author: Sam Robinson, Associate Justice.

text:
    Wilson v. Wilson.
    5-1974
    329 S. W. 2d 557
    Opinion delivered December 14, 1959.

      Thomas, Phillips & Wright, for appellant.

      Wright, Harrison, Lindsey & Upton, for appellee.
   Sam Robinson, Associate Justice.

This is an appeal from a decree granting appellee judgment in the sum of $9,267.06 and interest thereon in the sum of $5,365 because of arrears in the payment of child support. The parties were married in Nevada April 7, 1936 and separated in 1937. A child, Donna Maria, was born February 5, 1937. On March 10, 1937, Mr. and Mrs. Wilson, appellant and appellee, entered into a formal agreement whereby Wilson agreed to pay Mrs. Wilson $50 per month until the child reached the age of 21. On May 20, 1937, Mrs. Wilson filed suit for divorce in the Garland County, Arkansas, Chancery Court. She was granted the divorce and the agreement for child support was approved by the court, (the parties had made an ante-nuptial contract pertaining to their own finances.) Wilson defaulted in monthly payments of child support and up to some time in 1948 had paid a total of only $250. At that time he made a $2,000 payment and now claims that such payment was a compromise settlement of all unpaid monthly installments accrued up to that time.

In 1950 Wilson filed a petition in the Garland Chancery Court to give him custody of the child, hut this petition was never presented to the court. On February 13, 1957, Mrs. Wilson filed a petition asking that she be granted judgment for the unpaid monthly installments. The court granted the petition and entered judgment for $9,267.06 plus $5,365 as interest thereon and an attorneys’ fee of $1,250.

On appeal appellant contends that the five year statute of limitations applies; that the action is barred by laches and estoppel; that there was a denial of visitation rights, and such conduct is a bar to this action; that the $2,000 payment in 1948 was a compromise settlement of all accrued monthly installments; and that the evidence is insufficient to support the judgment. There is no merit to any of the points argued except the question of whether the statute of limitations is applicable.

Davis v. Herrington, 53 Ark. 5, 13 S. W. 215, is not directly in point because there the child was illegitimate, but it is analogous to the ease at bar. In that case the father made an oral agreement to pay $3.00 per month for the support of the child. The father failed to abide by his agreement, and upon his death a claim ivas filed against his estate for $3.00 per month for a period of five years. This Court said: “The statement of appellee’s claim shows that is was due in annual installments, and as the promise was not in writing, the remedy upon the installments which fell due more than three years prior to the institution of this suit is barred. ’ ’

Here the agreement is in writing. It was entered into before suit for divorce was ever filed. In Seaton v. Seaton, 221 Ark. 778, 255 S. W. 2d 954, the Court said: “Our decisions have recognized two different types of agreement for the payment of alimony. One is an independent contract, usually in writing, by which, the husband, in contemplation of the divorce, binds himself to pay a fixed amount or fixed installments for his wife’s support. Even though such a contract is approved by the chancellor and incorporated in the decree, as in the Backus case, it does not merge into the court’s award of alimony, and consequently, as we pointed out in that opinion, the wife has a remedy at law on the contract in the event the chancellor has reason not to enforce his decretal award by contempt proceedings.

‘ ‘ The second type of agreement is that by which the parties, without making a contract that is meant to confer upon the wife an independent cause of action, merely agrees upon ‘the amount the court by its decree should fix as alimony.’ ”

Undoubtedly the nature of the contract involved here is such that the appellee could have maintained an action thereon in a court of law. Ark. Stat. § 37-209 provides: “Notes and instruments in writing not under seal — Five years. — Actions on promissory notes, and other instruments, in writing, not under seal, shall be commenced within five years after the cause of action shall accrue, and not after.” But even if it could be said that the foregoing statute is not applicable, then the claim for child support accruing more than five years before the motion for judgment was filed on February 13, 1957, would be barred by Ark. Stat. § 37-213, which provides: “Actions not otherwise provided for — Five years. — all actions not included in the foregoing provisions shall be commenced within five years after the cause of action shall have accrued. ’ ’

As heretofore pointed out in Davis v. Herrington, the three year statute was held to apply to an oral contract to support a child, but obviously the three year statute would not apply here. Of course, a child would not be bound at all by the parents’ contract for his support, but here there is no contention that any money recovered from the father would go to the child. It would go to reimburse the mother for the support she has furnished the child over a long period of time. Actually, there is no real distinction between the ease at bar and Brun v. Rembert, 227 Ark. 241, 297 S. W. 2d 940, although in that case it is pointed out that it deals only with the situation where a motion for judgment was filed more than five years after the child became of age. Here the motion for judgment was not filed until nine years after Wilson had made his last payment and two years after the child reached her majority.

In Brun v. Rembert we said: “All agree that some statute of limitations must apply. The sole question is £ Which statute V ” We see no valid reason why the same rule should not apply in the case at bar. Here it is true that the child has been of age only two years, while in the Brun case action to- recover arrearages was commenced more than five years after the child became of age. But this is no real distinction. Undoubtedly the mother should not be required to go into court to recover an unpaid monthly installment just as soon as it becomes due. On the other hand, it would not be unduly burdensome for her to seek such recovery at the expiration of each five year period. The great weight of authority is that statutes of limitation apply in cases of this kind. In an annotation on the subject in 137 A. L. R. 890, it is said: “In most jurisdictions, where a decree or order awards instalment payments of alimony to a wife, or support for children, the statute of limitations begins to run as against each instalment as it becomes due, and only from that time.” Cases from ten states are cited in support of the text. It appears that a few states have held to the contrary, but they are greatly in the minority.

Isaacs v. Deutsch (Fla. 1955) 80 So. 2d 657, 52 A. L. R. 2d 1118, is directly in point. There the court said: “And we think it is much more logical to hold that in a ease such as this, as in the case of an obligation payable by instalments, £the statute of limitations runs against each instalment from the time it becomes due; that is, from the time when an action might be brought to recover it. ’ 34 Am. Jur., Limitations of Actions, Sec. 142, p. 114. As has been noted, this is in accord with the great majority of cases other jurisdictions involving similar contracts. And, by analogy, it accords with the view taken by most of the courts throughout the country that where the father’s ‘continuing obligation’ to support his child is transformed into a decree of court requiring instalment payments of support money, the statute of limitations begins to run as against each instalment as it becomes due, and only from that time. ’ ’

It follows from what has been said that the decree must be reversed, with directions to enter a judgment for the total of the amount of installments accruing within five years next before the filing of the petition for judgment, and for interest thereon. The trial court allowed appellee’s attorneys a $1,250 fee, and they asked that they be allowed a fee for work done in connection with this appeal. An additional fee of $250 is allowed.

Reversed.


source: Caselaw Access Project

license: Public Domain

text:
    Earnest v. Earnest.
    5-1990
    329 S. W. 2d 543
    Opinion delivered December 14, 1959.

      R. Julian Glover, for appellant.

      Earl J. Lane, for appellee.
   Sam Robinson, Associate Justice.

Appellant, Laura Earnest, has appealed from a decree granting a divorce to appellee, Francis B. Earnest. The parties were married in Hot Springs in November, 1948, and lived together at appellee’s sister’s hotel until the fall of 1949, when appellee moved into a separate room in the hotel. In 1950 appellee moved to the Boss Apartments, at another location. In the same year appellant moved to the Colonial Apartments. In October, 1950, appellee moved back to his sister’s hotel and has lived there since that time.

On January 3, 1957, appellee filed suit for divorce, alleging three years’ separation without cohabitation. Appellee testified that he and appellant had been separated since 1950 and had not lived together since that time; that appellant had not been to his room in the hotel and he had not been to her apartment except on ■one occasion when he went there on a business matter, but only went to the front door. His sister, Mary Taylor corroborated his testimony regarding the separation. •On the other hand, Mrs. Earnest, appellant, testified that over a period of about seven years appellee. had been to her apartment on numerous occasions, at which times they indulged in sexual relations.

On appeal Mrs. Earnest contends that there is no ■corroboration of Mr. Earnest’s testimony that they had not cohabited as man and wife for the past three years. In Wicker v. Wicker, 223 Ark. 879, 269 S. W. 2d 311, the appellant made the same argument.’ There the witness, E. S. Blease, testified that the Wickers had not lived together for more than four years. On appeal Mrs. Wicker argued that cohabitation could have occurred without Blease’s knowledge. This Court said: “Obviously the same argument could be made in every case; to sustain it would be to abolish three years separation as a ground for divorce.” Not only is appellee corroborated as to the separation by the testimony of Mrs. Taylor, but also by the circumstances of living separate and apart at different apartments for more than seven years.

Affirmed.


author: Jim Johnson, Associate Justice.

text:
    Rindeikis v. Coffman, Trustee.
    5-1964
    329 S. W. 2d 550
    Opinion delivered December 14, 1959.

      Holt, Park <$> Holt, for appellant.

      Quinn Glover and Wayne Foster, for appellee.
   Jim Johnson, Associate Justice.

This is an adverse possession case concerning .68 acre located in the SW% of the NW]/4 of Section Twenty-Five (25), Township One (1) North, Range Thirteen (13) West in Pulaski County, Arkansas. In 1922 Bert M. Marsh, a witness for the appellant, bought the W% of the W% of the SE% of the same section. In 1922 Mr. Marsh had a surveyor run a dividing line between the SE1/^ of the swy4 of this NW% and the surveyor ran a line which, according to more recent surveys, encroached westwardly into the SW]4 of the NW% along most of its length. Mr. Marsh then built a fence more or less on this line and the fence has remained there to the present time. The fence encroaches onto the SW]4 of the NW% for a distance of about 45 feet, varying down to a distance of about 12 feet on the south end and merges, with the more recent surveys, on the north end. Mr. Marsh, or his family, remained in possession up to the fence from 1922 to 1945. From 1945 until 1949 the land involved was transferred to several owners, all of whom occupied up to the fence and treated the land as their own.

On July 14, 1949, the land was sold to William F. Thompson who entered into possession up to the fence also. In January 1953, Mr. Thompson and some adjacent property owners had a survey made running North and South between the SW14 of the NW% and the SE^ of the NWy4 of Section 25, and entered into a property agreement whereby they agreed to accept the new survey as the correct property line, notwithstanding the existence of any fences located elsewhere. After the agreement was made, Thompson did not move the fence bounding the west side of his property and remained in possession up to the fence. The appellants bought the property from Thompson on March 17, 1957, at which time the property line agreement was not of record.

The deed from Thompson to appellants conveyed only the W% of the Wy> of the SE14 of the NW% of Section 25. Thompson was in California at the time he sold the land to the appellants and the real estate agent pointed out the fence as being the west line of the property. There is a barn situated partly on this disputed strip which belonged to Thompson and the sewage laterais from Ms septic tank ended on the strip. Appellants brought this sMt to quiet title in themselves to the strip involved. The Chancellor quieted title in the appellee and ordered appellants to remove the barn and sewage laterals to the extent they encroached on the .68 acre.

For reversal the appellants rely on: 1. their adverse possession; 2. the intention to hold adversely by their predecessors in possession; 3. the description of the property in the deed; and 4. the property line agreement being void.

Mr. Marsh made some statements on cross examination to the effect he only intended to claim to the true line. Appellee claims this keeps Mr. Marsh from claiming adversely under our cases holding if the intent of the disseisor is merely to hold to the true line, no adverse possession can arise. Ogle v. Hodge, 217 Ark. 913, 234 S. W. 2d 24; Carter v. Roberson, 214 Ark. 750, 217 S. W. 846; Wilson v. Hunter, 59 Ark. 626, 28 S. W. 419. In the case of Rye v. Baumann, 231 Ark. 278, 329 S. W. 2d 161, this Court had this question before it and it was there said:

“In arriving at the intent of the disseisor we think it is better to weigh the reasonable import of his conduct in the years preceding the litigation rather than rely on one remark made during, the stress of cross examination (which is elsewhere refuted).”

Mr. Marsh was in possession and exercised dominion over the land involved for over twenty years and therefore obtained title to it by adverse possession under Ark. Stats. § 37-101.

Each deed that passed in appellants’ chain of title did not contain a description of the .68 acre, so it might be argued that if Marsh obtained title, then the title remained in him on his failure to include the .68 acre in his deed, but, in St. Louis S. W. Railway Co. v. Mulkey, 100 Ark. 71, 139 S. W. 643, Ann. Cas. 1913 C, 1339, this Court said:

“While it is true that the land described in the deed to her does not include the strip in controversy, still her grantors, whose adverse possession had probably already ripened into title, intended it should, and thought it did, and at the time of the conveyance transferred to her the possession of it in fact, intending that she should have all the land within the enclosure.”

All the predecessors in appelants’ chain of title appear to have been in possession and exercised dominion over the land and did in fact transfer possession of it to each succeeding grantee. This places the legal title in Thompson, whose deposition states he knew where the new survey line was and did not intend to transfer the .68 acre to appellants. The question remains as to the effect of the property agreement entered into by Thompson and the apparent intention of Thompson not to include the .68 acre in his conveyance to appellants. As previously stated, Thompson entered into this agreement in January 1953. The agreement was made but no action was ever taken under it and it was not put of record until after this litigation arose and, therefore, appellants not having knowledge otherwise of the agreement are not prejudiced by it.

As previously stated, a real estate agent sold the land for Thompson and appellant testified the agent pointed out the old fence row as the west line of the property. An agent has the authority to point out to a prospective purchaser what he reasonably believes to be the boundary. Restatement on Agency 2d, § 63.

In deciding whether Thompson intended to transfer the property involved to appellants, we think there are things other than Thompson’s testimony to be taken into consideration in this case. For instance, it seems unreasonable that Thompson would intend to transfer part of the barn or only the major portion of the sewage laterals. Thompson also allowed appellants to go into possession and remain without disturbance for over a year. From the foregoing, we conclude that Thompson intended to, and did transfer the land involved to appellants.

The decree is therefore reversed and remanded for further proceedings consistent with this opinion.

       Ark. Stats. § 16-115: “No deed, bond, or instrument of writing, for the conveyance of real estate, or by which the title thereto may be affected in law or equity, hereafter made or executed, shall be good or valid against a subsequent purchaser of such real estate for a valuable consideration, without actual notice thereof . . . unless such . . . instrument . . . shall be filed for record in the office of the clerk ... of the county where such real estate may be situated.”


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

text:
    Strahan v. Webb.
    5-1969
    330 S. W. 2d 291
    Opinion delivered December 21, 1959.

      A. James Linder, Barber, Henry, Thurman £ Mc-Caskill, for appellant.

      Switzer £ Switzer, Jones, Blackwell, Chambliss £ Hobbs, West Monroe, La., for appellee.
   Carleton Harris, Chief Justice.

On November 5, 1957, William Warren Webb, age 47, a salesman for the Louisiana Paper Company, out of the Monroe office, was instantly killed in a collision with a truck belonging to the Kaminer Construction Company, a Georgia corporation, and being operated by their employee, Clarence E. Strahan, who, at the time, was acting within the scope of his employment. There was evidence that Strahan was drinking at the time of the collision. Webb was survived by his wife, Marteal B. Webb, and two sons, Frederick Ross Webb, age 18, and Garland Warren Webb, age 17. Suit was instituted by Mrs. Webb individually, and as next friend of the two minor sons, seeking total judgment in the amount of $320,000. On trial, the jury returned a verdict for Mrs. Webb against both defendants in the sum of $115,000 and returned verdicts for the benefit of the sons in the amount of $25,000 each, or a total verdict of $165,000. Judgment ivas entered in accordance therewith, and from such judgment comes this appeal.

Appellants contend: First, “The trial court erred in overruling defendants’ Motion to Set Aside the Verdict of the Jury and the Judgment Rendered Thereon.” Second: “The Verdicts of the Jury Were Excessive.”

I.

On December 13, 1958, appellants filed a “Motion to Set Aside the Verdict of the Jury and the Judgment Rendered Thereon” on grounds that;

“(1) Since the trial, defendants have discovered, new evidence which conld not be brought to the Court’s attention before the filing of this motion.
(2) That a certain juror or jurors, serving on the jury, on voir dire failed to disclose alleged information which they apparently had obtained and which, if disclosed, would have disqualified them from serving in the trial of this case. Such information was imparted to the entire jury during its deliberations, and that it was false and untrue and calculated only to cause passion and prejudice in the minds of the jury.
(3) That such improper and extraneous matter was considered by the jury to the prejudice of the defendants. ’ ’

Attached to the motion were the affidavits of six of the jurors who served, the affidavits being identical in form and content as follows:

“ STATE OF ARKANSAS COUNTY OF ASHLEY
AFFIDAVIT
I, the undersigned, hereby state that I was a member of the Jury Panel that tried the case of Webb v. Strahan & Kaminer Construction Company, in the Ashley County Circuit Court on November 20, 1958, and November 21, 1958. That during the jury deliberation of the case by the Jury, the Jury was advised, and information reached the Jury that the Insurance Company of Defendants had offered to pay the sum of $120,000.00 as a compromise settlement of the case.
Witness my hand this 12th day of Dec., 1958.”

This motion was overruled by the trial court. Of course, these affidavits do not state that affiants, or any other member of the jury, based their vote on the information received; there is no statement that the amount awarded resulted from this occurrence, nor that except for this incident, the verdict would have been smaller. But it is not necessary that we consider the sufficiency of the affidavits, for though these affidavits contained all of the statements which are omitted, appellants’ argument would still be of no avail. Appellants, in their brief, state:

“Not only was the statement made by the juror false, and not only was it no part of the evidence in the case, but if such testimony had been offered in the trial of the case it would not have been admissible because, (a) it would have been telling the jury the defendants were protected by insurance and (b) testimony re an offer of settlement is not admissible.”

We, of course, agree, and have held numerous times, that to unnecessarily bring to the attention of a jury that insurance is involved is reversible error; likewise, an offer of settlement is not admissible as evidence of liability. These holdings are so well established as to require no citation of authority. But on the other hand, we have also held that testimony or affidavits of members of the jury cannot be used to impeach their verdict. This holding, based on statute, has been reiterated many times, commencing with the case of Pleasant v. Heard, 15 Ark. 403. In Burns v. Vaughan, 216 Ark. 128, 224 S. W. 2d 365 an action was instituted for crop damage allegedly caused by a negligent spraying of the crops. A certificate of the weather bureau showing the direction of the wind on the day of the spraying, which had been excluded by the court, reached the jury by mistake. On appeal, this fact, inter alia, was urged as grounds for reversal. In holding this point to be without merit, this Court said:

In any event, however, the only proof that the jury saw the certificate is in the form of affidavits by several jurors. Of course, this is not a permissible method of impeaching the verdict.”

In Post v. State, 182 Ark. 66, 30 S. W. 2d 838:

“Appellant contends that the judgment should be reversed because the verdict was not unanimous and presents to the court the affidavit of jurors. Section 3220 of C. & M. Digest is as follows: ‘A juror cannot be examined to establish a ground for a new trial, except it be to establish, as a ground for a new trial, that the verdict was made by lot. ’ The affidavits do not tend to establish that the verdict was made by lot, but are for an entirely different purpose.”

See also Wallace v. State, 180 Ark. 627, 22 S. W. 2d 395. The general rule is based upon the logic set forth in 53 American Jurisprudence, Section 1105, page 769:

“The rule is founded on public policy, and is for the purpose of preventing litigants or the public from invading the privacy of the jury room, either during the deliberations of the jury or afterward. It is to prevent overzealous litigants and a curious public from prying into deliberations which are intended to be, and should be, private, frank, and free discussions of the questions under consideration. Further, if after being discharged and mingling with the public, jurors are permitted to impeach verdicts which they have rendered, it would open the door for tampering with jurors and would place it in the power of a dissatisfied or corrupt juror to destroy a verdict to which he had deliberately given his assent under sanction of an oath.

Testimony of the jurors to impeach their own verdict is excluded not because it is irrelevant to the matter in issue, but because experience has shown that it is more likely to prevent than to promote the discovery of the truth. Hence, the affidavit of a juror cannot be admitted to show anything relating to what passed in the jury room during the investigation of the cause, or the effect of a colloquy between the court and a juror, or the arguments made to a juror by a fellow juryman. The rule that a verdict cannot be impeached by the testimony of a juror is generally adhered to where it is sought to impeach a verdict on grounds of misconduct on the part of the juror or his fellow jurors, despite apprehension expressed in many cases that such rule sometimes serves the cause of injustice.”

Appellants state that they do not make use of the affidavits to prove “how they arrived at their verdict”, hut solely to prove misconduct on the part of a juror. This seems to he a matter of “coming in the back door instead of the front”, and it will be noted that the last line of the citation just quoted is contrary to appellants’ view. In Capps v. State, 109 Ark. 193, 159 S. W. 193, prejudicial newspaper articles (not a mere narration of the evidence connected with the trial) were read by members of the jury. This Court reversed the trial court because of misconduct of the jury, but the case was not reversed upon the testimony of the foreman of the jury who testified at the hearing held on the motion for a new trial. From the opinion:

“The newspaper articles complained of were published in the Fort Smith Times-Record, and the Southwest American, daily papers published in that city, and each was shown to have had a large circulation. The foreman of the jury testified upon the hearing of the motion for a new trial that he and other jurors read these articles. But this evidence was not competent for that purpose and would be insufficient to support a finding that members of the jury had read these articles, because jurors are not thus allowed to impeach their verdict. Section 2423 of Kirby’s Digest; Wilder v. State, 29 Ark. 293. Smith v. State, 59 Ark. 132, Hampton v. State, 67 Ark. 266. But the finding that the papers had been read by the jury did not depend alone upon the affidavit of the jurors, as the officer in charge of the jury and the proprietor of the hotel at which the jury was being entertained testified that the jurors bought these papers and some of the jurors read them, and that other jurors had access to the daily papers belonging to the hotel and read them as other guests did.”

Appellants also argue that the statute, heretofore quoted, is not applicable because no motion for new trial was filed, but only a motion to set aside the verdict of the jury and the judgment thereon. Certainly, logic dictates the view that the legislature, in enacting the statute, did so for reasons of public policy, akin to that set forth in American Jurisprudence, heretofore quoted, and the phrase in the statute ‘ ‘ establish a ground for a new trial” was only included because our procedure at that time required a motion for new trial as a prerequisite to an appeal. Under present procedure, a motion for new trial in civil cases is not necessary. Appellants’ contention is thus held to be without merit.

II.

This is a more difficult question. The judgment before us is the largest to come before this Court, and we are confronted with the question of determining whether the amounts recovered can be justified by the evidence. It is stipulated that deceased was 47 years of age, and that his life expectancy at the time of death Aras 23.08 years under the American Experience Mortality Table. Webb was earning $5,000 a year at the time of his death, and according to his widow, contributed $4,000 of that amount to her and the children. Mr. Sam Orchard, manager of the Louisiana Paper Company branch at Monroe, testified that Webb had been employed by the paper company since 1943, and was the top salesman. His income for the past five years had averaged $5,000 per year, but Mr. Orchard testified that the company had planned to change the method of compensation for salesmen commencing the first of January, 1958, and based on past performance, Webb Avould have thereafter made somewhere between $7,000 and $10,000 a year. He testified that the company was grooming Webb to succeed him (Orchard) as manager; that the company had no retirement system, and age had no effect on an employee keeping his job. Mrs. Webb, at the time of the trial of this case, was 38 years of age, and had been married to Mr. Webb, since 1938. She testified that Mr. Webb had been a salesman-track driver for Swift in West Monroe, and that they later moved to Shreveport and lived there about a year and a half, later moving back to West Monroe where Mr. Webb secured the job with the paper company. Mrs. Webb holds a master’s degree from Louisiana State University and was in her ninth year of teaching in West Monroe at the time of the trial. Her average yearly earnings were $4,300. Her testimony reveals an amicable and happy relationship with her husband and family. It appears that they operated as a “family group” in work and play. They attended ball games together . . . he put up a basketball goal so the boys would have some place to practice . . . they did all of their work at home and Mr. Webb would wash dishes . . . wax floors . . . work in the yard, and bring in the clothes when Mrs. Webb was teaching . . . He had fixed breakfast for 15 years, and sometimes would fix evening meals . . . the family took a yearly fishing trip and went hunting together . . . she suffered terrible mental anguish upon the death of her husband. - Mr. Webb had been a most considerate husband, always remembering birthdays, etc. . . . she couldn’t sleep for months, and when she did sleep, dreamed about her dead husband.

Mr. Webb devoted considerable time to his children, and the older boy, Frederick Ross, age 18 at the time of his father’s death, testified that his father belonged to the West Monroe Quarterback Club, attended football practice, and after practice would discuss football tactics with the son (Frederick was captain of the team during his senior year). Frederick testified that he discussed personal problems with his father, and that his father had talked with him about the future, and about the career he would follow for life — namely law. Frederick was a freshman at LSU at the time Mr. Webb was killed. Garland was 17 at the time of his father’s death, and was a senior at West Monroe High School. At the time of the trial, he was attending Northeast Louisiana State College, located in Monroe, where he was studying dentistry. He likewise testified as to his father’s interest in his school, and extra-curricular activities. He stated that he and his father played baseball together many times, and the deceased started him playing baseball in the Little League. Testimony reflected that his dentistry course would require seven years, and Garland desired to go to Loyola in New Orleans to finish the course.

While we have here a picture of happy, congenial family life, we cannot say that the family relationship was any different from the average American family. Most devoted husbands are willing to help their wives in household tasks, remember birthdays and other anniversaries, and turn over the bulk of their income for family maintenance. The average father is certainly interested in the welfare of his children, and their activities. It would be a rare parent indeed, particularly if athletically minded himself, who would not become quite enthusiastic when his son was captain of the football team. While we certainly would not minimize the devotion which Mr. Webb apparently held for his wife and children, we only point out that his actions were but the actions of an average “good” husband and father.

After careful consideration, we have reached the conclusion that the verdicts are excessive. To demonstrate this statement, we point out that this award of $165,000 could be safely invested in any number of securities that would pay 5% interest. 5% interest on this amount of money would enable appellees to receive an annual income of $8,250, which would be $4,250 per year more than the family had received at any time from the deceased ($4,000 was the highest figure given by Mrs. Webb), — and the principal would remain intact. We think it obvious that such a result clearly shows the verdict to have been excessive. We first consider the award for the benefit of the boys. The court instructed the jury that, as regarded the minors, “* * * your verdict should be for such sum of money as you believe from the evidence would be just and fair compensation for all the pecuniary damages suffered by each of said minors during their respective minorities by reason of the death of the said William Warren Webb, and in arriving at this sum you may take into consideration such care, support and sustenance and such advantages and benefits in the way of training and education, both moral and intellectual, if any, as you may believe from the evidence that they would each have received from or through their father if his death had not occurred.” It will be noted that “mental anguish” is not included. The proof reflected that Frederick is studying law, and will be in school for total of seven years. His mother testified that the first year cost $1,200; she estimated the second year would be $1,500, and the balance would be somewhat higher. ‘ ‘ Of course, as he advances and enters law school, his expenses are going to be higher, more expensive. ’ ’ Frederick had already left home, and the value of the father’s moral and intellectual training would not be so great as would that of a father to a child of tender years, and living at home. In fact, both boys’ habits, outlook, and moral code had, in the main, been molded and established before the death of Mr. Webb. Frederick had already decided to become a lawyer, and the matter of the future had apparently been discussed with Garland. Garland lacked nearly four years attaining his majority at the time his father was killed. The evidence reflected that Garland’s expenses at Northeast College were $700 per year, and his mother testified that, from her investigation, the cost at Loyola would be around $3,000 per year. Aj>pellant argues that the amount of recovery to the boys is limited to damages suffered during their respective minorities, and the court so instructed the jury. To these instructions, appellee objected and noted her exceptions. We do not agree that the recovery is limited to damages suffered during minority.

In Missouri Pacific Railroad Company, Thompson, Trustee v. Gilbert, Administrator, 206 Ark. 683, 178 S. W. 2d 73, this Court said:

“Becovery for benefit of children ordinarily should be limited to the present worth of such sum as would be contributed by the parent prior to their majority.”

In Kansas City Southern Railway Company v. Frost, 93 Ark. 183, 124 S. W. 748, this Court said:

“The right of the children to recover beyond minority depends upon evidence. Their damages are the pecuniary loss suffered by them, which is 'the probable aggregate amount of his contributions to them, reduced to present value.’ Kansas City Southern Ry. Co. v. Henrie, 87 Ark. 454. It is probable the contributions of a father to the support of a child after he reaches his majority may cease altogether, or be less. That, of course, will depend upon the ability of the child to take care of himself and his success in life. Parental affection for the child will not, probably, cease after minority, and the father may still continue to contribute to the support of the child. That is a question for the jury to decide according to the evidence of the assurance the parental affection may give of aid and support to the child after minority.”

See also Jenkins, Administrator v. Midland Valley Railroad Company, 134 Ark. 1, 203 S. W. 1.

The rule varies from state to state in permitting recovery for pecuniary loss, arising from the wrongful death of a parent, by a child who has reached his or her majority. Of course, damages for pecuniary loss are confined to the period of minority, where the statute so provides. There is nothing in our statute, § 27-909 (Act 255 of 1957), which so limits recovery. We are of the opinion, which is in line with the previous decisions heretofore cited, that the right to recover damages for pecuniary loss beyond the minority of the beneficiaries, depends upon the circumstances. Here, the proof is clear, that in the natural course of events, the deceased would have contributed, to the best of his ability, to the education of the two boys, and we accordingly take the view that even though they would attain their majority before finishing college, still the boys suffered a pecuniary loss (beyond the age of their minority) for which damages will lie. The question is therefore what amount will adequately compensate the sons for the loss suffered.

Under prior decisions of this Court, the awards to all appellees must he reduced. The case hearing the nearest resemblance to the instant litigation from a factual standpoint is Southern National Insurance Co. v. Williams, 224 Ark. 938, 277 S. W. 2d 487. This opinion was delivered on April 4, 1955. There, Ruben C. Knabe was killed in an automobile collision. At the time of his death, Knabe was 35 years of age, had a life expectancy of 33.44 years, and was earning about $8,000 a year, of which “well over half” was contributed to the support of his family. Knabe had three small children. The jury awarded $5,000 for the benefit of the estate and $95,000 for the benefit of the decedent’s widow and children. On appeal, this Court said:

“Since his conscious pain was compensated by the $5,000 verdict, the question is whether $95,000 is too liberal an allowance for the pecuniary loss sustained by his family. Precedents are of scant value in a case like this, but it may be observed that this verdict exceeds any ever upheld by this court. In Mo. Pac. R. Co. v. Bushey, 180 Ark. 19, 20 S. W. 2d 614, the Court approved a verdict of $48,500 for the death of a father who was contributing $3,260 annually to his family, but the award included an undetermined amount for intense suffering. And in Southwestern Bell Tel. Co. v. Balesh, 189 Ark. 1085, 76 S. W. 2d 291, we sustained a $50,000 award for the death of one who was contributing $7,000 a year to his wife and children. At the other extreme, comparatively small verdicts have not infrequently been reduced; many of the cases were reviewed in Mo.-Pac. Transportation Co. v. Simon, 199 Ark. 289, 135 S. W. 2d 336. After considering this case in the light of its predecessors, and taking into account the increased cost of living, we are of the opinion that the sum of $75,-000 is the most liberal allowance that can be justified by the record.” It will be noted that Knabe had a greater life expectancy, contributed as much to the family support, and had, three small children.

The testimony relative to Frederick’s education denotes $1,200 spent for the first year, $1,500 to be spent for the second, with no figure being given for the five years’ balance. If we average Frederick’s legal education at $1,700 per year for 6.8 years, we find that the total expenditure for his education is $11,560.00, the present value of which is an approximate $9,592.00.® As to Garland, the evidence reflects that the cost of his education will average $1,685 per annum ($700 for four years, and $3,000 for three years), or a total of $11,-795.00, the present value of which is approximately $9,-749.00. As pointed out, each boy had already received, in large measure, the benefits to be derived from the moral and intellectual training contributed by the father. Since the pecuniary loss is so nearly the same, we are of the opinion that a total award to each son in the amount of $12,500 would be adequate. This means each will receive between $2,500 and $3,000 for loss of instruction, moral and intellectual training, and this award, we feel, must be limited to the period of minority.

Turning now to the award for Mrs. Webb: She testified that the deceased had been contributing $4,-000 per year for the support of the family. It is obvious, when considering that the college education for the boys would average approximately $3,385 per year, that Mrs. Webb, for the next seven years, would only have received $615 per year of the total amount. Following that period, we will assume that she would have received the entire $4,000. In such event, for the period of 23.08 years (Mr. Webb’s life expectancy), appellee would have received $69,220.00, the present value of which is $40,527.24. However, the proof reflected that a new plan of compensation was to go into effect January 1,1958, under which, according to Sam Orchard, the manager of the Louisiana Paper Company, Mr. Webb would have earned from $7,000 to $10,000 per year. Splitting the amount, thus taking a figure of $8,500, and after deducting income tax and $1,000 for Mr. Webb’s personal expenditures (clothing and other personal items), Mrs. Webb would have received $18,865.00 for seven years, and $91,977.60 for the balance of 16.08 years, or a total of $110,842.60. The present value of this sum is approximately $64,896.72. This means that $45,945.88 is the interest Mrs. Webb will receive over 23.08 years. On this amount, taking the lowest rate, Mrs. Webb would pay approximately $5,500 in income tax, the present value of which is $3,217.46. The figure is based on the premise that Mrs. Webb has no other source of income, but if she continues to work, earning at least the present amount, $4,300 per year, this tax would be great deal higher.

It would seem apparent from the compilations herein given, that under our prior holdings, a substantial reduction of the judgment is not only demanded, but is further entirely justified from the evidence in this case. It is sometimes most difficult to determine how a jury arrived at its verdict, particularly where an award of money is given. It is apparent in the instant case that the jury took the figure of Mr. Webb’s salary ($5,000 per year), and multiplied that salary by his life expectancy (an approximate 23 years), and reached the amount awarded, $115,000. Of course, under the court’s instructions, this manner of figuring was erroneous, for they were told that damages should be based “* * * on the present value of the amount that you find from a preponderance of the evidence deceased would have contributed to the support and well-being of his wife during his lifetime.” Actual pecuniary loss can be fairly well figured in dollars and cents, being in the nature of a property loss, and of course, property values can be definitely established, but we are prone to state that determination of an award for mental anguish suffered, and loss of consortium, is somewhat in the nature of speculation. Who can say how much mental anguish is worth.? Who really can ascertain how much the loss of a husband or wife has affected the remaining spouse? We daresay that no happily married husband or wife would sell that happiness for any amount of judgment that would be awarded. Unquestionably, the anguish and total loss of companionship will be felt far more in some cases than in others. There are individuals who really never completely reconcile themselves to the loss of a loved one, while, on the other hand, there are those who adjust themselves within a reasonable period of time, and are pretty well able to continue along in the usual pattern. Of course, the attitude of the deceased spouse toward the survivor would influence that feeling. Here, the uncontroverted proof shows that Mr. Webb’s attitude toward Mrs. Webb during life was such as to bring to her extreme sorrow and grief upon his passing.

In most of our cases, the Court has simply stated that the sum awarded is excessive by a particular amount, and reduced the judgment accordingly. Here, we have endeavored to show by an analysis made in a logical and proper manner, the amount of award that would properly compensate appellee, and at the same time, give to appellants the justice to which they are entitled.

As previously stated, the present value of the amount of money Mrs. Webb could expect to draw for 23.08 years, if her husband had lived, is $64,896.72. Adding to this the present value of the income tax she would pay on the interest over the total period of time, we find that the total present value of future contributions will approach $68,000. Taking into consideration, in addition to pecuniary loss, mental anguish and loss of companionship and consortium, we are of the view that a total award to Mrs. Webb of $98,000 is proper in this case.

We therefore are of the opinion that the judgments in favor of Frederick and Garland should be reduced from $25,000 each to $12,500 each, and the judgment in favor of Mrs. Webb from $115,000 to $98,000.

The judgments are affirmed on the condition that remittiturs are entered as indicated within 17 calendar days; otherwise the judgments will be reversed and the cause remanded for a new trial.

McFaddin and Johnson, JJ., dissent.

Ed F. McFaddin, Associate Justice,

dissenting. I dissent as to the remittitur. The jury awarded the widow $115,000.00 and awarded each of the two sons $25,000.00. The majority opinion says that these verdicts, totalling $165,000.00, are “the largest to come before this Court”; and then seeks to justify the reduction of the verdicts. Finally, the majority reduces Mrs. Webb’s verdict from $115,000.00 to $98,000.00, and reduces the verdict of each of the boys from $25,000.00 to $12,500.00; thus saving the appellants $42,000.00 and reducing the total verdict from $165,000.00 to $123,000.00.

I commend the majority in attempting to explain why these reductions were made. Certainly, when a jury brings in a verdict and the Supreme Court decides to reduce it,, the Supreme Court should explain how and why it is. making the resolution, rather than merely contenting itself with picking a figure out of the air. But, even so, I cannot escape the feeling that in this case the majority is “second-guessing” the jury and really sitting as an appellate jury; and such is not the function of the Supreme Court.

At the outset, there is the matter of Mr. Webb’s earning capacity. He had been earning $5,000.00 a year, using $1,000.00 for his own personal items, and contributing $4,000.00 a year to his family. Mr. Webb’s employer testified that Webb was to receive a promotion and would receive from $7,000.00 to $10,000.00 per year beginning immediately. It is the duty of this Court to give the evidence its strongest probative force to sustain the jury verdict; and if we give the testimony of Mr. Webb’s employer its strongest probative force, then Mr. Webb would receive $10,000.00 a year, would retain $1,000.00 a year for himself, and -would contribute $9,000.00 per year in money to his wife and family. It was stipulated that Mr. Webb had a life expectancy of 23.08 years. If Mr. Webb had lived out his expectancy and had contributed $9,000.00 a year to his family, he would have made a total contribution in excess of $207,000.00 to his wife and family.

Now, what is the present cash value of $9,000.00 a year for 23.08 years? Insurance tables tell us that for a person to receive $1.00 a year for 23 years would require $14,875 to be invested at 4% compound interest. In other words, if ■a person put up today $14,875 and invested it at compound interest at 4% (and that is more than banks are now paying), the result would be a payment of $1.00 a year for 23 years. Since Mr. Webb would have paid $9,000.00 a year for 23 years, the present cash value of Mr. Webb’s earnings is just a few dollars less than $134,000.00. So just on a cold dollars and cents basis, Mr. Webb had a present cash value to his wife and children of $134,000.00, and that is entirely ignoring'the great intangible value of a “Dad’ ’ to the boys and a companion to the wife, and is ignoring also the long dreary years for this family without a father and a husband.

But back to the cold cash dollars and cents value of $134,000.00: how can the majority square that with the figure of $123,000.00 to which it is now reducing the verdict? And that $123,000.00 takes into consideration $30,-000.00 that is allowed Mrs. Webb for mental anguish, because the majority uses this language in next to the last ■ paragraph: “ .... we find that the total present value of future contributions will approach $68,000. Taking into consideration, in addition to pecuniary loss, mental anguish and loss of companionship and consortium, we are of the view that a total award to Mrs. Webb of $98,000. is proper in this case. ’ ’ So, even by the majority opinion, this $30,000.00 (the difference between the $68,000.00 and the $98,000.00 in the quotation) for loss of companionship, and for consortium and mental-anguish, should be added to the $134,000.00 (the cold cash value of Mr. Webb, as previously explained); and the result is $164,000.00, which is just $1,000.00 less than the jury verdict. How can the majority “second-guess” a jury when it is clearly demonstrable that the verdict is within $1,000.00 of figures as above explained?

There is another thing about this majority opinion that alarms me; and that is the statement previously quoted: “----we find that the total present value of future contributions will approach $68,000. Taking into consideration, in addition to pecuniary loss, mental anguish and loss of companionship and consortium, we are of the view that a total award to Mrs. Webb of $98,000 is proper in this case. ’ ’ The full significance of that statement is astounding : it clearly seems to imply that as a matter of law the total of mental anguish damage, loss of companionship damage, and consortium damage, cannot exceed $30,000.00 in this case; and if such is the rule of law in this case, then such is the rule in every other case. The Legislature has placed no such limitations on those elements of damage. As a matter of fact, a recent Act of the Legislature allowed consortium damage and placed no such limits; and yet this Court, by the present majority opinion, is in effect placing a limit of $30,000.00 on the total damages for mental anguish, loss of companionship and consortium, that a wife can recover for the death of her husband. Our Constitution says that a person is entitled to a trial by jury in a case like this one; and we have held that a jury verdict will not be disturbed unless it is so grossly excessive as to shock the conscience. It shocks my conscience to see the quoted statement in the majority opinion.

Now, as to the boys: who can measure the damage that these two young boys have sustained in the loss of their father at the very trying years when boys need a father most? How can the majority of this Court say that $12,500.00 is the limit for each boy, when fathers have for years contributed to sons up to half of the estate of the father ? The story of the Prodigal Son in Holy Writ is one such example.

- Finally, I revert to the statement in the majority opinion first quoted herein, that these verdicts totalling' $165,000.00 are “the largest to come before this Court”. That is really, I think, the reason the reductions are being made. Present day verdicts should not be tested by the amounts allowed in the “horse-and-buggy” days since, now, the value of the dollar has depreciated. Courts in other judisdictions sustain large verdicts. The test is whether the evidence justifies the amounts awarded; and I have undertaken to show that the evidence in this case does justify the verdicts rendered. Therefore, I dissent as to the remittitur: and Justice Johnson joins in this dissent.

       The present statute is 43-2204, Ark. Stats. (1947) Anno., and reads as follows: “A juror can not be examined to established a ground for a new trial, except it be to establish, as a ground for a new trial, that the verdict was made by lot.” This identical statute is found in the Code of 1869, and has been in effect since that time.

       Emphasis supplied.

       Section 43-2204.

       See Act 555 of 1953.

       Emphasis supplied.

       This figure, as well as all figures hereafter given, is arrived at on the basis of 5% interest.

       Of course, Garland will be in school one year after Frederick finishes, but this does not substantially affect the figures herein.

       Mrs. Webb was self-employed; allowing Mr. Webb three dependents (self and two boys) for the entire period of the boys’ college education, and then one dependent (himself) for the balance of the 16.08 years, his income tax for seven years would amount to approximately $1,420, and for the balance of 16,08 years, $1,780.

       dissented as to the remittitur in Southern National Ins. Co. v. Williams, 224 Ark. 938, 277 S. W. 2d 487.

       The majority opinion mentions “&% interest”; but since neither savings banks nor Government bonds paid such interest rate when the verdict was rendered, I submit 4% interest is a more realistic figure in support of the verdict.

       See Act No. 255 of 1957, as contained in § 27-909 Ark. Stats.

       For a few recent cases allowing judgments in death cases, such as this one, see: Devito v. United Airlines, 98 Fed. Supp. 88, wherein the amount was $160,000.00; Byrne v. Penn. R.R.Co., 169 Fed. Supp. 655, wherein the amount was $250,000.00; O’Toole v. United States, 242 Fed. 2d 308 3rd Circuit, whtrein the amount was $400,000.00; M.S.F.& G. Co. v. Hotkins, 170 N.Y.S. 2d 441, wherein the amount was $200,000.00; Tampa Drug Co. v. Wait (Fla.), 103 So. 2d 603, wherein the amount was $160,000.00; Pennell v. B.&O.R.R. (Ill.), 142 N. E. 2d 497, wherein the amount was $150,000.00; Buck v. Hill (Calif.), 263 Pac. 2d 643, wherein the amount was $150,000.00; and Gardner v. IIII Corp., 135 N. E. 2d 55, wherein the amount was $150,000.00.


author: Carleton Harris, Chief Justice.

text:
    Myhand v. Erwin, County Judge.
    5-2052
    330 S. W. 2d 68
    Opinion delivered December 21, 1959.

      8. Hubert Mayes, Jr., for appellant.

      Mehaffy, Smith Williams, Hershel H. Friday, Jr. and James E. Westbrook, E. W. Brockman, Jr., for appellee.
   Carleton Harris, Chief Justice.

This appeal involves a construction of Amendment No. 49, adopted by tibe people at the general election of November 4, 1958. The amendment provides for the issuance of bonds by-cities, incorporated towns, and counties, for the purpose of securing and developing industry “within or near the said municipality holding the election, or within the county holding the election. ’ ’ Pursuant to the provisions of said amendment, appellee, as judge of the Desha county court, and while the court was duly and legally in session, ordered a special election to vote on the question of issuing bonds in the amount of $225,000, following which, the voters of the county overwhelmingly approved the bond issue. The purpose of the bond issue is to provide funds for the construction of a hard surfaced, all-weather, road, necessary for the servicing of a proposed industrial site for Potlatch Forests, Inc., in Desha County. The president of the company advised that Potlatch would locate the industrial plant in Desha County only if the proposed road was constructed. Appellant, J. K. Myhand, proceeding as a property owner and taxpayer, filed a complaint against appellee in the chancery court, alleging that a tax will be levied, bonds will be issued and construction undertaken, and that the tax will be paid by appellant and other property owners and tax payers of the county. Myhand sought to enjoin appellee from taking further steps with reference to the construction of the road, and asked a declaratory judgment holding the proposed action of appellee to be contrary to the Constitution of the State of Arkansas. On September 14, 1959, appellee filed his demurrer, and on October 6, 1959, after appellant declined to plead further, the chancery court entered its decree dismissing the complaint. From such decree comes this appeal. For reversal, appellant relies on the following points:

I.
“The proposed issuance of bonds by appellee is not authorized by Amendment No. 49 to the Constitution of Arkansas, but is merely an attempt to pave a county road for the use of all members of the traveling public.
II.
“The proposed bond issue is not on a ‘credit-lending’ basis and thus is not authorized by Amendment No. 49.
HI.
“The only enabling legislation under Amendment 49 is Act 121 of 1959, and since the proposed bonds are not being issued under said Act, they are unauthorized and illegal.
IV.
“Since the proposed bonds are not authorized by Amendment No. 49, their issuance would be contrary to and in violation of Amendment No. 10 and Amendment No. 13 to the Arkansas Constitution.”

We proceed to a discussion of each point in the order listed.

I.

Appellant points out that Amendment No. 49 was not designed to supplement our present comprehensive plan of providing county road funds, and that the intent of the people in adopting the amendment was to . provide a means of financing direct aid to industries, such as the purchase of industrial sites, and the construction of appropriate industrial facilities on such locations. It is also pointed out that benefits from the proposed road will not be confined to Potlatch Forests, Inc., but will likewise benefit members of the traveling public; that to permit this road to be financed under provisions of the amendment would have the effect of permitting financing for any county road so long as the road is used by any industry located in the county. Appellant suggests that the amendment might well become a catch-all for any kind of county or municipal improvement.

We do not agree with appellant’s contention. It is true that some members of the public may use the road, but the fact that benefits cannot be isolated, is no reason to preclude such benefits for those who properly come within the scope of the amendment, as envisioned by the people in adopting same. This Court has been liberal in its construction of constitutional amendments, so as to carry out the obvious purpose of the people in adopting the amendments. For instance, in interpreting that portion of Amendment No. 13, which provides for the issuance of bonds by a municipality “for the purchase, development and improvement of public parks and flying fields located either within or without the corporate limits of such municipality * * this Court held that the “development and improvement” included implied authority to employ reasonable means to make the field available to the public. See Tunnah v. Moyer, Mayor, 202 Ark. 821, 152 S. W. 2d 1007. In its Opinion the Court said:

“Express authority in Amendment No. 13 for cities to acquire ‘flying fields’ beyond the corporate limits carries with it implied authority to employ reasonable means in making the field available to the public, and this means roads. It is true there are streets by which the airport can be reached, but in view of the development of aviation, enlargement of local facilities, and of the fact that the airport forms a link in transcontinental flying, we do not agree with appellant that authority to consummate the questioned transaction is lacking; * *

In Todd v. McCloy, 196 Ark. 832, 120 S. W. 2d 160, which also involved a construction of Amendment No. 13 relating to the authorization to cities “for the development and improvement of public parks”, this Court held that this language' was broad enough to include construction of a stadium, where park visitors might seat themselves to witness athletic entertainment; i.e., the stadium was held to be “an improvement” within the meaning of the amendment. Actually, even that liberal a construction (if it be so considered) is unnecessary to give validity to the proposal now before us. Potlatch Forests, Inc., selected a suitable site in Desha County on which to construct and operate a paper mill. The facility, incidentally, will cost the corporation approximately $35,000,000. The site of this proposed plant is located in an isolated area of the county, and at the outset, it is noted that construction of the plant will require transportation of hundreds of laborers as well as materials to the plant site. Of course, following completion, the very nature of the industry obviously requires an all-weather road the year round, as necessarily, wood and wood products will be systematically and continuously hauled to and from the plant. The proposed road is an integral and necessary component of the industry, and it would be difficult, if not impossible, to operate without it. Accordingly, we find that the primary and principal purpose of constructing the road is to secure the Potlatch industry for Desha County. We further hold that this road has a direct relation to the normal and daily activities of Potlatch. It follows that its construction is permitted and authorized by the provisions of Section 1, Amendment No. 49.

n.

Appellant contends that sections two and three are indicative of an intent by the people that bonds be issued only in those situations where funds are available from lease rentals or other sources in amounts sufficient to service the bonds. Of course, communities which are seeking industry, frequently construct a building and then enter into a lease agreement with the industry providing for rental in an amount contemplated as sufficient to retire the bonds (which were issued to finance the construction of the facility). This is not true in the instant case, as Potlatch is constructing, at its own cost, the entire plant. We do not agree with appellant’s contention. Section 3 provides that the county “may, from time to time, suspend the collection of such annual levy when not required for the payment of its bonds.” The mere fact that provision is made for the collection of taxes obviously indicates an intention that bonds be issued under the amendment where no funds from other sources are available, or are insufficient to service the bonds; the quoted provision, allowing suspension of the tax, was intended to give the amendment flexibility, and to take care of situations where sufficient funds might become available from lease rentals or other sources which could be applied on the payment of principal and interest. More pertinent in construing the intent of the people in adopting the amendment, is (in providing for suspension of the tax) the use of the word “may” rather than “shall.” This clearly indicates there was no intention of confining Amendment No. 49 to credit-lending situations, and, of course, the amendment itself contains no such limitation. As a matter of fact, even in situations where it is contemplated that lease rentals may be available to service the bonds, many expenses frequently arise that cannot be recouped from this rent. Certain expenses are necessary in contacting industries, and the industry might well insist on having its moving expenses paid before agreeing to relocate. We are persuaded that in adopting Amendment No. 49, the citizens of Arkansas had no intent of limiting the scope of the amendment to “credit-lending” situations, but to the contrary, approved the amendment in accordance with the natural and literal meaning of the language employed.

III.

The legislature of 1959 enacted Act 121, title of which is “AN ACT to Facilitate the Issuance of Municipal and County Bonds Under the Provisions of Amendment No. 49 to the Constitution of This State When Such Bonds Are to be Exchanged for the First Lien Serial Coupon Bonds of Local Industrial Development Corporations; and for Other Purposes.” Admittedly, the proposed bonds here under discussion do not come within the provisions of Act 121, and unless Amendment No. 49 is self-executing, bonds cannot be issued except under the terms of that legislation. Let it first be stated that we do not consider the legislature intended that Act 121 should set out the exclusive method of issuing bonds, and this is plainly denoted by the use of the word “when” appearing in the title of the act. Nor do we consider that the passage of this act evidenced a belief on the part of the legislature that Amendment No. 49 was not self-executing, for legislation may be enacted in implementation of constitutional provisions so long as such legislation is not inconsistent or repugnant to the constitutional amendment. At any rate, we think the amendment is clearly self-execnting. It is true that the amendment itself does not so provide, but this is immaterial. As stated in Corpus Juris Secundum, Vol. 16, § 48, page 146:

“Whether or not a provision is self-execnting depends on whether the language is addressed to the courts or to the legislature, — whether it indicates that it is intended as a present enactment, complete in itself as definitive legislation, or contemplates subsequent legislation to carry it into effect; and this requires a consideration both of the language used and of the intrinsic nature of the provision itself. The question is always one of intention and, in order to determine the intent, the general rule is that courts will consider the language used, the objects to be accomplished by the provision, and the surrounding circumstances.”

According to American Jurisprudence, Yol. 11, page 689, there is now a presumption that all provisions of the constitution are self-executing. In our own case of Cumnock v. Little Rock, 168 Ark. 777, 271 S. W. 466, we held Amendment 10 to be self-executing, though the amendment itself did not so provide. Chief Justice McCulloch, in rendering the Opinion for the Court, stated:

“In the case of Griffin v. Rhoton, 85 Ark. 89, we quoted from Judge Cooley the following test: ‘A constitutional provision may be said to be self-executing if it supplies a sufficient rule by means of which the right given may be enjoyed and protected, or the duty imposed may be enforced; and it is not self-executing when it merely indicates principles, without laying down rules by means of which those principles may be given the force of law.’ ”

The Opinion further quoted and adopted the language of a Minnesota case as follows:

“ ‘If the nature and extent of the right conferred and of the liability imposed are fixed by the provision itself, so that they can be determined by the examination and construction of its own terms, and there is no language used indicating that the subject is referred to the Legislature for action, then the provision should be construed as self-executing.’ ”

Applying the tests to the case before us, it is first noted that there is no language used in Amendment No. 49 indicating that the subject is referred to the legislature for action. In the next place, the substance and extent of the rights conferred by the amendment are clearly set forth in the amendment itself. Section 2 sets out the maximum interest rate, and provides that the bonds shall be sold only at public sale after advertising for twenty days in a newspaper having a bona fide circulation in the county issuing such bonds. Section 3 provides for the levy of the tax, not to exceed five mills on the dollar, and inter alia, provides for the suspension of the annual levy. Section 4 provides that the bonds shall be serial, “maturing annually after three years from date of issue, and shall be paid as they mature, and no such bonds shall be issued for a period longer than thirty (30) years.” Section 5 sets forth the body that is to exercise jurisdiction over the sale or exchange of bonds. Section 6 provides in detail the manner in which the election shall be held. We hold that Amendment No. 49 is self-executing, and accordingly, the proposed bond issue is not precluded by the passage of Act 121 of 1959.

IY.

Appellee admits that Amendments 10 and 13 are violated if the proposed bonds are not authorized by Amendment No. 49. On the other hand, appellant concedes that neither amendment has been violated if the bonds are authorized by Amendment No. 49. Since we have concluded, as herein pointed out, that the bond issue is authorized by the latter amendment, it becomes unnecessary to discuss this contention. We therefore conclude that the Desha Chancery Court properly dismissed appellant’s complaint, and the decree of dismissal is herewith affirmed.

       The amendment, in full, is as follows :
      “SECTION 1. Any city of the first or second class, any incorporated town, and any county, may issue, by and with the consent of the majority of the qualified electors of said municipality or county voting on the question at an election held for the purpose, bonds in sums approved by such majority at such election for the purpose of securing and developing industry within or near the said municipality holding the election, or within the county holding the election.
      SECTION 2. Such bonds shall bear interest at a rate not to exceed six per centum (6%) per annum and shall be sold only at public sale after twenty (20) days advertisement in a newspaper having a bona, fide circulation in the municipality or county issuing such bonds; provided, however, that the said municipality or county may exchange such bonds for bonds of like amount, rate of interest, and length of issue.
      SECTION 3. To provide for the payment of such bonds, principal and interest, as they mature, the municipality or county may levy a special tax, payable annually, not to exceed (5) mills on the dollar, in addition to the legal rate permitted on the real and personal taxable property therein; provided, however, the municipality or county may, from time to time, suspend the collection of such annual levy when not required for the payment of its bonds; and provided further, however, that in no event shall the real and personal taxable property in any city or town be subject to a special tax in excess of five (5) mills for bonds issued hereunder.
      SECTION 4. Such bonds shall be serial, maturing annually after three years from date of issue, and shall be paid as they mature, and no such bonds shall be issued for a period longer than thirty (30) years.
      SECTION 5. The governing body of the municipality or the County Court of the county shall exercise jurisdiction over the sale or exchange of any such bonds voted by the electors at an election held for that purpose and shall expend economically the funds so provided.
      SECTION 6. The election on the issuance of such bonds shall be held at such time as the governing body of the municipality may designate by ordinance, or as the County Judge of the county may designate by order, which ordinance or order shall state the sum total of the issue, the dates of maturities thereof and shall fix the date of election so that it shall not occur earlier than thirty (30) days after the passage of the said ordinance or the granting of said order. The said election shall be held and conducted, the vote thereof canvassed, and the result thereof declared under the law and in the manner now or hereafter provided for municipal elections when the election is held by a municipality, and in the manner now or hereafter provided for county elections when the election is held by a county, so far as the same may be applicable, except as herein otherwise provided. Notice of the election shall be given by the Mayor of the municipality or by the County Judge of the county by advertisement weekly for at least four times in some newspaper having a bona fide circulation in the said municipality or county, with the last publication to be not less than ten (10) days prior to the date of said election. Only qualified electors of the said municipality or county shall have a right to vote at the said election; provided, however, that when an election is held by the county, if any city or town within such county has previously voted a levy of five mills under the provisions of this amendment which levy shall not have expired at the time of the election held by the county, then the electors of such city or town shall not be eligible to vote in the county election. The result of the said election shall be proclaimed by the Mayor of the municipality or by the County Judge of the county, and the result as proclaimed shall be conclusive, unless attacked in the courts within thirty (30) days after the date of such proclamation.
      SECTION 7. All provisions of the Constitution, or amendments thereto, in conflict herewith, are, to the extent of such conflict, hereby repealed.”

       Also, on September 30, 1959, J. F. Wallace, a citizen and property owner ol Desha County, filed an intervention on behalf of appellee, following which appellent amended his complaint, incorporating the allegations set out in the intervention, and prayed for the same relief as originally requested.

       The Opinion refers to this amendment as Amendment 11. Several amendments have been re-numbered, and this re-numbering is discussed by John Strahom, Jr., Associate Professor, School of Law, in an article appearing in the University of Arkansas Law School bulletin of May, 1930. From the article: “One of the reasons for this confusion is found; in the Supreme Court’s recent reversal of its rule on the question of the majority necessary to adopt amendments under the first Initiative and Referendum plan of 1910. Brickhouse v. Hill, 1925, 167 Ark. 513, 268 S. W. 865; Combs v. Gray, 1926, 170 Ark. 956, 281 S. W. 918. These cases validated several amendments which had been voted on and declared rejected under the then existing rule. New numbers had to be assigned to them several years after theú adoption. Still others had been declared adopted and numbered, only to be invalidated by the courts. Others have been adopted numbered, and then repealed. Thus the confusion is explicable if not understandable. Perhaps the greatest reason for the confusion lies in the fact that every publisher who has had occasion to list the amendments in recent years has assigned his own set of numbers to the amendments, with striking results.”

        Willis v. Mabon, 48 Minn. 140.


author: J. Seaborn Holt, Associate Justice.

text:
    Wade v. Thornbrough, Comm. of Labor.
    5-2001
    330 S. W. 2d 100
    Opinion delivered December 21, 1959.

      J. Gayle Windsor, Jr., for appellant.

      Luke Arnett, for appellee.
   J. Seaborn Holt, Associate Justice.

Appellant, Lillian Wade, brings this appeal from a judgment of the Pulaski County Circuit Court denying her claim for unemployment compensation under the provisions of our Employment Security Act, — Sections 81-1101 — 81-1122, Ark. Stats., 1947 (Cumulative Supplement). The «circuit court reviewed and affirmed the action of the Arkansas Board of Review which had denied appellant’s «laim for benefits because she was disqualified under the provisions of Section 5 (e), of the Employment Se«curity Act (Sec. 81-1106 (e) Ark. Stats.), for the reason that she voluntarily left her last employment to perform customary household duties. Appellees are the 'Commissioner of Labor, Administrator of the Employment Security Division, and the AMF Cycle Company, appellant’s former employer. Material facts are not in dispute.

Appellant testified that she last worked for AMF 'Cycle Company on May 10, 1958 and that she quit work «on that date “because my children had the measles and I ■couldn’t get a leave of absence. I asked for a month’s leave of absence but Mr. Railey, our personnel manager, •said he couldn’t get me a leave for that long. It was ■about a month and a half before all of them got over the measles. My husband was working and I couldn’t •get anybody to take care of them. Mr. Railey told me that •as soon as I got to where I could work, to call him. I called him on September 22, 1958, and he said he didn’t have anything to do now and he would let me know when he had work. I didn’t call sooner because the children were out of school during the summer. * * * He said if I was sick, I could get leave, but for sick children or my husband, I couldn’t get a leave. ’ ’

Appellant says, “The Commissioner erred as a matter of law, in that he applied the wrong section of the ¡statute in determining appellant’s eligibility for unemployment benefits. Instead of disqualifying the claimant under Sec. 81-1106 (e) of the Act, pertaining to female claimants who leave jobs to marry, perform customary household duties, follow their husbands, or because of pregnancy; appellant instead should have been held eligible for benefits under the provisions of Sec. 81-1106 (a), which exempts claimants from disqualification if they voluntarily leave their jobs because of an urgent personal emergency. ’ ’

On the record before us, the facts being undisputed, a question of law is presented. Appellee says: “The appellant (Lillian Wade) makes only one contention for a reversal in this case in that the Commissioner erred as a matter of law in that he applied the wrong section of the statute in determining claimant’s eligibility for unemployment benefits. Instead of disqualifying her under Sec. 81-1106 (e) of the Act pertaining to female claimants who leave work to perform customary house duties, * * * that appellant should have been held eligible for benefits under proviso of Sec. 81-1106 (a).”

Section 81-1106 (e) provides that an individual shall be disqualified for benefits — “5 (e) (1) If a female claimant voluntarily leaves her work to marry or perform customary household duties. Such disqualification shall continue until she has had 30 days of paid work subsequent to the date of her separation.” Mrs. Wade earnestly contends that she did not quit her work to “perform customary household duties” within the meaning of this section, but that she quit because of a personal emergency of such nature and compelling urgency that it would be contrary to good conscience to impose a disqualification and that she is relying upon the provisions of Sec. 81-1106 (a) (cited as Section 5 (a)) the relevant portions being: “(An individual shall be disqualified for benefits:) ‘5 (a) If he voluntarily and without good cause connected with the work, left his last work. Such disqualification shall be for eight weeks of unemployment . . . Provided ... no individual shall be disqualified under this subsection if after making reasonable efforts to preserve his job rights he left his last work because of a personal emergency of such nature and compelling urgency that it would be contrary to good conscience to impose a disqualification” We have reached the conclusion that appellant is correct in her contention. We cannot agree with appellees’ contention that when Mrs. Wade’s five children contracted measles and that when she quit work to care for them, that it amounted to nothing more than one of the customary household duties imposed upon her, as a mother, to perform; rather, we think that she was confronted, in effect, with a personal emergency of such “compelling urgency that it would be contrary to good conscience to impose a disqualification” and therefore, she was justified in quitting her work on May 10, 1958 and was not disqualified for benefits under this section.

Finally, appellees contend that Mrs. Wade is barred from asserting any claim for the reason that she failed to file any during the time of the personal emergency. In this connection, appellees say: “# * * when the claim was filed, no personal emergency was claimed to exist or had existed for the past three months, and therefore, proviso of Sec. 81-1106 (a) was not involved, as no emergency existed and had not existed for three months. It is unquestioned in the record that during all the period of time between May 10 and September 23 claimant was performing household duties, and that Sec. 81-1106 (e) should be invoked at least after about June 25 and she continued to remain at home to perform household duties at a time no personal emergency existed.” We do not agree with this contention for the reason that we find no requirement, expressed or implied, in section 5 (e) above that a claim must be filed during the emergency nor at any particular time thereafter. The reason for Mrs. Wade’s separation from her work and not the speed of filing her claim determines the actual eligibility of a claimant.

Accordingly, the judgment is reversed and the cause remanded for further proceedings consistent with this opinion.


text:
    Butkiewicz v. Bredlow, Admx.
    5-1992
    330 S. W. 2d 588
    Opinion delivered December 21, 1959.
    [Rehearing denied January 25, 1960]

      Owens, McHaney, Lofton & McHaney, G. Thomas Eisele, for appellant.

      Mehaffy, Smith <& Williams, William H. Bowen,'William L. Terry, for appellee.
   J. Seaborn Holt, Associate Justice.

This litigation involves the ownership of a small herd of cattle, appellants asserting that the cattle were given to them and belonged to them, and appellee denying their claim.

Appellee, Gwendolyn Armstrong Bredlow, is the administratrix of the estate of Reuben Bredlow who died in November 1956. Bredlow left no children and was survived by his wife, Gwendolyn, and his mother, Gertrude Bredlow. He left an estate valued at more than $300,000.00. Appellant, Edward J. Butkiewicz, is-the husband of appellant, Annette Butkiewicz, and she-was the niece of the deceased, Reuben Bredlow, and is the daughter of Lyde Campbell.

As we read this record, it appears to us that the primary and decisive issue to be determined is whether the cattle involved were given by Reuben, during his lifetime, to the appellants. Thus a question of fact is presented and we have concluded, on trial de novo here, that the preponderance of the evidence presented shows that these cattle were given outright to appellants as they claim; that Reuben Bredlow’s estate has no interest in them whatever and that the trial court erred in holding otherwise.

Dan Sparkman, a witness for appellant, testified that he had known Reuben Bredlow since 1933, had worked for him from 1940 until 1955 and stayed on his place until after Bredlow’s death; that he was with Reuben a lot — almost daily — and was with him practically every time he went hunting or fishing which he loved. He went with Reuben to Florida in 1955 and 1956. Reuben talked to him on these trips about the anticipated purchase of cattle from Lyde Campbell and said he was buying the cattle and giving them to Ed and Annette in appreciation for their taking care of his mother to whom he was very much devoted; that he told him this before and after he bought the cattle.

Reuben’s own mother, Mrs. Gertrude Bredlow, testified, in effect, that on the day Reuben purchased the cattle from Lyde Campbell he told her of the transaction and also that he had turned them over to Ed. “Q. He referred to them as Ed’s cattle? A. Yes, he never — well, he never claimed the cattle at all because from the very start he had told me that he had bought the cattle and turned them over to Ed. Q. Your son, Reuben, told you that? A. Yes. Q. Is there ■ any doubt in your mind that your son gave the cattle to Ed Butkiewicz? A. Not the least doubt.”

Witness Lyde Campbell testified that he had entered into an agreement to lease to a Mr. Lynn the 160 acre Anglin tract for a five year term and also sell to him (Lynn) the 41 head of cattle in question for $3,185.00 but that Reuben told him he had arranged with Ed and Annette for them to move down to the farm and for his mother to live with them; that cancellation of the lease was accomplished and that Reuben told him (Lyde) that he would take over the purchase of the cattle and that he was buying them for Ed. He further testified that at the time the interest of Gertrude Bred-low and Phyllis Grant in the 160 acre tract was conveyed to appellant, Annette.

A summation of evidence in this case is to the following effect: Reuben’s primary concern was the welfare and happiness of his mother. His wife was addicted to drink, Ms mother was a teetotaler and was not happy in Reuben’s home. Reuben wrote appellants, then living in the East, and requested their return to Arkansas. Appellant, Annette, was his favorite niece. Appellants moved back to Arkansas in August of 1949 and at that time Reuben’s mother was staying with her daughter, Mrs. Lyde Campbell, at Prairie Grove, Arkansas. Appellants went to Prairie Grove and brought Reuben’s mother back with them and they stayed with Reuben and appellee, Gwendolyn (his wife), for about three months when they moved to a 160 acre farm (the Anglin place) which was owned by Reuben. They then moved into a frame house on the 160 acre tract and Reuben’s mother stayed with them there until January 1952. From that time until March 1953, Reuben’s mother spent the weekends with Reuben and the weekdays with appellants, Ed and Annette. In March 1953 Annette’s mother and father (the Campbells) moved down from Prairie Grove onto the 160 acre Anglin place and Reuben’s mother immediately moved in with the Camp-bells and on July 27, 1953, Reuben deeded this tract of land to his mother and his sister (Mrs. Campbell) for their lives and during the life of the survivor, with, the remainder to Mrs. Campbell’s children, Annette (Appellant) and Phyllis Grant. Reuben’s mother remained with the Campbells for the next year and a half, until October 1954 when Mrs. Campbell suffered a severe burn and was moved into town where Annette cared for her until her death in April 1955.

From October 1954 until the death of her daughter in April 1955, Reuben’s mother stayed with him part of the time and with Kate Bredlow part of the time. She visited her half brother in Marked Tree for a month and beginning in May 1955, she spent the weekdays with appellants, who had now moved to North Little Rock, and the weekends with Reuben. TMs arrangement was not satisfactory to Reuben. As indicated, when Mrs. Campbell died, title to the Anglin place was in Annette and her sister, Phyllis Grant, subject to the life estate of Mrs. Gertrude Bredlow. Ed and Annette wanted to live on the 160 acre farm but not in the old frame house. They wanted to build a new house, however, to do so would force them to borrow money and mortgage the land but the title, as indicated, was not in appellants. To solve this dilemma, Reuben arranged for and had title to the 160 acre Anglin farm transferred to Annette. The 41 head of cattle was purchased from Lyde Campbell and turned over to Ed and left on the place in his possession. The deed to the property from Gertrude Bredlow and Phyllis Grant was executed to Annette October 26, 1955 and thereafter appellants procured a loan of $10,000.00 (January 1956) with which they proceeded to build a spacious and modern new home. During its construction, Reuben’s mother spent practically every day with them and, in fact, was the first to move in — ahead of appellants by two days. It appears that she lived happily with them in this home until her death on July 4, 1958.

The evidence further shows that Ed and Annette did all the work required to care for the herd of cattle, provided feed and supplies needed and that Reuben knew this. It is undisputed that Ed started selling the cattle almost from the beginning when he could get a good price and kept the proceeds from the sales. He butchered for his own use some of the cattle with a value of $200.00 without accounting to Reuben or his estate and that eight or more cattle died while in appellant’s custody and they sold the remaining cattle December 30, 1957 at a price of $3,293.00 at which time the herd had grown to 61 head. It appears to us that this is strong evidence that Reuben intended to give the cattle outright to appellants.

As indicated, without attempting to set out the testimony of all the witnesses, when the evidence is weighed and reconciled, we think the great preponderance thereof shows that it was the clear intent of Reuben Bred-low to give the cattle in question to appellants and that he did so.

Accordingly, the decree is reversed and since the cause appears to have been fully developed, it is dismissed.


author: Ed. F. McFaddin, Associate Justice.

text:
    Cox v. Watson.
    5-2007
    330 S. W. 2d 66
    Opinion delivered December 21, 1959.

      W. W. Shepherd, for appellant.
    No brief filed for appellee.
   Ed. F. McFaddin, Associate Justice.

This appeal stems from a traffic mishap. The Circuit Court, trying the case without a jury, rendered judgment for plaintiff (appellee); and defendant (appellant) prosecutes this appeal. Four points are listed for reversal; but all these are resolved by our conclusions: that a question of fact was made as to negligence; and that the finding of the Circuit Court has the effect of a jury verdict. Wallis v. Stubblefield, 216 Ark. 119, 225 S. W. 2d 322; Hurst v. Flippin, 228 Ark. 1151, 312 S. W. 2d 915.

The appellant was driving an automobile west on Markham Street in Little Rock and undertook to execute a left turn in order to go south on Arch Street. The appellee was driving an automobile east on Markham Street. After the appellant was in the intersection turning south, the right side of Ms car was struck by the front of appellee’s car. Appellee claimed car damage in the sum of $216.10; and appellant claimed car damage of $150.00. The Trial Court found that appellant was guilty of 75% of the negligence causing the mishap and rendered judgment against appellant for $162.08. We view the facts in the light most favorable to the verdict, as is our rule. Harrison v. Rosenweig, 185 Ark. 281, 47 S. W. 2d 2; Potashnick v. Archer, 207 Ark. 220, 179 S. W. 2d 696; and Rogers v. Lawrence, 227 Ark. 117, 296 S. W. 2d 899.

It was shown that the mishap occurred at about 6:15 P. M. on October 4, 1958, and that both vehicles had the lights burning. Officer King of the Little Rock Police Department testified that he arrived at the scene a few minutes after the collision and before either vehicle had been moved. Officer King testified:

“. . . Mr. Watson’s car had struck Mr. Cox’s car in the side. Watson was traveling east on Markham Street and Cox was traveling west. Watson had not changed his direction. Cox was making a left turn. The evidence points to Mr. Cox as making an illegal left turn . . . Mr. Watson’s vehicle was four feet west of the east curb line and four feet north of the south curb line. That is the point of impact.” The Cox vehicle “was 36 feet south of the north curb line and 32 feet east of the west curb line.” The Watson car “had 27 feet of skid marks . . .
“ Q. In what position were the ears, do you recall, at the time when you arrived at the scene?
“A. Here is a diagram of the cars.
“Q. They were still in the same position, or had they been moved.
“A. They had not been moved . . .
“Q. Do you recall any statement that was made by either one of the parties in the presence of the other?
“A. No, sir. I don’t recall any statement . . .
“Q. You say Mr. Watson’s car showed 27 feet of skid marks?
“A. Yes, sir.
“Q. Did they commence before he got into the intersection or after?
“A. I believe they would have started after he entered the intersection. That is a 36 foot street there and four and 27 is thirty one. He was about five feet into the intersection.
“Q. Five feet after he entered the intersection?”
“A. Yes.”

The above copied testimony would indicate that appellant cut the corner too sharply in front of the appellee. At all events, the foregoing testimony is sufficient to support the judgment rendered.

Affirmed.


author: George Rose Smith, J.

text:
    Taylor v. Slayton.
    5-2008
    330 S. W. 2d 280
    Opinion delivered December 21, 1959.
    [Rehearing denied January 18, 1960]

      F. C. Grow, for appellant.

      W. A. Speer, for appellee.
   George Rose Smith, J.

This is an action by the appellant, a retail grocer, to collect an open account in the sum of $260.94. The only question is whether the trial court, sitting without a jury, was correct in holding the claim barred by the three-year statute of limitations. Ark. Stats. 1947, § 37-206.

The material facts are not in dispute, most of them having been stipulated. The account became inactive on February 8, 1951, when Slayton made his final purchase. The debt was concededly barred three years later, but in 1956 Slayton made two $5.00 payments upon the account, less than three years before this suit was filed. In addition to these agreed facts the plaintiff proved by the superintendent at Slayton’s place of employment that in 1958 Slayton orally admitted the debt and promised to pay it in small monthly installments. Slayton did not testify and offered no proof of any kind.

The circuit court was in error in sustaining the defense of limitations. It has long been settled that a part payment upon an open account, made after the bar of the statute has fallen, is presumed to start the statute running anew, in the absence of circumstances indicating that the debtor did not thereby intend to recognize his obligation. Gorman v. Pettus, 72 Ark. 76, 77 S. W. 907. The cases were reviewed in Johnson v. Spangler, 176 Ark. 328, 2 S. W. 2d 1089, where we pointed out that a part payment is prima facie sufficient to revive the barred debt, though this prima facie case may be rebutted. In the case at hand there is no circumstance whatever tending to rebut the presumption arising from the stipulated part payments, and hence the defense of limitations must fail.

The appellee relies primarily upon this provision in our limitation laws: “No verbal promise or acknowledgment shall be deemed sufficient evidence in any action founded on a simple contract, whereby to take any case out of the operation of this act, or to deprive the party of the benefits thereof.” Ark. Stats., § 37-216. This section requires that a “verbal” acknowledgment — that is, one in the form of words — be in writing, but the statute has no application to a part payment and has never been so applied. The making of a payment is an act and as such is not subject to classification as written or oral. The cited statute deals with words, not acts.

Reversed and remanded for the entry of a judgment in favor of the appellant.