Loan Association
    5-3568
    393 S. W. 2d 228
    Opinion Delivered May 31, 1965.
    [Rehearing denied September 20,1965.]

      Hall, Purcell & Boswell, for appellant.

      Spitzberg, Bonner, Mitchell & Hays, Bereford L. Church, Jr., and James B. Howard, for appellee.
   Paul Ward, Associate Justice.

On May 13, 1963 James L. Speights and wife (appellants herein) entered into a Avritten contract with Bill Boland, d/h/a Benton Home Clinic, for the construction of an addition to appellants ’ place of business in Benton (described as the south eighty feet of Lot 1, Block 3, Hillcrest Addition). The agreed contract price was $7,500. This amount was borrowed from Arkansas Savings and Loan Association (hereafter called Arkansas) on a note signed by appellants and secured by a first mortgage on the property mentioned above.

After Boland had spent most of the $7,500 but had completed only about one-third of the contract he abandoned the job and left the state.

On August 9, 1963 appellants filed a suit against Arkansas in circuit court (later trasnferred to chancery court) alleging, in essence: Shortly after Bond started on the contract they informed Arkansas that his work was unsatisfactory and that no inspection (required by the construction contract) had been made; Later they learned that most of the $7,500 had been disbursed by Arkansas although the job was only about one-third complete — all contrary to the terms of the construction contract and contrary to instructions given Arkansas. Almost immediately thereafter they began to receive notices'that several suppliers and laborers were filing liens on the property; The disbursement of the loan proceeds by Arkansas was contrary to “the agreement of the parties”, resulting in said liens being filed; And, the said mortgage and liens should be satisfied by Arkansas, and re-, moved by the court as clouds on their title. The prayer was in accord with the above allegations.

In response to a motion by Arkansas to make the complaint more definite and certain, appellants amended their complaint to allgee, in substance: They had an agreement with Arkansas’ agent (Art Gregory) that an escrow account would be set up with Beach Abstract Company to insure that all bills for material and labor would be paid before Boland was paid anything; Certain laborers and materialmen are claiming liens against the property; and, the theory on which they seek to recover is based on the construction contract of which Arkansas had a copy, on Arkansas ’ promise to disburse the money, and on Arkansas ’ negligence in failing to see that all bills for materials and labor were paid before making any payments to Boland.

To the above complaint and amended complaint Arkansas filed a general denial, and specifically denied the existence of any “agreement” which it breached negligently or otherwise. It was further stated that any loss which appellants suffered was occasioned by appellants’ own negligence. The prayer was for judgment on the note, a first lien on the said property, and other proper relief.

After a lengthy hearing the Chancellor found all issues in favor of Arkansas, including the right of Arkansas to .have the land sold and apply the proceeds on its judgment if the same was not paid in sixty days.

On appeal appellants seek a reversal, relying on four separate points which we have paraphrased and consolidated and will discuss under two subdivisions.

One. The court erred in finding in favor of Arkansas. Before discussing this point further it will be clarifying to set out below a few relevant and undisputed facts.

Appellants entered into a written contract with Bill Boland wherein Boland agreed (for $7500) to construct a certain building; The contract set out in detail the character and structure of the building; It provided payments to be made to Boland ‘ ‘ % 1st Inspection, % 2nd Inspection, % on final Inspection.” To provide the $7,500 appellants signed a note and mortgage to Arkansas. Appellants signed the instrument (set out below) which was prepared and presented to them by Arkansas:

‘ ATe, the undersigned (whether one or more), having applied for a Real Estate loan, hereby authorize and request Arkansas Savings & Loan Association, upon it having completed processing of said loan, to disburse the proceeds thereof to Beach Abstract & Guaranty Company, of Little Rock, Arkansas to close the said loan as our agents and make final disbursement of the said loan ■proceeds in accordance with the terms as agreed upon by us this date.” (Emphasis added.)

It is also undisputed that Arkansas paid to Beach Abstract and Guaranty Company (hereafter referred to as Beach) the sum of $5000, that Beach paid out (to Boland and to claimants for labor and materials) practically all of the above amount, that the building is only one-third complete, and that claims for labor and materials in excess of $1500 are still unpaid. It is likewise undisputed, since Boland has absconded and is not a party to this litigation, that either appellants or Arkansas will suffer a financial loss.

It is our conclusion that any loss resulting from this unfortunate venture must fall on Arkansas and not on appellants. We agree with the trial court’s finding that Boland was not an agent of Arkansas, but it clearly appears (as was conceded by appellee on oral argument) that Art Gregory was the agent of Arkansas. It is apparent from the record that Gregory practically took charge of the distribution of the money as well as the building operation. Admittedly he made seven trips from Little Rock to Benton in connection with this matter. On three separate occasions he called on Mr. Speights at his barber shop in Benton, made inspections of the work, and on one occasion took a picture of certain portions of the construction. Gregory evidently knew all about the construction contract and its several provisions. In his disposition Mr. Speights testified ‘£ I told Gregory not to pay Boland until he seen that all bills was paid and satisfied. ’ ’ This is not denied, and it is not denied that Boland was paid (with Gregory’s knowledge) $800 on May 30 (the day work began), $448.19 on June 7, and $1179.73 on June 20. Kenneth Jones (who worked for Beach and disbursed the money in this case) testified that Arkansas determined how much and when money was turned over to him; that Arkansas turned over to him the note, mortgage, and disbursement authorization (in blank) to fill out, and Arkansas instructed him about disbursing the money. Jones also testified:

££Q. Then the only instructions you ever did get was from Arkansas Savings and Loan Association?
££A. That is right.
££Q. Did you disburse it in the manner that they told you to ?
“A. Yes sir, I believe we did.
££Q. Do you have any doubt about it?
££A. No. sir.”

From the above it is our inescapable conclusion that Arkansas directly, and especially through its agent Gregory, controlled the distribution of the money borrowed by appellants (which money they never handled or even saw), and that in doing so it did not use reasonable diligence or care to protect the interest of appellants.

Two. We find the trial court erred in holding the Peoples ’ Lumber and Supply Company was entitled to a lien on appellants’ land. The record discloses that the company made an effort to perfect its lien, but it used a description that did not properly describe the land belonging to appellants. Ark. Stat. Ann. § 51-613 (Supp. 1963) provides that the account filed with the circuit clerk shall contain “. . . a correct description of the property to be charged with said lien . . . .”

The trial court found liens had been established by Vandergrift, Drennan, and Buck Plumbing and Electrical Contractor (referred to here as Buck), and we think properly so found. The first two mentioned had claims for labor performed, and appellants’ main objection appears to be that their work was sub-standard and that some portions of the construction were not according to specifications. These men were working under the direction of Boland (employed by appellants) or someone else approved by him. Presumably their work was approved by someone with power and authority to do so, otherwise, they should have been discharged. Having thus been induced to give of their time and efforts, it would be unjust, in the absence of a statute to the contrary, for a court of conscience to deprive them of remuneration. Likewise, we think the trial court correctly allowed the lien in favor of Buck. It was alleged by Arkansas (and not denied) that he had perfected his lien on August 15, 1963 (within the time allowed by statute, § 51-613 previously mentioned). This being true the trial court had no power (if it had tried to do so) to invalidate the lien already established. Buck identified a copy of his lien and testified that the amount of his claim was $518.37. The record contains a verified statement of Buck’s account conforming to Mr. Buck’s testimony. Even though Buck did not file any pleading in the case, we think it was effectively made a party to the suit, and that the trial court properly considered and approved its lien and claim. If it had been necessary, the trial court had the right to amend the pleadings to conform to the proof.

We call attention to the fact that (according to the record) the sum of $801.68 was paid by Beach to satisfy a lien on appellants’ land. This amount (with interest) is of course due from appellants to Arkansas.

The decree of the trial court is affirmed in those respects above indicated, but is reversed in all other respects. Accordingly, the cause is remanded to' the trial court for further action consistent with this opinion.