author: George Howard, Jr., Justice. George Rose Smith, Justice, Conley Byrd, Justice, Darrell Hickman, Justice,

text:
    CITY OF BENTON, Arkansas, Joe H. CALDWELL, Mayor; Noel H. BUTLER, Jr., Charles F. CUNNINGHAM, Wilson DuVALL, John C. McMAHAN, Lynn A. MOORE and Gerald W. PORTER, Directors; and Maurice BENNETT, City Clerk v. Hugh NETHERCUTT, Reese SMITHERS, J. J. PERKINS, Arch COOPER and Madison CLOUD et al
    78-257
    574 S.W. 2d 269
    Opinion delivered December 18, 1978
    (In Banc)

      Spitzberg, Mitchell & Hays, by: Harold H. Simpson II and Kent Foster, for appellants.

      Harmon, Garrett & Moudy, by: Dan Harmon, for appellees.
   George Howard, Jr., Justice.

We are to determine whether the trial judge committed reversible error in concluding, in a declaratory judgment proceeding, that the City of Benton’s referendum ordinance, requiring referendum petitions to be filed within 30 days after the passage of an ordinance on which a referendum is sought, is invalid, thus resulting in an order requiring a referendum on ordinances 1, 3, 33, 34, 36, 37, 38 and 39, although the referendum petitions were filed more than 30 days after the passage of the ordinances.

THE FACTS

On December 20, 1977, the Board of Directors of the City of Benton enacted Ordinances Numbers 33, 34, 36, 37, 38 and 39. Ordinances 1 and 3 were enacted on January 3, 1978, and January 5, 1978, respectively.

On February 2, 1978, petitions bearing 1,181 signatures, requesting a referendum on the ordinances, were filed with the City Clerk by appellees.

The appellants refused to call an election contending that the referendum petitions were not filed within the time prescribed by Ordinance No. 2 of 1949.

On March 14, 1978, appellees filed their petition in the Circuit Court of Saline County for a writ of mandamus requiring appellants to call an election.

After conducting a hearing, the trial court entered the following order on August 17, 1978:

“The Court finds that Ordinance No. 2 of 1949 which was introduced at the trial of the above styled case should not be considered as an authentic ordinance because it indicates no signature of the Mayor or Clerk-Recorder.
“Therefore, the Court finds that the Petitions are timely and the certification by the individuals is adequate certification of the entire petitions.
“Therefore, the Mayor and Council of the City of Benton are hereby ordered to call a special election within the next sixty days to refer to the voters of Benton, Arkansas Ordinances No. 1, 3, 33, 34, 36, 37, 39 & 39 of the year 1978.”

On September 6, 1978, the trial judge entered the following supplemental order:

“The Court advises that it inadvertently omitted from the Order previously entered herein, a stay of any action under the Ordinances ...”

Appellants filed their notice of appeal on September 11, 1978.

Pursuant to appellees’ petition praying an order requiring appellants to “show cause why they should not be held in contempt of this court for failure to comply with the prior order of this court,” the following second supplemental order was entered by the trial court on September 28, 1978:

“2. The previous injunction ordered by this Court is modified as follows:
Arkansas Power & Light Company, Arkla Gas, and Southwestern Bell Telephone Company are ordered to continue collections of taxes under the appropriate Ordinances above. Any payments made to the City of Benton under said Ordinances on or before this date may be retained by the City. Further, said utilities are ordered to divide all future payments under said Ordinances as follows: Any and all increases in future payments to the City of Benton caused by such Ordinances shall be paid into the registry of this Court, pending the outcome of the election or appeal. However, said utilities shall pay such amount as was required by former Ordinances to the City of Benton.”

THE DECISION

Inasmuch as an election was scheduled, on the ordinances involved in this case, for November 22, 1978, pursuant to the order of the trial court, and time was of the essence, we entered our order reversing the holding of the trial judge and stated that an opinion would follow delineating the posture of this Court in this matter. Accordingly, this opinion is issued in accordance with this pledge.

It is plain from the record before us that the pivotal point in the trial judge’s holding that Benton’s Referendum Ordinance is invalid is because the copy introduced into evidence, by appellees, does not reflect the manual signature of the Mayor or the City Clerk as opposed to the signatures being typed, thus culminating in the conclusion that appellees’ petitions for referendum were timely.

The fundamental problem that confronts us, in considering the stance taken by the trial judge, is the failure on the part of the trial court in not only acknowledging other acceptable ways of establishing lost ordinances which have been duly enacted, but the trial court’s failure to consider the abundance of evidence contained in this record that clearly and unequivocally established that the municipality of Benton duly and legally enacted a referendum ordinance, namely, Ordinance No. 2 of 1949.

Maurice Bennett, City Clerk of Benton, testified that although he had examined the official books containing ordinances and resolutions enacted by the City from 1944 through 1960, he neither found the original nor a copy of Ordinance No. 2 of 1949, but he did find other evidence of its existence and further found that the ordinance had not been repealed. For example, Mr. Bennett testified that he found in the Book of Minutes for the period from 1942 through 1949, minutes of the City Council of June 1, 1949, wherein Ordinance No. 2 of 1949 was adopted and that the ordinance was referred to as “an ordinance fixing the time for filing of referendum petitions.” However, Mr. Bennett admitted that the minutes, which had been duly adopted, were not signed by the Mayor and the Recorder and stated that he could not offer any explanation for this, but the minutes were the official records of the City of Benton.

Moreover, Mr. Bennett further testified that he found in the records the proof of publication of notice of the enactment of the ordinance; that the notice was published in the June 23, 1949, issue of the Benton Courier, a reputable daily newspaper located in Benton, and that the proof of publication was executed by L. V. White, manager of the Benton Courier; and that the printed version of Ordinance No. 2 of 1949, attached to the sworn proof of publication, designated Henry A. Kelly as Mayor and Lowell L. White as City Clerk.

Mr. Bennett denied that he had any discussions with appellees relative to the time for filing referendum petitions; that he became aware, for the first time, that there was an ordinance on the subject during the time that the petitions were being circulated; and that although there was no copy of the ordinance available in his office, the minutes delineating the steps taken by the City Council of Benton in enacting the ordinance, and the proof of publication of the ordinance were on file for the public to inspect.

Noel Butler, Jr., who has lived in Benton since 1936, held office under the old mayor-aldermanic form of government as Clerk for four years and Mayor for eight years, and, is currently serving as a member of the Board of Directors, testified that he was thoroughly familiar with the procedure followed by the City of Benton over the years relating to the passage, recording and maintenance of ordinances for the City of Benton.

Mr. Butler further testified that after an ordinance is passed, it is published in the local newspaper three times; and that a copy of the ordinance is filed in the official ordinance book for the city. He also testified that during his administration as Clerk, he compiled the present set or- ordinance books and that they are the official and legitimate books of the City of Benton. Mr. Butler further stated that there was a discussion, during a meeting of the present Board of Directors, concerning the current issue whether the city had an ordinance that limited the time for the filing of referendum petitions; and that no further action was taken by the Board when a microfilm of the referendum ordinance was found at the City Library.

Ark. Stat. Ann. § 19-2405 (Repl. 1968), in relevant part, provides:

“The printed copies of the bylaws and ordinances of any municipal corporation, published under its authority, and transcripts of any by-law, ordinance, or of any act or proceeding of any municipal corporation, recorded in any book or entered on any minutes or journal, kept under the discretion of such municipal corporation, and certified by its clerk, shall be received in evidence for any purpose for which the original ordinances, books, minutes or journals would be received with as much effect. ...”

Ark. Stat. Ann. § 19-2405 is in accord with the prevailing view that the original minutes of a municipal corporation, when duly kept and maintained, are competent evidence to prove the enactment of an ordinance. See: McQuillin, Municipal Corporations, 1969 Revised Volume, Section 22.39; Lewis v. Forrest City Special Improvement District, 156 Ark. 356, 246 S.W. 867 (1923).

Moreover, an ordinance read in evidence from the books of a municipality will be presumed to have been enacted, where no evidence to the contrary appears. Van Buren v. Wells, 53 Ark. 368, 14 S.W. 38 (1890); Arkadelphia Lbr. Co. v. Arkadelphia, 56 Ark. 370, 19 S.W. 1053 (1892). In the instant case, it is clear that the proof of publication of notice of the adoption of the referendum ordinance, with a printed copy of the ordinance attached, from the Benton Courier, was filed in the Ordinance Book of the City and became a part thereof.

In addition, under the best evidence rule, a printed compilation of ordinances when duly authenticated as correct is admissible as proof of an ordinance contained in the compilation, where it is established that the original ordinance has been misplaced or destroyed. See: Rule 1005, Uniform Rules of Evidence, which provides as follows:

“The contents of an official record, or of a document authorized to be recorded or filed and actually recorded or filed, including data compilations in any form, if otherwise admissible, may bé proved by copy, certified as correct in accordance with Rule 902 or testified to be correct by a witness who has compared it with the original. If a copy complying with the foregoing cannot be obtained by the exercise of reasonable diligence, other evidence of the contents may be admitted. ” (Emphasis Added)

Act 36 of 1949, Ark. Stat. Ann. § 19-2404, an act prescribing the procedure for the recording of Municipal Ordinances, for the publication of ordinances and the adoption of codes for zoning, construction of buildings, installation of plumbing and the installation of electrical wiring, is neither dispositive of the issue raised in this action, nor conflicts with the posture taken by the Court. Ark. Stat. Ann. § 19-2405, among other things, is a rule of evidence. In other words, an ordinance which has been duly enacted and published, but misplaced or lost, the minutes or journal, which are official, “shall be received in evidence for any purpose for which the original ordinances, books, minutes or journal would be received with such effect.”

In Adams v. Sims, 238 Ark. 696, 385 S.W. 2d 13, decided November 23, 1964, we made the following pertinent observation:

“. . . While the Court does not countenance nor encourage carelessness on the part of city officials or the keeping of inadequate city records, the ordinances, resolutions or acts of municipal councils will not be invalidated if it appears from the record that the proceedings were regular and in substantial compliance with the law, and presumptions will be indulged in favor of the validity of the corporate action. . . . The weight of authority recognizes that most corporate acts can be proven as well by parole evidence as by the introduction of written instruments. The fact that the records of a city failed to disclose actions by its city council is not conclusive that the council did not take same. Parole evidence is permissible to establish the real facts of corporate acts in the absence of records, or where the record which it kept is so meager where the particular transaction, act or vote is not disclosed. ...”

The posture taken by the Court in Adams was predicated in part upon Ark. Stat. Ann. § 19-2405. Therefore, it is readily apparent that Ark. Stat. Ann. § 19-2404 did not repeal § 19-2405.

Aside from the aforementioned evidence establishing the enactment of Benton’s Referendum Ordinance, the lapse of 29 years since the passage of the ordinance coupled with the testimony of Charles Nickerson, City Manager, to the effect that previous revenue ordinances enacted by the City of Benton which generated referendum petitions, raises a sufficient presumption not only of the enactment of the referendum ordinance, but approval of same by the Mayor and a publication of the measure. Phenix City v. Southern Bell Telephone & Telegraph Co., 33 F. Supp. 283; Santa Rosa v. Central St. Ry. Co., (Cal.), 38 P. 986; McQuillin, Municipal Corporations, 1969 Revised Volume, Section 22.34.

We, therefore, conclude that the evidence contained in this record dictates a finding that appellees’ referendum petitions were untimely, and, accordingly, we reverse the trial court.

Reversed.

Fogleman, J., concurs.

George Rose Smith, Byrd and Hickman, JJ., dissent.

George Rose Smith, Justice,

dissenting. The majority approach this case as if there is only one question to be considered: Has it been shown by admissible evidence that the City of Benton validly adopted Ordinance No. 2 in 1949? The majority, with the aid of secondary evidence and legal presumptions, find that the ordinance was validly adopted. That ends the majority’s inquiry; the people are denied the right to vote at a referendum election.

I think the majority have not reached the true issue in the case. In my judgment the controlling question is this: Has the city, by failing to make the ordinance a matter of public record, sufficiently complied with the law to put the sponsors of the referendum petition on notice that their permissible time under Amendment 7 has been shortened to 30 days? I would answer that question in the negative and accordingly permit the election to be held.

Our proper attitude toward a controversy such as this one was well expressed in 1959: “It is against public policy to restrict the free use of the ballot or place restraints on free elections.” David v. Fowler, 230 Ark. 39, 320 S.W. 2d 938 (1959). In harmony with that principle of public policy I would require a city to comply strictly with the statute which requires that all ordinances “shall be recorded in a book kept for that purpose and shall be authenticated by the signature of the presiding office of the governing body and the clerk or recorder.” Ark. Stat. Ann. § 19-2404 (Repl. 1968).

I am not suggesting that recordation is essential to the enforcement of every ordinance in every situation. If, for example, the city adopted an ordinance authorizing the mayor and city clerk to enter into a certain contract on behalf of the city, the city could not invalidate the contract by failing to record the ordinance.

But that is not the situation before us. Under Amendment 7, in the absence of municipal action, referendum petitions may be filed not less than 30 nor more than 90 days after the passage of the measure to be referred. If a city chooses to limit the time to the minimum of 30 days, it should put its citizens on notice of that limitation. The City of Benton wholly failed to do so.

The appellee Nethercutt, before preparing to circulate referendum petitions, asked for copies of the pertinent ordinances. He was, understandably as it now appears, not supplied with a copy of Ordinance No. 2 of 1949, restricting the petitioners to 30 days No wonder! That ordinance had not been recorded in the ordinance book kept by the city, as required by law. There was no copy of the ordinance in the city hall. The members of the city’s board of directors did not know whether such an ordinance existed. The city manager, after an intensive search begun after the present controversy arose, was finally able to find an unsigned copy on microfilm at the city library. Yet the voters are now told that they were charged with notice of the sleeping ordinance, even though responsibility for their actual want of notice rested squarely upon the city itself. I would not permit the city, as a result of its own disregard of the law, to block the efforts of the voters to hold a referendum election. The circuit court’s judgment, directing that the election be held, should be affirmed.

Conley Byrd, Justice,

dissenting. The General Assembly on February 2, 1949, passed Act 36 of 1949, which in toto provides:

ACT 36
“AN ACT Prescribing the Procedure For the Recording of Municipal Ordinances, For the Publication of Said Ordinances; Adoptions of Codes by Reference; and for Other Purposes.
Be It Enacted by the General Assembly of the State of Arkansas:
SECTION 1. All by-laws or ordinances after their passage shall be recorded in a book kept for the purpose and shall be authenticated by the signature of the presiding officer of the governing body and the clerk or recorder, and all by-laws or ordinances of a general or permanent nature and all those imposing any fine, penalty or forfeiture shall be published in some newspaper of general circulation in the corporation; provided, in incorporated towns where no newspaper is published, written or printed notice posted in five of the most public places in said corporation shall be deemed a sufficient publication of any law or ordinance for incorporated towns, and it shall be deemed a sufficient defense to any suit or prosecution for such fine, penalty or forfeiture to show that no such publication was made. Provided, further, that ordinances establishing rules and regulations for zoning, construction of buildings, the installation of plumbing, the installation of electric wiring or other similar work where such rules and regulations have been printed as a code in book form, such code or provisions thereof may be published by such municipality by reference to title of said code without further publication or posting thereof; provided, however, that not less than three copies of such code shall be filed for use and examination by the public in the office of the city clerk or recorder of such municipality subsequent to the adoption thereof.
SECTION 2. All laws or parts of laws in conflict herewith are hereby repealed.
SECTION 3. Whereas, the proper recording of municipal ordinances is necessary for the enforcement of municipal laws, and whereas, this Act is necessary for the protection of the public peace, health and safety, an emergency is hereby declared to exist and this Act shall be in full force and effect from and after its passage and approval.
APPROVED: February 2, 1949.”

The record shows that the alleged ordinance upon which the City of Benton relies was only mentioned in the minutes of the City Council of June 1, 1949. Since the alleged ordinance deals with a matter of “a general or permanent nature” it obviously does not comply with Act 36, supra, and consequently, does not have any force or effect since it was neither “recorded in a book kept for that purpose” nor “authenticated by the signature of the presiding officer of the governing body and the clerk or recorder” as required by Act 36, supra.

The case of Adams v. Sims, 238 Ark. 696, 385 S.W. 2d 13 (1964), cited in the majority opinion, does not explain to the citizens of the City of Benton why Act 36 of 1949 is not applicable. In that case we were only dealing with a resolution activating an “Urban Renewal Agency” pursuant to Act 40 of 1961. In holding that Act 36 of 1949, Ark. Stat. Ann. § 19-2404 (Repl. 1968) was not applicable, we pointed out that Act 36 of 1949 only applies to “by-laws or ordinances,” the issue before the court had only to do with a resolution and consequently § 19-2404, supra, was not applicable. We are not here dealing with a resolution but an ordinance of a general and permanent nature.

Since Section 2 of Act 36 of 1949 specifically repealed “all laws or parts of laws in conflict” therewith, the majority should explain to the good citizens of the City of Benton who signed the referendum petitions why they are not entitled to rely upon Act 36 of 1949 in preparing and presenting their referendum petitions.

I also concur with the reasons stated by Justice George Rose Smith.

For the reasons herein stated, I respectfully dissent.

Darrell Hickman, Justice,

dissenting. I agree with the dissenting opinions of Justices Smith and Byrd, and then some.

No doubt the general assembly in its collective wisdom passed Ark. Stat. Ann. § 19-2404 (Act 36 of 1949), which requires that all ordinances be recorded in a book kept for that purpose, to obviate years of shoddy bookkeeping practices. It is a good law. The obvious intent of the statute is to require that all city ordinances be kept in one place so that interested people or those with a need to know can go to one book to determine what laws are in effect in a particular city.

The City Clerk of Benton testified that the ordinance in question was not in the Benton Ordinance Book. The fact that ordinances which were passed before the one in question were in the book is a significant fact that cannot be ignored.

After a diligent search the city produced some evidence that an ordinance had been passed. It consisted of unsigned minutes of the Board, a newspaper clipping and an unsigned copy of the ordinance. Considering the requirements and formalities of making laws, that evidence is certainly not conclusive. The requirement that laws be signed is to assure citizens that those laws have been duly passed by governing authorities; unless there are exceptional circumstances, that requirement should not be waived.

The majority has clearly ignored the provisions of Ark. Stat. Ann. § 19-2404, which requires that ordinances be recorded in a book, and instead has applied general rules of evidence in deciding that a law, in fact, existed which limits the constitutional rights of voters to refer matters to the city as a whole.

The old maxim, “Ignorance of the law is no excuse”, takes on a new meaning in the City of Benton and other cities in view of the majority opinion. It will be the rule, rather than the exception, because the majority has found that a city ordinance to be lawful does not have to be signed or recorded to be valid; minutes of council meetings do not have to be signed to be credible; a law may be proved by using a newspaper clipping or an unsigned copy of an ordinance which is found in some file somewhere.

We are not dealing here with a matter of form. We are dealing with a substantial right of the voters. Amendment 7 to the Arkansas Constitution granted voters a right, within a certain number of days, to petition their government for change. Also, by that Amendment, cities, by local legislation, may limit that right. Any attempt to limit such substantial rights should be carefully scrutinized, and any laws providing therefor should be strictly construed in favor of the voters. The majority has certainly not applied any such standard.

I suppose the decision also means that property rights can be taken by zoning ordinances, or citizens can be fined or jailed on the basis of similar laws lying in some form, somewhere in a file, unsigned, unrecorded and brought out at a time to fit a particular need.

What is the sense of having a law that requires that ordinances be recorded in a book if it has no significance? What is the use of requiring that ordinances be signed if it has no effect?

There is no doubt that the majority has by its decision completely negated the effect and import of Ark. Stat. Ann. § 19-2404. The statute says ordinances will be recorded and authenticated. The majority opinion says they do not have to be recorded or authenticated. If there is to be any remedy in this matter, obviously it lies with the legislature.

      Appellees-petitioners alleged in their petition for mandamus in the trial court that the petitions for referendum would have been filed within 30 days of enactment of the ordinances “except the city officials informed them they would need signatures based upon the last general election when, in fact, they needed signatures based upon the election for city directors in January, 1977.”
      The only issue presented by this appeal relates to the validity of the referendum measure, Ordinance No. 2 of 1949.

      Amendment No. 7, Section 1, of the Arkansas Constitution, in relevant part, is as follows:
      “. . . [Referendum powers of the people are hereby further reserved to the local voters of each municipality . . .
      “Municipalities may provide for the exercise of the . . . referendum as to their local legislation.
      “. . . In municipalities and counties the time for filing ... a referendum petition is not less than 30 days nor more than 90 days after the passage of such measures by a municipal council. ...”


source: Caselaw Access Project

author:
James B. Sharp, Special Chief Justice.
      John A. Fogleman, Justice,

license: Public Domain

text:
    Marianne RUSS v. LIFE INSURANCE COMPANY OF GEORGIA
    77-415
    574 S.W. 2d 253
    Opinion delivered December 18, 1978
    (In Banc)

      Reinberger, Eilbott & Smith, by: Alan R. Humphries, for appellant.

      Henry W. Gregory, Jr., for appellee.
   James B. Sharp, Special Chief Justice.

The Jefferson County Circuit Court granted summary judgment in favor of Life Insurance Company of Georgia, the appellee. The appellant, Marianne Russ, brings this appeal alleging that there was a material fact issue and, therefore, summary judgment should not have been granted. We agree.

Clyde Russ was the Assistant Fire Chief in Pine Bluff. On December 27, 1974, he was involved in fighting a fire in Pine Bluff; according to some evidence Russ was overcome by smoke and heat and was seen leaving the scene coughing and vomiting.

Russ periodically returned to work thereafter but he died eighteen days after the fire. The death certificate listed the immediate cause of death as cardiopulmonary arrest due to acute myocardial infarction. Also, the death certificate mentioned that he had coronary artery disease and suffered from chronic bronchitis.

Marianne Russ, Chief Russ’ widow, filed suit against the appellee insurance company alleging that Chief Russ died from accidental causes which entitled her as beneficiary to the proceeds of a policy issued by the appellee on Chief Russ' life. The appellee filed a motion for summary judgment alleging there were no material facts in dispute and as a matter of law the death was not accidental as defined by the policy.

Relevant portions of the policy in question read:

The company will pay an additional amount upon receipt at its home office of due proof, (1) that the death of the insured . . . resulted directly from bodily injuries caused solely by external, violent and accidental means and independently of all other causes and which injuries are evidenced by a visible contusion or wound on the exterior of the body except in the case of drowning or internal injuries revealed by an autopsy; (2) that the cause of such death was not one mentioned in the next paragraph; ....
Under this benefit provision, the company does not assume the risk of death caused or contributed to, directly or indirectly, by disease, by bodily or mental infirmity, ....

Several affidavits were filed in connection with the motion for summary judgment. One affiant stated that he observed Chief Russ at the scene of the fire, saw him leaving coughing, gagging and expressing that he had pain in the chest. Several affidavits indicated that prior to the fire Chief Russ was in good health. The physician who signed the death certificate filed an affidavit concluding:

... it is my opinion that the physical effort, and subsequent smoke, temperature exposure were sufficient to cause acute tracheo-bronchitis and comprise (compromise) cardiac functions sufficiently to predispose the patient to an acute myocardial infarction.

The trial court, finding no material fact issue, granted summary judgment for appellee citing the case of Jackson v. Southland Life Ins. Co., 239 Ark. 576, 393 S.W. 2d 233 (1965), as authority for its decision.

We disagree with the decision of the trial court and find that there was a material fact issue as to whether Russ’ death was accidental as defined by the policy. In other words, we cannot say as a matter of law, on the record before us, what was the sole and direct cause of Russ’ death. Since the appellant, by affidavits, has raised a material fact question which may have to be decided by a jury, or a judge sitting as a jury, summary judgment is precluded. The Travelers Ins. Co. v. Johnston, 204 Ark. 307, 162 S.W. 2d 480 (1942); Life and Casualty Ins. Co. of Tennessee v. Jones, 230 Ark. 979, 328 S.W. 2d 118 (1959); and, Jackson v. Southland Life Ins. Co., supra. The Arkansas statute on summary judgments is found in Ark. Stat. Ann. § 29-212 (Supp. 1977) and a part of subparagraph (c) is as follows:

The judgment sought shall be rendered forthwith if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled tojudgment as a matter of law.

In the case of Russell v. City of Rogers, 236 Ark. 713, (page 714), 368 S.W. 2d 89 (1963), we stated:

It has been pointed out, under the Federal Rule, that the theory underlying a motion for summary judgment is the same as that underlying a motion for a directed verdict. . . . Hence any testimony that is submitted with the motion must be viewed in the light most favorable to the party resisting the motion, with all doubts and inferences being resolved against the moving party.

This view has been followed in Arkansas by a long line of cases which we have chosen here to follow.

We cannot say, as a matter of law, that the evidence presented requires us to hold that the insured’s death was not covered by the policy.

Reversed and remanded.

Fogleman, J., concurs.

Byrd, J., dissents.

Harris, C.J., not participating.

John A. Fogleman, Justice,

concurring. I concede that the majority has, as it should, resolved all doubts and inferences against the moving party and has viewed the supporting documents, affidavits, etc. presented with the motion and the response, in concluding that appellee was not entitled to judgment as a matter of law on the record made. Ark. Stat. Ann. § 29-211 (Repl. 1962, Supp. 1977); Russell v. City of Rogers, 236 Ark. 713, 368 S.W. 2d 89; Weathers v. City of Springdale, 239 Ark. 535, 390 S.W. 2d 125; Lee v. Westark Inv. Co., 253 Ark. 267, 485 S.W. 2d 712. While the summary judgment statute provides a salutary remedy, doubtful cases should be resolved against such a judgment.

In viewing the matter, however, it must be remembered that the company has paid the basic coverage under the policy and that this action is for the recovery of double indemnity only. Appellant had the burden of proving coverage. Peoples Protective Life Ins. Co. v. Smith, 257 Ark. 76, 514 S.W. 2d 400. We should make it clear that “coughing, gagging and throwing up” cannot constitute any indication of coverage under the policy. The plain language of the policy describing the risk assumed by the company for the premium paid to it eliminates any possibility of coverage. “Coughing, gagging and throwing up” are not, and never have been taken to be, “a contusion or wound on the exterior of the body.” This record certainly does not show that an injury was revealed by an autopsy. We do not know what the autopsy showed, although the attending physician took it into account in determining the cause of death. The majority opinion fails to point out that the policy language requiring that fatal internal injuries must be revealed by an autopsy governs or that there can be no recovery of double indemnity if internal injuries were not revealed by autopsy.

We should recognize the clear language of the policy and not leave our holding subject to any inference that the factual question here is to be governed by the cases cited in the majority opinion. The clause in this policy is quite different from those considered in the cited cases and the factual situations are distinguishable. In Travelers Ins. Co. v. Johnston, 204 Ark. 307, 162 S.W. 2d 480, the insured was using crutches as a result of Paget’s disease when he was injured by falling while leaving a taxicab. X-rays revealed that the claimant suffered a fractured hip as a result of the fall. The surgeon who repaired the hip testified that it would not be anticipated that the claimant would fall in getting out of a cab merely because he had Paget’s disease and that a fall such as he suffered might have broken his hip if he had not been “afflicted with Paget’s disease.” The question raised there was not even similar to the question here. The insurance was accident insurance, not life insurance. We held only that, in view of the testimony of the surgeon, the insurance company was not entitled to a directed verdict, saying that the instructions given declared the law as favorably to the insurance company as it had the right to ask. There was no requirement that the injury be evidenced by a visible contusion or wound on the exterior of the body or that there be internal injuries revealed by an autopsy.

We also held that the insurance company was not entitled to a directed verdict in Life & Casualty Ins. Co. of Tennessee v. Jones, 230 Ark. 979, 328 S.W. 2d 118, where there was medical testimony that an assault on the insured caused a myocardial infarction, from which he died. The policy clause was quite different from that involved here. There was no requirement that the covered injury be “evidenced by a visible contusion or wound on the exterior of the body except in the case of drowning or internal injuries revealed by an autopsy. ” In order for that case to control here, a period would have to be placed after the words “independently of all other causes” in the first paragraph of the policy copied in the majority opinion. The court did not consider the effect of the words which were included in the policy clause in this case, but not in the clause in the Jones case.

Strangely enough, in Jackson v. Southland Life Ins. Co., 239 Ark. 576, 393 S.W. 2d 233, we affirmed a judgment based upon a jury verdict favorable to the insurance company. The suit was for double indemnity for death of the insured by drowning. Jackson also treats a policy clause that does not require that there be a contusion or wound on the exterior of the body or internal injuries revealed by an autopsy.

The words “and independently of all other causes and which injuries are evidenced by a visible contusion or wound on the exterior of the body, except in case of drowning or internal injuries revealed by an autopsy” [emphasis mine] are a restriction on coverage which was absent in the cases cited in the majority opinion, and they cannot be deleted or ignored in determining the extent of coverage here.

I concur in the holding that appellant did not make the showing necessary for a summary judgment. I point out that “coughing, gagging or throwing up” did not bring the insured within the coverage of the policy.


author: George Rose Smith, Justice.

text:
    David BRIDGER, Jr. v. STATE of Arkansas
    CR 78-153
    575 S.W. 2d 155
    Opinion delivered January 8, 1979
    (Division 1)

      Appellant, pro se.

      Bill Clinton, Atty. Gen., by: Jesse L. Kearney, Asst. Atty. Gen., for appellee.
   George Rose Smith, Justice.

The appellant Bridger was convicted in the Clarksville municipal court of driving while under the influence of intoxicants. On appeal to the circuit court he was again found guilty. This is the second appeal to this court, both appeals having been conducted pro se by Bridger, who is not a lawyer. On the first appeal, in an unpublished opinion, we reversed the judgment because of an error in the admission of evidence and remanded the case for further proceedings.

After the remand the circuit clerk, by a letter dated April 20, 1978, notified Bridger that the case would be heard at 9:00 a.m. on May 17, 1978. On that date Bridger failed to appear in court. The State called the circuit clerk as a witness, who testified that the notice had been sent to Bridger by mail and that the letter had not been returned. The court found that Bridger had wilfully failed to appear, directed that his bond be forfeited, and reinstated the judgment of the municioal court. The circuit court’s judgment was entered on May 31. Bridger. without seeking relief in the trial court, filed his notice of appeal on June 27. In his five-sentence pro se brief in this court Bridger states that he did not receive personal or constructive notice of the hearing and that as a result of that omission the order of dismissal has deprived him of due process of law and equal protection.

When, as here, the trial court has acquired jurisdiction of the defendant, it is customary and proper for notice of the trial date to be given by mail. If Bridger did not receive notice of the date of trial he could have filed an application for relief in the trial court within the time allowed for the filing of a notice of appeal. Ark. Stat. Ann. § 43-2704 (Repl. 1977) Evidence could have been heard, and relief could have been granted if proper. Instead, Bridger (who, as we have said, is not an attorney) elected to file only a notice of appeal. According to the record, judgment was properly entered upon his failure to appear for trial. Of course, the record cannot be contradicted or supplemented by statements made in the briefs. Owing to Bridget''s failure to pursue his available remedy in the trial court he is not entitled to relief here.

Affirmed.

We agree.

Harris, C.J., and Byrd and Portee, JJ.


author: Conley Byrd, Justice.

text:
    DENA CONSTRUCTION COMPANY and SOUTHERN FARM BUREAU CASUALTY INSURANCE COMPANY v. Hayden HERNDON
    78-132
    575 S.W. 2d 155
    Opinion delivered January 8, 1979
    (Division I)

      David Hodges, of Hodges & Hodges, for appellants.

      John M. Belew and Phillip Farris, for appellee.
   Conley Byrd, Justice.

The Workmen’s Compensation Commission found that Hayden Herndon’s heart attack suffered on April 25, 1974, arose out of and in the course of his employment with appellant Dena Construction Company. The Commission also found that as a result of the heart attack, Hayden Herndon was permanently and totally disabled. The circuit court affirmed the Commission. For reversal appellant Dena Construction Company and its carrier Southern Farm Bureau Casualty Insurance Company raise the issues hereinafter discussed.

The record shows that Hayden Herndon, age 50 with a fifth grade formal education, had worked most of his adult life in the food industry — i.e. either as a cook in a restaurant or as the owner and operator of a restaurant. In his early years Hayden Herndon had worked on a delivery truck and in the lumber business for one of his brothers. He lost his lease on his restaurant in St. Joe, Michigan and moved back to Desha, Arkansas with the idea of purchasing a restaurant in Batesville, Arkansas. While the negotiations for the Batesville restaurant were pending, Hayden Herndon took a job with Dena Construction Company. While working with Dena Construction Company, he assisted his brother-in-law, the job foreman, in laying some underground cable telephone lines. Part of his duties required him to use a jackhammer for a portion of each day. While using the jackhammer on Wednesday, April 24, Hayden Herndon noticed a tingling in his left arm. While visiting his brother in the hospital that night Hayden Herndon experienced a “lightness in the head” and felt “kind of dizzy.” Between 12:30 a.m. and 1:00 a.m., following his visit with his brother, Hayden Herndon experienced some pain in his chest and arms. Mr. Herndon looked so bad the next morning that his wife begged him not to go to work but since and his brother-in-law only lacked a little finishing up, he went on to work. While J. D. Ash was gone for dynamite, Hayden Herndon used the jackhammer. When J. D. Ash returned about 11:20 a.m. with the dynamite, Hayden Herndon looked so bad that J. D. Ash urged him to go to the doctor. However, they stopped for lunch which Mr. Herndon shortly regurgitated. Following lunch J. D. Ash asked Sammy Murphy to take Hayden Herndon to the Cleburne County Hospital where he was treated for indigestion and released. Mr. Herndon returned to the job site doing only light work such as driving a pick-up. Back at the job site the pain in his arm and chest started coming much more often and became almost unbearable. Hayden Herndon left early for home but the pain became so severe that he had difficulty in turning the steering wheel on his pick-up and in fact had to stop on his way home because of the pain. Upon reaching home Herndon’s wife rushed him to Batesville where Dr. Bob Smith immediately placed him in intensive care.

Dr. Bob Smith stated that Herndon’s heart attack resulted from an atheromatous plaque in a coronary artery. It was his opinion that the heart attack probably resulted from the stressful situation of using the jackhammer and that Herndon was not capable of performing any gainful employment.

Dr. Phillip Cullen, after examining Hayden Herndon, gave a diagnosis of arteriosclerotic heart disease with a history of myocardial infarction in April 1974, and three vessel heart disease. With reference to his pains on the night of Wednesday, April 24th, Dr. Cullen testified:

“1 think the man was having angina the night before alright from the history that was brought out, he was having symptoms surely, premonitory of a heart attack and 1 think always in going back to it it’s so easy to answer these things while of course maybe he would not even have had a heart attack but on the other hand it is likely that he would have had one sometime within days, weeks, or months or something, since after this that it was known about his back vessel. 1 think that it hurried it up, as I said, because the scene was already there, the stage was already set and if it had not happened that day 1 think it would have happened. I would not have advised Mr. Herndon if he had been in my office on the evening of the 24th and he described to me the sump-toms that he had at that time to go out and run a jackhammer the next day. I would advise him, on the date that 1 saw him, to avoid activities that were strenuous enough to produce chest pains, and that would include activities of an emotional and a mental nature also.”

Dr. Cullen testified that Herndon should be restricted to light work — i.e. jobs where he was not required to lift more than five pounds, jobs in which he could change positions frequently and jobs that did not involve extremes or temperature or fatigue. He also recommended Herndon as a candidate for triple by-pass surgery.

Dr. Alfred Kahn, Jr., with the same logical reasoning given in numerous other heart cases before this court, diagnosed Mr. Herndon’s condition as progressive arteriosclerotic heart disease totally unrelated to his occupation that progressed to myocardial infarction. He did not relate Herndon’s activity at work to his heart attack in as much as his exertion was not an unusual one for someone doing the type of work Herndon was required to do in the construction industry. He stated that Mr. Herndon should be limited to light work — not lifting more than five pounds. Dr. Kahn also stated that Mr. Herndon was a good candidate for triple by-pass heart surgery.

Dr. Robert O. Morrow, Dean of the College of Education at the University of Central Arkansas and a counseling psychologist, testified that Herndon’s employment skills could be used in light work at a number of different employers in the State of Arkansas. Dr. Morrow described light work as that which included lifting objects up to twenty pounds.

Hayden Herndon testified as to his inability to walk any distance and how his feet swelled when he stood for any length of time.

Based upon the foregoing, the Administrative Law Judge, Gary Shelton, ruled that Herndon’s heart attack arose out of and in the course of his employment and that he was permanently and totally disabled within the rationale of Glass v. Edens, 233 Ark. 786, 346 S.W. 2d 685 (1961). While the appellants were orally arguing the merits of their case before the Commission, they learned that Mr. Herndon had undergone a triple by-pass heart operation in Houston, Texas. Pursuant to the orders of the Commission, the parties thereafter took the deposition of Dr. Robert D. Leachman who testified that he and Dr. Denton Cooley performed triple by-pass surgery on Hayden Herndon and that at the time Herndon left the hospital he was walking and moving about satisfactorily. W'hile Dr. Leachman could not say what Herndon’s recovery would be since he had not seen him since he left the hospital in Houston, he stated that in general about eighty per cent of his patients following such operations wrre rehabilitated and symptom free. In other words the surgery would not impose any physical restrictions on Mr. Herndon unless there was some evidence to the contrary. He stated that a triple by-pass would not disqualify him from working in physical manual labor assuming he was physically able to do it.

Subsequent to the filing of Dr. Leachman’s deposition, the Commission, without discussing Dr. Leachman’s deposition, affirmed the action of the Administrative Law Judge.

We pointed out in Barksdale Lumber Co. v. McAnally, 262 Ark. 379, 557 S.W. 2d 868 (1977), that we are not at liberty to weigh the credibility of witnesses and that where doctors take conflicting views on the issue of whether a person’s work caused or aggravated a heart attack then the issue of credibility is one for the Commission (the fact finders). On review we are limited to the single issue of whether there is substantial evidence in the record to support the Commission’s findings of fact. Therefore, on the single finding that Hayden Herndon’s use of the jackhammer aggravated his predisposition to having a heart attack, we cannot say that such finding is not supported by substantial evidence — i.e. the testimony of Dr. Cullen.

However, on the issue of whether Hayden Herndon was permanently and totally disabled, he had the burden of proof, Taylor v. Plastics Research & Dev. Corp., 245 Ark. 638, 433 S.W. 2d 830 (1968), and in view of Dr. Leachman’s testimony one can only speculate whether Hayden Herndon is totally and permanently disabled following his triple by-pass heart surgery. Since the Commission's finding that Mr. Herndon is totally and permanently disabled for compensation purposes can only be sustained by assuming that his condition following the triple by-pass heart operation is the same as before the operation, it follows that we cannot find any substantial evidence to support the Commission’s finding of total and permanent disability. We have consistently held that conjecture and speculation, however plausible, cannot be permitted to supply the place of proof. Sadler, Trustee v. Scott, 203 Ark. 648, 158 S.W. 2d 40 (1942).

In view of the foregoing error, it follows that this case must be reversed and remanded to the Commission for further development of the present condition of Hayden Herndon.

Reversed in part and remanded.

We agree: Harris, C.J., and George Rose Smith and Purtle, JJ.


text:
    Denver R. GENTRY v. FIRST AMERICAN NATIONAL BANK et al
    78-175
    575 S.W. 2d 152
    Opinion delivered January 8, 1979
    (Division II)

      Rice & Batton, P.A., by: Ben E. Rice, for appellant.

      Harold W. Madden, for appellees.
   Conley Byrd, Justice.

Appellant Denver R. Gentry and Appellee Gary G. Wallis were both officers of Sunshine Mobile Homes, Inc. Pursuant to a corporate resolution Gentry and Wallis endorsed on June 20, 1974, a $10,000 note executed by Sunshine Mobile Homes, Inc. Renewals of this note were similarly executed through June 16, 1975. On November 4, 1975, Sunshine Mobile Homes executed another note to the First American National Bank in the amount of $24,500. At that time Gentry and Wallis executed a $24,500 guaranty agreement which provided:

“This guaranty is continuing, absolute and unconditional and remains in full force and effect until . . . any and all indebtedness and obligations existing before receipt of such notice are fully paid. . . . Liability hereunder is not affected or impaired by any surrender, compromise, settlement, release, renewal, extension, authorization, substitution, exchange, modification or other disposition of any said indebtedness and obligations.”

Payments were made on the $24,500 note from time to time. A renewal in the amount of $15,341.35 was executed and endorsed on February 3, 1975. A like such endorsement was executed on May 5, 1975 for the then balance of $4,791.35.

On December 16, 1975 the indebtedness on the $10,000 note and the balance due on the $24,500 indebtedness were consolidated into a Sunshine Mobile Homes, Inc. Renewal Promissory Note and Security Agreement in the amount of $14,791.35. This note had typed on it places for the endorsement of Wallis and Gentry. However, the note was only signed by Wallis. After Wallis had paid fifty percent of the $14,-791.35 renewal note, the First American National Bank brought an action against the defunct Sunshine Mobile Homes, Inc. and W'allis and Gentry. The trial court upon a stipulation of the facts rendered judgment in favor of First American National Bank against both Wallis and Gentry and also gave Wallis a judgment for contribution against Gentry for payments in excess of his pro rata part of the obligation. Gentry has appealed.

Gentry contends that the December 16, 1975 note is clearly the personal obligation of Wallis under the provisions of the Uniform Commercial Code, Ark. Stat. Ann. § 85-3-401 (Add. 1961) and that by virtue of the fact Wallis became the only obligor on the note, Gentry was released from the $24,-500 guaranty agreement, citing National Bank of Eastern Arkansas v. Collins, 236 Ark. 822, 370 S.W. 2d 91 (1963) and Spears v. El Dorado Foundry, 242 Ark. 590, 414 S.W. 2d 622 (1967).

We cannot agree with appellant Gentry that the December 16, 1975 renewal signed only by Wallis discharged Gentry from his guaranty agreement. The case of National Bank of Eastern Arkansas v. Collins, supra, involved a construction of a warranty to see if counsel fees charged to the bank in excess of those allowed by law for foreclosure of a note secured by a mortgage were within the terms of a guaranty agreement. We merely held that the excess fees were not within the terms of the guaranty agreement.

Neither can Gentry find any help in Spears v. El Dorado Foundry, supra. There Spears, while a corporate member of Southern States Mechanical Contractors, Inc., executed a guaranty agreement covering an open account. After Spears, with notice to El Dorado Foundry, withdrew from Southern States Mechanical Contractors, Inc. and went into business for himself, El Dorado Foundry took a promissory note from Southern States Mechanical Contractors, Inc. and assigned the note to a bank. After several renewals and after Spears had been discharged in bankruptcy, El Dorado Foundry brought suit upon the guaranty agreement. We there held that the actions of El Dorado Foundry in reducing the open account to a negotiable instrument and extending the time of payment amounted to a discharge of Spears. However, the guaranty signed by Gentry specifically recognizes that Gentry’s liability is not affected by renewals or extensions of the obligations guaranteed. No such agreement for renewals or extensions were contained in the agreement signed by Spears.

Another contention of appellant Gentry is that the execution of the December 16, 1975 “Sunshine Mobile Homes, Inc.” “Renewal” by only Wallis amounted to a novation which substituted Wallis personally for the original obligation. Novation is a matter of intent, Simmons National Bank v. Dalton, 232 Ark. 359, 337 S.W. 2d 667 (1960), and in the stipulated facts Gentry did not carry out his burden of proving that the December 16, 1975 renewal was a novation agreement.

Other contentions by Gentry have become moot in view of Gentry’s liability upon the guaranty agreement.

Wallis correctly points out that appellant Gentry failed to properly abstract the record in this case, Bank of Ozark v. Isaacs, 263 Ark. 113, 563 S.W. 2d 707 (1978) and Lewis v. Miller, 263 Ark. 154, 563 S.W. 2d 435 (1978), and asks for an allowance of costs and fees for abstracting the record. An additional SI50 is allowed appellee's counsel for fees in abstracting the record and shall be taxed in addition to the costs.

Affirmed.

We agree: Harris, C.J., and Fogleman and Hickman, JJ.


author: Frank Hoi.t, Justice.

text:
    Clifford F. COLE et al v. Nelson L. SCOTT et ux
    78-188
    575 S.W. 2d 149
    Opinion delivered January 8, 1979
    (Division II)

      Gus R. Camp, for appellants.

      Guy Brinkley, for appellees.
   Frank Hoi.t, Justice.

Appellees and appellants were owners, as tenants in common, of 346 acres of land. Appellees sought a partition, alleging the lands were susceptible to division and, if found not to be, the property should be sold at public auction and the proceeds partitioned according to the parties' respective interests. In response, it was appellants’ position that the lands could not be divided in kind and, therefore, should be sold at public auction. The chancellor, as requested by the appellees, appointed Commissioners to view the lands and determine whether the acreage was capable of division. The court rejected their determination that the lands were divisible and ordered the property sold and the net proceeds divided pro rata. The property was sold at a public sale for $332,160. After payment of mortgages and expenses, $230,210.29 remained for distribution to the parties. The chancellor allowed appellees’ attorney a fee of $15,000 payable from the common fund of the sale proceeds. Appellants first assert that Ark. Stat. Ann. § 34-1825 (Supp. 1977), authorizing the award of attorneys' fees in partition suits, is unconstitutional-in that it takes property without due process of law in violation of the 14th Amendment of the U.S. Constitution.

§ 34-1825 provides:

Hereafter in all suits in any of the courts of this State for partition of lands when a judgment is rendered for partition in kind, or a sale and a partition of the proceeds, the court rendering such judgment or decree shall allow a reasonable fee to the attorney bringing such suit, which attorney’s fee shall be taxed as a part of the costs in said cause, and shall be paid pro rata as the other costs are paid according to the respective interests of the parties to said suit in said lands so partitioned.

It is true that this statute makes it mandatory for the court to allow attorney’s fees in a partition suit. Johnson v. Smith, 248 Ark. 929, 454 S.W. 2d 649 (1970). There we specifically held that the adversary nature of a partition action, as here, no longer affects the allowance of those fees. We also observed that partition actions “obviously inure to the benefit of those owning any share of the property. 'Fo require the cotenant who institutes the action to bear more than his proportionate share of this burden is inequitable. The preamble to Act 518 of 1963 (§ 34-1825) clearly indicates our General Assembly’s awareness of the inequitable burden risked by one initiating a partition suit and its intention to remedy the situation by amendment of the existing law.”

Even so, appellants correctly assert that we did not deal with the issue of due process in that case. It is argued that the legislature, by the mandatory language of § 34-1825 with respect to allowance of attorney's fees, has “taken or confiscated the property of defendants in this case before they have even had their day in court or an opportunity to be heard” and that property in a partition action is now taken by legislative mandate from an unconsenting party with the court only having discretion as to “how much property is to be taken from the property owner.” Appellants fail to point out any case in which a statute similar to ours has been held unconstitutional as contravening the due process clause of the 14th Amendment. It has been held, however, that statutes which provide for the award of attorney's Ice in partition actions are not violative of the due process clause of the 14th Amendment nor any other provision of the U.S. Constitution. Dent v. Foy, 97 So. 627 (Ala. 1923); Scott v. Marley, 137 S.W. 492 (Tenn. 1911). See also 73 ALR 38 c. In recognizing these statutes as being constitutional, the view is expressed that partition suits are a natural and reasonable classification by themselves and inure to the common benefit of all the parties interested as owners of the property in the litigation. In the case at bar, we perceive nothing in the 14th Amendment that forbids the award of a reasonable attorney’s fee, to be paid from the common fund, pursuant to our statute.

Appellants next assert that the court's award of SI 5,000 as attorney’s fee to appellees is excessive for the services rendered. The pertinent factors in determining the reasonableness of attorney's fee are enumerated extensively in Robinson v. Champion, 251 Ark. 817, 475 S.W. 2d 677 (1972). We have established no fixed formula to be applied in the determination of attorney's fees “other than the rule that the appropriately broad discretion of the trial court in such matters must not be abused." Equitable Life Assur. Society v. Rummell, 257 Ark. 90, 514 S.W. 2d 224 (1974).

Here the appellees argue that the fee allowed to them was reasonable inasmuch as the legal services extended over approximately nine months in this partition action which required the preparation ol the necessary pleadings, court attendance on several occasions, a study of title defects, assisting in arranging for the advertisement and sale of the lands, preparation of court orders and Commissioner's deed, securing the payment and discharge of existing mortgages, inquiries into the sufficiency of the bond of the purchasers and requiring them to pay interest of 9% per annum on the unpaid balance, attending the public auction resulting in the sale price of $332,160, and a net distribution of $230,210.29. Appellees' attorney testified that, in view of these services, he was entitled to at least 5% for his services. A local attorney corroborated his view. As indicated the court awarded $15,-000 which approximates 5% of the gross sale proceeds. In support of this percentage fee, appellees cite to us Fortuna v. Ackor, 254 Ark. 1035, 497 S.W. 2d 251 (1973), where we held that an attorney's fee of $5,000 “based upon 5% of |$100,0001 sale price” was reasonable. Further, as here, there was no evidence offered to the contrary. As previously indicated, we have established no fixed formula or percentage in the award of attorney's fees. The test necessarily remains whether the fee awarded is reasonable in view of the services rendered. With all due deference to the services and ability of the appellees' attorney and the chancellor's evaluation of the services rendered, we cannot approve, after carefully reviewing the record, an allowance of a fee in excess of $10,000. The amount awarded is so modified. See Equitable Life Assur. Society v. Rummell, supra.

Affirmed as modified.

We agree: Harris, C.J., and Fogleman and Hickman, JJ.


author: PER CURIAM

text:
    Daniel Lon GRAHAM v. STATE of Arkansas
    CR 78-36
    575 S.W. 2d 149
    January 8, 1979

      Harold Hall, Public Defender, for petitioner.

      Bill Clinton, Atty. Gen., by: Joseph H.. Purvis, Deputy Atty. Gen., for respondent.
   PER CURIAM

The court appointed attorney for petitioner has filed his motion for allowance of attorney’s fees in this case upon the erroneous premise that he has fulfilled his duties in the present case. Counsel has taken our per curiam order of October 30, 1978, appearing in 264 Ark. at 489, 572 S.W. 2d 385, as a denial of a belated appeal. This is a misinterpretation of that order. The order concludes with the statement:

Appropriate action in this matter should be taken by the petitioner in the trial court.

The per curiam order of October 30, 1978 only denied the petitioner’s petition to vacate his conviction and to discharge him, which was filed on September 7, 1978. It was the intention of this court by that per curiam order to point out that the burden of supplying a transcript of the proceedings at petitioner’s trial rested upon him. Counsel’s responsibilities include the taking of appropriate steps for obtaining a transcript of the record or a reconstruction thereof.

Petitioner’s court appointed counsel is allowed a fee of $300 for services to date and $32.22 for our-of-pocket expenses.


author: John I. Purtle, Justice. John A. Fogleman, Justice,

text:
    Carol Jane PARKER et al v. Elizabeth P. MOBLEY
    78-184
    577 S.W. 2d 583
    Substituted Opinion on Rehearing delivered February 19, 1979
    (In Banc)
    [Rehearing denied March 26, 1979.]

      Davidson, Plastiras, Horne, Hollingsworth & Arnold, Ltd., by: Cyril Hollingsworth, for appellants.

      Mobley & Smith, by: William F. Smith, for appellee.
   John I. Purtle, Justice.

This case is now considered upon a Petition for Rehearing filed on January 26, 1979, in which it is sought to have us reconsider our opinion of January 15, 1979. We deem it appropriate to state the facts again since our prior opinion has already been published in the advance sheets.

Parker Parker executed a will in 1973 in which he left one of his four children only a token amount. Sometime in 1976 he executed another will but subsequently supervised its destruction in his presence and that of two other witnesses. Mr. Parker died on November 6, 1976. Shortly thereafter, the 1973 will was admitted to probate by the widow and promptly contested by appellee. Two of his daughters entered the contest in support of upholding the probate of the 1973 will.

In the meantime the parties commenced an action in the Pope County Chancery Court concerning the establishment of a lost or destroyed will. By agreement both cases were tried together. The chancery matter is moot and will not be considered here.

The trial court held the revocation of the 1973 will by execution of the 1976 will and the intentional destruction of the 1976 will caused the decedent to die intestate. The appellants contend on appeal that, as a matter of law, the court erred in failing to uphold the 1973 will as admitted by probate.

Ark. Stat. Ann. § 60-406 (Repl. 1971) provides a will may be revoked (a) by subsequent will; or, (b) by destruction at. the direction of the testator before two witnesses who will not benefit by such destruction. Since the 1973 will left the widow only that property to which she, by law, is justly entitled, it is obvious she would not benefit by destruction of the 1976 will because he could not have left her less in it than that to which she would be entitled to receive by law. If the second will left her more, then certainly she did not benefit by its destruction. The other witness to the destruction of the will received nothing in the 1973 will, so it is obvious she would not benefit by destruction of the 1976 will.

Although it is undisputed that the 1976 will contained a clause revoking all prior wills, it is not necessary under the present law that such clause be contained therein as the subsequent will automatically revokes the earlier one. Ark. Stat. Ann. § 60-406 (Repl. 1971). Neither is it disputed that the entire and complete contents of the 1976 will were not proven. There were no copies of the 1976 will found and even the secretary’s notes were lost or destroyed. It would be near impossible to prove all the contents of a destroyed will if a good job of destruction was employed, as was apparently the case here. Also, to require full proof of all the contents of a subsequent will which had been destroyed would allow any prior undestroyed will to be proven as a valid will if either it or copies should be located. Such results were never intended by the laws of Arkansas. Appellants contend it is necessary to prove the entire will and its contents before it operates as a revocation of a former will. The proof required, before a lost or destroyed will may be established, is set out in Ark. Stat. Ann. § 60-304 (Repl. 1971), as follows:

No will of any testator shall be allowed to be proved as a lost or destroyed will, unless the same shall be proved to have been in existence at the time of the death of the testator, or be shown to have been fraudulently destroyed in the lifetime of the testator; nor unless its provisions be clearly and distinctly proved by at least two (2) witnesses, a correct copy or draft being deemed equivalent to one (1) witness.

In this case it was not sought to prove a lost or destroyed will. Rather it was sought to prove the will was destroyed at the direction of the testator. There is no dispute among the parties that the testator did in fact oversee the literal destruction of the 1976 will.

Since the 1973 will was effectively revoked by execution of the 1976 will, in accordance with Ark. Stat. Ann. § 60-406 (Repl. 1971), and the 1976 will was destroyed as stated above, the decedent died intestate.

Admittedly, Reed v. Johnson, 200 Ark. 1075, 143 S.W. 2d 32 (1940) appears at first sight to be in direct conflict with the present case. In Reed the evidence of the alleged lost or destroyed will was vague in all respects. No two witnesses agreed about what it contained or whether it was typed or in ink or whether it contained two or three pages. In fact, there was no direct evidence that it actually ever existed as a valid will. Also, the circumstantial evidence was that Reed said he was going to burn it. There was no evidence indicating Reed carried through his threat to burn the will or that he otherwise procured its destruction as set out in Ark. Stat. Ann. § 60-406(b) (Repl. 1971). In Reed the moving force behind the decision was predicated upon the possibility of fraud and, since the proof in Reed was not clear and unequivocal, as it is here, the underlying reason for the Reed decision is here absent. The facts in Reed are different in that the court stated:

We do not think the proof introduced by the contestees, the substance of which is set forth in this opinion, meets the requirements of the rule of evidence required to annul or revoke a former will by a subsequent will. No witness testifies or attempts to testify to the entire contents of the purported, 1936, will of John F. Reed. One or two of them testify that it contained a revocation clause and one or two of them testify that it contains a disposition of subsequently acquired lots of property to the execution of the 1930 will, and one of them says that it made disposition of his property equally to all his heirs. There are discrepancies in their testimony as to whether it contained more than two pages and whether it was in writing or in type. The will offered for probate was regular in form and met all the requirements of the statute including the attestation of witnesses, and we do not think that such a will should be overthrown by fragmentary, uncertain or inconclusive testimony of the character and kind introduced by appellees who are the contestants herein.

Clearly, the court in Reed found the proof was not of the caliber needed to prove a lost or destroyed will. The court so much as said had the proof been more strict it would have withstood the test then used to prove a lost or destroyed will. Obviously it was the skimpy and uncertain proof which led to the court’s decision.

In the present case the proof is clear and unequivocal, and in fact not in dispute, that the 1976 will was in existence until its deliberate destruction at the direction of testator. There are no uncertainties as existed in Reed. We would simply have to hold that the present statutes do not mean what they say if we hold the 1973 will valid. The 1976 will destroyed by the testator after its execution was in the plain words and meaning of the statute, in accordance with the law, and its very execution had revoked the prior will.

We do not overrule Reed to the extent that it still correctly states the proof and method of establishing a will which has been lost or destroyed by accident or design of some person other than the testator.

Ark. Stat. Ann. § 62-2117 (Repl. 1971) was enacted nine years after Reed and repeals all conflicting laws. This statute completely leaves out any procedure for establishing a will which has been effectively destroyed by the testator. It does provide for the method of proving a will which has been lost, or destroyed by accident or design of some person other than the testator. The only logical reason for not making provisions for proof of a will destroyed intentionally by a testator, in accordance with Ark. Stat. Ann. § 60-406(b) (Repl. 1971), is obvious, there is no will to prove — it has been legally and physically extinguished.

If the decedent desired to reinstate his 1973 will, he could have easily followed the provisions of Ark. Stat. Ann. § 60-408 (Repl. 1971) which states:

No will or any part thereof which shall be revoked, or which shall become invalid, can be revived otherwise other than by reexecution thereof, or by the execution of another will in which the revoked or invalid will or part thereof is incorporated by reference.

There is no other manner by which a revoked will may be revived other than as above stated. It was not reexecuted in the above manner nor was any attempt made to do so. We cannot now do it.

In view of the undisputed facts and the law as it now exists, we are of the opinion that the execution of the 1976 will effectively revoked the 1973 will. The intentional physical destruction of the 1976 will, in the manner required by law, left the testator without an existing will. Everyone is presumed to possess knowledge of the legal consequence of his acts or omissions. Whatever the reason the decedent had, he failed to reexecute either of his known former wills or publish a new one. Therefore, he died intestate. The Petition for Rehearing is granted and the case remanded with directions to proceed in accordance with the decision of the trial court.

Affirmed.

George Rose Smith and Fogleman, JJ., dissent.

John A. Fogleman, Justice,

dissenting. I would deny the rehearing. I adhere to the original opinion. Even a partial overruling of Reed v. Johnson, 200 Ark. 1075, 143 S.W. 2d 32 is not justified. It construed a statute and, if its holding is not literally a rule of property, it is in nature and effect.

Furthermore, the overruling or limitation of Reed is based in substantial part upon Ark. Stat. Ann. § 62-2117 (Repl. 1971). Neither the application of that statute nor its effect on the statutes (which were involved, and relied upon by the parties and this court) was an issue, either here or in the trial court. It was not mentioned until the petition for rehearing was filed. To quote from appellant’s brief, on rehearing:

Heretofore, Ark. Stat. Ann. § 62-2117 (1971 Repl.) has been overlooked.

Also,

The Appellees herein admittedly have not previously called to this honorable Court’s attention the arguments contained herein, the various distinctions between Reed and ,the case at bar, and the differences in the applicable statutory requirements.

Since this is the case, the question raised by petition for rehearing is not to be considered, and the rehearing is improperly granted. Burke v. St. Louis, I. M. & S. Ry. Co., 72 Ark. 256, 51 S.W. 458; Driver v. Garey, 143 Ark. 112, 220 S.W. 667; Burks Motors, Inc. v. International Harvester Co., 250 Ark. 641, 466 S.W. 2d 943; Arkansas State Highway Com'n. v. Coffelt, 257 Ark. 770, 522 S.W. 2d 839; Berry v. Gordon, 237 Ark. 547, 865, 376 S.W. 2d 279, 289; Bost v. Masters, 235 Ark. 393, 361 S.W. 2d 272, 277; Midland Valley Rd. Co. v. LeMoyne, 104 Ark. 327, 148 S.W. 654; Chronister v. Skidmore, 198 Ark. 261, 129 S.W. 2d 608; Vincennes Steel Corp. v. Derryberry, 194 Ark. 37, 106 S.W. 2d 571.

The rule against raising new issues on a petition for rehearing should have particular impact in a case of this sort.

I am authorized to state that Mr. Justice George Rose Smith joins in this opinion.


author: Frank Holt, Justice.

text:
    ALLIED CHEMICAL CORP. AND THE TRAVELERS INDEMNITY CO. v. VAN BUREN SCHOOL DISTRICT NO. 42
    78-153
    575 S.W. 2d 445
    Opinion delivered January 15, 1979
    (In Banc)

      Bethell, Callaway & Roberts, by: Donald P. Callaway, for appellants.

      Creekmore & Harriman, for appellee.
   Frank Holt, Justice.

This appeal follows a default judgment against appellants in appellee’s suit for damages resulting from an allegedly defective roof. Following a hearing to assess damages, a judgment was rendered against appellant Allied Chemical Corp. in the amount of $8,567.54 and appellant The Travelers Indemnity Co. in the amount of $332. Appellants first assert for reversal that the court erred in refusing to set aside the default judgment.

Appellee had a roof installed on one of its school buildings in December, 1965. The roof was composed of material manufactured by Barrett, then a division of Appellant Allied Chemical. Allied, with appellant Travelers as surety, issued two 20-year guaranty bonds, one a $3,850 roof bond and the other a $332 flashing bond. Leakage problems began approximately two years after installation. After several repairs to the roof, the sections over the library and cafeteria were replaced in 1974 at a cost of $8,757 to the appellee. The remainder of the roof was replaced in 1976 at a cost $85,-363 to the appellee. In the interim or August, 1975, appellee brought this action against Celotex, which had acquired Barrett in 1967, the roofer, the architects, the contractor and the appellants. Since acquiring Barrett, Celotex has accepted and defended all claims against Barrett, including roof bonds and general liability claims. Service was had on Celotex and appellants on August 6. Celotex referred the matter to its regular area counsel, Mr. Donald Callaway. However, prior to receiving the referral, he had departed for a vacation abroad. The case was temporarily assigned to an office partner. After contacting a Celotex official, the partner timely filed a motion to quash for Celotex, challenging venue, with the view that such an action would stay any further proceedings until Callaway’s return. Callaway returned to his office on September 2 and found copies of correspondence between Celotex and Travelers wherein Travelers requested the usual surety’s defense. On that date Callaway promptly filed a supplemental motion to quash which stated that Celotex was “extending” its motion to include Travelers. Sometime later, Callaway discovered that his office had also received a letter from Celotex on August 22, 1975, requesting him to defend the case on behalf of Celotex, Travelers and Allied Chemical. That letter was not on Callaway’s desk when he returned. After finding the letter in the office, Callaway filed another supplemental motion which “extended” Celotex’s original motion to quash, challenging venue, to include Allied in addition to Travelers. Both supplemental motions to quash, together with affidavits as to the circumstances surrounding the delayed filings, were filed beyond the time in which responsive pleadings are required. Because of Allied and Travelers’ failure to timely appear or plead, a default judgment was entered against them on October 2. Appellants then filed a motion to set the default judgment aside which was denied on October 31, 1975. All the proceedings were during the same term of court. An appeal here was dismissed as premature because the issue of damages had not been settled. Thereafter, Celotex filed an answer, preserving its objection to venue, asserting various defenses. As indicated, a final judgment was rendered against appellants Allied and Travelers after a hearing on damages.

Appellants argue that the default judgment should have been set aside, because the actions of counsel and circumstances, under which they took place, constituted “excusable neglect, unavoidable casualty, or other just cause” as provided in Ark. Stat. Ann. § 29-401 (Repl. 1962). It is true that, because of the harshness and drastic results of a default judgment, it is not a favorite of the law and should be avoided when fairly possible. Winters v. Lewis, 260 Ark. 563, 542 S.W. 2d 746 (1976). However we have discussed, in several cases, what does or does not constitute a showing of “excusable neglect, unavoidable casualty or other just cause.” Perry v. Bale Chv. Co., 263 Ark. 552, 566 S.W. 2d 150 (1978); Robertson v. Barnett, 257 Ark. 365, 516 S.W. 2d 592 (1974); Ryder Truck Rental v. Wren Oil Dist. Co., 253 Ark. 827, 489 S.W. 2d 236 (1973); Ark. Elect. Co. v. Cone-Huddleston, 249 Ark. 230, 458 S.W. 2d 728 (1970); Barkis v. Bell, 238 Ark. 683, 384 S.W. 2d 269 (1964); and Interstate Fire Insurance Co. v. Tolbert, 233 Ark. 249, 343 S.W. 2d 784 (1961). Also we have often said that the question before us, when reviewing a trial court’s decision to grant or deny a motion to set aside a default, is whether that court abused its discretion. Moore, Administratrix v. Robertson, 242 Ark. 413, 413 S.W. 2d 872 (1967); and Ark. Elect. Co. v. Cone-Huddleston, supra.

Here, we cannot say that the court abused its discretion by finding that there was not a “sufficient showing of excusable neglect, unavoidable casualty or other just cause which would permit the court in the exercise of its discretion to set aside” the default judgment. Even so, appellants argue that their reliance upon Celotex’s assurance that a defense would be provided should prevent us from finding that the client is bound by the default of his attorney. We do not think this contention has merit in this situation. Such a circumstance is merely one factor to be considered in determining whether the trial court abused its discretion.

Appellants next argue that Celotex’s timely answer brings their case within the rule that any defense filed by one defendant, common to a codefendant, inures to the benefit of that codefendant. Southland Mobile Home Corp. v. Winders, 262 Ark. 693, 561 S.W. 2d 280 (1978); Rogers v. Watkins, 258 Ark. 394, 525 S.W. 2d 665 (1975); Arkansas Electric Co. v. Cone-Huddleston, supra; Frow v. De La Vega, 15 Wallace’s Reports 552 (1872); and Bruton et al v. Gregory, 8 Ark. 177 (1847). In Southland the purchaser brought an action against the manufacturer and the seller (Southland) of a mobile home. In the complaint, as here, there were several allegations as to the joint and several liability of the defendants to the plaintiffs. The manufacturer filed an answer denying “each and every material allegation contained in the complaint.” There, as here, the appellant did not file an answer, resulting in a default judgment. The defaulting party filed a motion asking the court to set aside the judgment on the ground that its codefendant’s answer inured to its benefit. The court denied the motion. In reversing we said:

The motion should have been granted. The appellees are mistaken in arguing, on the basis of the result reached in Rogers v. Watkins, 258 Ark. 394, 525 S.W. 2d 665 (1975), that there must be a derivative liability in order for the answer of one defendant to inure to the benefit of another. That was the situation in Rogers, but the rule is not confined to that state of facts. The true test is whether the answer of the non-defaulting defendant states a defense that is common to both defendants, because then ‘a successful plea . . . operates as a discharge to all the defendants but it is otherwise where the plea goes to the personal discharge of the party interposing it.’ (Cases omitted.) Here the effect of the manufacturer’s answer was to deny the plaintiffs’ allegations of negligence and breach of warranty. That denial went to the existence of the plaintiffs’ cause of action, asserted a defense common to both defendants, and therefore inured to the benefit of the appellant.

Here Celotex filed a timely answer, preserving its objection to venue, and asserted that the appellees’ complaint did not state sufficient facts to constitute a cause of action, denied the allegations of appellee’s complaint, interposed the statute of limitations as a complete defense, that Celotex, upon purchasing Barrett from Allied Chemical, had accepted all liability on all outstanding roof and flashing bonds, and full payment of any penal sum due under the surety bonds issued by Travelers. These denials by Celotex’s answer went to the existence of appellee’s cause of action and asserted defenses common to both appellants which inured to their benefit. Consequently, the trial court erred in holding otherwise.

Appellants also contend that the facts alleged in the complaint are insufficient to support the judgment. Pleadings are to be liberally construed and will support a default judgment if they fully advise a defendant of his obligations and alleged breach of them. Kohlenberger v. Tyson’s Foods, 256 Ark. 584, 510 S.W. 2d 555 (1974); and Interstate Fire Insurance Co. v. Tolbert, supra. Here the complaint alleged that appellant Travelers had issued two 20-year guaranty bonds, that the conditions of the guarantees had been violated, that the roofing materials were defective and the roof has continuously leaked, that Travelers had repeatedly refused to repair or replace the roof and the damage thereto, despite demand being made upon them. It is also alleged that appellant Allied Chemical (and Celotex) had guaranteed the roof for 20 years, had supplied inferior and defective materials in breach of their contract, had installed an inferior system rather than the system described in the bonds and concealed that fact from appellee until March, 1973, and had continuously promised appellee that the roof would be completed as provided for in the contract but had not so completed the roof. It alleged that appellants and Celotex had knowledge of the defective condition of the roof since shortly after its installation and had acknowledged a duty to repair it but failed to properly do so, that the roof continues to leak and the building and interior is in a deteriorated condition as a result thereof, and that the acts of appellants have produced the roof’s condition and damaged appellee in the sum of $100,-000. Certainly, these allegations were sufficient to advise appellants of their asserted obligations and breach of them.

We next discuss the proper measure of damages. Appellants installed a 20-year guaranteed roof in 1965. Approximately two years later it began to leak. Repairs were made intermittently until a portion was necessarily replaced 9 years later and the remainder 11 years later by appellee. The court prorated the replacement cost on an 18/20 basis, giving 2 years’ credit for the use of the roof. Appellants argue that the allowance of 9 years ’ credit (11 /20) of the first replacement and 11 years’ credit (9/20) of the second and larger replacement rather than 2 years’ (18/20) credit as applied by the court would be the appropriate basis for determining damages on a cost of replacement. Admittedly any costs of repairs and damages caused by leaks before the reroofing would be a proper award for any damages sustained in addition to the asserted adjusted replacement cost. Perhaps Carter v. Quick, 263 Ark. 202, 563 S.W. 2d 461 (1978), cited by appellee, would justify the proper measure of damages as being the replacement cost of the roof if it had immediately begun to leak after installation necessitating replacement then. However, as indicated, these are not the facts here.

In 525 Main Street Corp. v. Eagle Roofing Co., 168 A. 2d 33 (N.J. 1961), a 5-year guaranteed roof began leaking about 2 1/2 years after it was repaired. In approving a pro rata recovery for costs of reroofing, the court said:

The parties contracted for a 5-year result. Plaintiff [appellee] should at least receive a portion of the contract price paid to defendant [appellants], prorated for the balance of the 5-year period. In the absence of other testimony as to damages, a proration makes sense. It would be fair to the litigants, and that, after all, is the ultimate test of the correctness of an award.

The purpose of “awarding any damages for a breach of contract is to place the injured party in as good a position as he would have been had the contract been performed.” Carter v. Quick, supra. Here we agree with appellants that their asserted pro rata basis, plus cost of any repairs and damages caused by leaks before replacement of the roof, is a reasonable basis for the recovery of damages by appellee. It is undisputed that appellee had the use of one portion of the roof for 9 years and of another portion for 11 years. Repairs up until those times were paid for by appellants. To allow appellee 18/20 of the replacement costs would be to ignore appellants’ attempted repairs and appellee’s continued use of the original roof. We view the prorating of the damages at 11/20 of the first replacement costs and 9/20 of the second as being the fairer measure of assessing recovery. However we do not agree with appellants that appellee’s installation of a more expensive roof t an was provided for in the original contract was error. It appears that the 2-p!y roof was represented to be equal in quality to that of the more expensive 4-ply roofing used in re-roofing. Appellee was entitled to a roof that would meet the quality of a 4-ply roof.

The court awarded appellee $332 which represented the amount of Travelers’ liability on its flashing bond. We do not construe the complaint as asserting nor the evidence as establishing that any damages resulted from any defects of the flashing. Further it appears that the several payments made by Travelers for repairs before replacement of the roof exceeded the face amount of Travelers’ roofing and flashing bonds. The roofing bond and the flashing bond were separate and distinct obligations and limited to the face amounts.

The judgment is reversed and the cause remanded for further proceedings not inconsistent with this opinion.

Reversed and remanded.

Purtle, J., not participating.