text:
    Edens v. State.
    5053
    363 S. W. 2d 923
    Opinon delivered January 14, 1963.
    [Rehearing denied February 11, 1963.]

      Marcus Feitz, Gus R. Camp and Guy Brinkley, By: Gus R. Camp; for appellant.

      Frank Holt, Atty. General, by, Jack Holt, Jr., Asst. Atty. General; for appellee.
   George Rose Smith, J.

The appellant was convicted of having embezzled ten thousand dollars that had been entrusted to him as an agent. Ark. Stats. 1947, § 41-3927. The jury left the matter of punishment to the trial judge, who sentenced the defendant to imprisonment for eighteen years, with six years of the sentence being suspended. The motion for a new trial contains 35 assignments of error, most of which are argued in the appellant’s brief. We shall discuss only the more important points.

I. The evidence is sufficient to support the conviction. Dr. T. B. Harper, the prosecuting witness, testified that he and the accused sought to purchase certain land in Greene county as a partnership venture. Dr. Harper deposited $10,000 with Edens, who did not have permission to use the money for any purpose except that of purchasing the property. The land, however, was sold by its owner to some third person. When Dr. Harper requested the return of his deposit he discovered that Edens did not have the money and was unable to make restitution. This testimony is sufficient to support the jury’s conclusion that Edens unlawfully converted to his own use funds that had been entrusted to him as an agent, as charged in the information.

II. Before the trial the accused filed a motion for a bill of particulars, asking for such matters as copies of any instruments to be used in evidence by the State, any statements taken by the State from its witnesses, and other similar information that we need not detail. The court directed the State to furnish the accused with a copy of Dr. Harper’s check for the $10,000 deposit, but in other respects the motion was denied.

Although denominated a motion for a bill of particulars the motion was actually a request for discovery. Our discovery statute does not apply to criminal cases. Bailey v. State, 227 Ark. 889, 302 S. W. 2d 796. The true function of a bill of particulars is to require the State to set forth the criminal act in detail and with sufficient certainty to apprise the defendant of the crime and enable him to prepare his defense. Ark. Stats., § 43-804. The information filed against Edens was quite definite in specifying the offense being charged. Hence the so-called motion for a bill of particulars was properly denied, for the accused was already aware of the exact offense for which he was to be tried.

III. On the day of trial the accused asked for a continuance on the ground that a certain file containing information about the transaction with Dr. Harper had been subpoenaed by a federal agency and had not been returned to Edens. At the hearing upon this motion it developed that the file had been in the federal agency’s possession for six months or more and that Edens had made practically no effort to retrieve it. In the circumstances the trial court did not abuse its discretion in denying the motion for want of diligence. Bryan v. State, 179 Ark. 216, 15 S. W. 2d 312. Furthermore, Edens’ testimony in support of the motion was not sufficiently definite to prove that the file contained any specific documents tending to exonerate him.

IY. After the trial had begun, and while the State’s first witness was being questioned, defense counsel moved for a mistrial on the ground that the prospective jurors had not been sworn to give truthful answers to questions asked upon the voir dire examination. Ark. Stats., § 39-226. It affirmatively appears that counsel were aware of this omission while the jury was being selected, but they made no objection until after the trial had begun. The judgment recites that defense counsel announced in open court that all members of the jury “were good for the defendant.” In the circumstances the objection was waived. See Bowlin v. State, 175 Ark. 1115, 1 S. W. 2d 553.

Y. Dr. Harper testified that he and Edens had intended to pay $55,000 for the land in question, with each to contribute equally. Dr. Harper was allowed to testify that in addition to the payment of $10,000 that was set forth in the information against Edens he also paid to the accused an additional $17,500 (the rest of his half of the purchase price) and that he had not gotten back any of his money. The defendant’s objection to the latter testimony was correctly overruled. The two payments were made only a few days apart and were elements of the same transaction, especially as it appears that Dr. Harper later asked for the return of all his money. Hence the State was entitled to prove both payments in order to show the whole transaction. Autrey v. State, 113 Ark. 347, 168 S. W. 556. Since the testimony was admissible for one purpose it was incumbent upon the defense to ask the court for an admonition limiting the effect of the proof. Amos v. State, 209 Ark. 55, 189 S. W. 2d 611. No such request was made.

YI. Dr. Harper was evidently somewhat reluctant to give evidence against Edens. We think the court was right in refusing to permit defense counsel to bring out the fact that Dr. Harper did not ask that Edens be prosecuted, did not wish to see him go to the penitentiary, and the like. Such an attitude on the part of the prosecuting witness has no bearing upon the guilt or innocence of the accused and, on the issue of credibility, does not tend to show that he is prejudiced against the defendant. Thus the testimony would have served no legitimate purpose and apparently was offered only as a basis for an argument that Edens was being persecuted by the prosecuting attorney.

VII. Objection is made to the court’s action in including in its original instructions to the jury a statement that if the jury found the defendant guilty but were unable to agree upon the punishment they might leave that matter to the court. The giving of such an instruction is not reversible error. Downs v. State, 231 Ark. 466, 330 S. W. 2d 281. In Underwood v. State, 205 Ark. 864, 171 S. W. 2d 304, we observed that where it appears that such an instruction “is or may become necessary or proper,” it is the better practice for the court to give it before the jury first retires to consider its verdict. Even so, we did not intend to state that the instruction should routinely be given in every case, and if the Underwood case has been so interpreted we take this opportunity to point out that ordinarily there is no occasion for the jury to be supplied with this information.

VIII. In the course of his closing argument the prosecuting attorney stated that the State’s evidence was undenied by anyone (the defendant having offered no proof whatever). This argument did not amount to a comment upon Edens’ failure to testify; for it was properly a contention that the testimony should be believed, because it was uncontradicted. Davis v. State, 174 Ark. 891, 298 S. W. 359.

We have considered the other assignments of error but do not find them to necessitate discussion.

Affirmed.

Wand, J., not participating.

Holt, J., disqualified.


source: Caselaw Access Project

author: Paul Ward, Associate Justice.

license: Public Domain

text:
    Black v. Clary.
    5-2864
    363 S. W. 2d 528
    Opinion delivered January 14, 1963.
    Shaver, Tackett & Jones, for appellant.

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

This is a dispute between appellant and appellees over the title to certain lands formed by accretion.

Appellees, Odell Clary and George Gaston, bought their land from B. P. King in 1948. This land, which is described by metes and bounds, consists of 231 acres lying in fractional sections 7 and 8, Township 18 south, Bange 25 west. All this land (prior to accretions) was in Lafayette County, and all of it lies east of Bed Biver. It appears from the record that at one time the southeast boundary of appellees ’ land was the center line of what is called Old Bed Biver or Kitchen’s Bend Lake. Appellant owns land known as Kitchen’s Bend Island, in fractional sections 7, 8, 17 and 18, Township 18 south, Bange 25 west — all in Miller County. The plat introduced in the record shows that appellees ’ lands lie north and west of appellant’s land; that the center line of Old Bed Biver or Kitchen’s Bend Lake was originally the dividing line between the two parcels of land, and that Lafayette County (at this particular point) is north of Miller County.

It appears undisputed that many years ago, as the bed of Bed Biver shifted positions, new land was added by accretion to the lands of appellant and appellees. It appears also that the said accretions began at a point in the middle of what is now Old Bed Biver and continued to form in a southwesterly direction. This accreted land is the subject of this litigation. It is undisputed that in 1946 B. P. King built a fence from the point above described (where the accretion began) which ran in a southwesterly direction (apparently) to Bed Biver as now located. It is indicated by the plat introduced in evidence that this fence runs from Lafayette County to Miller County.

Appellees filed this suit on January 6, 1961, in Lafayette County, to enjoin appellant from trespassing on the accreted land on the north side of the fence previously described, and asking to have their title quieted to the accreted lands north of the said fence and for $1,000 in damages. The trial court, after a full hearing, denied damages, but decreed that title to the disputed lands (north of the fence) be “fully invested and confirmed in plaintiffs by the laws of accretion and of adverse possession”.

From the above decree appellant prosecutes this appeal, seeking a reversal on the two grounds hereafter set out.

One. It is first insisted by appellant that ‘ ‘ The trial court was without jurisdiction”. Appellant’s argument on this point is: (a) It is conceded appellees’ base tract of land was (originally) in Lafayette County, and likewise all of appellant’s base tract was in Miller County; (b) It is conceded also that (originally) the line which divided Lafayette County from Miller County also divided appellant’s land from appellees’ land: (c) Consequently none of the accreted lands could possibly be in Lafayette County, and therefore the chancery court of Lafayette County could not have jurisdiction under Ark. Stats. § 27-601. The pertinent portion of this section, in substance, states: Actions for the recovery of real property or any interest therein must be brought in the county in which the property or “some part” thereof is situated.

"We would be constrained to agree with the above argument except for one thing — there is nothing in the record (including both the testimony and the plat) which shows conclusively that “some part” of the accreted lands is not located in Lafayette County. That being the situation we must indulge the presumption the trial court had jurisdiction. See: Tipton, Administrator, Ex Parte, 123 Ark. 389, 185 S. W. 798. The trial court, in the decree, found as a fact that it “has jurisdiction of the parties and the subject matter”. In the case of Crockett v. Bearden, 203 Ark. 48, 156 S. W. 2d 79, an almost analagous question arose as is presented here, and, in resolving it, this Court said:

“The court exercised jurisdiction in respect of the lands, which it could not have done had the subject-matter been in a different county; hence, the presumption attaches that the lands were in Greene County.”

Two. It is also contended by appellant the “evidence was insufficient to award ownership of the accretions to appellees”. It is our opinion, however, from an examination of the entire record, that the trial court was justified in finding appellees had acquired the disputed land as accretion to their lands and by adverse possession. R. P. King testified he had purchased the land (now claimed by appellees) in 1946 and took immediate possession; that there were some accreted lands at that time; that he employed the county surveyor to make a survey of the lands and run a line along the center of Old River; that he built a three wire fence in a southwest direction along that line; that he claimed the land to that fence on the north side; that he sold the land to appellees in 1948; and, that he was reasonably sure he notified appellant (or his brother-in-law) he was building the fence; that appellant saw the fence but never objected to it. There was other testimony that the fence was replaced in 1953 by another fence in substantially the same location. Appellant, Clary, testified he and Gaston had been in possession of the land ever since they bought it in 1947; that they use the land (north of the fence) to pasture cattle; and, that they have improved the pasture. He further testified that appellant never disputed the line until he came into court. The testimony of appellee, Gaston, was substantially the same as that of Clary.

Appellant contends that the possession of appellees was neither adverse nor continuous for seven years but we think the weight of the testimony, coupled with the other facts and circumstances disclosed by the record, supports the finding of the trial court to the contrary.

Notice of adverse possession may be actual or it may be inferred from facts and circumstances, such as grazing cattle, erection of a fence or improving the land. See: Nall v. Phillips, 213 Ark. 92, 210 S. W. 2d 806; Baughman v. Foresee, 211 Ark. 149, 199 S. W. 2d 596; and, Sims v. Petree, 206 Ark. 1023, 178 S. W. 2d 1016.

Affirmed.


author: Sam Robinson, Associate Justice.

text:
    Diamond Acres v. Dietz.
    5-2889
    363 S. W. 2d 914
    Opinion Delivered January 14, 1963.
    [Rehearing denied February 11, 1963.]

      W. S. Walker and Virgil D. Willis, for appellant.

      John E. Shouse and J. Loyd Shouse, for appellee.
   Sam Robinson, Associate Justice.

The appellant, Henry Dietz, and appellee, John Dietz, are brothers. Henry acquired several hundred acres of land near Bull Shoals Lake in Boone County. He formed a corporation named Diamond Acres, Inc. and conveyed a part of the land to the corporation. His intentions were to divide the land into small tracts or lots and sell them for residential property.

In August, 1959, Henry employed the appellee, his brother John, in connection with the development. Whether John was working for Henry, as distinguished from the corporation, is not made an issue on appeal.

John’s salary at the beginning was $60.00 per week. He did all kinds of work that he was called upon to do and continued as an employee of appellants until November, 1961. In January, 1962, John filed this suit contending that in the first part of June, 1960, he and Henry entered into an oral contract whereby John was made general manager of the entire operation and was to receive as consideration for his work, five per cent commission on the gross sales of the real property, and that during 1961 the sales amounted to about $480,000.00; that appellants were indebted to him in the sum of about $20,000.00 on the contract of employment.

Defendants answered asserting that the alleged oral contract of employment was barred by the statute of frauds because it was not to be performed within one year. Henry further alleged that he employed John on August 27, 1959 at a salary of $60.00 per week; that from January 17, 1960 to June 2, 1960, the salary was $75.00 per week; from June 3, 1960 to December 31, 1960, the salary was $125.00 per week; from February 24, 1961 to August 7, 1961, the salary was $125.00 per week, and that the salary had been paid in full. By way of cross-complaint Henry alleged that John owed him $800.00 as borrowed money.

The cause was tried to a jury and there was a verdict for John in the sum of $5,400.00 and a verdict for Henry on the cross-complaint in the sum of $400.00. Thereupon, the Court credited one verdict against the other and judgment was entered for John in the sum of $5,000.00. Henry and his corporation have appealed.

Appellants rely on three points. First, that the alleged oral contract for five per cent commission is barred by the statutes of fraud because the work was not to be performed within one year. Second, that the alleged contract was for the payment of a commission for the sale of real estate, and since John had no real estate or brokers license he cannot recover. Third, that the evidence is not sufficient to support the verdict.

It is clear that the jury did not find for John on the alleged oral contract for five per cent commission. If the verdict had been based on that theory, no doubt, according to the evidence, John would have been entitled to recover about $20,000.00; but according to the allegations in Henry’s answer and the evidence introduced by appellants, John was employed during certain periods for a stipulated salary. Appellants’ auditor testified as to the total amount paid to John as salary. When the amount paid to him is deducted from the amount appellants admit that John earned, there is left a balance owed to him in excess of the amount of the jury verdict. Appellee has taken no cross-appeal.

The case was submitted to the jury on the theory of whether appellants were indebted to appellee for work done. After having retired to consider its verdict, the jury returned for further instructions and, without objection, they were told by the Court: “If you find that the plaintiff, John Dietz, is entitled to recover for his alleged services to the defendants, in other words, if you find that they had a contract for employment and that he rendered services for which he has not been fully paid, then you would find for the plaintiff in whatever sum you find he had not been paid and insert that in the blank space.”

The evidence does not show that John was acting as a real estate agent or broker requiring a license. The evidence is sufficient to support the verdict.

Finding no error, the judgment is affirmed.


author: Jim Johnson, Associate Justice.

text:
    Gregory v. Colvin, Judge.
    5-2845
    363 S. W. 2d 539
    Opinion delivered January 14, 1963.

      Bernard Whetstone, for petitioner.

      Thomas D. Wynne, Jr. and Frank W. Wynne, for respondent.
   Jim Johnson, Associate Justice.

This is a petition for a writ of mandamus directing the respondent Circuit Judge to set a case for trial.

In September, 1959, petitioner, Bessie Gregory, filed suit in the Circuit Court of Dallas County against Fred Thompson and Henry Thompson, d/b/a Thompson Buick Company, in tort for conversion of cash belonging to petitioner. On November 16, 1959, the case was tried before a jury of twelve and resulted in a hung jury, seven to five in favor of petitioner. The trial court declared a mistrial and dismissed the jury. Thereafter on January 23, 1961, the case was again tried and again resulted in a deadlocked jury, six to six. After several requests for resetting the case for trial, on June 18, 1962, the respondent entered an order permanently denying petitioner’s request for trial, stating that, “The Court is of the opinion, that any future trial of this case would simply again result in a deadlocked jury and a mistrial and cause the county further wasted expense.” From this order comes this petition for writ of mandamus.

In support of her petition, petitioner contends that the trial court’s order effectively and permanently denies her a trial and final adjudication of her rights and deprives her of property without due process of law.

This is apparently a case of first impression. We have been unable to locate any cases in Arkansas or any other jurisdiction that are directly in point.

Petitioner’s suit in tort is a “chose in action”. It is defined in 73 C.J.S., Property, § 9b, as follows:

“A chose in action means, literally, a thing in action, and is the right of bringing an action, or a right to recover a debt or money, or a right of proceeding in a court of law to procure the payment of a sum of money, or a right to recover a personal chattel or a sum of money by action, ...”

It is basic property law that a chose in action is personal property. The right to sue for damages is property. See 73 C.J.S., Property, 9, generally; also Redfern v. Collins, 113 F. Supp. 892 (Tex.); Willis v. Franklin, 131 F. Supp. 668, (Tenn.); Wilson v. Brown, 106 F. Supp. 500 (Ky.).

The California District Court of Appeal, in Werner v. Southern California Associated Newspapers, 206 P. 2d 952, stated the rule as follows:

“The right to recover actual damage is property and the constitutional guarantees of that right are the same as of other property rights, hence an injured party cannot be deprived thereof without due process of law, which means that he is entitled to a hearing and determination by a court of law. ’ ’

In the case at bar, petitioner has sued and had two trials, both of which resulted in mistrials. A mistrial is often defined as being equivalent to no trial; certainly there has been no final determination of petitioner’s cause of action. Petitioner contends that to deny her another trial is to deprive her of property without due process of law, in contravention of the constitutional guarantees.

Section 13 of Article 2, Declaration of Eights, of the Constitution of Arkansas, is as follows:

“Eedress of Wrongs. — Every person is entitled to a certain remedy for all injuries or wrongs he may receive in his person, property or character; he ought to obtain justice freely, and without purchase, completely, and without denial, promptly and without delay, conformably to the laws.”

Similar protections are provided in the Constitution of the United States:

“Amendment 14, § 1. All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the state wherein they reside. No state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any state deprive any person of life, liberty or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.”

Eespondent contends that his order was “conform-ably to the laws”. The “laws” referred to are Arkansas Statutes §§ 27-1735 and 27-1736, which state:

“Discharge of jury. The jury may be discharged by the court on account of sickness of a juror, or other accident or calamity requiring their discharge, or by consent of both parties, or after they have been kept together until it satisfactorily appears that there is no-probability of their agreeing. [27-1735]
“New Trial After Discharge. In all cases where the-jury are discharged during the trial, or after the causéis submitted to them, it may be tried immediately or at a future time, as the court may direct.” [27-1736]

Respondent argues forcefully that the key word in the above statutes is “may”, and that by usual statutory construction “may” is directory or permissive rather than mandatory. With this we agree. Rereading these two statutes, it seems apparent that the legislature intended them to be permissive, to give the trial court discretion in the discharge of juries and in the setting of new trials. However, we cannot go so far as to say that the usual and natural meaning of the words of the statutes, in particular § 27-1736, extends to “may or may not be tried again”. From the usual and natural meaning, the legislature apparently intended that the trial court could direct when the cause would be tried — immediately or at a future date — not whether it could be tried. To hold that the statute gives the trial judge the discretion to bring a cause of action to an untimely end would be holding that a statute could abrogate a constitutional right. The classic and beautiful language of Article 2, § 13 of our Constitution expresses the opinion of this court clearly: “He ought to obtain justice freely, and without purchase, completely, and without denial, promptly and without delay, conformably to the laws”.

Writ granted.

Not participating: McFaddin and Holt, JJ.


author: Frank Holt, Justice.

text:
    Tiner v. Baldwin.
    5-2891
    363 S. W. 2d 532
    Opinion delivered January 14, 1963.

      Milham & Cummins, for appellant.

      Barber, Henry, Thurman & McCaskill, for appellee.
   Frank Holt, Justice.

This is an appeal from an order of the Pulaski Circuit Court denying appellant’s petition for a writ of certiorari.

Claimant-appellant suffered a linee and leg injury during employment in Pulaski County. It is stipulated that the accident is a compensable injury. The extent of the injury is disputed. Appellant presented his claim for Workmen’s Compensation to the Referee and an award was made. An appeal was taken to the full Commission which increased the award. Claimant-appellant’s attorney then filed with the Commission his notice of appeal to the Saline Circuit Court. His notice of appeal reached the office of the Commission one day late and the appeal was consequently denied by the Commission.

Appellant filed a petition for writ of certiorari in Saline Circuit Court on November 24, 1961, alleging that any loss of the right of appeal was through no fault of his own because of the illness of his attorney. The last day for lodging the notice of appeal in the Commission Office was November 13, 1961. On November 7th appellant’s attorney was hospitalized, returning home on November 10th. There he was confined in bed until he returned to his office on Monday, November 13th, and mailed the notice of appeal to the Commission which received the appeal the next day. The attorney contends that because of his illness he was unavoidably delayed in filing the notice of appeal on behalf of claimant. On November 29th the Circuit Court of Saline County issued a writ of certiorari directing the Workmen’s Compensation Commission to send up the records of the cause to the Saline Circuit Court and on December 5th the records were filed in compliance therewith.

On December 21st, the defendant filed his response to the petition for the writ of certiorari contending the appeal was not timely filed. On February 23, 1962, the defendant filed an amended response to the petition for certiorari questioning the jurisdiction of the Saline Circuit to hear the cause since the injury admittedly occurred in Pulaski County.

On March 14, 1962, the appellant moved to transfer the proceedings to Pulaski Circuit Court and the cause was so transferred on March 23rd. Defendant-appellee, on March 21, filed his objection in Saline Circuit Court to a transfer. Neither of the parties filed any additional pleadings in the Pulaski Circuit Court. The court denied appellant’s petition for writ of certiorari.

For reversal appellant urges that the Pulaski Circuit Court did not consider that the petition for a writ of certiorari had already been granted; and, if granted, the court should not have denied the petition; further, that the court erred in failing to review the findings and order of the full Commission.

Since the writ of certiorari had been issued, and the full record brought up, the Pulaski Circuit Court had two possible results that it could reach, i.e., quash the writ of certiorari or determine the cause on its merits.

On June 28, 1962, the Pulaski Circuit Court made the following order:

‘ ‘ On this day is presented to the Court the Petition for Writ of Certiorari filed herein by the claimant, George Tiner, and said Petition is submitted to the Court upon the record herein, the pleadings of the parties, and the Briefs and argument of Counsel.

From all of which the Court finds that the Petition for Writ of Certiorari should be denied.

It is, therefore, by the Court ORDERED that the Petition for Writ of Certiorari filed herein by the claimant, George Tiner, be and the same is hereby denied.”

We think it is significant that the order does not assign any specific reason for denying the petition for writ of certiorari.

The court, in its order, recited that it considered the “record herein, the pleadings of the parties, and the briefs and argument of counsel. ’ ’ The ‘ ‘ record herein” contained the Saline Circuit Court’s order on November 29, 1961, granting certiorari and also, the “record herein” reflects that on December 5, 1961, the Commission complied therewith by filing “the necessary papers and documents to effect the appeal to your court in this case.” We are of the opinion that the Pulaski Circuit Court treated the case as an appeal and, therefore, in denying the writ was affirming the order of the Workmen’s Compensation Commission rather than disposing of the case based upon the technicality of the aspects of a timely appeal. The circuit court had the right to treat the case at bar as an appeal in order to fully dispose of all questions presented. Brown v. State, 206 Ark. 135, 173 S. W. 2d 1016.

In reviewing, on an appeal, the findings of fact of the Commission we are limited in this case to the sole determination of whether those findings are supported by substantial evidence. Ark. Stats. 81-1325 (b). We review the facts in this case: Claimant-appellant Tiner received a compensable injury on September 6, 1960. The extent of the temporary total disability and the permanent partial disability is disputed. The Referee awarded Tiner temporary total disability from September 7,1960 to April 25,1961 and found permanent partial disability of 35% to his entire left leg. On appeal the full Commission awarded claimant temporary total disability from September 7, 1960 to May 10, 1961 and permanent partial disability of 50% to his entire left leg.

Tiner, after receiving the admittedly compensable injury, was taken to Drs. Murphy & Jones Clinic where he was treated until May 10,1961 at which time Dr. Jones found claimant’s healing period had ended. During claimant’s treatment period he was hospitalized and in an operation, muscles and ligaments were removed from his left leg and knee. A full length leg brace was eventually furnished him which he preferred to another operation. Appellant objects to the sufficiency of the Commission’s award of temporary and permanent partial disability.

As to the award of temporary total disability, Dr. Kenneth C. Jones testified that the healing period ended on May 10, 1961, “from a practical standpoint”. He recommended an operation, arthrodesis, which could reduce the permanent disability to 35 or 40%. Dr. E. M. Nixon, in his report of May 1, 1961, wrote that he would “discharge him with a permanent disability of 30% of the entire extremity”. Dr. John M. Hundley gave the opinion that he would consider the healing period to be ended when the brace is fitted. Dr. F. Walter Carruthers did not give an opinion as to when the healing period ended, however, it can be fairly inferred from his report that he thought a leg brace was necessary to provide normal ambulation. The appellee offered to provide Tiner, through Dr. Hundley, a leg brace of the recommended type on June 30, 1961. As of October 13, 1961, Tiner had not accepted the brace and offered no substantial reason for his failure to accept it. Suffice it to say there is substantial evidence to support the finding that the healing period ended May 10, 1961, according to the medical evidence in this case.

As to permanent partial disability, Dr. Kenneth C. Jones testified there was a 50% permanent disability to the entire left leg and recommended an operation on the left knee which claimant refused. Dr. Ewing M. Nixon testified there was 30% permanent disability. Dr. John M. Hundley estimated the permanent disability at 35% and Dr. F. Walter Carruthers at 60-65%.

We find, after reviewing the evidence in this case, that the finding of the Commission that the permanent partial disability amounted to 50% is supported by at least substantial evidence if not the weight of the evidence.

We affirm the action of the Circuit Court in upholding the Order of the Commission.


author: Carleton Harris, Chief Justice.

text:
    Gerard v. State.
    5048
    363 S. W. 2d 916
    Opinion delivered January 21, 1963.

      Sam Montgomery, for appellant.

      Frank Holt, Atty. General, by Russell G. Morton, Assistant Attorney General, for appellee.
   Carleton Harris, Chief Justice.

This appeal involves tbe question of the proper method of revocation of a suspended sentence. Appellant, Julius Gerard, Jr., was charged with, and convicted, of the crime of Assault with a Deadly Weapon in the Pulaski Circuit Court on May 25, 1961. The jury fixed appellant’s punishment at a fine of $1,000 and one year’s imprisonment. Suspension of the penalty was recommended to the court. The court complied partly with the recommendation of the jury by suspending the imprisonment, but refused to suspend the fine, giving Gerard one week in which to pay-same. On March 27, 1962, a bench warrant was issued for appellant, wherein he was again charged with Assault with a Deadly Weapon (an entirely separate and distinct charge from that of which he was originally convicted). The court refused to allow bond, and on March 29, Gerard was brought into court in custody of the sheriff. Appellant moved for a continuance, but this motion was denied, at which time the court made the following statement,

“Certain information has come to the Court’s knowledge that the defendant here has been in some trouble at a colored honkytonk some time ago — I don’t remember just when, and he has further been in trouble — or is in trouble now — on a gaming charge at the AmVet’s Post Number Sixty in North Little Eock, which case is now pending before the Municipal Court of North Little Eock —set for trial on the twelfth. It is the Court’s further understanding that bond was forfeited on a charge of assault with a deadly weapon two or three days ago, in a disturbing the peace count. I am just making a statement. The purpose of this hearing, of course, is to consider the revocation of a suspended sentence imposed on 5-25-61.”

After hearing the testimony of seven police officers of Little Rock and North Little Rock, the court announced that the suspended sentence was being revoked. Counsel for appellant stated that he desired to call witnesses, but the court refused this request, stating, “I don’t think you have got any right to call witnesses. This is a summary proceeding.” The court also refused to permit appellant to say anything, and entered its judgment, finding that Gerard had violated the terms of his suspension, and that the suspended sentence should be revoked and the defendant committed. Appellant moved for an appeal to the Supreme Court, and asked that bond be fixed, pending the appeal. The motion was denied by the trial court, but on April 18, 1962, this court granted an appeal and fixed bail, pending disposition of the appeal, in the snm of $2,500.

For reversal, appellant first urges that the court had no jurisdiction on March 29,1962, to take any action on the judgment rendered on May 25, 1961, since that judgment was final. We do not agree. Of course, the judgment was final in the sense that it was appealable, but it certainly was not final in the sense that it was irrevocable. The meaning of the word, “suspended” (Webster’s Third New International Dictionary) is “temporarily debarred, inactive, held in abeyance.” In fact, we have already held contrary to appellant’s contention. In State Medical Board v. Rodgers, 190 Ark. 266, 79 S. W. 2d 83, quoting from an earlier case, we said, “ ‘It was not necessary to decide in that case whether it could be done or not. However, we are now called upon to confirm the doubt there expressed; and we do now so hold. The judgment rendered is not a final one. Evidently, it was in the contemplation of the court that some further order might be entered. The defendant might be brought in under this plea at some subsequent term, and the punishment then imposed which the plea authorized . . .’ ”

Further, we added,

“We think this case very much in point and decisive of the question here presented. There has been no conviction within the meaning of the statute. There has been no final judgment entered because the sentence has been suspended, and the appellee has not been required to surrender himself in execution of such judgment. ’ ’

Appellant complains that the provisions of Act 44 of the General Assembly of 1953 were not complied with by the court at the time of the suspension of the sentence. That act authorizes the trial judge “to postpone the pronouncement of final sentence and judgment upon such conditions as he shall deem proper and reasonable as to probation of the person convicted, the restitution of the property involved, and the payment of the costs of the case. Such postponement shall be in the form of a suspended sentence for a definite number of years, running from the date of the plea or verdict of guilty and shall expire in like manner as if sentence had been pronounced; provided however, the Court having jurisdiction may at any time during the period of suspension revoke the same and order execution of the full sentence. ’ ’

Appellant states that the court did not promulgate any conditions for probation, and did not fix a definite number of years for the suspended sentence to run. We find no merit in appellant’s argument. For one thing, according to the record, the trial judge, on March 29, in open court, commented as follows:

“I followed the jury’s recommendation on this suspended sentence, and I remember at the time I told Mr. Gerard I didn’t want him operating a club, didn’t want him around a club, I would like for him to behave himself. A man on Ninth Street at three or four o’clock in the morning and who forfeits bond on a charge of — (here interrupted by counsel).”

There is nothing in the act which provides that any “conditions” must be in writing. For that matter, it would appear that a defendant should know that the suspension of the execution of the punishment given him, is dependent upon his good behavior. Of course, it would probably be helpful, and conducive to the future good conduct of one under a suspended sentence (and therefore, the better practice), for the court to enumerate, to some extent, acts that should be avoided, or places that the defendant should refrain from frequenting, etc., but we do not agree that failure to designate particular conditions has the effect of depriving the trial court of its power to subsequently revoke suspended sentences. It is obvious that the primary purpose of the General Assembly, in passing Act 44, was to set a definite period of time in which a suspended sentence would operate; in other words, the Legislature had the intent to end the practice of a trial court postponing a sentence indefinitely. Here, the sentence was suspended for a definite period of time — one year, and the suspension was revoked within that time. It follows that this contention is without merit.

It is asserted that the court erred by refusing to allow appellant to present the evidence of witnesses in his behalf, and in refusing to permit the appellant to say anything in his own defense. We firmly agree with this contention, and this error by the court necessitates a reversal. When defense counsel proposed to call witnesses (following conclusion of the testimony of officers), the court refused to permit this to be done, and likewise, when Gerard asked, “Judge, Sir, could I say something!”, replied, “No, Sir.” It is true that the officers testified to acts on the part of Gerard that appear inconsistent and incompatible with the proper conduct of one under a suspended sentence. However, irrespective of the offense with which one is charged, and regardless of the testimony against him, a defendant is entitled to call his witnesses — and certainly, — to testify himself. A basic principle of American justice is that every defendant is entitled to be heard, and this is a privilege that can be denied to an accused by only one party- — the defendant himself. No case is cited by the state that supports the trial court’s ruling on this point. Bather, our cases support the position taken by appellant, though they were not decided on the point under discussion. See Bodner v. State, 221 Ark. 545, 254 S. W. 2d 463, Parkerson v. State, 230 Ark. 118, 321 S. W. 2d 207. Both of these cases involved revocation of suspended sentences. The opinion in the Bodner case reflects that the trial court asked Mrs. Bodner if she was ready for a hearing, and she replied in the affirmative. A review of the transcript in that case reflects that Mrs. Bodner testified quite at length (though to no avail, since her suspended sentence was revoked). The Parkerson case contains language clearly indicating that one charged with acts, which could result in a revocation of his suspended sentence, is entitled to put on his defense, and the transcript in that case reflects, that though the defendant did not testify, or call any witnesses, he was given the opportunity to do so by the trial court.

Appellant complains that lie was not given sufficient time in which to prepare his defense, but in view of the fact that this case is being reversed, the question is now moot. It is likewise urged that the court erred in not permitting appellant to make bond. Again, this is no longer of consequence in the case before us, though our concept of the matter is probably best shown by the fact that we, in April, 1962, directed that appellant be allowed bond, pending this appeal.

In accordance with the views herein expressed, the judgment of the Pulaski Circuit Court, entered on March 29,1962, wherein the suspended sentence originally given appellant was revoked, is reversed and set aside, and the cause remanded to said court with directions to permit appellant to offer such evidence in his behalf as he may desire.

In order that there be no misunderstanding, we call attention to the fact that these proceedings will, in effect, be the same as though heard before the original expiration date of appellant’s suspended sentence (May 25, 1962). In other words, appellant cannot now contend that the year has expired, for the appeal taken herein had the effect of tolling, or stopping, the running of the time; nor can it be successfully argued that appellant could not, at most, serve more than approximately two months. Our statute, § 43-2324, Ark. Stats., 1961 Supp. (Act 44, 1953) concludes in the following manner:

“provided however, the court having jurisdiction may at any time during the period or suspension revoke the same and order execution of the full sentence.

Reversed and remanded.

Mr. Justice Holt disqualified.

       The fine has been entirely paid.

       The testimony of the officers dealt with alleged offenses on two occasions, March 12th and March 17th, 1962.

       The original conviction and suspension of sentence occurred on May 25,1961, and the suspension of sentence was revoked on March 29, 1962.

       Emphasis supplied.


author: Ed. F. McFaddin, Associate Justice.

text:
    Southern Pipe Coating, Inc. v. Spear & Wood Mfg. Co.
    5-2880
    363 S. W. 2d 912
    Opinion delivered January 21, 1963.

      Nance & Nance, for appellant.

      Hale & Fogleman, for appellee.
   Ed. F. McFaddin, Associate Justice.

The only point urged on this appeal is that the Trial Court committed reversible error in refusing to direct a verdict for the appellant; so in testing the ruling of the Trial Court we view the evidence in the light most favorable to the appellee, as is our rule. Ark. P. & L. Co. v. Connelly, 185 Ark. 693, 49 S. W. 2d 387; Life & Cas. Ins. Co. v. Kinney, 206 Ark. 804, 177 S. W. 2d 768; Mo. Pac. Ry. Co. v. Hopper, 208 Ark. 128, 185 S. W. 2d 88.

Appellant, Southern Pipe Coating, Inc., is a corporation engaged in the business of coating pipe. Appellee, Spear & Wood Manufacturing Company, is a corporation engaged in manufacturing and selling pipe. In January 1959 appellee obtained a contract to sell pipe in Greenwood, Mississippi, provided the pipe was coated to comply with the specifications of the American Water Works Association, herein referred to as “ AWWA Specifications.” Appellant agreed to coat the pipe for appellee in accordance with such specifications; and it is this contract and the work of the appellant thereunder that gives rise to the present litigation.

The appellant, by letter of February 3, 1959, addressed to appellee, proposed a certain price for “coating and wrapping the following pipe according to AWWA Specifications, the interior to be spun lined; the exterior to be coated and wrapped with 15 pound felt with a whitewash and to be cut back approximately 9 inches from the ends. The pipe is to be sand blasted by you, to be done on your premises in West Memphis, Arkansas, available space is to be provided by you, as well as machinery and handling to be furnished by you. The said offer was accepted by the appellee by purchase order, and the appellant undertook to perform the contract. All parties understood the AWWA Specifications, which were that the thickness of the enamel to be applied should be 3/32 inches thick, plus or minus 1/32 inches tolerance.

There appear to be several methods whereby pipe may be coated with enamel: either the “Weir Method,” the “Trough Method,” or the “Dam Method.” The appellant, Southern Pipe Coating, Inc., was free to use any method it desired to accomplish the coating of the pipe to the required specifications. Southern Pipe Coating, Inc. had previously sold to Spear & Wood a trough which could be used in applying the enamel through the trough method; and without so informing Spear & Wood, the appellant intended to use the trough that had been sold to Spear & Wood. But when appellant’s workmen reached the premises of Spear & Wood, they found that the said trough had been damaged. Without insisting on the repairing of the trough, the furnishing of another trough, or any other equipment to he furnished by appellee, the appellant undertook to coat the pipe by what is called the “dam method.”

When appellant had completed the coating, the pipe was shipped to Greenwood for its designated use, and was rejected by the engineer and the contractor because the pipe was not properly coated according to AWWA specifications. Appellee called on appellant to correct the defects in the coating, and there is some controversy between the parties as to what occurred; but there is substantial evidence that the appellant refused to repair the incorrect coating except on a new condition, that is, “machinery and equipment necessary to control thickness of application to be furnished by you.” Appellee took the position that appellant should perform the original contract without requiring appellee to furnish any new equipment at such late date. When appellant refused, appellee had the pipe satisfactorily recoated by another company; and then filed this suit for damages, which the jury awarded. From that judgment there is this appeal.

So much for the facts. As heretofore stated, appellant insists that it was entitled to an instructed verdict because the appellee had failed to furnish machinery in accordance with the original contract of February 3, 1959. We have heretofore stated the language of that contract: it said, “available space is to be provided by you, as well as machinery, and handling to be furnished by you. ’ ’ Appellant insists that appellee did not furnish the trough (i.e., machinery) that appellant expected; that it was the failure to furnish such trough that brought about the defective coating; and that because a good trough was not furnished originally, then appellee committed the first breach of the contract, and cannot pursue appellant.

We do not agree with appellant’s contention that it was entitled to an instructed verdict. Under the evidence, waiver was a question of fact for the jury. We have a number of cases which hold that one side may waive a breach of the contract by the other side and then be liable for its own subsequent breach of the contract. Some of these cases are: Truemper v. Thane Lbr. Co., 154 Ark. 425, 242 S. W. 823; Grayling Lbr. Co. v. Hemingway, 128 Ark. 535, 194 S. W. 508; Wolff v. Alexander Film Co., 186 Ark. 848, 56 S. W. 2d 424; and Clear Creek Oil Co. v. Brunk, 160 Ark. 574, 255 S. W. 7. In the last cited case, Chief Justice McCulloch used this language:

“The principle is elemental, that one party to a contract who, with knowledge of a breach by the other party, continues to accept benefits under the contract and suffers the other party to continue in performance thereof, waives the right to insist on the breach. Friar v. Baldridge, 91 Ark. 133; Grayson-McLeod Lbr. Co. v. Slack, 102 Ark. 79; Bennett Lbr. Co. v. Walnut Lake Cypress Co., 105 Ark. 421; Marker v. East Arkansas Lumber Co., 135 Ark. 435; 6 R. C. L. 1022.”

In Bennett Lumber Co. v. Walnut Lake Cypress Co., supra, Mr. Justice Hart, in summarizing the evidence of waiver of the first breach in that case, said: ‘ ‘ Thus it will be seen that Ladd acted with the full knowledge of all the facts and circumstances connected with the alleged breaches of the contract, and will be deemed to have waived them.” To the same effect as our own cases, see generally 12 Am. Jur. 919 et seq., “Contracts” § 354; and 17 C. J. S. 992 et seq., “Contracts” § 491 and § 493.

Even if we assume that the appellant, in February 1959, could have claimed a breach of the contract to have been committed by the appellee (for failure to furnish a usable trough), nevertheless it was a question for the jury as to whether the appellant waived such breach by undertaking the performance of the contract after knowledge of such breach. With a jury question made, it follows that the Trial Court was correct in denying appellant’s request for an instructed verdict.

Affirmed.

       There were two of these proposals and two purchase orders; hut the contract, as shown by the said proposal and purchase order, was the same in both instances.

       In the “Weir Method” applying the enamel is accomplished by inserting in the pipe a device, with a nozzle attached to the end, and spraying the enamel onto the pipe while withdrawing the nozzle.

       In the “Trough Method,” a vee or semi-circle trough is inserted in the pipe; enamel is poured into the trough; and the pipe is rotated. As the pipe turns, the trough is inverted, pouring the enamel onto the pipe, and centrifugal force spreads the enamel over the interior surface of the pipe.

         In the “Dam Method,” a rubber hose is placed in the ends of the pipe to make a dam, and the enamel is then poured into the pipe. There is some testimony that the “dam method” will not comply with the AWWA Specifications.

       That is, by Spear & Wood.

       Emphasis our own.


author: George Rose Smith, J.

text:
    Ford v. Markham.
    5-2892
    363 S. W. 2d 926
    Opinion delivered January 21, 1963.

      Crouch, Blair & Cypert, for appellant.

      Dickson, Putman, Millwee & Davis, for appellee.
   George Rose Smith, J.

This is an action hy the appellee to recover double damages under the provisions of Act 283 of 1957, relating to small claims for property damage arising from motor vehicle collisions. Ark. Stats. 1947, §§ 75-918 to 75-920. At the time of the collision the plaintiff’s car was being driven by his wife as a bailee; so any negligence on her part was not imputable to him. Mullally v. Carvill, 234 Ark. 1041, 356 S. W. 2d 238. The trial court, sitting without a jury, found that the defendant had been “one or two percent” negligent and accordingly entered judgment in favor of the plaintiff for double the amount of his damages, which were stipulated to be $200 (and therefore within the purview of Act 283). The plaintiff was also awarded an attorney’s fee of $50.

The appellant insists that there is no evidence to support a finding of negligence on his part. The collision occurred on a narrow, muddy country road having-two deep well-defined ruts. Mrs. Markham had just crossed a one-lane bridge and was proceeding slowly up a hill. Ford came over the top of the hill at a speed estimated by Mrs. Markham at thirty miles an hour. Mrs. Markham tried to pull over to her right, but she was unable to get out of the ruts. When Ford saw that the other car was staying in the center of the road he tried to stop, but after sliding ten or fifteen feet he struck the Markham automobile, which was either stationary or nearly so.

We are unwilling to hold as a matter of law that Ford was completely free from negligence. He had been over this road earlier that same morning and knew its condition. The court may well have concluded that in starting down the hill at thirty miles an hour Ford did not have his car under proper control, in view of the hazards that were present. Furthermore, Mrs. Markham testified that the normal procedure was for a person to wait at the top of the hill in such a situation. She quoted Ford as having admitted, immediately after the accident, that perhaps he should have stopped at the top of the hill and let the other car pass. Thus there is ample support in the testimony for the trial court’s action in attributing at least some negligence to Ford.

A more difficult question is whether the appellant is liable for double damages and attorney’s fees. Even though the plaintiff recovered the full amount sued for, Ford contends that he established a “meritorious defense” within this section of the statute:

“In all cases wherein loss or damage occurs to property resulting from motor vehicle collision amounting to two hundred ($200.00) dollars or less, and the defendant liable therefor shall, without meritorious defense, fail to pay the same within 60 days after written notice of the claim has been received, such defendant shall be liable to pay the person entitled thereto, double the amount of such loss or damage, together with a reasonable attorney’s fee . . . This liability, which is limited to damage to property, attaches when liability is denied and suit is filed.” Ark. Stats., § 75-918.

Counsel for the appellant earnestly contend that a defendant is not “without meritorious defense” if his contentions present a substantial question concerning his liability. Otherwise, it is argued, the inclusion of this phrase adds nothing to the statute, for the deletion of this language would still leave the defendant liable for double damages whenever he loses the case.

We do not find this argument altogether convincing. To begin with, the position of the phrase in the statute tends to rebut the appellant’s argument. The legislature declared that when a loss or damage occurs, “and the defendant liable therefor shall, without meritorious defense, fail to pay the same within 60 days after written notice,” then the defendant becomes liable for double damages. Thus the want of a meritorious defense relates not to the issue of ultimate liability but to the failure to pay the claim within 60 days after notice. Apparently the phrase was inserted in the statute to provide for instances when the defendant had a valid reason for not making payment within 60 days, such as the failure of his liability insurance carrier to process the claim within that time or the occurrence of some unavoidable casualty that prevented the defendant from meeting the 60-day deadline.

Secondly, the last sentence in the section declares that the statutory liability attaches “when liability is denied and suit is filed.” At that point it cannot be known whether the defendant will interpose a substantial defense at the trial; so it is evident that the liability for double damages arises from the defendant’s failure to pay the claim within 60 days rather than from his failure to present a serious defensive issue.

Finally, the basic legislative purpose was evidently to provide an effective remedy for the enforcement of claims so small that in the past they have often not been worth the expense of litigation and could therefore be ignored by tbe wrongdoer with impunity. By providing-double damages and attorney’s fees the lawmakers have endeavored to make the prosecution of such claims worthwhile. Yet in almost every case involving a traffic collision each party is able, with apparent good faith, to blame the other for the accident. If such a defensive maneuver amounts to a meritorious defense it is manifest that the statute might almost as well not have been enacted, for its effective operation becomes negligible. We conclude, therefore, that when, as here, the complaining party gives the required notice and later recovers the full amount of the claim, he is entitled to the benefits provided by the statute. Whether that would also be true in the case of a partial recovery is not before us.

Affirmed.


author: Sam Robinson, Associate Justice. Jim Johnson, Associate Justice,

text:
    Mattingly v. Griffin.
    5-2876
    363 S. W. 2d 919
    Opinion delivered January 21, 1963.

      Rieves & Smith, for appellant.

      Hale & Fogleman, for appellee.
   Sam Robinson, Associate Justice.

On May 11, 1959, appellee, Elizabeth Ann Simmons, who later married and is now Elizabeth Ann Griffin, was driving east on Broadway in West Memphis. She stopped at an intersection with the intention of turning to the left, but could not do so immediately because of oncoming traffic. While she was waiting for an opportunity to proceed to her left, the car she was driving was struck from the rear by a car owned by Swift & Company and driven by its employee, Thomas J. Mattingly.

Elizabeth Ann was 18 years of age at the time and in high school. She went to school the next day, but about 3 o’clock she had to call her father to come and get her because of pain in her neck and back. Her father took her to Dr. Deneke, who sent her to the hospital and ordered that her neck be placed in traction. She was put on a hard bed and a halter apparatus was attached to her head and in turn a weight was attached to the halter, causing a pulling effect on the neck. She remained in the hospital for a week wearing this apparatus practically all the time, with the exception of one instance when she left the hospital to take her examinations at high school, and on another occasion when she left the hospital to attend graduation exercises. At the end of the week she went home where she remained for about two weeks and then returned to work.

At the time of the accident, Elizabeth Ann was working at a concession stand at a drive-in from about 6 p.m. to 10 p.m. each day. She earned $25.00 per week and got $10.00 per week as automobile expense. She continued to work at one job or another until the day of the trial, some three years later. She married in September, 1960; a child was born in 1961; and at the time of the trial in April, 1962, she was expecting another child.

Her hospital bill was $126.65, doctor bill $57.00, loss of earnings $105.00. She suffered no broken bones, no bruises, no lacerations, and there was no injury to the boney structure of the back bone. Her injuries consisted of a strain to the muscles, ligaments, and tendons of the neck and back. There were no objective symptoms of the injury. Her subjective symptoms were that her neck and back were painful.

Her father, H. D. Simmons, joined her in the suit and asked for compensation to reimburse him for the damages to his automobile, which was $737.02, the hospital bill, $126.65, and the doctor bill, $57.00. It was stipulated that he was damaged in the sum of $920.67. Elizabeth Ann’s actual money damages amounted to $105.00 for loss of time from work; the balance of her damages was due to pain and suffering.

Upon a trial of the case the jury returned a verdict for Elizabeth Ann in the sum of $10,000.00, and a verdict for her father in the sum of $10,000.00. Upon the jury being polled it was discovered that there was an error; that the jury intended to return verdicts for a total of $10,000.00. Thereupon, the Court instructed the jury to retire and reconsider the verdicts. After further deliberation, the jury returned a verdict for Elizabeth Ann in the sum of $8,000.00 and for her father in the sum of $2,000.00. As heretofore mentioned, it had been stipulated that Simmons’ damages were $920.67. He therefore promptly filed a remittitur for all of the verdict in excess of that amount. Thereupon, the Court entered judgment for that amount for Simmons, and a judgment for Elizabeth Ann in the sum of $8,000.00.

On appeal appellant contends, first, that the judgment for Elizabeth Ann in the sum of $8,000.00 all of which, except for $105.00, was for pain and suffering, is excessive. Second, that the Court erred in permitting the jury to again consider the verdicts after having returned verdicts for each of the plaintiffs in the sum of $10,000.00. Third, that the Court erred in accepting the verdict of the jury after the plaintiff, Mr. Simmons, had filed a remittitur.

The action of the Court in allowing the verdicts to be corrected was proper. Clift v. Jordon, 207 Ark. 66, 178 S. W. 2d 1009, and the filing of the remittitur was in no way prejudicial to Simmons.

Elizabeth Ann saw the doctor seven times after she returned to work; the last time was almost two years prior to the trial. She testified, however, that she slept in the neck harness for eight months after returning home from the hospital. She had a normal courtship and has worked for wages all the time, in addition to doing her housework.

Perhaps the jury was deeply impressed by the self-sacrificing spirit of this young woman. During the time she was going to high school she worked at night at a drive-in from 6 p.m. to 10 p.m. and she passed her grades in school and graduated. She returned to work three weeks after she was injured and worked continuously thereafter. At the time her baby was born she was off work only 30 days. At the time of the trial she was again pregnant but was still working on a paying job in addition to doing her housework and the shopping for the family.

Actually, the evidence does not show that there was much wrong with her. Her physician, Dr. Deneke, testified that she suffered a strain to the muscles of the neck and lower back. The doctor said she had muscle spasms, “A charlie horse”. Q: What can cause a spasm to the muscle? A: A simple injury as all of you have had at one time or another.

The least that can be said is that the jury was reckless in the verdicts returned. In the first instance they gave Simmons a judgment for $10,000.00. He had only asked judgment for $1,000.00. Of course it was shown that this was an error, but it was certainly a serious, error. It had been stipulated that his damages amounted, to only $920.67, and the second verdict for him was for $2,000.00. Elizabeth Ann asked for $10,000.00 for pain, .and suffering, and the jury’s first verdict was for $9,895.00 for pain and suffering, and the second was for a total of $8,000.00.

The fact that the jury returned a $2,000.00 judgment for Simmons, after first having returned a $10,~ 000.00 verdict for him, when it had been stipulated that, his damages amounted only to $920.67, shows rather conclusively that the jury was influenced by passion or prejudice or had an incorrect understanding of the facts. in the case. In the case of Turchi v. Shepherd, 230 Ark. 899, 327 S. W. 2d 553, we pointed out that “A comparison of awards made in other cases is a most unsatisfactory method of determining a proper award in a particular case . . .”. In that case, where a similar injury was involved, we were of the opinion that a $3,500.00 verdict was liberal. In the case at bar, we are of the opinion that any amount above $5,000.00 for pain and suffering is excessive.

Accordingly, if appellee files a remittitur within 15 judicial days, as indicated, the judgment will stand affirmed; otherwise, it will be reversed and the cause remanded for new trial.

It is so ordered.

Johnson, J., dissents.

Jim Johnson, Associate Justice,

(Dissenting). I do not agree with the majority view. The record is clear that the jury intended to return a total overall verdict in the amount of $10,000. It is true that the jury became somewhat confused in the technical aspects of filling out the verdict forms, but this in my view does not justify the majority’s conclusion that “the jury was influenced by passion or prejudice or had an incorrect understanding of the facts in the case”.

While reviewing this case as an appellate jury, which of course is not our province on appeal from a jury verdict, Morrison-Knudsen Co. v. Lea, 208 Ark. 260, 186 S. W. 2d 429, the majority in the process of speculating as to why the jury returned the verdict for Mrs. Griffin in the amount of $8,000, observed that “perhaps the jury was deeply impressed by the self-sacrificing spirit of this young woman”. To the contrary, it is my view that the jury refused to disregard the substantial evidence of injury and pain which this young woman was caused to suffer and endure as a result of the negligence of appellant.

The evidence is undisputed that Miss Simmons (later Griffin), who had just become 18 years old was in her father’s car when it was hit from the rear. She hit the steering wheel. The next morning she had a soreness all over and woke up real stiff-necked. She went to school, bnt aronnd 2:00 the soreness got to hurting so bad she called her father to take her to a doctor. It hurt badly when she attempted to make movements of her head or back. She couldn’t continue her school work because of the pain and required assistance to go into the doctor’s office.

She was placed immediately in the hospital and put in traction, which consisted of a strap under her chin and neck, on either side of her face, buckled at the back to a strap snug against her head, connected to a rope, leading over a pulley with a bucket full of dirt (for weight) hanging at the end of the rope. This pulled her neck back and she lay flat on her back when using it. Application of traction did not relieve all of the pain. When in traction she could get on her side, but was uncomfortable because it twisted her neck. She couldn’t lie on her stomach. In the hospital she could move her head slightly. She even ate in traction and could not go to the rest room the first two days. She had pain even when in traction, but hurt a lot worse out of it.

She continued to remain in traction in her home for two weeks every afternoon from about 1:30 P.M., and slept in it at night. She was out of traction in the mornings, but her neck was stiff and uncomfortable and hurt her all the time. She was out of traction from 5:00 P.M. until 9:00 P.M., and slept in it all night, until about 9:00 A.M. The traction did not relieve all pain. She continued to sleep in the traction every night until the first of January, 1960, and used it “quite frequently” in the afternoons after the first three weeks.

Almost there years later (at the time of trial), because of continuing pain in her back, she still sleeps on the hospital bed to relieve the pain three or four nights per week and has at all times since the collision. She has a backache just about every day. The extent of the pain suffered the first eight months was very uncomfortable and was severe enough, to cause ber to cry four or five times, “The pain was unbearable.”

Her doctor’s testimony verified the existence of her injury and pain, and even appellants’ doctor, who examined Mrs. Griffin more than once, confirmed that appellee did have the injuries she testified to, and stated that he found nothing about Mrs. Griffin’s attitude, demeanor or conduct that caused him to believe she was faking complaints, but found she was “very well motivated, cheerful, and I think very honest in her statements to me.”

To say the least, it is my view that there was substantial evidence to support the jury verdict — certainly it cannot be said that the verdict was so excessive and unreasonable as to shock my conscience. Grandbush v. Grimmett, 227 Ark. 197, 297 S. W. 2d 647. Accordingly, I would affirm the judgment and therefore respectfully dissent to the majority opinion.


text:
    Prince Poultry Co. v. Stevens.
    5-2858
    363 S. W. 2d 929
    Opinion delivered January 21, 1963.

      Dickson, Putman, Millwee & Davis, for appellant.

      Pearson & Pearson, for appellee.
   Jim Johnson, Associate Justice.

This appeal arises out of a claim for workmen’s compensation. Appellee, Wayne Stevens, was employed by appellant S. E. Prince Poultry Company, working out of their egg house in Lincoln, Arkansas. About 4 o’clock in the afternoon of Thursday, March 9, 1961, appellee, in the course of his employment, slipped while loading a case of eggs on his truck and felt pain in his right side. He stopped work for five or ten minutes until the pain eased, then finished loading the truck and returned with the load to his employer’s place of business, arriving about 4:30 or 5:00, at which time he reported his injury to his foreman. Appellee then went home, suffered pain that night, returned to work the next morning and reported his injury to his employer’s general manager, Miss Maybelle Kirk. The general manager acknowledged that appellee had reported his injury to her on Friday morning. She testified that she told appellee that if he did not get better in a day or two he should see Dr. Jeff Baggett; that appellee was needed to go out on the truck; that he was very uncomfortable when he reported his injury to her; that the company had to have someone show the driver where to go and that appellee was the only person available for that purpose. Appellee relied upon Miss Kirk’s instructions and continued to work that day. He suffered pain and was furnished a helper because of the pain. He tried to call Dr. Baggett after talking to Miss Kirk but failed to get him. Appellee also worked the next day and testified that the reason he didn’t take off and go immediately to see a doctor was “on account of we had so many eggs out and if they stay out so many hours they are gone”, and further, “I wanted to show the boy where the eggs was”. Appellee testified that the condition in his side just kept getting worse and worse. He was off Sunday and Monday morning it was worse. Appellee finally saw a doctor Monday, March 13th, four days after the injury. The doctor testified that he found an indirect inguinal hernia.

Appellee filed a claim with the Workmen’s Compensation Commission for compensation for his hernia. The claim was controverted by appellants.

Following an appeal from an award of benefits by the referee, the full commission found that appellee sustained his hernia on March 9, 1961, and that it arose out of and during the course of his employment. The commission further found that all of the requirements of § 81-1313 (e) were met except the fifth requirement which required appellee to see a doctor within 48 hours after the occurrence of the hernia. The commission concluded that it had authority to excuse non-compliance with the fifth requirement and did so ‘ ‘ since claimant did promptly report his injury to the employer and since his employer did not promptly provide proper medical attention but instead asked the claimant to work the following day at light work and merely told the claimant that if he did not feel better within a day or two he should go to a doctor.”

Based on the above findings and conclusions, the commission awarded benefits to appellee. Appellants timely appealed to the Circuit Court of Washington County which affirmed the award of the commission, making an additional finding that appellants were estopped to raise the defense of failure to meet the fifth requirement. From the judgment of the Circuit Court, appellants have prosecuted this appeal.

For reversal appellants rely upon four points, three of which question the substantiality of the evidence to support findings of fact made by the commission. Though appellants’ argument on these points is most persuasive, a careful review of the record convinces us that the points are without merit. See McKamie v. Kern-Trimble Drilling Co., 229 Ark. 86, 313 S. W. 2d 378; Shipp v. Tanner, 229 Ark. 815, 318 S. W. 2d 821.

Appellants in their brief concede that the principal question involved in this appeal is whether the Workmen’s Compensation Commission has authority under the law to excuse a claimant’s failure to go to a doctor within the time provided by the Workmen’s Compensation Act. This question presents a case of first impression in this jurisdiction. The court has, however, considered in a similar case, Williams Mfg. Co. v. Walker, 206 Ark. 392, 175 S. W. 2d 380, the question of whether the Workmen’s Compensation Commission had authority under the law to excuse a claimant’s failure to give notice to his employer of the occurrence of a hernia within the 48 hours provided by the act. In that case the appellee, working as a laborer for appellant manufacturing company caught with a cant hook a rolling log which was moving at such rapid speed that it gave appellee a severe jerk. The appellee immediately reported his injury to his foreman and at noon went to see Dr. O. R. Kelley, the employer’s physician, and told him of the injury. Dr. Kelley gave the appellee some medicine and the appellee went home, returning next day for another visit to the doctor. The appellee was not able to work after receiving the injury. There was some contradiction in the medical testimony, but Dr. Kelley and three other physicians testified that appellee had suffered an umbilical hernia. It was brought out at the hearing, however, that Dr. Kelley did not discover appellee’s hernia until several weeks subsequent to the reported injury. The commission after hearing the testimony found that appellee had,not given sufficient notice of the hernia within 48 hours after it occurred, as required by the statute. The Circuit Court reversed the finding of the commission and entered judgment in favor of appellee. Prom that judgment the employer and. its insurance carrier prosecuted an appeal. This court,, in a well reasoned opinion written by the late and scholarly Justice R. W. Robins, affirmed the judgment of the Circuit Court and in the opinion held that a deniaL of compensation under the facts disclosed by the record would not be justified, even though the employee may not have specifically given notice of the existence of the hernia within 48 hours after the injury.

In the case at bar the applicable statute is § 81-1313(e) (5). It reads as follows:

“Hernia. In all cases of claims for hernia it shall be shown to the satisfaction of the Commission ... (5) That physical distress following the occurrence of the hernia was such as to require the attendance of a licensed physician within forty-eight hours after such occurrence ; ’ ’

In considering a statute identical to ours in meaning except for a requirement that the hernia was such as to require the attendance of a licensed physician within five days subsequent to the injury instead of the 48 hours provided by our law, the Supreme Court of Mississippi in the landmark case of Lindsey v. Ingalls Shipbuilding Corp., 68 So. 2d 872, said:

“It should be noted that the statute does not require that the claimant prove that he was actually attended by a physician or surgeon within five days after the injury. The statute only requires that the claimant prove that the physical distress following the descent of the hernia was such as to require the attendance of a physician or surgeon within five days. The word ‘require’ is defined in Webster’s New International Dictionary as meaning: ‘To need; to be under a necessity; as, man requires to feed or to be fed; a fact requires to be stated. ’ The word is also defined as meaning: ‘To demand or exact as necessary or appropriate; hence to want; to need; call for. ’ It is in this sense, we think, that the word was used in the above statute. ’ ’

We agree with the interpretation given this statute by the Mississippi court and adopt it as our own, and further find that the words of Justice Robins in the Williams Mfg. Co. case, supra, are equally applicable to the case at bar.

“These compensation acts are entitled to and have universally received a liberal construction from the courts. The humanitarian objects of such laws should not. in the administration thereof, be defeated by overemphasis on technicalities — by putting form above substance

“In the case at bar there is no intimation in the record of any malingering, lack of good faith or misrepresentation or concealment of facts, on the part of appellee. Since he suffered an accidental injury in the course of his employment and it clearly appears that he did all that could be reasonably expected of a workman in the way of reporting his injury promptly ...”

The judgment is affirmed.


author: Frank Holt, Associate Justice. Jim Johnson, Associate Justice,

text:
    Chambers v. Bigelow-Liptak.
    5-2872
    363 S. W. 2d 908
    Opinion delivered January 21, 1963.

      Bernard Whetstone, for appellant.

      Ben D. Lindsey, for appellee.
   Frank Holt, Associate Justice.

This is an appeal from the decision of the circuit court which upheld the opinion of the Referee and the full Workmen’s Compensation Commission, both of which denied the appellant’s claim for permanent partial disability and death benefits for the widow of the deceased employee, J. C. Chambers.

The first claim arising out of the injury in question was before this court in Chambers v. Bigelow-Liptak Corp., 233 Ark. 330, 344 S. W. 2d 588, on March 27, 1961. In that ease J. C. Chambers, now deceased,.sought total temporary disability and permanent partial disability benefits based upon his claim that he had suffered a severe case of pneumonia or pneumoconiosis as a result of his working conditions. In that case the Referee, the full Commission and the Circuit Court denied these claims and upon appeal this court affirmed the denial of permanent partial disability. We reversed the denial of total temporary disability and in doing so determined this period of disability should begin with the date of Chambers’ illness on December 20, 1959 and end on March 30, 1960.

Chambers died on August 12,1961, from lobar pneumonia and therefrom comes the present claim by his widow for permanent partial disability and death benefits.

In the present case additional evidence was taken. The appellant, Mrs. Chambers, her son and Chambers’ stepson, Ray Folks and his wife, testified that Chambers was strong and healthy before his injury or lung infection with pneumonia in December of 1959 and thereafter his health gradually deteriorated until his death in August of 1961. However, during the fifteen months preceding his death he worked most of the time, in residential construction, and never received medical attention or treatment until he became seriously ill on August 10, 1961, resulting in hospitalization the following night. He died the next day from pneumonia.

Dr. Donald J. Sekinger, who attended Chambers at his death, and Dr. Grady Hill, Jr., who treated Chambers at the time of his injury or illness in December, 1959, and for three months thereafter, testified that in their opinion, from their knowledge of Chambers’ case, there was a causal connection between Chambers ’ death on August 12, 1961, and his original illness or injury in December, 1959. Dr. Hill reaffirmed his original opinion given in the first claim that Chambers had suffered a permanent partial disability and, further, that such existed from the time of his first illness until his death.

To the contrary, Dr. Joseph A. Buchman, who examined Chambers and x-rays of him on April 5, 1960, reaffirmed his opinion given in the first or original claim to the effect that Chambers suffered no permanent partial disability. After studying the depositions of Mrs. Chambers, Bay Polks, Mrs. Bay Polks, Dr. Sekinger and Dr. Hill, Dr. Buchman further testified that in his opinion there was no causal connection between Chambers’ death on August 12, 1961, and his injury in December of 1959.

Appellant relies on two points for reversal:

(1) That the present claim for permanent partial disability is based on a modification of award pursuant to Ark. Stats. 81-1326, and therefore, the present claim for permanent partial disability is not barred as res judicata;

(2) that the denial of death benefits because of no causal connection with the original illness is not supported by substantial evidence.

We discuss these points in reverse order.

Dr. Buchman testified that he personally made a physical examination of Chambers and studied x-rays of his chest in April of 1960 in arriving at his original and present opinion that Chambers was well in April, 1960.

Dr. Buchman further testified:

“Q. Based upon the history that you gained through the patient and the depositions which you have read, taken of Dr. Sekinger, Dr. Hill, the widow, Mr. and Mrs. Bay Polks, do you have an opinion as to whether or not his pneumonia which caused his death in New Orleans on August the 12th, 1961, had any causal connection with his illness of December the 23rd, 1959, and with his employment shortly prior to that?
A. I don’t think there is any direct relationship between the two at all.
Q. Why do you. say that, Doctor?
A. Well, it’s a bacterial infection and I do not see how he could harbor that bacteria so long and not have a lot of symptoms from it and have in April of 1960 a completely normal chest x-ray, that is, a normal chest x-ray for a man of this age.”

Dr. Buchman stated further that:

“Q. Now doctor, from the time you examined him and until the date of his death, it was testified to in the depositions which we have mentioned before that Mr. Chambers would spit up blood fairly often and was in a condition that he lost weight consistently. Now, based upon your examination at the time that you saw him and the history testified to, what significance do you place in that as to his accident.
A. I don’t think that had any relation to the accident. ’ ’

Dr. Buchman further testified:

“Q. In other words, Doctor, any pneumonia that he contacted after the date of your examination was a new infection and had nothing in your opinion to do with his exposure in the nut cracker in December of 1959?
A. I don’t see how it could bear any direct relation at all.”

We view the evidence in this case to constitute substantial evidence in the record to support the Commission’s finding there was no causal connection between the original and terminal illness in the present case. In the original case, Chambers v. Bigelow-Liptak Corp., supra, we construed as substantial Dr. Buchman’s opinion that Chambers had no permanent partial disability and had completely recovered.

We have consistently adhered to the established rule that we will not disturb the findings of fact by the Commission if supported by any substantial evidence. White v. First Electric Cooperative Corp., 230 Ark. 925, 327 S. W. 2d 720; Fagan Electric Co. v. Green, 228 Ark. 477, 308 S. W. 2d 810; West v. Smith, 225 Ark. 365, 282 S. W. 2d 597.

In the Carty v. Ward Furniture Mfg. Co., 229 Ark. 725, 318 S. W. 2d 148, the court said:

“Since the enactment of our Workmen’s Compensation Law, we have consistently held that we do not try compensation cases here de novo, we are, therefore, not concerned with where the weight of the evidence may lie. When we find any substantial evidence to support the findings of the commission, we must affirm.”

Inasmuch as the Commission’s finding that no causal connection existed between the death of the employee, Chambers, and his original illness or. injury is supported by substantial evidence this, in effect, is also a finding that no permanent disability was occasioned by the first illness. Thus it becomes unnecessary to discuss point number one of appellant’s argument which deals with the question of modification of award and res judicata.

The judgment of the circuit court is affirmed.

Johnson, J., dissents.

Jim Johnson, Associate Justice,

(Dissenting). I do not agree with the majority view.

The two doctors who had actually treated J. C. Chambers testified, without equivocation, that there was a causal connection between the injury Chambers received in 1959 (See Chambers v. Bigelow-Liptak Corporation, 233 Ark. 330, 244 S. W. 2d 588) and his terminal illness and death. Even the insurance company doctor conceded on cross-examination that there might have been a slight causal connection between the original injury and the death. An autopsy had been performed upon the deceased which disclosed beyond doubt the existence on an old permanent injury in Chambers ’ right lung, and after introduction of the autopsy report, this same doctor admitted that he discovered permanent disability to Chambers’ lung in the one and only examination he ever did of him (which was prior to the first appeal to this court) and that he (the insurance company doctor) knew all along that Chambers bad this permanent disability, bnt tbat since be did not know to what to ascribe tbe permanent disability, he simply wrote on bis report tbat there was no permanent disability I

Additional testimony was given by lay witnesses who were intimately associated with Chambers np to tbe time of bis death. Their testimony is undisputed tbat from tbe time of bis first injury until bis death tbe deceased continued to have recurrent cough and fever, spitting up blood, loss of weight and other symptoms of continuing disability to bis lung.

Tbe overwhelming evidence supports an award of compensation. In my view, tbe slight evidence of tbe insurance company’s doctor, upon which tbe Workmen’s Compensation Commission chose to bang its opinion, was far from substantial. See Missouri-Pacific Rd. Co. v. Davis, 208 Ark. 86, 186 S. W. 2d 20. To say tbe least, tbe rule restated in Pekin Wood Products Company v. Graham, 207 Ark. 564, 181 S. W. 2d 811 should control here.

For the reasons stated above, I respectfully dissent.

       For a detailed account of these facts see opinion in first case, Chambers v. Bigelow-Liptak, supra.

       Dr. Buchman defined lobar pneumonia as a disease of bacterial origin, a massive type of infection.

       Dr. Hill last saw and treated Chambers on March 7, 1960, for acute bronchitis. Dr. Buchman was the last physician to see Chambers until his fatal illness.

       On the first appeal this doctor had reported that the deceased suffered no permanent disability to his lungs as a result of his injury. It was upon this report that the Workmen’s Compensation Commission denied the claimant payment for permanent partial disability, and on appeal this same report was declared to be the substantial evidence upon which this court affirmed the Commission’s findings as to permanent partial disability.


author: Sam Robinson, Associate Justice

text:
    Carr v. Hall.
    5-2846
    363 S. W. 2d 223
    Supplemental opinion on rehearing delivered January 21, 1963.
    [Original opinion delivered December 10, 1962, P. 874]
   Sam Robinson, Associate Justice

(on rehearing). Upon further consideration of this case on the petition for rehearing, we have reached the conclusion that the petition should be granted; that the mother should have custody of the child from 9 a.m. to 5 p.m. on Saturdays without any specified restrictions, the same as the father has custody the remainder of the time.

As pointed out in the original opinion, we have held repeatedly that in child custody cases the first consideration is the welfare of the child; however, the child is never represented by counsel; those seeking custody are the ones that are represented. Of course, it is not likely that counsel for the father or mother would argue that custody of the child should be awarded in a manner contrary to the desires of his client. If a lawyer could not conscientiously stand up for the wishes of his client, the father or mother, he would simply withdraw from the case. It is, therefore, of vital importance in cases of this kind that the courts be keenly alert to the necessity of preventing the shortcomings or the merits of the parents from overshadowing the thing that would be best for the child.

A mother’s act in voluntarily surrendering custody of her minor daughter to facilitate the remarriage of the mother is so contrary to the usual behavior of a mother that it places her at an extreme disadvantage when, as here, she attempts to regain custody of her daughter, and her action in that respect may militate against her.

But what about the daughter’s interest? A mother’s love and a normal relationship with the mother is certainly to be desired and cherished. Perhaps there were mitigating circumstances in connection with the mother’s acts in the first instance, and it may be that if given a reasonable opportunity the mother can retain or regain the love and affection of her daughter. There can be no harm in giving her the opportunity to re-establish a reasonable mother-daughter relationship; but it would be very difficult in the few hours allowed by the original decree. This is especially true if at the time the mother and daughter are together they are bound by restrictions that could bring about a strained relationship between the father and daughter, as pointed out in the Chief Justice’s dissenting opinion in this case.

It is assumed that the mother will do nothing physically or mentally harmful to the daughter. If this assumption should prove to be incorrect, the Chancellor retains jurisdiction to correct the situation.

Eeversed with directions to enter a decree not inconsistent herewith.

Justices McFaddin and Ward would deny the petition for rehearing.


text:
    Heinen v. Dixon.
    5-2894
    364 S. W. 2d 153
    Opinion delivered January 28, 1963.

      John B. Driver, for appellant.

      Opie Rogers, for appellee.
   Carleton Harris, Chief Justice.

Kenneth Dixon, appellee herein, instituted suit in the Chancery Court of Searcy County against appellant, Lester A. Heinen, seeking to cancel and set aside a clerk’s tax deed issued to appellant on February 23,1961. The lands had been sold on November 10, 1958, because of non-payment of taxes allegedly due for the year, 1957. At the time of the tax sale, the lands in question were listed in the name of E. R. Martin. Thereafter, appellant instituted suit in the Chancery Court seeking to quiet and confirm the title to said lands in him. Notice was published for four weeks

during the month of March, 1961. The complaint was supported by the affidavits of two persons (Annis M. Walsh and Gibson L. Walsh), who stated that they were residents of Searcy County, familiar with the property, and that they knew Lester A. Heinen was the owner of the lands, had been in possession for more than the last past three years, and there were no adverse occupants or claimants. No personal service was obtained upon any person, the county clerk certifying that E. R. Martin’s whereabouts were unknown, and that she had been unable to apprise Martin of the pendency of the action. On May 4, 1961, the Chancery Court entered its decree quieting and confirming title to the lands in question in appellant. In October of the same year, appellee instituted the present suit, alleging that he was the owner of said lands in fee simple; that Heinen had obtained a tax deed to the lands, purporting to convey same to appellant, but that the tax deed was of no effect because the sale was void. Appellee then alleged twenty-two grounds for voiding the sale, and, in addition, asserted, “The plaintiff delivered his list of lands on which he desired to pay tax to the collector, including the lands herein, and by oversight the collector failed to include the lands herein involved in the list and this renders the sale void.” The prayer of the complaint was that the tax deed be cancelled and held for naught, and that appellee be permitted to redeem the property. After the filing of various pleadings and Requests for Admissions, the cause proceeded to trial, and on March 27, 1962, the court entered its decree, find-in o’

“The records of the Quorum Court fails to disclose that proper levy of taxes for the year 1957 ivere made in Searcy County; the purported sale of lands were made for amounts that involved overcharges, even if the levy of taxes had been properly made and the tax sale was not advertised as required by law. ’ ’

The court held the tax sale, and deeds executed thereunder, void, and vacated the decree of confirmation which had been entered in May. Title to the lands was quieted and confirmed in Dixon as against appellant. Appellee tendered a sufficient amount to cover taxes and penalty, together with interest. From the decree entered, Heinen brings this appeal. For reversal, appellant asserts that the Chancellor erred in permitting evidence to be introduced as to facts and circumstances existing prior to the confirmation decree, and further, that appellee’s suit was a collateral attack upon the confirmation decree, and not permissible. It is also asserted that that decree was res judicata.

The facts show that Martin was the owner of the land in 1957, and during said year sold the lands to W. E. DeRamus. On October 10, 1960, DeRamus and wife entered into a contract to sell the lands to Dixon for $10,500. The contract provided for a cash payment of $1,500.00, the balance to be paid at the rate of $50.00 per month, except that commencing in April, 1967, an additional sum of $160.00 would be paid every six months. An executed deed was turned over to Ray Wheeler, agent in escrow, to be delivered to Dixon when the contract had been paid out. It appears from the evidence that Wheeler had been in charge of the lands for a long number of years, having served as agent for some of the prior owners.

The confirmation decree did not have the effect of a complete and final adjudication, i.e., appellant cannot avail himself of the plea of res judicata, for that decree was subject to attack. Section 34-1923, Ark. Stats., 1962 Replacement, provides that a confirmation decree ‘ shall not be valid for any purpose as against the owner of such land, his heirs or assigns, who was, at the time of such decree rendered in actual possession of the same, unless he be made a party to such action by personal service of motion therein. ’ ’ As heretofore stated, Dixon had entered into a contract to purchase the lands a year before the confirmation decree was rendered, and the proof is ample that he had been in possession of said lands. According to Wheeler, Dixon pastured cattle on the land from the time that he agreed to purchase same, and the entire property was under fence. In fact, Wheeler testified that, in behalf of prior owners, he had rented the property to other persons in 1957,1958,1959, and 1960 (until the purchase by Dixon), and that cattle were pastured on the lands in question for the greater part of the time during those years. Otis Jennings testified that he had pastured the cattle on the land until, and after, the property was sold to Dixon, and that he and appellee had erected additional fence posts as a matter of holding the cattle within the premises. As herein pointed out, though the tax records did not list Dixon as the owner of the lands, no service was obtained upon any person.

Heinen testified that he viewed the property in December of 1958 or January of 1959, and that he didn’t see anyone in the house, or notice any cattle on the place. He stated that a neighbor told him that no one had lived on the property for three years, and he did not observe cattle on subsequent visits. We think, however, that the preponderance of the evidence clearly supports the chancellor’s finding that Dixon was in possession of the lands, as we have defined that term. It follows that under the pertinent portions of Section 34-1923, heretofore quoted, the confirmation decree was void. A void decree is subject to collateral attack. Lambert v. Reeves, 194 Ark. 1109, 112 S.W. 2d 33, Laflin v. Drake, 218 Ark. 218, 237 S.W. 2d 32.

As a purchaser under a contract, in possession of the land, Dixon held the right to redeem, and was entitled to present any meritorious defense to the decree obtained by Heinen. Harrison v. Mobley, 211 Ark. 772, 202 S. W. 2d 756. That case also holds that the invalidity of a tax sale is a meritorious defense. The trial court found that the sale was void because no tax was levied; further, that even if a levy had been properly made, the lands were sold for an unlaAvful tax in that there were overcharges, and finally, that the tax sale was not advertised as required by law. There is actually no dispute that these facts are correct, and it follows that the sale was void. Plant v. Johnson, 208 Ark. 217, 185 S. W. 2d 711, Lumsden v. Erstine, 205 Ark. 1004, 172 S. W. 2d 409. See also 84-1103 Ark. Stats. 1960 Replacement.

Finding no error, the decree is affirmed.

       The action was instituted under provisions of Chapter 19, Ark. Stats., 1962 Replacement, entitled “Quieting Title” (Sections 84-1918 through 34-1925).