author:
Neill Bohlinger, Associate Justice. Carleton Harris, Chief Justice
      Ed. F. McFaddin, Associate Justice

text:
    Caldarera v. Giles.
    5-2729
    360 S. W. 2d 767
    Opinion delivered September 24, 1962.
    [Rehearing denied October 29, 1962.]

      Keith, Clegg & Eckert, Wright, Lindsey, Jennings, Lester & Shults, for appellant.

      Harry Grumpier and Brown & Compton, for appellee.
   Neill Bohlinger, Associate Justice.

This case arose out of a collision of two trucks, one belonging to the appellants and the other owned by one of the appellees. The suit for damages growing out of the collision of the two trucks was tried before the Columbia Circuit Court, the appellees seeking damages on account of negligence alleged against the defendants, appellees here, and the appellants counterclaiming for damages which it was alleged had been suffered because of the negligence of the appellee and his driver, Johnny Hight.

The trial resulted in a verdict for the appellees and the appellants prosecute their appeal here alleging as points for reversal (1) the lower court erred in granting appellees’ request for a drawn jury after voir dire and the exercise of peremptory challenge by the appellants, (2) the misconduct of a jury which it is alleged affected the appellants’ right to receive a fair trial and, (3) the amounts of the verdict were excessive.

These facts were developed in the trial: At the beginning of this trial there were 18 veniremen in the jury box and counsel for both plaintiff and defendant were furnished a list of the names of the jurors; after examination on voir dire, the appellants struck the names of three of the prospective jurors and returned the list to the clerk. It does not appear that appellants ’ challenges were revealed to any person and without exercising their peremptory challenge, the appellees moved for a drawn jury which motion was granted over the objection of the appellants. The applicable statute is as follows:

“Ark. Stat. 39-229. Peremptory challenges — Panel drawn upon request — -Right to strike names.- — Each party shall have three (3) peremptory challenges, which may be made orally — but if either party shall desire a panel, the court shall cause the names of twenty-four (24) competent jurors, written upon separate slips of paper, to be placed in a box to be kept for that purpose, from which the names of eighteen (18) shall be drawn and entered on a list in the order in which they were drawn, and numbered. Each party shall be furnished with a copy of said list, from which each may strike the names of three (3) jurors and return the list so struck to the judge, who shall strike from the original list the names so stricken from the copies, and the first twelve names remaining on said original list shall constitute the jury.”

We see no error in allowing a drawn jury at this time as any exercise of challenges on original veniremen was not known. This was a matter which presented itself to the discretion of the trial judge and we do not find that he abused that discretion.

The appellants filed a timely motion for a new trial and in support of that motion presented testimony tending to show that one of the jurors, Otis Franks, Jr., had an interest in the result of the verdict.

It appears, from the record, that the juror, Otis Franks, Jr., was an employee of the First National Bank of Magnolia where he was employed as note teller and worked on relief; that in 1959 he, together with his wife, and Dixon Barnett, and his wife, organized a corporation known as the Bruce Cartright Livestock Auction, Inc.; that some time prior to June 25, 1959, the appellee, Giles, was indebted to the juror’s corporation and to discharge that debt the appellee procured a loan from the bank at which Mr. Franks was employed, the loan being in the sum of $3,060.00, and to secure that loan the juror had signed a writing guaranteeing its payment; that the note was a demand note and had not been paid at the time of the trial. As additional security for payment of the demand note, the appellee had executed to the bank an assignment of the proceeds of any recovery which he might secure in this action against the Caldareras.

The name ■ of Mr. Franks does not appear to have been among the eighteen (18) prospective jurors first presented, although his name was on the list that the clerk distributed for the drawn jury.

On examination of the propective jurors the veniremen were asked as to business relationships with the appellee, Mr. Giles; juror Franks answered that Giles had worked for him at the auction barn a couple of years before and since then he had had other business relations with him but that there was nothing in their relations that would affect his verdict.

On behalf of the appellee it is urged that a member of one of the law firms representing the appellants had drawn the incorporation papers for the juror Franks’ corporation and was at the time representing the corporation in a law suit; that this attorney also was a director of the hank that was carrying the loan of Mr. Giles and was a member of the Discount Board and there was introduced a transcript of the meeting of the Discount Committee on June 25, 1959 which discloses that loans and discounts No. 71582 through 71602 to 71612 were before that Board and that a notation appears on that transcript, “J. F. Giles (letter of guaranty) $3,060.00”; that this particular attorney had participated in the trial, which statement was qualified by the statement of the attorney and other counsel that this particular counsel came in after the trial had started and sat in the back of the courtroom until he was motioned to the counsel table and that when the attorney who was examining the veniremen asked as to Franks, this attorney had said, “He’s a good man. ’ ’

The juror, Franks, stated when testifying in the motion for a new trial that his corporation had been the beneficiary of the Giles loan from the bank and that he had signed the agreement guaranteeing the loan and had as his protection a mortgage on the Giles ’ home; that he knew at the time that he was present on the jury that the original loan had not been paid and that if the appellee, Giles, got a judgment that the $3,060.00 would be thus paid; and on the morning of the trial he had talked to the presiding judge and had told him that appellee Giles had a guaranteed loan at the bank where he worked and the judge had told him to talk to the attorneys and he did talk to the appellees’ attorneys but it does not appear that he advised anyone of his guaranty agreement or any assignment of the verdict in this case.

On the voir dire examination of the prospective jurors there appears to be no official transcript, but it is established that the court had directed a question to the prospective jurors as to any business dealings with the appellees; that the juror Franks at that time stated that Giles, the appellee, had worked for him two or three years before.

It is the contention of the appellants that the juror Franks had such an interest in the verdict that he was disqualified from serving as a juror; that this disqualification was known to Franks and not to them.

On the other hand, the appellees contend that if Franks had an interest in the proceeds from the verdict that fact was known or could have been known to the attorneys for the appellants and that they failed to avail themselves of the information which was theirs and that it is too late to bring that matter to the attention of the court in a motion for a new trial.

There is a duty upon every prospective juror on voir dire examination to make a full and frank disclosure of any connection he may have with the litigants or anything that would or could in any way affect his verdict as a juror. In this case Mr. Franks was asked if he had had any business connection with appellee Giles. His answer was that Giles had worked for him several years before and he had had other dealings with him. In his testimony on the motion for a rehearing he used the expression, in connection with his other dealings, “I did not see any point in saying that I bought two shabby calves from him since 1959.” There seems to have been more of an effort at evasion than of disclosure. At no point in the empaneling of the jury do we find that Franks told the judge or any of the attorneys with whom he talked, and certainly he did not on voir dire state that he was a guarantor of the repayment of a loan which appellee Giles had at the bank where juror Franks was employed and that appellee’s judgment in this case was assigned to protect juror’s guaranty. Had he done so it must be readily assumed that he would have been disqualified at that time.

We do not know why, when the juror stated he had had other dealings with the appellee, the matter was not pursued further. The revelation as to his dealings at that point had been minor and of no consequence and as to whether or not counsel might have gone further in his examination, we do not say, but certain it is that the juror, Franks, knew of his own interest in the verdict and that knowledge was shared by the appellee, Giles.

It is true that the record before us reflects that an attorney connected with one of the firms representing appellees was a director of the bank where juror Franks was employed; he was also on the Discount Committee; that on June 25, 1959 the attorney had signed a form which reflected that a number of loans, listed by number and not by name, had been before the Discount Committee and the form contains the statement, “ J. F. Giles (letter of guaranty) $3,060.00,” but no witness brings home to the attorney involved a knowledge that Mr. Franks was the guarantor on the Giles note and that knowledge must be traced to the attorney before this point has weight. The testimony of the attorney is to the effect that his firm was one of the attorneys for the bank and he was a director and on the Loan and Discount Committee; that the Discount Committee went through certain formalities, made a report that certain members of the committee would sign; that he had no recollection of the loan made by the bank to Mr. Giles, the appellee. That transaction seems to have been dated over a year before the trial.

The loan was a routine one and when asked about it, the president and another officer of the bank did not recall it. Therefore, it is logical to believe the testimony that the matter was not in the mind of the attorney on the morning of the trial. This particular attorney was not trying the case and came into the courtroom after the trial had started. If this attorney had prepared the corporation papers for the juror Franks’ company, and was representing that corporation in a law suit, there is nothing that traces to this attorney or any member of his firm any knowledge that juror Franks was a guarantor of the debt of Giles.

Let it be understood that nothing in this opinion is designed to reflect upon counsel. Counsel for both appellants and appellees are able, skillful attorneys and have the confidence of the courts.

It is urged that counsel for appellants should have pursued his interrogation of Franks to uncover “other business dealings,” but it does not take a searching cross-examination by counsel nor solemn charge from the bench to advise any mail that he- cannot sit upon a jury when he has a direct interest in the verdict which he is called upon to formulate.

In the case of Hot Springs Street Railway Co. v. Adams, 216 Ark. 506, 226 S. W. 2d 354, we had a case in which, as a grounds for reversal, it was alleged that one of the jurors were represented by one of the attorneys for the plaintiff. There the juror said he had not mentioned it because he thought the case had been settled and upon the question being asked of the panel he had held up'his hand but that defendant’s lawyer did not ask him any questions. In reversing that case we said:

“We believe that the trial court’s failure to declare a mistrial was an abuse of discretion constituting reversible error. Even if we accept Calloway’s statement that he held up his hand, it is perfectly clear that he knew his gesture had not attracted the attention of appellant’s counsel. Both his action in raising his hand and his assertion that he thought his case had been settled show beyond any doubt that he understood the inquiry that was being put. The appellant was entitled to the information sought, as a basis for a peremptory challenge if not as a ground for challenging, for cause. In these circumstances the juror’s duty of candor extends well beyond a ready acquiescence in the supposition that counsel has decided not to pursue his inquiry. The very theory of an impartial jury trial demands that the juror take positive action to bring his possible disqualification out into the open when the question is raised. ‘Nothing can destroy the integrity of juries more effectively than to allow prejudiced jurors to sit in a case.’ Anderson v. State, 200 Ark. 516, 139 S. W. 2d 396. For us to approve the denial of a mistrial in this case would, we think, be a disservice to our system of jury trials.” [Emphasis added]

The case of Gershner v. Scott-Mayer Comm. Co., 93 Ark. 301, 124 S. W. 772, was a case in which the disqualification of a juror by reason of his interest in the result of the trial was before the court. In that case we said:

“Another ground set forth in the rüotion for new trial is that C. K. Lincoln, one of the trial jurors, was interested in the result of the trial, in that he was an officer and stockholder in a corporation which was a creditor of Gershner & Eosenthal at the time. Plaintiff filed a response, setting forth that.it had no information until the motion for new trial was filed that the corporation named was a creditor of Gershner & Eosenthal; and also filed the affidavit of juror Lincoln stating that when he was selected as a juror, and during his service as such, he did not recall to mind the fact that his corporation was a creditor. No questions were asked the juror as to his interest in the outcome of the trial, and no diligence is shown to have been exercised by defendant in ascertaining whether or not the juror was interested. His son and son-in-law, Nathan Gershner and I. E. Eosenthál the two confessed members of the firm, were present at the trial, and knew, not only that the corporation named was a creditor of the firm, but also that juror Lincoln was interested in the corporation.
Though a juror asserts that his direct interest in the result of the trial will not influence his judgment, the law presumes him to be under a disqualifying bias, and public policy forbids that he sit as a juror, notwithstanding his avowal.”

In the above case the court refused to set aside the verdict but the facts in the Gershner case, supra, are far different from those in the case at bar. In the Gershner case the most that can be said is that the Gershner partnership was indebted to juror Lincoln’s company and had the verdict been for Gershner, we will assume that the Gershner assets would have been increased by $400.00 which might have been a factor in the payment of the Lincoln Company account. But in the Gershner case, the jury, of which Lincoln was a member, found against Gershner. The finding was directly against the interest of juror Lincoln, if' any interest lie had. Juror Lincoln stated he did not know of the account between his firm and the Gershner partnership and the finding of the jury, being against the juror’s interest, precluded any possibility of any intended fraud or wrongdoing or collusion. Hence the trial court properly refused to set the verdict aside.

In the instant case,- it is certain that a wrong was done and while the juror stated that his direct'interest in the result of the trial would not influence his judgment, not only does the law presume him to be under a disqualifying bias, but public policy forbids that he sit as a juror, notwithstanding his avowal.

. One of the greatest rights of citizenship is jury service. Like any other right, it carries responsibilities. One of those responsibilities is to make known anything that affects the right to serve. The opportunity is .given to do that in every trial. It was given in this trial and the juror knew what it was for when the question was asked as to dealings with the appellees and he reported some inconsequential contacts several years before and “other dealings.” Elaborating on “other dealings” in his testimony on the motion for a retrial, he stated that he had bought a couple of shabby calves from Giles. Nowhere did the juror state what he knew to be a fact, that his interest in this verdict was that $3,060.00 of the verdict was assigned to relieve him of his guarantee for the appellee ’s loan.

The juror should have known that his interest in the proceeds from the verdict in this case would prevent him from serving and failed to make that disqualification known. Being disqualified there is nothing that counsel or trial judge can say or do, or fail to say or do, that can replace that disqualification with the right to serve.

Since there was nothing on which appellants could predicate a supposition that juror Franks was a guarantor for appellee Giles, it readily becomes apparent that counsel would indeed have to have gone far into the realm of speculation to assume that relationship and interrogated about it. There was nothing in the ease up to that time to indicate it.

In timely and proper manner appellants presented this matter to the court and moved for a new trial. This motion should have been granted and failure to do so was error for which this cause is now reversed and remanded.

Harris, C.J. concurs.

McFaddin, J. dissents.

Carleton Harris, Chief Justice

(Concurring). The Opinion of the Court has pointed out that Mr. Franks seemed to have made more of an effort at evasion than disclosure in answering the questions relative to his business connections with appellee Giles. I agree that his statement on the motion for a new trial, “I did not see any point in saying that I bought two shabby calves from him since 1959 ’ ’, indicates that he had not intended to mention, on voir dire examination, that he was a guarantor of the loan which Giles had at the bank. It also appears that nothing was said to Court or counsel by the juror to the effect that he had guaranteed appéllee’s note, which, after all, was the principal, and most pertinent, fact that should have been disclosed. However, my vote to reverse this case is not necessarily based upon any feeling of wilful misconduct on the part of Franks, or any belief that there was collusion between Franks and Giles. I am willing to accept the Circuit Court’s statement that Mr. Franks stands well in the county and is a “good” man. Nonetheless, as a matter of public policy, I do not feel that one should sit as a juror where a pecuniary interest appears, irrespective of whether such interest will affect the juror’s judgment. We have had several cases involving disqualification of jurors but I have found no instance of this Court approving the service of a juror in any case where an apparent pecuniary interest was present. To permit one to serve on a jury, where it appears from the record that he could be financially interested in the outcome of the case, would, in my opinion, stagger the confidence of the public in our juries and, in fact, strike at the very heart of the jury system.

Ed. F. McFaddin, Associate Justice

(Dissenting). The Majority is reversing the judgment on the ground that the juror,.Otis Franks, Jr., was guilty of misconduct; and I dissent. As I see it, neither the facts nor the law support the conclusion reached by the Majority.

THE FACTS

The record shows that Otis Franks, Jr. is a young business man in Magnolia; that his parents have lived in Columbia County for over sixty years; that he works in the First National Bank of Magnolia; that some time before the trial he had become a guarantor on the note of James Floyd Giles to the First National Bank of Magnolia ; that Mr, Eckert, one of the attorneys for the appellant in this case, was on the Discount Committee of the Bank; that Mr. Eckert had been the attorney of Mr. Otis Franks, Jr.; and that Mr. Eckert had drawn an instrument whereby Giles assigned to the Bank any recovery in this case. When Mr. Franks went to the court house, summoned as a juror in the case, he went to Judge Jones, the presiding Judge, and told him that Floyd Giles had a guaranteed loan at the Bank, and' that he (Franks) worked at the Bank. Judge Jones told Franks to tell the lawyers about it. Mr. Franks went to one of the lawyers, who told him: “You answer whatever questions that are put to you by the Court and the attorneys”. When Franks was questioned .on voir dire, he told the Court and the attorneys that Giles had worked for him in the auction barn for a couple of years, and since then they had other business dealings. Here is his undisputed testimony as to what occurred on voir dire:

“Q. The question has arisen about a certain question asked by either the court or the attorneys about any business dealings you had with one of the plaintiffs, Floyd Giles, — will you tell the court what your answer was to the question as to your business relations with Mr. Giles ?
“A. When they asked the question I answered that he had worked for me in the auction barn for a couple of years and since then we have had other business deals.
* ‘ Q. Were you. asked any further questions about that by the attorneys or the court?
“A. No, sir.”

Mr. Franks also testified that he was asked on voir dire if his business dealings with Giles would influence his verdict, and that he answered that they would not; and that such answer was true.

Mr. Eckert entered the court room while the jury was being interrogated, and' the trial attorney for the appellant went to Mr. Eckert and asked him what about Franks as a juror, and Mr. Eckert replied, “He is a fine boy”. The Circuit Judge, in refusing to set aside the verdict on account of the alleged misconduct of Otis Franks, Jr., said:

“. . . I don’t agree with the complaining persons in this case. But in this case I am sorry about it on account of the gentleman that to some extent has been made a goat out of: Mr. Franks. I know him and know his father, and they are good people, and I feel that both attorneys for the plaintiffs and the Defendants feel the same as I do about that . . .
“Mr. Franks’ testimony here today as to what was asked him was almost word for word what' I remember was asked. He said the Plaintiff, Mr. Giles, had worked for him and that they had had other business deals. It was dropped at that point, no question was asked what that business was or what it consisted of, and everybody seemed to be perfectly satisfied, and I think under the circumstances that the attorneys for the Defendants were put on notice sufficiently by his statement that if they had cared to they could have pursued it further. I do say that it is my personal opinion from the whole set-up, everything that happened in this case, knowing Mr. Franks and knowing how he stands in this county, had everything been known that is known here now hé would still have served on this jury. So I don’t know that the Defendant is in too much of a position to complain for that reason.
“But there is another matter — it is an undisputed fact in this case that the attorneys for the defendants were in a very close relationship with the juror. This had existed over a long period of time. I don’t mean regular employment but matters had arisen between them, and the juror had gone to one of the attorneys for advice. It is undisputed in this case that one of the attorneys was on the Discount Committee at the bank, that he knew Mr. Franks was with the bank and he knew Mr. Giles was indebted to the bank. It is a matter of common knowledge, that usually there is some kind of endorsement or guaranty drawn to secure money to the bank for money owed them. So I say if the Defendants ’ lawyers did not know that in this case, that everything else concerning that loan they did know, and I say that their knowledge was sufficinet in this case that they are not now in a position to complain of it.
‘ ‘ The motion for new trial will be over-ruled ...”

The Trial Court was in a far better position than is this Court to determine, under the facts, whether Otis Franks, Jr. was guilty of misconduct. The Court found that he was not: rather, the Court found that the attorneys for the appellants did not pursue the matter with diligence and, therefore, could not be heard to complain after they had lost the case. They thought that Otis Franks “ivas a good boy ”; they chanced having him on the jury; and after they lost the case they wanted to call back the play and make Otis Franks the “goat”. I think the appellant has “sinned away his day of grace” on this question of the misconduct of the juror, Otis Franks, under the facts in this case.

THE LAW

We held in Hot Springs Street Ry. Co. v. Adams, 216 Ark. 506, 226 S. W. 2d 354, that the juror Calloway had failed to make a complete disclosure; but that is not the situation here. Otis Franks went to the Court, and he told the attorneys, so the Hot Springs Street Railway case is not applicable. The other case cited by the Majority is that of Gershner v. Scott-Mayer Comm. Co., 93 Ark. 301, 124 S. W. 772. In that case the jnror, C. K. Lincoln, was an officer and a stockholder in a corporation that was a creditor of Gershner. Lincoln did not recall that fact to his mind when he was selected as a jnror. “No questions were asked the juror as to his interest in the outcome of the trial, and no diligence is shown to have been exercised by defendant in ascertaining whether or not the juror was interested.” Under that situation this Court held that the person seeking to set the verdict aside had not been diligent, and we said:

“But when objection is made to a juror after the verdict for the first time, due diligence to discover the disqualification must be shown by the objecting party. At that stage of the case it becomes to some extent a matter of discretion with the trial court as to whether or not the verdict shall be set aside; and when there is no fraud intended or wrong done or collusion on the part of the successful party, it is not reversible error for the trial court to refuse to set aside the verdict. Fain v. Goodwin, 35 Ark. 109, Shinn v. Tucker, 37 Ark. 580.”

In the case at bar there was no fraud intended, and certainly there was no collusion on the part of the successful party with the juror Franks; and, therfore, the Gershner case affords the Majority no support for its conclusion. Rather, the Gershner case indicates that when there is an absence of fraud or an absence of proof of collusion on the part of the successful party, then the Trial Court’s discretion in refusing to set aside the verdict will not be overthrown by us.

In Lauderdale v. State, 233 Ark. 96, 343 S. W. 2d 422, the appellant urged on appeal that the Trial Court committed error in failing to excuse Juror Illing. We held that the appellant had failed to show due diligence; and what we said in that case certainly applies here:

“Another reason for our conclusion to sustain the ruling of the Trial Court in regard to Juror Illing is because of the opportunity the appellant had on voir dire examination to interrogate Juror Illing. The voir dire examination of Illing consumed eight pages of the typewritten transcript (T. 408-415, inclusive). The juror was interrogated by the defendant at length, and that was the time and place for the defendant to ask him about any possible relationship to anyone in any wise the object of any bombing. Due diligence required investigation by the defendant on voir dire as to veniremen; and defendant could not wait until near the conclusion of the trial, then ask the Court for a mistrial, and complain that the Court abused its discretion.”

In 39 Am. Jur. 87, “New Trial” § 73, in discussing the discretion of the trial court, the holdings are summarized:

“The refusal or denial of a motion for a new trial for alleged misconduct on the part of the jury is, as a general rule, a matter within the discretion of the judge presiding at the trial; and unless it appears that this discretion has been abused, that there has been palpable error, or that the judge has refused to review and consider the evidence by which the consideration of the motion should have been guided or controlled, his refusal to grant a new trial will not be disturbed. In considering the motion, ‘each application must be determined mainly upon its own peculiar facts and circumstances and should be granted or refused with a view not so much to the attainment of exact justice in a particular case as to the ultimate effect of the decision upon the administration of justice in general.’
“Many authorities may be cited to support the rule that where a motion for a new trial is based on the alleged misconduct of a juror or jurors, and the trial judge hears evidence, either orally or by affidavits, touching such misconduct, his conclusions of fact on conflicting statements will not be disturbed on appeal. ’ ’

For the reasons herein stated, I respectfully dissent.

       In 39 Am. Jur. 86, “New Trial” § 71, the holdings are summarized :
      “It is a well-settled general rule that where alleged misconduct of the jury was known to the party claiming to have been prejudiced thereby, or to his counsel, during the trial and before a verdict was rendered, and no objection was made thereto and the matter was not in any manner brought to the attention of the court, such party cannot, after an adverse verdict, assert the misconduct as a ground for a new trial.”


source: Caselaw Access Project

author: Carleton Harris, Chief Justice.

license: Public Domain

text:
    Brown v. Patterson Construction Co.
    5-2765
    361 S. W. 2d 14
    Opinion delivered October 1, 1962.
    [Rehearing denied November 5, 1962.]

      J. B. Wilson, for appellant.

      Riddick Biff el, for appellee.
   Carleton Harris, Chief Justice.

Appellant, Administratrix of the estate of her son, Bandal Gene Brown, instituted an action in the Bradley County Circuit Court on behalf of herself, Jesse Brown, father of Bandal Gene, and several brothers and sisters of the decedent. The suit was brought against W. H. Patterson and Inodean Patterson, a partnership, d/b/a W. H. Patterson Construction Company, and against Malcolm Browning and William Henry Browning, employees of the company, alleging that Bandal Gene, while employed by the construction company, was killed in an accidental injury arising out of his employment. Appellant asserted that Bandal Gene Brown’s death was caused by the negligence of the servants [Malcolm and William Henry Browning] of Patterson Construction Company and damages were sought in the total sum of $100,000. Patterson Construction Company filed a motion to dismiss, setting up that the Bradley Circuit Court was without jurisdiction for the reason that “jurisdiction lies exclusively with the Arkansas Workmen’s Compensation Commission.” The two Brownings filed a demurrer to the complaint, asserting that the court was without jurisdiction over the person of those defendants, and that the allegations in the complaint were insufficient to state a cause of action against them. No order by the court relative to the demurrer appears in the record, but the court did grant Patterson’s motion to dismiss. From the order entered dismissing the complaint as to the Pattersons, appellants bring this appeal.

Admittedly, Randal Gene Brown was an employee of Patterson Construction Company, and was fatally injured in an accident arising during, and out of, his employment. Patterson Construction Company did carry Workmen’s Compensation Insurance, and under the provisions of Section 81-1304, Ark. Stats., the rights and remedies of appellant were exclusively under the Workmen’s Compensation Law. That section provides in part as follows:

“The rights and remedies herein granted to an employee subject to the provisions of this act, on account of injury or death, shall be exclusive of all other rights and remedies of such employee, his legal representatives, dependents, or next kin, or any otherwise entitled to recover damages from such employer on account of such injury or death, except that if an employer fails to secure the payment of compensation, as required by the act, an injured employee, or his legal representatives, in case death results from the injury, may at his option, elect to claim compensation under this act or to maintain a legal action in court for damages on account of such injury or death. ’ ’

In conformity with this section we have held on numerous occasions that the rights and remedies granted to an employee subject to the provisions of the Compensation Act, on account of personal injury or death, are exclusive of all other rights and remedies of such employee, his legal representative, dependents, or next of kin. See Haggar, Administratrix v. Wortz Biscuit Company, 210 Ark. 318, 196 S. W. 2d 1, Kimpel, Guardian v. Garland Anthony Lumber Co., 216 Ark. 788, 227 S. W. 2d 932. Accordingly, the trial court’s order dismissing the complaint was entirely proper.

As previously mentioned, no order appears in the record relating to the demurrer filed on behalf of the Brownings. Accordingly, we do not pass on the question of whether appellants ’ tort action against the Brownings, under our holding in King v. Cardin, 229 Ark. 929, 319 S. W. 2d 214, can be maintained.

The Court’s judgment dismissing the complaint against the Pattersons, and W. H. Patterson Construction Company, is affirmed.

       In fact, an award has already been made by the Commission, the amount of which is questioned in another case before this Court.

       The complaint alleges that Malcolm Browning was the foreman on the job during the period when Randal Gene Brown was fatally injured, and that Browning had placed his son, William Henry Browning, in charge of the operation of a certain machine, the son being totally unskilled and incapable of operating such machine. “William Henry Browning set in motion the wrong piece of machinery which negligently and carelessly injured Randal Gene Brown” * * *.


author: Ed. F. McFaddin, Associate Justice.

text:
    Dieter v. Byrd, Admr.
    5-2714
    360 S. W. 2d 495
    Opinion delivered October 1, 1962.

      H. B. Stubblefield, for appellant.

      Dickson, Putman, Millwee S Davis, for appellee.
   Ed. F. McFaddin, Associate Justice.

This case stems from a traffic mishap, when a car owned and driven by Mr. W. J. Bardo was wrecked, and Mr. Bardo was killed. Melvin Dieter, a minor, one of the occupants of the Bardo car, was injured, and brought this action by his father and next friend, for damages for personal injuries. Appellee Byrd is Special Administrator of the Estate of W. J. Bardo. At the close of the evidence for the plaintiff, the Court directed a verdict for the defendant; and the plaintiff brings this appeal, urging the points herein discussed.

I. The Passenger Issue. The complaint alleged that the plaintiff, Melvin Dieter, was ‘ ‘ riding as a passenger in the front seat” of the Bardo car, and that Bardo in driving his car was guilty of willful and wanton negligence in enumerated particulars. The allegation that Melvin Dieter was riding as a passenger was the only allegation in the complaint as to Melvin Dieter’s status. In the trial of the case, the Court refused to allow the plaintiff to offer evidence as to passenger relationship. This ruling was on the theory that the complaint had alleged that Bardo was guilty of willful and wanton negligence, and that such quantum of negligence would be necessary to be shown only if the relationship of Dieter to Bardo was that of a guest. In other words, the Court held that the allegation as to willful and wanton negligence eliminated the allegation as to passenger relationship.

It is our holding that the allegation of willful and wanton negligence did not control the other allegations in the complaint. Under an allegation that the driver of the car had been guilty of willful and wanton negligence, the plaintiff may show any degree of negligence he can. Willful and wanton negligence is the worst form of negligence, and the allegation as to it would admit evidence of the lesser degree of negligence. The situation is somewhat analogous to an indictment of first degree murder; under such an indictment the defendant may be tried and convicted of a lesser degree of homicide if proved, even if not guilty of first degree murder. Smalley v. State, 167 Ark. 678, 269 S. W. 49; King v. State, 117 Ark. 82, 173 S. W. 852; and Brown v. State, 203 Ark. 109, 155 S. W. 2d 722.

In 38 Am. Jur. 958, “Negligence” § 269, the text states that there is a diversity in holdings as to whether degrees of negligence have to he alleged in different counts, and then the text says:

Other courts have adopted the view that allegations of willful or wanton negligence are mere surplusage and may be disregarded so that recovery may be had on proof of mere negligence or carelessness. Still other courts in permitting recovery for proof of ordinary negligence under an allegation of gross or wanton negligence have done so on the theory that an averment of the greater degree includes the lesser. Many of the courts which adopt the view that recovery may be had for ordinary negligence under an averment of gross, willful, or wanton acts hold that an averment that the act of the defendant was negligently done is sufficient, and under a general averment of negligence, proof of any and every degree of negligence is admissible. The better view would seem to be in favor of permitting a recovery regardless of the refinements attributed by some courts to the terms employed by the pleader.”

The complaint alleged that Melvin Dieter was a “passenger” in the car; and under that allegation the plaintiff had a right to offer evidence as to his status. In Cousins v. Cooper, 232 Ark. 605, 339 S. W. 2d 316, the word “passenger” was used to differentiate such status from that of a guest: “. . . as to whether Cooper was a guest or a passenger, we have no undisputed evidence on that issue.” There are cases from other jurisdictions which differentiate between “passenger” and “guest”: Humphreys v. San Francisco Area etc. (Cal. Sup.), 139 Pac. 2d 941; Riggs v. Roberts (Idaho), 264 Pac. 2d 698; Bentley v. Oldetyme (N.D.), 298 N. W. 417; Richards v. Parks (Tenn. App.), 93 S. W. 2d 639; Woelkl v. Latin (Ohio App.), 16 N. E. 2d 519; Gale v. Wilber (Va.), 175 S. E. 739; Long v. Archer (Ind.), 46 N. E. 2d 818; Cafaro v. Cafaro (N. J.), 184 A. 779; and Peery v. Mershon (Fla.), 5 So. 2d 694. In “Restatement of the Law on Torts” § 490, the distinction between “passenger” and “guest” is stated:

‘ ‘ The phrase ‘ passenger in a vehicle ’ is used to denote the fact that the plaintiff is one who is being carried by another for hire. The word ‘guest’ is used to denote one whom the owner or possessor of a motor car or other vehicle invites or permits to ride with him as a gratuity, that is, without any financial return except such slight benefits as it is customary to extend as part of the ordinary courtesies of the road. ’ ’

The status of the occupant of a car, when suing the driver, is ordinarily a matter to be shown by evidence, and is a question of fact for the jury if the status is disputed. We so held in Brand v. Rorke, 225 Ark. 309, 280 S. W. 2d 906. In Simms v. Tingle, 232 Ark. 239, 335 S. W. 2d 449, we said:

“We have repeatedly held that when the status of an occupant of a car is questioned and conclusions must be drawn from the evidence, then the issue is one for the jury. Corruthers v. Mason, 224 Ark. 929, 227 S. W. 2d 60; Whittecar v. Cheatham, 226 Ark. 31, 287 S. W. 2d 578; Rogers v. Lawrence, 227 Ark. 117, 296 S. W. 2d 899. Certainly in testing, on demurrer, the sufficiency of the allegations in the complaint as regards status, the analogy would be that evidence should be allowed to clarify the allegations. ’ ’

In the case at bar, the allegation was that Melvin Dieter was a “passenger”, and under that allegation the plaintiff was entitled to offer competent evidence as to his status; and such evidence should have been received so that the issue of status could have been submitted to the jury if the evidence was in conflict and if the other essentials for a recovery were shown. The Trial Court erred in its ruling in this regard.

II. Competency Of The Proffered Evidence As To The Status Of Melvin Dieter. As heretofore stated, the Trial Court refused to allow any evidence as to Melvin Dieter’s status, but did allow the appellant to make his record as to what a witness would testify on the point. The witness offered was Harrell Dieter, father of Melvin Dieter, and the purport of his testimony was dictated into the record. While this was being done, the attorney for the appellee said: “Your Honor, please, you have already ruled on this; but for the sake of the record I would like to state that we would object to this on the further ground that any testimony regarding a contractual transaction between the deceased, Mr. Bardo, and any party to this lawsuit would be a violation of the ‘ Dead Man’s Statute ’. ’ ’ In view of our rule that we sustain the Trial Court if the ruling be correct, regardless of reason assigned (Williams v. Lauderdale, 209 Ark. 418, 191 S. W. 2d 455), we find it proper to consider the so-called “Dead Man’s Statute”. This is found in “Schedule” § 2 to the Arkansas Constitution, and the germane portion reads:

“. . . in actions by or against executors, administrators, or guardians, in which judgment may be rendered for or against them, neither party shall be allowed to testify against the other as to any transactions with or statements of the testator, intestate or ward, unless called to testify thereto by the opposite party.”

It must be remembered that Melvin Dieter was a minor at the time of the trial and that the style of the action was “Melvin Dieter, by his father and next friend, Harrell Dieter, v. Conley Byrd, Special Administrator of the Estate of W. J. Bardo, Deceased.” The question then, in whether Harrell Dieter, being the father and next friend of Melvin Dieter, was prohibited by the “Dead Man’s Statute” from testifying as to conversations and agreements with W. J. Bardo in this case against the administrator of Bardo’s estate. We reach the conclusion that Harrell Dieter was not a disqualified witness under the “Dead Man’s Statute”, because Harrell Dieter was not a real party to tbe suit. He was a person liable for costs, if tbe infant lost tbe action (§ 27-824 Ark. Stats.), and little more than a surety on a bond for costs. Our statute (§ 27-823 Ark. Stats.) says: “Any person may bring tbe action of an infant as his next friend.” In Buckley v. Collins, 119 Ark. 231, 177 S. W. 920, we said:

“. . . for it is tbe infant, and not tbe party wbo represents him in tbe litigation, that is tbe real party to tbe suit. As is said in Morgan v. Potter, 157 U. S. 195-8: ‘It is tbe infant, and not the next friend, wbo is tbe real and proper party. Tbe next friend, by wbom tbe suit is brought on bebalf of tbe infant, is neither technically nor substantially tbe party, but resembles an attorney, or a guardian ad litem, by wbom a suit is brought or defended in bebalf of another. Tbe suit must be brought in the name of tbe infant, and not in that of tbe next friend. ’ Under our statute ‘the action of an infant must be brought by bis guardian or next friend.’ Kirby’s Digest, § 6021. But whether the suit be brought by tbe guardian or tbe next friend, it is at least tbe suit of the infant and must be brought in tbe name of tbe infant by tbe guardian or tbe next friend. Tbe infant can not act for himself in bringing a suit, but it is nevertheless his suit, no matter by wbom brought. ’ ’

Tbe general rule is stated in 58 Am. Jur. 187, “Witnesses” § 305, in discussing whether a next friend is disqualified from testifying:

“Although technically a party to tbe suit, one wbo sues or defends as a guardian or next friend is competent to testify as a witness in bebalf of tbe person wbom be represents regarding a transaction with a person wbo has died; such a plaintiff or defendant is not a party within tbe dead man statute.”

We therefore conclude that the proffered testimony of Harrell Dieter was competent on the status of Melvin Dieter in the Bardo vehicle at the time of the collision, and the Court erred in refusing to allow said testimony to go to the jury.

III. Other Points Presented, (a) At the close of the plaintiff’s case the Trial Court instructed a verdict for the defendant on the theory that the plaintiff was a guest in the car and had failed to prove willful and wanton negligence. Of course, if Melvin Dieter was a passenger, as distinguished from a guest, then the plaintiff only had to show ordinary negligence, as distinguished from willful and wanton negligence; and we have held that the plaintiff was entitled to show his status. So, at all events, the judgment must be reversed and the cause remanded for a a new trial. On a new trial the evidence as to the degree of Bardo’s negligence, if any, will have to be presented to a new jury. We, therefore, forego any discussion as to whether the evidence in the present record was sufficient to take the case to the jury on the issue of willful and wanton negligence.

(b) The Court refused to allow the deposition of Melvin Dieter to be read in evidence, and also refused to allow the deposition of Dr. Coy C. Kaylor to be read in evidence. We are asked to rule on these matters because of another trial. We find it unnecessary to rule on these matters, because if the persons are present or available in court, their testimony is better than their depositions if called by the party who took the depositions; and if the parties are absent, a different issue will be presented.

For the errors herein discussed, the judgment is reversed and the cause remanded.

       Arkansas is liberal on pleadings. Our statute (§ 27-1113 Ark. Stats.), as to the requirements of the complaint, says:
      “Third. A statement in ordinary and concise language, without repetition, of the facts constituting the plaintiff’s cause of action.
      “Fourth. A demand of the relief to which plaintiff considers himself entitled.”
      An interesting case is Long v. Archer (Ind.), 46. N. E. 2d 818, in which the complaint alleged that the plaintiff was a “passenger”.

       In Ark. Law Bulletin Vol. 9 at p. 68 (under date of May 15,1941), there is an article entitled, “The Dead Man’s Statute in Arkansas,” by Edgar E. Bethel]. Also, in 4 Ark. Law Review on p. 383 et seq. there is a discussion of our holdings on the “Dead Man’s Statute”.

       The reasoning in the Kentucky case of Doty v. Doty, 118 Ky. 204, 80 S. W. 803, 2 L.R.A.N.S. 713, 4 Ann. Cas. 1064, is sound and in accordance with our holding here. In addition to the Kentucky case, see also Begovich v. Kruljac, 38 Wyo. 365, 267 P. 426, 60 A.L.R. 1046; see also case note in 4 Ann. Cas. 1067; and see also annotation in 149 A.L.R. 1130, entitled, “Statute excluding testimony of one person because of death of another as applicable to testimony of surviving party who entered into contract with d.ecedent for the benefit of a third person.”

       Of course, under the “Dead Man’s Statute” Melvin Dieter could not testify as to any transactions he had with the deceased, but he could testify as to the facts of the collision because those facts did not involve a “transaction”. See Rankin v. Morgan, 193 Ark. 751, 102 S. W. 2d 552.


author: George Rose Smith, J.

text:
    Reese v. Haywood.
    5-2760
    360 S. W. 2d 488
    Opinion delivered October 1, 1962.

      John C. Watkins and Ward & L<xdy, for appellant.

      Kirsch, Cathey & Brown and Barrett, Wheatley, Smith & Beacon, for appellee.
   George Rose Smith, J.

This is an action by the appellant for libel. At the close of the plaintiff’s case the court directed a verdict for the defendants. We have concluded that the peremptory charge was correct, for the reason that the words complained of were not actionable per se and there is no substantial proof of special damages.

In 1955 the plaintiff, a farmer, bought about $15,000 worth of farm equipment from the defendant Haywood, doing business as Clay County Implement Company. Reese later returned part of the equipment and contended that there was then a balance of $64 due to him from the seller. This claim was disputed by Haywood, who insisted that Reese owed his company a balance of $213.87. The parties were still in disagreement about the matter at the time of the trial.

In 1959 Haywood referred the account to the other defendants, Frost & Frost, who were engaged in the business of disseminating credit information and collecting-delinquent accounts. The Frosts published a monthly periodical, called Credit Information Bulletin, in which they listed thousands of overdue accounts, giving the name and address of each debtor, the name and address of his creditor, and the amount supposedly due. The implement company’s claim for $213.87 was so listed in several issues of the Bulletin. These statements appeared in the preface to each issue: 4 4 This information is compiled from reports submitted by our subscribers and is believed to be accurate. To the best of our knowledge it does not include disputed accounts. Nothing in this report is to be construed as an accusation that any debtor listed is unwilling to pay his or her just debt. ’ ’

In an early case we discussed the distinction between words that are actionable in themselves and those that are not: “Where the natural consequence of the words is a damage, as if they import a charge of having been guilty of a crime, or of having a contagious distemper, or if they are prejudicial to a person in office, or to a person of a profession or trade, they are in themselves actionable; in other cases, the party who brings an action for words, must show the damage which was received from them. ’ ’ Studdard v. Trucks, 31 Ark. 726.

Damage is not necessarily a natural consequence of the publication of the bare statement that a farmer owes a past-due account to an implement company, with no suggestion of a dishonest or fraudulent refusal to pay. While such a publication might be defamatory in itself in the case of a trader or one in whose business credit is an important asset, the contrary rule prevails where the plaintiff is not a trader. Harper & James, The Law of Torts, § 5.2. In the same vein we have said that an imputation of insolvency is not actionable per se. Rachels v. Deener, 182 Ark. 931, 33. S. W. 2d 39; see also Honea v. King, 154 Ark. 462, 243 S. W. 74.

As the words were not actionable in themselves the appellant had the burden of proving actual damages. At the trial he made no claim that his credit had been impaired by the publication. He did testify that he had been humiliated and embarrassed, but he did not attempt to say who, if any one, had witnessed his humiliation and embarrassment, nor did he give any details whatever of his asserted discomfiture. The jury would have been required to resort to speculation and conjecture in order to make an assessment of actual damages on the basis of the plaintiff’s bald conclusion of law.

Reese was asked if the published information had come to the attention of his friends and associates, but the court sustained an objection to this line of inquiry, as offending the hearsay rule. The court’s ruling was correct, for Reese’s knowledge must have come from his friends and associates, none of whom were called to testify. If by any chance Reese had first hand admissible information in the matter it should have been brought to the trial court’s attention by an offer of proof, after the defendants’ objection had been sustained. No such offer of proof was made.

"While it is true that the jury might have made an award of nominal damages upon a mere finding that the published statement was untrue, it is well settled that a failure to award nominal damages is not a sufficient basis for a reversal. Wells v. Adams, 232 Ark. 873, 340 S. W. 2d 572.

Affirmed.


author: Paul Ward, Associate Justice.

text:
    Agricultural Ins. Co. v. Ark. Power & Light Co.
    5-2740
    361 S. W. 2d 6
    Opinion delivered October 1, 1962.
    [Rehearing denied November 5, 1962.]

      McMillen, Teague & Coates; Thompson, Coe, Cousins & Irons, Dallas, Texas, for appellant.

      Wright, Lindsey, Jennings, Lester d Shults; House, Holmes, Butler d Jewell, for appellee.
   Paul Ward, Associate Justice.

The subject of this litigation is Boiler Unit No. 2 of the Harvey Couch Steam Electric Station, property of the Arkansas Power and Light Company, located near Stamps, Arkansas. On the night of October 11, 1957 an explosion occurred within this Unit. The Arkansas Power and Light Company (hereafter referred to as “Arkansas”) carried insurance (including explosion insurance) covering, among other properties, this Unit. This insurance was written by 102 separate companies, 100 of which are the appellants herein and the other two are appellees. The insurance policies are identical in form, including the explosion clauses, and each policy contained a “joint loss” clause. The amount of damages caused by the explosion was stipulated and is not an issue here.

The pertinent clause in each of the policies is set out below.

“ ‘INHERENT EXPLOSION CLAUSE:
“ ‘1. In the interest of the Insured, the condition of this policy excluding loss from explosion is hereby modified, and in consideration of the rate at which this policy is written, this Company shall be liable for any direct loss to the property covered hereunder caused by explosion and by any artificial electrical disturbance immediately preceding and causing such explosion occurring in any part of the plant of which the property insured hereunder is a portion, or occurring in any structure containing property insured hereunder; provided such loss exceeds the sum of $200 (inclusive of loss, if any, by ensuing fire) but only for this Company’s pro rata part of the amount of such excess. Provided, further, that in each and every instance the explosion results from the hazards inherent in the business as conducted therein and not otherwise and except as hereinafter provided.
“ ‘2. Loss by explosion shall include direct loss from explosion originating within unfired pressure vessels and from the explosion of accumulated gases or unconsumed fuel within the firebox (or the combustion chamber) of any fired vessel or within the flues of passages which conduct the gases of combustion therefrom, but this company shall not be liable for any loss by explosion originating within steam boilers, steam pipes, steam turbines, steam engines, internal combustion engines, rotating parts of machines or machinery, unless fire ensues and then shall be liable for loss by fire only.
“ ‘Electrical arcing, water hammer, and the bursting of water pipes are not explosions within the intent or meaning of this Inherent Explosion Clause.’ ” (Emphasis added.)

The total of appellants’ policies on all of Arkansas’ properties is $95,990,000, and the total of all the policies is $97,300,000.

As before stated, Arkansas and two of the group of insurance companies are appellees. Another appellee is the American Motorist Insurance Company. Its policy also contains an explosion clause, but it claims that (under the wording of said clause) it is not liable if Arkansas had other explosive coverage. All of the policies included other coverages besides explosions.

On May 19, 1959 appellants filed a complaint in the circuit court against Arkansas and the American Motorist Insurance Company, hereafter called American, (asking to have the other two insurance companies made defendants, as necessary parties) in the nature of a declaratory proceeding, asking the court to make certain declarations of law, and stating that American had denied all liability under the terms of its policy. In the complaint appellants alleged that “the cause of the explosion was not a peril covered by the fire and lightning policies to the appellee utility in any sum or amount”. Appellants further alleged that “there is no liability under their policies and that the entire liability for the damage is covered by the policy of the American Motorist Insurance Company.” Alternatively it was pleaded that, if they were held liable, American was also liable, and that, under the joint loss clause (in all the policies), the loss should be prorated. In addition it was alleged in effect that the same result should be reached because of certain “Agreement of Guiding Principles” to which all insurance companies adhere. The essence of appellants’ prayer was: (1) that the court declare the appellants not liable; (2) that American be declared liable for the entire amount of the loss; (3) that, alternatively, the loss be apportioned among all the insurance companies (including American) pursuant to the “joint loss” clauses and the “Agreement of Guiding Principles”. Exhibits were attached to confirm and sustain related allegations in the complaint.

After certain procedural matters were disposed of the two appellee insurance companies filed answers in which they neither admitted nor denied liability to Arkansas, and appellants then filed an amendment to their complaint. Therein appellants alleged that “. . . the explosion and resulting damage originated in a steam pipe in the steam boiler”; that it “ ... accidentally cracked, ruptured, and exploded, setting in motion an uninterrupted, continuous, connected series of events, directly and proximately terminating in an explosion of gas in the boiler”, and that they have no liability to Arkansas.

On October 12, 1959, American filed a separate answer in which, after admitting and denying certain allegations contained in the complaint and the amendment thereto, it was alleged its policy did not cover the explosion in question “in the event such an explosion is covered by any other valid and collectible insurance”, and that appellants’ policies provided such coverage. On October 16, 1959 Arkansas filed its separate answer in which, among other things it was alleged: It had no knowledge of any “Agreement of Guiding Principles” entered into between various insurance companies; it agreed the court should decide whether appellants’ policies covered the'explosion; and, that a justiciable issue was presented and that the rights, obligations and liabilities of all parties should be determined. In Arkansas’ cross-complaint it asked the court to impanel a jury to determine the damages to which it is entitled under the several policies. Later Arkansas filed an answer to the amended complaint denying the allegation that the explosion occurred in a steam pipe as alleged by appellants.

Then on October 23, 1959 appellants filed a reply to Arkansas’ pleas above mentioned. Therein appellants set out in full the clause in their policies designated “Inherent Explosion Clause” (copied above); they deny the explosion occurred as stated by Arkansas; they admit a justiciable issue exists; and, they state they are entitled to a “jury trial upon any controverted issue of fact”.

There followed a lengthy trial on the above issues wherein voluminous testimony and exhibits were introduced in evidence, and, after numerous instructions by the court, the matter was submitted to the jury along with the following separate forms of verdicts:

(1) “We, the jury find for the Arkansas Power & Light Company against the plaintiff insurance companies.
Foreman
(2) “We, the jury find for the defendant, American Motorists Insurance Company.
Foreman
(3) “We, the jury, find for the Arkansas Power & Light Company against the American Motorist Insurance Company.
Foreman
(4) “We, the jury find for the plaintiff insurance companies.
Foreman
(5) “We, the jury, find that the direct loss from an explosion of accumulated gases or unconsumed fuel within the firebox or combustion chamber of a fired vessel or within the flues of passages which conduct the gases of combustion therefrom was:
$-
Foreman
“We the jury find that the loss to property of Arkansas Power & Light Company directly damaged by an explosion of a steam pipe was:
$-
Foreman”

At the bottom of the last form of verdicts the following occurs:

NOTE: “This form of verdict will be used by you only if you find that there were two explosions, and the sum of the two amounts should be $1,658,634.89.”

After the deliberation the jury returned into open court with the following verdicts:

“We, the jury, find for the Arkansas Power & Light Company against the plaintiff insurance companies.
/s/ Sam Wortman,
Foreman”
“We, the jury, find for the defendant, American Motorists Insurance Company.
/s/ Sam Wortman,
Foreman”

As previously stated, there was a lengthy trial at which a mass of testimony and exhibits were introduced, including voluminous technical testimony relative to the construction and operation of Unit No. 2. However, we feel, in view of the jury verdicts and our disposition of the case hereafter set forth, it would serve no useful purpose to attempt to abstract the record in detail, but that it will suffice to set forth only a summary of the pertinent facts involved.

What is designated as Boiler Unit No. 2 is a square metal structure approximately 130 feet high and 30 feet in width and (apparently) about the same in depth. The Unit is lined inside with steam water pipes which are heated by the combustion of a mixture of air and gas forced or blown into the large combustion chamber through 18 apertures on the east side of the Unit. Also, the Unit on the west side but within the overall structure, is what is called a “bird cage” which is about 11 feet wide and extends from near the top of the structure down about one half the way to the bottom. Inside the bird cage (near the bottom) there is an assembly of water pipes (known as the “economizer section”) where the water is preheated, and above them is a similar assembly called the “superheater section” where the gases not fully burned in the main fire box (which is 20 feet wide and about 80 feet high) are utilized to super heat the water and steam in the metal pipes. Perpendicular steam pipes line the bird cage and form a “U” at the bottom. After the explosion it was found that one of the steam pipes (about 3 inches in diameter, with walls about three eighths inch in thickness) at the bottom of the “IT” was broken, apparently by some great force. No one questioned the evident fact that there was a terrific explosion in the large fire box or combustion chamber which resulted in more than $1,000,000 damages to the Unit.

Generally speaking, appellants take the position (a) that the steam pipe broke first and the big explosion followed as a result, and (b) that their policies did not cover that situation.

We agree with the trial court that the principal questions to he decided were (a) whether the steam pipe broke first and caused the big explosion in the large combustion chamber or (b) whether the explosion in the combustion chamber caused the steam pipe to explode or rupture.

Much testimony was introduced by appellants to sustain their theory that the steam pipe exploded first. The theory and contention of Arkansas and American was that the explosion in the combustion chamber caused the steam pipe to break or give way, and they introduced much technical testimony to sustain that theory.

Although, as previously stated, this litigation was begun as a declaratory judgment proceeding to determine the respective rights and liabilities of the several parties, both sides agreed that a jury should be impaneled to try disputed questions of fact, and this was the procedure followed without objections. Appellees contend here that their theory was adopted and sustained by the jury’s verdict. Appellants contend, however, that their theory was not properly submitted to the jury. American contends it was not liable for the damage because, under the terms of its policy, it was not to be liable if there was other insurance to take care of the loss. It is conceded that the liability of the two appellee insurance companies is the same as that of appellants. In addition to the principal issue mentioned above, there are other contentions advanced by appellants which will be examined hereafter. Appellants group their contentions for a reversal under 4 separate points which we will now discuss in the order set out by them:

(1) “The Trial Court erred in refusing to submit to the Jury as requested by Appellants the issue of whether the explosion in Unit 2 of the Harvey Couch Steam Electric Station on October 11, 1957 originated within a steam pipe, because this involved a question of fact for the jury.” *

Our understanding of the factual situation in this connection, after carefully studying the lengthy discussions ably presented by all parties, may be briefly stated as presently set forth, (a) It is beyond doubt that there was a terrific explosion of “accumulated gases or unconsumed fuel within the fire box” of Unit No. 2 which was the immediate cause of the extensive damage; (b) There can be no doubt, if not in fact conceded, that this damage was covered by the “Inherent Explosion Clause” (paragraph 2) contained in.appellants’ policies (unless excluded by the emphasized portion); (c) Appellants (relying on said exclusion language) offered voluminous testimony to prove the terrific explosion previously mentioned was set off by an explosion or rupture in a steam pipe in the bird cage; (d) This theory of appellants can be maintained only by showing two explosions were involved; and, (e) this situation presented a fact question for the jury’s determination. The jury found that there was only one explosion, and this finding must, of course, be sustained if there was substantial evidence to support it.

There is no doubt in our minds that appellees did present such substantial evidence. This fact is so clearly-shown by the record that it would be supererogation to attempt to set out the voluminous testimony. In fact, we do not understand that appellants seriously challenge this point. They do, however, ably contend that this fact was not presented (or properly presented) to the jury. Although we do not agree with this contention, we now proceed to discuss it.

The instructions requested by each party and those given by the Court were voluminous and it would be impractical and useless to do more than refer to the pertinent portions. The trial court, after refusing numerous instructions requested by each of the parties, gave instructions to the jury covering ten pages in the record. (It is noted here that appellants challenge no specific instruction in the points set out in their brief.)

A careful study of the trial court’s instructions and the several forms of verdicts submitted to the jury convinces us that the issue (mentioned above and insisted on by appellants) was properly presented to the jury. Touching the issue in question the court gave the following instructions:

(a) (In essence) the court told the jury the burden was on Arkansas to show its loss was covered by the general terms of appellants’ policies, and, this having been done, the burden shifted to appellants to prove the loss came within the exception or exclusion clauses, and that the burden was on appellants to prove the steam pipe exploded or ruptured before the explosion in the combustion chamber.

(b) “. . . the only issue for you to determine is the nature of the explosion or explosions which caused the damages ...”

(c) (In essence) if the loss suffered “from an explosion of accumulated gas or unconsumed fuel within the fire box ...” you find for Arkansas. If, on the other hand you find the loss resulted from an explosion or rupture in a steam pipe your verdict will be against American.

(d) (In essence) if you find there were two explosions and one of them occurred in a steam pipe, then American would be liable.

(e) “The word Explosion as used in connection with the tube also means ruptured. ’ ’

Based on the above instructions, the jury was handed five forms of verdict which have been previously set out in full. Reference to form 5 (with the court’s explanatory note attached at the bottom) leads us to only one conclusion, i.e., the jury found there were not two explosions. As pointed out before, appellants admit there was an explosion in the fire box, so the jury must have found there was no explosion (or eruption) in the steam pipe.

(2) Appellants’ next point is phrased as follows:

“The Trial Court erred in refusing to submit to the Jury issues raised by the pleading and evidence as to ambiguities in the insurance policy of Appellee American Motorists Insurance Company which if found by the Jury in Appellants’ favor would have resulted in a lesser judgment against Appellants under the joint loss clause in their policies.”

We see no merit to appellants’ contentions under this point, and we believe -they can be adequately disposed of in the following summary manner.

Arkansas had a policy written by American which also covered (in a limited way) damage by explosion such as the one in this case. An endorsement on the policy reads as follows:

“It is agreed that coverage is provided hereunder as respects an explosion of gas within the furnace of a boiler or gas passages therefrom to the atmosphere, except that this policy does not provide this coverage in the event such an explosion is covered by any other valid and collectible insurance.” (Emphasis added.)

Without going into the merits of appellees’ contention that appellants, not being a party to the contract of insurance between American and Arkansas, have no right to challenge the meaning of the policy placed on it by the two participating parties, we think the meaning of the emphasized words in the above clause is clear and unambiguous. In plain language it says American was not to be liable if there was other coverage. In view of the conclusion we have reached under point (1) above, it is now established that the explosion was covered by other insurance, i.e. by appellants’ policies. This interpretation is sustained by the record which discloses that Arkansas paid American only $11.71 for this limited coverage when they would have had to pay $1,241.24 for unlimited coverage.

Much the same reasoning disposes of appellants’ contention that American should have to pay its proportional part of the damages because American’s policy contained a “joint loss” clause just like all of appellants’ policies. It seems to us that appellants’ contention loses all its force since we have already concluded (as did the jury) that American is not liable for any of the damages caused by the explosion — hence there could be no “joint loss” as to American.

(3) Appellants here contend that “it was a question of fact for the jury that furnace explosion coverage was specified in the insurance policy” of American. We feel that what we have previously said refutes and disposes of this contention. The trial court took the position, and we agree, that there was no ambiguity in the language contained in American’s policy. It was the province of the court and not the jury to determine this fact. See: Steele v. McCargo, 260 F. 2d 753 (8 Cir. 1958). Insurance policies are to be interpreted like, other contracts. See: The National Life and Accident Insurance Company v. Baker, 234 Ark. 670, 354 S. W. 2d 1. Also, if the contract is not ambiguous, it is the province of the court and not the jury to interpret it, as held in Lindner v. Mid-Continent Petroleum Corporation, 221 Ark. 241, 252 S. W. 2d 631.

(4) Appellants’ final contention for a reversal is couched in this language:

“The Trial Court erred in ruling as a matter of the law that the Agreement of Guiding Principles of May 1,1950, has no application to the liability of the Appellee American Motorists, because this involved a question of fact for the Jury.”

Appellants, in this connection, preface their argument with this statement:

“The Agreement of Guiding Principles is a written guide designed to prevent disputes in the apportionment of losses involving overlapping coverage between boiler and machinery policies and fire, extended coverage and explosion policies, which disputes are declared to be against the interest of the insuring companies and the general public.”

The instrument referred to above, consisting of 7 pages, contains this clause:

“Therefore Be It Resolved, that the National Bureau of Casualty Underwriters and the National Board of Fire Underwriters recommend to their respective members and subscribers their concurrence in adopting the following Agreement of Guiding Principles, effective on and after May 1, 1950, at Noon Standard Time, at location of property involved.”

Near the middle of the instrument appears the following in bold capital letters:

“The guiding principles apply only when overlapping coverage exists.”

Speaking of this instrument the trial court, in its judgment stated:

“The Court finds that the policies of insurance involved here and the Agreement of Guiding Principles are unambiguous, that there is no overlapping coverage, and the Court finds as a matter of law that the Agreement of Guiding Principles has no application under the facts and circumstances of the case and creates no liability on the part of American Motorists Insurance Company, nor any defense as to the claim of Arkansas Power & Light Company; the Court further finds, as a matter of law, that the joint loss clauses of the policies of insurance have no application under the facts and circumstances in this case.”

In our judgment the court’s statement was correct, and we would not presume to rephrase it. It is also our own opinion that the language in the “Agreement of Guiding Principles” document is clear and unambiguous, and, as we have already pointed out, the trial court had the right to construe it. The interpretation of the trial court becomes even more conclusive since we have already decided American is not liable for the loss but that ■appellants are, so there could not possibly be any “overlapping coverage” as between American’s policy and the policies of appellants.

Finding no error, the judgment of the trial court is affirmed.

Affirmed.


text:
    Goodwin v. State.
    5-2742
    360 S. W. 2d 490
    Opinion delivered October 1, 1962.

      G. Floyd Huff, Lookadoo, Gooch <& Lookadoo, Daily S Woods, Shaver, Tackett & Jones, for appellant.

      David B. Whittington, Wood, Ghesnutt & Smith, for appellee.
   Paul Ward, Associate Justice.

This litigation was initiated to invalidate certain transactions negotiated by H. C. Warren as County Judge of Garland County during the year 1959. In these transactions Warren, acting in the capacity of County Judge, bought numerous expensive pieces of used road building equipment from Paul G. Goodwin on divers occasions, each time delivering to him used county equipment as a down payment. On these occasions Warren executed a purchase contract together with a written note or agreement, bearing interest, for the balance due. These notes or agreements were to be paid in equal installments — some due in 1959 and the others due the following year. These installment notes were then transferred or sold by Goodwin to different banks. Some of the installment payments had been made to the banks by the county.

This suit was filed in the chancery court by the prosecuting attorney and five members of the grand jury (all citizens and taxpayers of Garland County) against Goodwin and the said banks. The plaintiffs, generally speaking, sought to have the contracts (sales, purchases, notes) rescinded and declared null and void; to have Goodwin and the hanks repay the county any money they had received; to have returned to the county any equipment (or the value thereof) turned over to Goodwin; to be reimbursed for all damages and depreciation to equipment sold to Goodwin; to enjoin the present county judge (Warren having gone out of office in February of 1960) from approving any claims based on the installment payments due or to become due; and, to impound for the benefit of the county the equipment purchased from Goodwin. The complaint sets out in detail the above mentioned transactions, identifying by code or name each piece of equipment bought or transferred by Warren (as county judge), but a brief summary, set out below, will suffice for all purposes of this opinion.

(a) On January 12, 1959 contract to buy equipment for $29,500; $6,000 paid by county; balance (including $2,115 interest) $25,615, payable in four equal installments of $6,403.75, due July 1, 1959 — November 15, 1959 —July 15, 1960 — November 15, 1960. This contract was endorsed by Goodwin and transferred to the Bank of Amity on a date and for a consideration unknown to plaintiffs. It is alleged that Goodwin bought the equipment for $17,000 and then sold it to the county for $29,-500. The county has already paid the bank the first two installments or a total of $12,807.50 and the same amount is payable in 1960. The $6,000 down payment represented a trade-in of equipment belonging to the county.

(b) On April 15, 1959 Warren purchased equipment from Goodwin for $21,000; down payment $3,500 (represented by county equipment delivered to Goodwin ); balance due by county (including $1,575 interest), $19,075; payable $2,500 May 15, 1959, and three payments of $5,525 each due April 15, 1960, October 15, 1960, and December 15, 1960. Prior to May 15, 1959 Goodwin endorsed the contract to the First National Bank of Fort Smith — consideration unknown. The county has made the first payment to the bank.

(c) On February 15, 1959 there was a similar transaction between Warren and Goodwin. Equipment was purchased for $31,000 with a down payment of $1,500 (representing county equipment trade-in); the balance (including $2,920.25 interest), $32,420.52 payable in four equal installments, two due in 1959 and two in 1960. The contract was transferred by Goodwin to Elk Horn Bank & Trust Co. of Arkadelphia. The first installment has been paid to the bank by the county. On March 4, 1960 the bank filed a claim for the second payment but it has not been approved by the county judge. Plaintiffs allege that Goodwin purchased the equipment for $19,500 and sold it to the county for $31,000.

(d) Similarly, on January 1, 1959 Warren purchased from Goodwin equipment for $7,600 payable (with $376.20 interest) in three equal installments due in March, August and November of 1959. This contract was assigned to the Bank of Amity. The county made the first payment of $2,658.73 to Goodwin. The other two payments were made to the bank.

(e) On December 11, 1959 Warren executed a contract with Goodwin for the purchase of equipment, consideration being $9,800 with a down payment of $3,000 (representing county equipment trade-in). The balance (including $367.21 interest) of $7,167.21 payable $1,389.07 on June 15, 1960, and $2,389.07 in September and November, 1960. This contract was assigned to. the Bank of Amity, and no claim for payment has been filed with the county.

After the issues were fully developed and presented by able counsel on both sides the chancellor made numerous findings in favor of appellees. These findings will be discussed separately under the five points urged by appellants for a reversal.

1. It is first contended by appellants that the plaintiffs, being the prosecuting attorney for Garland County and members of the grand jury of that county, were not proper parties, and, therefore, had no standing in court to maintain this action. In support of their contention, appellants point ont that the grand jury was in session when this suit was filed, and that all the plaintiffs (except the prosecuting attorney whose duty it was to advise the grand jury) were members of the grand jury, although they were qualified electors and taxpayers. Attention is also called to Sections 43-927 to 43-931, Ark. Stats, which, among other things, require members of the grand jury not to make public what they say or how they vote, and not to disclose evidence given them as jurors. In Collins v. State, 200 Ark. 1027, 143 S. W. 2d 1, the Court said these mandates are for the protection of the jurors. In State v. Fox, 122 Ark. 197, 182 S. W. 906, it was said the proceedings of a grand jury should be kept secret and cannot be reviewed by a trial court on a motion to quash an indictment. Appellants argue that members of the Grand Jury investigated the facts upon which this complaint was based and that they had no legal right to use this information as they are here attempting to do.

We find no merit in appellants’ contention on this point. It is conceded that all five plaintiffs are qualified as electors and taxpayers to maintain this action. The information, or at least most of it, is a matter of public record, and appellants do not point out what, if any, information was obtained otherwise. Even if some of the plaintiff-jurors did obtain some of their information as jurors, we know of no law or rule that would prevent them from using it in an action of this kind to protect the public interest. In 24 Am. Jur. Grand Jury, § 50, page 867, there is a discussion, under the heading “Application of Rule Permitting Disclosure of Evidence,” which contains this statement:

‘ ‘ These illustrations of the extent of the rule requiring secrecy of the grand jury’s proceedings amply sustain the statement, often made, that any person may disclose in evidence what transpired before the grand jury wherever such disclosure becomes necessary for the protection of public or private rights. Indeed, there is authority that a grand juror may, after the grand jury has been discharged and the accused has been taken into custody, disclose to the accused’s counsel the evidence on which the indictment against him was based, in order to enable him to make defense. Statutes sometimes permit an accused person to procure a stenographic record of the testimony taken before the grand jury.”

In addition to the above there is another sufficient reason for the chancellor’s refusal to dismiss the complaint in this case. Even if it be conceded (as we do not) that the jurors were not proper plaintiffs, still the prosecuting attorney could maintain this action. We do not find that appellants seriously challenge his status as a proper party plaintiff. Ark. Stats. § 17-711 makes it the “express duty” of the prosecuting attorney to enforce the terms and conditions of Amendment No. 10 to the Constitution of 1874 dealing with the prohibition against a county judge authorizing any contract in excess of the revenues, which is one of the principal issues in this case. The following section, § 17-712, subjects the prosecuting attorney to impeachment if he fails to perform his duty.

2. It is next argued by appellants that the transactions heretofore described were not void and that the chancellor erred in so holding. The onus of the contention is directed toward showing the contracts do not violate Amendment No. 10 to the Constitution. The pertinent part of this Amendment reads:

“. . . no county court ... or agent of any county shall make or authorize any contract . . . for any purpose in excess of the revenue from all sources for the fiscal year in which said contract ... is made.”

Using the audit for 1959, made by the State of the finances of Grarland County, appellants appear to contend that the contracts (together with other expenditures) did not exceed the available revenues for 1959. The audit showed the county’s total revenue available for expenditures for 1959 to be $550,781.33 and the total actual expenditures for that year to be $551,820.90.

It is our opinion that the numerous contracts mentioned above violate the spirit and the plain provisions of Amendment No. 10 of the Constitution set out above. While the words “County Judge” do not appear in the foregoing quotation it is inconceivable that we should interpret the amendment so as to give the county judge more power to make contracts for the county than is given to the county court. It is admitted here that Judge Warren executed the contracts without prior authorization by the county court. Appellants, it seems to us, in arguing that the expenditures did not exceed the revenue, overlook the payments to be made in 1960. Amendment No. 10 has been construed many times by this Court and always contrary to appellants’ contentions in this case. See: Kirk v. High, 169 Ark. 152, 273 S. W. 390; Carter v. Cain, 179 Ark. 79, 14 S. W. 2d 250; Nelson v. Walker, 170 Ark. 170, 279 S. W. 11; Luter v. Pulaski Hospital Association, 182 Ark. 1099, 34 S. W. 2d 770; Stanfield v. Friddle, 185 Ark. 873, 50 S. W. 2d 237; Warren v. State, 232 Ark. 823, 340 S. W. 2d 400, and there are others too numerous to mention. In the last two citations mentioned we held such contracts to be “wholly void”. In the case of City of Little Rock v. White Company, 193 Ark. 837, 103 S. W. 2d 58, this Court, after citing other cases, said:

“To make a contract in one year to be paid out of the revenue of a succeeding year is a violation of Constitutional Amendment No. 10.”

In addition to what we have already said we point out also that the contracts, which provided for interest on the unpaid balances, violate Amendment No. 13 of the Constitution. The pertinent part of this Amendment reads:

“Neither the State nor any . . . county . . . shall ever lend its credit for any purpose whatever; nor shall any county . . . ever issue any interest-bearing evidences of indebtedness, except . ;

The exception indicated in the last word quoted above has no relevancy to the facts and issues in the case before us.

3. We cannot agree with the contention that the banks were Iona fide purchasers and holders in due-course. They rely on Ark. Stats. § 68-101 and § 68-152 (sections of the Uniform Negotiable Instrument Act) to sustain their contention. The latter section provides that a “holder in due course” is one who has taken an instrument under the following conditions: (1) It is complete and regular upon its face; (2) it is taken in good faith and for value; (3) the taker had no notice of an infirmity. We are unwilling to hold that the banks, in good faith, had no notice the contracts were not “regular” and had no ‘ ‘ infirmities ’ ’. The contracts clearly showed that they bore interest in violation of Amendment No. 13 and that some of the installments became due in 1960 in violation of Amendment No. 10 as interpreted by our decisions. To hold otherwise would virtually destroy the effect of the two amendments, opening the way for an unscrupulous or careless county judge to wreck the financial stability of his county.

4. We find no merit in appellants’ contention that the contracts were ratified by virtue of the county having made payments thereon. Having held the contracts were “void” they could not be ratified. See: Forrest City v. Orgill, 87 Ark. 389, 112 S. W. 891 and Lamar Bath House Company v. City of Hot Springs, 229 Ark. 214, 315 S. W. 2d 884. What we have said applies likewise to the defense of estoppel. We have examined other contentions made by appellants under this point but find nothing to justify a reversal.

5. Under this point appellants state: “The trial court erred in granting plaintiffs excessive relief and priority to which they are not entitled”. Instances of alleged excessive relief complained of by appellants are discussed below.

(a) The record shows that a patrol, owned by the county, was sold to Goodwin by Warren who later bought it back after Goodwin had allegedly spent some $4,000 on repairs. As before set out the chancellor impressed a lien on all the property purchased from Goodwin to secure payment of the judgment. The chancellor, however, excluded this particular piece of equipment from such lien. In this we think the chancellor was correct. He could have found this sale to Goodwin was a part of an overall scheme to defraud the county and that Goodwin was a party to such a scheme. Such being the case Goodwin could not come into a court of equity and seek to profit by his own scheming. Moreover, Judge Warren had no right to sell county property without complying with Ark. Stats. § 17-305. It does not appear that this was done.

(b) The chancellor held that the First National Bank (as in the case of other banks) must repay to the county the sum of $2,500. This was the amount which the bank received as payment from the county on the first installment due on May 16,1959, being a part of the transaction designated (b) heretofore. For reasons already stated this transaction violated Amendments No. 10 and No. 13 and was therefore void, and the chancellor correctly ordered the bank to make repayment.

Finding no error, the decree of the trial court is affirmed.

Affirmed.


author: Sam Robinson, Associate Justice.

text:
    Brown v. Patterson Construction Co.
    5-2764
    361 S. W. 2d 13
    Opinion delivered October 1, 1962.
    [Rehearing denied November 5, 1962.]

      J. R. Wilson, for appellant.

      Riddick Riff el, for appellee.
   Sam Robinson, Associate Justice.

Randall Gene Brown, an employee of W. H. Patterson Construction Company, was killed while working at his job of helping to unload a truck. There is no question about his death growing out of and in the course of his employment. He had worked for Patterson about four weeks. His wages were $1.00 per hour and he earned an average of $33.75 per week. The employer, Patterson, and his insurance carrier promptly admitted liability under the workmen’s compensation law.

The decedent was only 18 years of age with no wife or children, but left surviving a father and mother and several brothers and sisters. The employer was in doubt as to how the compensation benefits should be distributed under the provisions of Ark. Stats. 81-1315, and therefore notified the Workmen’s Compensation Commission of the death of the employee, and stipulated that the death grew out of and in the course of the employment.

The amount of monthly contribution by the decedent to the support of his partially dependent family was established by the testimony of the father and mother. Although there is a little discrepancy in the evidence as to the exact amount contributed to the family by the decedent, it appears that the Commission gave the family the benefit of any doubt and made an award of 40%, amounting to about $14.00 per week. There is substantial testimonj'' to support this ward made by the Commission. In addition, $250.00 was awarded as burial expense as provided by Ark. Stats. 81-1315, and an award of $100.00 was made to the attorney for the claimants as provided by Ark. Stats. 81-1332 for claims that are not contested./ We find no error.

Affirmed.


author: Jim Johnson, Associate Justice. Paul Ward, Associate Justice,

text:
    Clark v. Hambleton.
    5-2751
    360 S. W. 2d 486
    Opinion delivered October 1, 1962.

      Fletcher Long, for appellant.

      MannS McCulloch By: John Mann, for appellee.
   Jim Johnson, Associate Justice.

This case involves the issuance of a writ of mandamus against a county clerk. In March, 1961, appellees as taxpayers filed a petition in Circuit Court for a writ of mandamus against appellants, the County Judge and County Clerk of St. Francis County, seeking to require these officials to publish all claims allowed against the county, under the provisions of Ark. Stat. § 15-204. Appellants answered, admitting that they had not published a list of warrants, contending that the Quorum Court of St. Francis County had refused to appropriate funds for the purpose of paying for the publication provided in the statute, and had, in effect, forbidden any expenditure for such services. It was stipulated that the Forrest City Daily Times-Herald offered to publish a list of allowed claims as prescribed by statute.

The trial court granted a writ of mandamus against the County Clerk and found that the petition as against the County Judge should be dismissed. Specifically, the writ of mandamus orders the County Clerk to cause to be published a list of claims allowed at the close of each regular or special term of the County Court held after January 1, 1962. From this order comes this appeal. The County Judge joined the County Clerk in the appeal.

For reversal appellants urge that: (1) the trial court abused its discretion in the granting of a writ of mandamus against the County Clerk; and (2) the Trevathan case sets forth in detail the proper approach for any remedy the appellees may have.

The Trevathan case referred to by appellants is Jeffery, County Judge v. Trevathan, 215 Ark. 311, 220 S. W. 2d 412. That case determined that mandamus will lie to require a quorum court to appropriate necessary funds for the payment of claims for printing the list of allowed claims. It discussed in detail the case of Nevada County v. News Publishing Co., 139 Ark. 502, 206 S. W. 899, and reaffirmed its holding that a claim could not be allowed by a county court until an appropriation had been made by the quorum court. Under the facts in the case at bar, the question of whether the County Judge, the County Court, or the County Clerk and the Quorum Court can be, or should be ordered to pay for the cost of publishing the list of warrants (i.e., allowed claims) is not before us. The sole question presented by this appeal is whether the County Clerk, under the facts in this case, should be ordered to publish the list of claims allowed by the County Court.

Article XIX, § 12 of the Arkansas Constitution provides :

“An accurate and detailed statement of the receipts and expenditures of the public money, the several amounts paid, to whom and on what account, shall, from time to time, be published as may be prescribed by law. ’ ’

The enabling legislation implementing this section of the Constitution was enacted by the people and is known as the Publicity Act of 1914 [Initiated Measure of Oct. 13, 1914, No. 2; Ark. Stats. §§ 15-201 — 15-212]. The act provided for publication of laws, reports and miscellaneous matters, including claims allowed against counties. Section 5 of that act reads as follows:

“15-204. Claims allowed'against county — List to be published. Immediately after the close of each regular and special term of the County Court, the clerk thereof shall cause to he published one [1] time, in one [1] paper published in such county; a list of all claims allowed against the county, and the road districts thereof, to whom allowed, and for what purpose, and the amount.”

Section 13 of the Publicity Act, the penal provision, is as follows:

“15-212. Penalty for failure to comply. Every person who shall fail to comply with the provisions of this act [§§ 15-201 — 15-212] shall be fined in any sum not exceeding one thousand dollars [$1,000.00].”

It is the contention of the appellees that the above statutes mean just what they purport to state and that these statutes impose a mandatory statutory official duty upon the County Clerk to publish immediately after the close of each regular and special term of the County Court a list of all claims allowed against the county. It is not reasonable to think that the Legislature intended to make publication of claims discretionary with the County Clerk when the statute clearly states that “the clerk shall ...” and provides a heavy penalty for failure to perform this duty. Therefore, it is our view that the law requires the County Clerk to perform a plain and specific public duty, calling for the use of no discretion, nor the exercise of official judgment. This being true, we.are bound by the settled rule as stated in the early case of Willeford v. State, 43 Ark. 62, as follows:

‘ ‘ Mandamus is an appropriate remedy where a public officer is called to perform a plain and specific public duty, positively required by law, calling for the use of no discretion, nor the exercise of official judgment.”

Affirmed.

Ward, J., concurs.

Paul Ward, Associate Justice,

(Concuning). My only reason, for concurring in this opinion is to attempt to dispel some of the confusion which apparently exists in the minds of many county clerks over the state as to what their obligation is to publish a list of the claims which have been allowed against the county. The Legislature, as well as the majority opinion and other opinions of this Court, makes it mandatory upon the clerk ‘ ‘ to publish in a newspaper a list of all claims ...” In instances where no appropriation has been made to pay for this publication the county clerk must make up his mind what to do. He has no newspaper himself, so how is he to follow the mandate to publish the list? It is my thought that it would be helpful for the county clerks to know that it is not their duty personally to publish the list, but they do have the power to make a contract for the publication of the list, and it is up to the publisher to collect his money.

In the Nevada County case (cited in the majority opinion) on page 505 of the Arkansas Reports the Court said:

“The Legislature made it mandatory upon the county clerk to publish in a newspaper a list of all claims allowed against the county, etc. This necessarily gave the county clerk the power to make a contract for such publication. ’ ’

The clerk has the power to make such contract even though no appropriation has been made for that purpose, and it is therefore his duty to conscientiously attempt to do so. When he has done this, he has, in my opinion, discharged the duty imposed on him by statute and our decisions.