author: J. Fred Jones, Justice. John A. Fogleman, Justice,

text:
    Dorothy BRADLEY v. Billy HENDRICKS, Individually and as Father and Next Friend of Randy Lynn Hendricks, a Minor
    5-5680
    474 S.W. 2d 677
    Opinion delivered January 10, 1972

      Williams & Gardner, for appellant.

      Felver A. Rowell, Jr., for appellee.
   J. Fred Jones, Justice.

Billy Hendricks, individually and as father and next friend of his five year old son, Randy, filed suit in the Conway County Circuit Court against Mrs. Dorothy Bradley for medical expenses incurred by Mr. Hendricks and for damages sustained by Randy when he was bitten by a dog belonging to Mrs. Bradley. A jury trial resulted in a verdict against Mrs. Bradley for $5,000 damages and for $52.50 medical expenses. Judgment was entered on the verdict and on appeal to this court Mrs. Bradley relies on the following points for reversal:

“There is no substantial evidence that the dog had vicious or dangerous propensities nor that defendant had knowledge that her dog was dangerous.
The verdict and judgment is excessive.”

It is well settled in Arkansas that when a person is injured by a domestic animal legally permitted to run at large by its owner, in order for the injured person to recover damages from the owner without the necessity of proving the owner’s negligence, it must be shown that the animal has vicious tendencies or dangerous propensities and that the owner knew, or should have known, of such tendencies or propensities. Field v. Viraldo, 141 Ark. 32, 216 S. W. 8; McIntyre v. Prater, 189 Ark. 596, 74 S. W. 2d 639; Holt v. Leslie, 116 Ark. 433, 173 S. W. 191; Finley v. Smith, 240 Ark. 323, 399 S. W. 2d 271; see also Cagle v. Monroe, 215 Ark. 518, 221 S. W. 2d 1.

The record reveals that about ten days prior to August 10, 1969, Mrs. Dorothy Bradley, who owned a small Dachshund dog, moved into a house on Moose Street in Morrilton, Arkansas, a few doors from the home occupied by Mr. and Mrs. Hendricks and their children, Randy then three years of age and Delilah then seven years of age. Mrs. Hendricks planned to go out of town on August 10, so by prior arrangement she took her two children next door to the home of Mrs. Dorothy Martin, who was to keep the Hendricks children, along with two other children, until Mrs. Hendricks returned. While Mrs. Hendricks was still preparing to leave on her trip, and while Mrs. Martin was busy about her carport and the children were playing in Mrs. Martin’s yard, Randy sustained some injuries to his face and one ear when he was apparently bitten by Mrs. Bradley’s dog.

Mrs. Martin testified that she was busy in her carport and when she heard Delilah scream, she ran toward where the children were playing. She says that Delilah brought Randy to her and that he had blood all over him. She says that she then called Mrs. Hendricks who took the child to the hospital. Mrs. Martin testified that she saw Mrs. Bradley’s dog in the yard when Randy was injured, but that she did not see the dog bite Randy. Mrs. Martin testified that one morning when she went out to her garbage can, Mrs. Bradley’s dog was there and it growled at her.

Mr. Hendricks, the appellee, testified that Mrs. Bradley’s dog had growled at him and on one occasion he saw Mrs. Bradley’s dog growl at his daughter, Delilah, and nip at her heels while Delilah was passing in front of the Bradley house on her way to play with a neighbor girl. On this point Mr. Hendricks testified as follows:

“Q. You saw the dog growl at your daughter?
A. Yes, sir.
Q. And what did you say you did?
A. Well, I run down there and run the dog off to keep her from biting her.
Q. Where was it?
A. It was in front of the Bradley house.
* * *
Q. . . . describe to me what the dog did?
A. Well, it run out and growled at her and acted like it was going to bite her.
Q. How close did it get to her?
A. Well, it nipped at her heels
Q. Nipped at her heels, and where were you?
A. I had come out of the house to go back to work.
Q. And it was close enough that it could have reached her heels?
A. Yes, sir.
Q. All right. And you say it growled?
A. Yes, sir.
Q. Did it bark?
A. Yes, sir.
# * *
Q. . . . And did she run?
A. She started to. I told her not to run, because it would take off after her for sure then.
Q. And that’s all you did, and she quit running?
A. I picked up a rock and throwed it.
Q. After that, what did you do now?
A. I asked the Bradley lady to put the dog up, because it could bite another child, or bite her again.
Q. You say ‘bite her again?’
A. It could bite her, or try it again.
Q. Had your daughter played with the dog any at that time?
A. No, sir. They wasn’t allowed to play with dogs.”

Mr. Hendricks testified that he went to Mrs. Bradley’s house after he got off from work and talked with Mrs. Bradley.

“Q. And what did you tell her?
A. I asked her to put the dog up, because it tried to bite my little girl today, and I asked her if she would put it up, because I didn’t want my little girl hurt.”

Mr. Hendricks testified that he knew of no other instance where the dog growled at or attempted to bite any other person.

Mrs. Ella Fay DeLong called as a witness by Mr. Hendricks, testified that on one occasion, as she started out to get into her car, a dog, which she believed to be Mrs. Bradley’s dog, growled at her.

Mrs. Bradley testified that she had owned the dog since 1965; that the dog was of a gentle and friendly disposition and had played with children all its life. She testified that she never knew of the dog growling at or attempting to bite anyone. She specifically denied that Mr. Hendricks came to her house and she emphatically denied that he told her that her dog had attempted to bite his daughter. A number of witnesses who had lived as neighbors to Mrs. Bradley testified that the dog was of a docile and friendly disposition; that it played with children and had never shown any dangerous propensities.

This court is bound, of course, by the substantial evidence rule in law cases (B-W Acceptance Corp. v. Norman Polk, 242 Ark. 422, 414 S. W. 2d 849) and the evidence in this case presents a close and difficult question under the rule. Mr. Hendricks’ little daughter Delilah, who was nine years old at the time of the trial, did not testify in this case, and the record reveals no other eye witness to the occurrence. Mrs. Martin only heard the commotion, saw the dog in the yard, and observed Randy’s injuries when Delilah brought him to Mrs. Martin. Mr. Hendricks testified that his children were not permitted to play with dogs, but the injuries sustained by Randy were on his face and ear, so it would appear that he was either on the ground with the dog at the time of the injuries or the dog was in his arms if he were standing.

There is no evidence at all in the record as to what provocation, if any, occurred in this case, but the question of proximate causation is not argued. It is not seriously contended that Mrs. Bradley’s dog did not bite the child, so the total lack of any evidence as to whether the child attacked the dog or the dog attacked the child, leaves this case on appellant’s first point to be determined strictly on the substantiality of the evidence as to the dangerous propensities of the animal and Mrs. Bradley’s knowledge thereof.

Our own cases are of little assistance on this point. In Field v. Viraldo, supra, the vicious acts of a bull were involved but in that case two previous acts showing vicious propensities were testified to and the owner of the bull admitted his knowledge of its vicious nature. In Holt v. Leslie, supra, a Bulldog being transported by rail was involved. The suit was against the railroad company and in addition to testimony that the dog would lunge at everyone who came near it, while in the possession and under the control of the station agent, a. letter from the consignor to the consignee was introduced wherein it was stated that the dog had previously bitten someone. Warnings were printed on the dog’s crate and the consignee testified that he thought he had told the railroad agent that the dog was dangerous.

Turning now to cases from other jurisdictions, in Young v. Cunningham, 181 A. 2d 109 (R. I. 1962), testimony that a dog had snapped at people on two prior occasions and that injured girl’s mother had told the owner that she would not permit her daughter to visit owner’s premises unless the dog was tied up was held sufficient on conflicting evidence to justify the trial court in refusing to grant a motion for a new trial following a verdict for the plaintiff.

In the Colorado case of Barger v. Jimerson, 276 P. 2d 744, evidence showing that a dog which was kept in a fenced yard would lunge at everyone who came by, although it never bit anyone, was held sufficient to sustain a judgment for the plaintiff.

In the Texas case of Bly v. Swafford, 199 S. W. 2d 1015, the only evidence of the owner’s knowledge of the dog’s viciousness was the testimony of plaintiff’s husband that the owner had stated to him that he (the owner) had told the police on a previous occasion that the dog was vicious. Although the owner denied the statement, the court held that the evidence was sufficient to sustain a judgment for the plaintiff.

On the other hand in the North Carolina case of Sink v. Moore, 148 S. E. 2d 265, the North Carolina court held that evidence showing a dog’s tendency to chase automobiles and fight was not sufficient to support a finding that the dog had vicious propensities and thus the trial court was justified in entering a judgment of nonsuit for the owner.

In the Missouri case of Mitchell v. Newsom, 360 S. W. 2d 247, the only evidence offered as to the viciousness of the dog was that it barked at trash men; that there was a chain on its doghouse, and the testimony of the plaintiff’s mother that she saw the dog jump at another boy and snap at him. The appellate court held that the trial court was justified in directing a verdict for the owner.

In the Louisiana case of Marsh v. Snyder, 113 So. 2d 5, the defendant owner was walking two dogs on leashes and one of the dogs bit the plaintiff. The owner introduced evidence that the dog was of a mild and docile disposition and his testimony was substantiated by the testimony of three neighbors. On cross-examination the owner admitted that there had been a previous complaint as to the conduct of the dog when it had bitten a child. It was explained, however, that the child had run into the dog while skating and no one was sure whether the dog had bitten the child or not. The plaintiff also offered testimony of her employer that one of the dogs had “nipped” at him. The plaintiff’s employer’s wife testified that the defendant’s wife had told her that the dog had bitten her niece. The reviewing court held that the owner had proven that he had no actual or constructive knowledge that the dog would hurt anyone and thus reversed the judgment in favor of the plaintiff.

In the case at bar Mr. Hendricks testified that the dog growled at him on more than one occasion as he would go to work. Two other witnesses testified that the dog growled at them, and Mr. Hendricks testified as to the incident already related concerning his little girl. We hold that the evidence was sufficient to take the case to the jury as to the vicious propensities of the dog. The evidence as to Mrs. Bradley’s knowledge boils down to a question of credibility and this too, is a question for the jury. Frazier v. Sewell, 241 Ark. 474, 408 S. W. 2d 597.

Turning now to the appellant’s second point; in Busby v. Willform, 241 Ark. 19, 406 S. W. 2d 131, citing Ark. Amusement Corp. v. Ward, 204 Ark. 130, 161 S. W. 2d 178, we stated the following rule:

‘A verdict will be set aside by an appellate court as excessive where there is no evidence on which the amount allowed could properly have been awarded; where the verdict must of necessity be for a smaller sum than that awarded; where the testimony most favorable to the successful party will not sustain the inference of fact on which the damages are estimated; where the amount awarded is so excessive as to lead to the conclusion that the verdict was the result of passion, prejudice ... or of some error or mistake of principle, or to warrant conclusion that the jury were not governed by the evidence. . .’ ”

In Busby we also pointed out that a comparison of one case with others is of. little assistance for the reason that each case must be judged on its own facts and if a verdict is supported by substantial evidence, it will not be disturbed on appeal.

In the case at bar the medical bills totaled $55.80. There was no evidence at all as to the extent of pain and suffering but the jury could have logically assumed that there was some pain and suffering (Mrs. Hendricks testified that the child’s eyes were closed and his face was twice its normal size the next day following the injury). The evidence was primarily directed to facial disfigurement because of scars. Mrs. Hendricks testified that the wounds on the child’s face became infected and that he does still have scars from the wounds. She testified that the scars have improved some within the last few months but not much. She says, however, that, they are a lot better than they were. Mrs. Hendricks points out two scars on the child’s face and one on his ear as follows:

“Q. Where were the bites you observed?
A. Here and here on his face, and his ear was pierced. They had to sew it up.”

The record as to Dr. Thomas H. L. Hickey’s testimony pertaining to the scars is as follows:

“Q. All right. Doctor, is there any residual scarring as the result of this dog bite?
A. Yes, sir.
Q. Would you come to the jury please?
A. (He does so)
Q. Randy, would you come over here?
A. (He does so)
Q. Doctor, would you show the ladies and gentlemen of the jury the scars?
A. Here is one right here, and one here. This one here was so bad, the left ear. Can you see them?
Q. Now, I believe there’s one between his nose and under his cheek—
A. Right.
Q. Right here?
A. He has three on his face, and one on his ear.
Q. Doctor, do you have an opinion as to whether or not these scars are permanent?
A. The scars are permanent.
Q. Do you think they will improve any from what they are?
A. I don’t believe so.”

Enlarged photographs of Randy were made exhibits in this case and we have carefully examined them. Although both exhibits appear to be made from the same exposure, we are able to detect only a small scar on the bridge of the nose and what appears to be a very small scar on the right cheek. The left ear is not visible in either of the exhibits. The doctor testified that Randy has three scars on his face and one on his ear. In attempting to show the scars to the jury, Dr. Hickey pointed out two scars on the face and one on the ear and then inquired of the jury if they could see them. The doctor’s attention was then directed by counsel to a third scar on Randy’s face, after which the doctor also recognized it as one of the scars.

We have concluded from the evidence of record in this case that there is no substantial evidence to sustain the judgment in the amount of $5,000. We are of the opinion that a judgment for $2,000 would be more in line with the damages Randy has sustained. Consequently, the judgment is affirmed upon remittitur of $5,000 within 17 calendar days; otherwise the judgment will be reversed and the cause remanded for new trial.

Fogleman, J., dissents.

John A. Fogleman, Justice,

dissenting. I would affirm this judgment. I do not feel that I am in a better position than the jury to determine the amount of damages necessary to compensate this child for the nature, extent and duration of his injury, his pain and suffering and mental anguish, and his scars, disfigurement and visible results of his injury. It is true that the evidence of pain, suffering and mental anguish is not as extensive as usual in a personal injury case. This will necessarily be so in any case where the injured party is himself barred from testifying. See Ark. Stat. Ann. § 28-601 (Repl. 1962). Since there are few objective symptoms of the extent of pain, suffering and mental anguish there will always be a limited amount of evidence in such a case. Measuring the elements of damages set out above in dollars and cents is a difficult undertaking, and is best left to jurors unless there is a total absence of evidence, a clear indication of passion and prejudice or obvious error in application of the law in fixing the amount. I do not feel that either situation exists here. We have long recognized that compensation for pain and suffering must be left largely to the sound discretion of a trial jury and the conclusion reached by it should not be disturbed unless the award is clearly excessive. Missouri Pacific R. Co. v. Hendrix, 169 Ark. 825, 277 S. W. 337, cert. denied, 270 U. S. 651, 46 S. Ct. 351, 70 L. Ed. 781. Of course, mental anguish is only another form of pain and suffering.

There was medical evidence that Billy’s scars are permanent. Dr. Hickey found lacerations of the face and the left ear. He pointed out three facial scars and one on the left ear. He said that the one on the left ear (not visible in the photographs in the record) was the one that was “so bad.” He pointed out three facial scars, which appear evident to me from the black and white photographs exhibited. One is on the bridge of the nose, one is below the right eye, and the other on the right side of the face. I cannot join in drawing the inference that the doctor’s inquiry whether the jury could see the scars was indicative of their insignificance. Even a photograph did not reveal all in one picture. The inquiry by the doctor was a natural one for anyone trying to exhibit the physical appearance of a five-year-old boy before a jury box so that all 12 jurors could have the same view. Anyone who has presented exhibits before a jury has properly made such an inquiry. If we draw the inferences in favor of the verdict, the doctor’s question means nothing more.

This child’s father first saw him in the emergency room at the hospital. He described his son’s face as a bloody mess, and cut all to pieces. The father said he passed out while watching the physician sew up the wounds. The boy’s mother who took him to the hospital said he had blood all over him and was screaming. She said that his eyes were closed and his face twice its normal size on the day after the bite. She also said there was trouble about the healing of the wounds due to infection. When the person undergoing pain and anguish cannot testify, not much more in the way of evidence can be expected. The only evidence he was permitted to give had to come from observations of others.

Certainly there can be no doubt that this child was entitled to be compensated for his fright and mental pain and suffering which accompanied his physical injury. St. Louis, I. M. & S. Ry. Co. v. Brown, 97 Ark. 505, 134 S. W. 1194; Lamden v. St. Louis Southwestern Ry. Co., 115 Ark. 238, 170 S. W. 1001.

While a motion for new trial is no longer required, no application was made to the circuit court, either for a new trial or for remittitur. The circuit judge was in a far better position to evaluate the evidence in the light of the requisites for declaring a verdict excessive than are we. It seems to me that we should treat this case exactly as did the Third Circuit Court of Appeals in Zarek v. Fredericks, 138 F. 2d 689 (1943), where Judge Goodrich, speaking for the court, said:

The $4,000 awarded to the minor plaintiff, Vincent, seems somewhat high. There is evidence of medical treatment following the dog bite which, while no doubt painful, was not serious enough to require hospitalization. The eyesight is not impaired; on the other hand there is a slight droop of one eyelid. There are scars and they may be permanent. There is also testimony from a physician, the mother, and from a former principal of the boy’s school with regard to his nervous condition following the accident. It must be borne in mind that the injuries were non-pecuniary in their nature and to measure them by a yardstick of dollars is a difficult task at best. That is the jury’s function. Here the jury has made its award and the trial judge was not dissatisfied with it. We do not think under these circumstances that the award, while overliberal, is so outrageous that we, as an appellate court, may interfere.


source: Caselaw Access Project

author: J. Fred Jones, Justice.

license: Public Domain

text:
    Wyman Middleton, d/b/a MIDDLETON AND SONS PACKING COMPANY v. Jack Cato, d/b/a FROZEN FOOD LOCKERS
    5-5685
    474 S.W. 2d 895
    Opinion delivered January 10, 1972

      Hodges, Hodges &r Hodges, for appellant.

      Ponder, Lingo ér Hilburn, for appellee.
   J. Fred Jones, Justice.

This is an appeal by Wyman Middleton, d/b/a Middleton and Sons Ricking Company, from a judgment of the Lawrence County Circuit Court in favor of Jack Cato, d/b/a Frozen Food Lockers, in a suit filed by Middleton against cato for damage to meat stored in Cato’s cold storage locker plant.

On or about June 27, 1967, Middleton stored 18,550 pounds of meat in Cato’s frozen food locker plant at Walnut Ridge, Arkansas, and paid $185.50 as storage charges for one month. Sometime in the latter part of August, when Middleton removed his meat from Cato’s plant, the meat was completely spoiled and was in a high state of putrefaction. Middleton filed suit against Cato for the loss of the meat and claimed damages in the amount of $12,000. Cato filed a general denial and counterclaim alleging that the meat was spoiled when Middleton delivered it to the Cato plant; that Middleton overloaded the facilities of Cato’s plant and assumed the risk of the meat spoiling; that Middleton agreed to take a major portion of the meat out of the plant within a matter of several days, but failed and refused to do so. Cato claimed damage to his physical plant and to his business in the amount of $15,000.

Judgment was entered on a jury verdict for Cato on the complaint and for Middleton on the counterclaim. On his appeal to this court Middleton relies on the following points for reversal:

“The trial court committed reversible error in giving defendant’s requested instruction No. 1.
The trial court erred in failing to give plaintiff’s instruction No. 3.
The trial court should have declared a mistrial when the absence of insurance was mentioned, and it was reversible error to instruct the jury about the word ‘insurance’ over objections of the plaintiff.”

We agree with the appellant that the trial court erred in giving defendant’s requested instruction No. 1. Consequently, we are of the opinion that the trial court did not err in failing to give plaintiff’s instruction No. 3. We find no merit in the appellant’s contention that the trial court should have declared a mistrial when the absence of insurance was mentioned, but we are of the opinion that the trial court’s instruction to the jury on the evidence pertaining to the word "insurance” might well have been a comment on the evidence, and that the instruction should not have been given under the circumstances in this case.

There is no question that the meat was completely ruined when Middleton took it out of Cato’s plant about the first of September, and there is no question that the temperature where the meat was stored had been maintained at above freezing temperature while the meat was there. Middleton’s evidence was directed to his contention that his meat was frozen solid when it was delivered to Cato’s plant and it was because of Cato’s negligence that proper temperature was not maintained in his plant, and as a result the meat spoiled. Cato’s evidence was directed to his contention that Middleton agreed to assume all risks of damage to his meat while it was in Cato’s storage plant; that Middleton assumed all risk of damage or loss as a consideration for the privilege of storing the meat; that the meat was not frozen and packaged properly when it was delivered for storage; that some of the meat had already spoiled when Middleton delivered it for storage; that Middleton’s own employees . improperly stacked the boxes of meat from the floor to the ceiling without use of pallets or other means of air circulation, and that they negligently overloaded the refrigeration capacity of Cato’s storage facilities. Both Middleton and Cato offered the testimony of several witnesses in support of their opposite contentions, but their testimony will not be set out in detail here for the reason that most of it is not important to the conclusion we reach.

We now discuss the points in the order presented. Defendant’s instruction No. 1 given by the court is as follows:

“If you find that Middleton, or any of his employees, at the time the first meat was deposited was told that it was being left at Middleton’s risk, then you would find for Cato.”

Middleton seems to have proceeded at the trial on the theory of tort liability with assumption of risk as a defense, while Cato seems to have proceeded under the theory that Middleton agreed to absolve Cato of all liability in connection with the storage of the meat. Under either theory there is no question that Cato was a bailee of the meat involved in this case.

Mr. Cato did not discuss the contract with Middleton at the time it was made, but according to his testimony as well as that of his plant manager, Jewel Thorn, he authorized Thorn to make the agreement with Middleton for the storage of the meat. According to Mr. Thorn the contract was made with Middleton in a telephone conversation as testified by Thorn as follows:

“A. Well, I told Mr. Middleton on the telephone that he would put it in there at his own risk and to bring his own labor to handle it, that we wouldn’t have no part of it.
_<>. .y.
iF “ TV
A. He asked me if we had insurance on that kind of stuff and I told him strictly not, that we didn’t do that type of business and it was at his own risk.
# # #
Q. Did Mr. Middleton agree to those terms?
A. Yes, sir, he said he would bring the meat up there, he was glad to eret a place to put it.”

Mr. Middleton denies that he agreed to assume the risk of his meat spoiling while it was stored in Cato’s plant, so approaching the problem under Cato’s theory, the legal question involves the limitation placed on Cato’s liability by the contract under which Middleton stored the meat in Cato’s plant at Middleton’s own risk. In 175 A. L. R. § 58, at page 119, is found the following:

“The well-known rule of construction to the effect that contracts exempting one of the contracting parties from liability for his own negligence will be construed strictly against the claimant has frequently prevented the escape of negligent bailees from liability in cases where the terms of the contract of bailmant did not expressly refer to negligence. In any event, however, there is unanimity among the courts in respect to the rule that a bailee cannot exempt himself by contract from the consequences of his own fraud or gross negligence.”

In 17 C. J. S., Contracts, § 262, pertaining to Agreements Exempting from Liability for Negligence, is found the following:

“Contracts of this nature are not favored by the law; they are strictly construed against the party relying on them, and clear and explicit language in the contract is required to absolve a person from such liability.”

In 92 A. L. R. 2d, at page 1298, is found an annotation concerning “Liability of warehouseman for injury to stored goods as result of failure to maintain proper temperatures,” and at page 1319 under subsection 4 [b], pertaining to “Provisions limiting warehouseman’s liability for negligence,” is found the following:

“Contractual provisions purporting to limit the warehouseman’s liability for negligence in maintaining proper temperatures are ordinarily given close scrutiny by the courts and unless it appears that they were bargained for or were inserted in good faith and with adequate notice to the depositor, will be strictly construed against the warehouseman if enforced at all.”

Under this statement are cited many cases including Arkansas Power & Light Co. v. Kerr, 204 Ark. 238, 161 S. W. 2d 403, involving the failure of the defendant in the operation of an ice house, to maintain proper temperatures for the preservation of eggs under a contract disclaiming responsibility for the condition of the eggs while in storage. We held this provision of the contract unenforceable,

“if by it appellant sought to relieve itself from consequences of its negligence. A consciousness that failure to exercise due care will require compensation for injury to person or property is productive of caution and forethought by those in whose control rest the agencies that may cause damage; hence, public policy is involved when one employing another seeks protection through the instrumentality of contract, although within appropriate limitations not here an issue, conduct and the consequences of physical activities may be circumscribed.”

Of course, in Kerr, as in most of the warehouse cases, the contract was in printed form and served also as a warehouse receipt. We did not say in Kerr, and we do not say now, that it is impossible to avoid liability for negligence through contract. We do say, however, that in order to avoid liability for negligence under a contract, the contract must at least clearly set out what negligent liability is to be avoided.

In the case at bar the verbal agreement, as testified to by Thorn, said nothing at all about the temperature in Cato’s plant, but simply stated in broad terms that Middleton would have to place the meat in Cato’s plant at his own risk and furnish the labor in placing it there. There were many risks involved in the storage of the meat under the evidence in this case. There was the risk in stacking the meat on the floor without pallets and without proper and sufficient air circulation. There was the risk of storing the meat in improper packages and containers, and in a thawed or improperly prefrozen condition. There was the risk of fire, electrical and windstorm damage, and, of course, there was the risk of negligent operation of Cato’s plant.

The contract, as related by Cato, does not state what risk Middleton was to assume. In any event, we are of the opinion that such vague contract does not, as a matter of law, relieve Cato of all liability for any and all negligence on his part in connection with the storage and preservation of the meat. The mere fact Middleton was told that he was to place the meat in Cato’s locker at his own risk and to bring his own labor to handle it, does not, as a matter of law, entitle Cato to a verdict under the conflicting evidence in this case. Such would be the binding effect of defendant’s instruction No. 1 and the trial court erred in giving it.

As to Middleton’s second point, his requested instruction No. S is as follows:

“If you should believe Cato stored the meat of Middleton’s on the conditions as stated by Cato, Cato is still required to avoid wilful and wanton negligence in the care and preservation of Middleton’s meat.”

This instruction was apparently offered to relieve the binding effect of defendant’s instruction No. 1 and since the question is not likely to arise at a new trial, wé deem it unnecessary to further discuss the assignment under the second point.

As to Middleton’s third point, prior to the trial he made a motion in chambers as follows:

“We make a motion in limine to restrict any mention or question about insurance or any relationship of insurance in this case, with either having it or not having any insurance.”

This motion was denied by the trial court, and in the course of Mr. Thorn’s direct examination, after testifying that he advised Mr. Middleton that he would have to store the meat at his own risk and furnish his own labor in handling it, the record reveals question and answer and objection as follows:

“Q. Why was it that you told him that? Was that your own idea about it?
A. He asked me if we had insurance on that kind of stuff and I told him strictly not, that we didn’t do that type of business and it was at his own risk.”

A motion was made for mistrial as follows:

“We move at this time for a mistrial on the basis of the mention of insurance, or not having insurance, and it is so prejudicial and it cannot be cured by instruction to the jury and we move for a mistrial.”

There is nothing in the above testimony or in the record of this case indicating that Cato’s attorney purposely or intentionally elicited the above testimony pertaining to lack of insurance from witness Thorn, and we hold that the trial court did not commit reversible error in denying Middleton’s motion for a mistrial. The attorney’s purpose and intentions are not quite so clear however, in requesting Cato’s instruction No. 2 as follows:

“You are instructed that in the testimony of Jewel Thorn you have heard the word ‘insurance.’ You are not to be influenced in any manner or degree by the reference to ‘insurance.’ The use of the word was permitted only because it was a part of the conversation that the defense contends set out the terms of the contract between the parties.”

We are of the opinion that this instruction at least, amounted to a comment on the evidence when given at Cato’s request over Middleton’s objections, and we are of the opinion that it should not have been given.

The judgment is reversed and this cause is remanded for a new trial.


author: Carleton Harris, Chief Justice.

text:
    STATE of Arkansas v. Mary Jo DIMLER, Kela Mae NOLEN and Jimmy Bennett WALTHALL
    5645
    475 S.W. 2d 152
    Opinion delivered January 17, 1972

      Ray Thornton, Attorney General, for appellant.

      Harold Hall, for appellees.
   Carleton Harris, Chief Justice.

On April 8, 1971, the State of Arkansas filed a felony information against appellees in which they were charged with the crime of keeping and conducting a gambling house on March 20, the case being numbered 73231. On May 4, another information was filed against the appellees, charging them with the same offense, and differing only in that it was charged that the offense occurred on March 5 and 6. This was case number 73369. One week later on May 11, a third information was filed against appellees, in case number 73409. The charge differed from the second information only by specifically naming persons from whom bets were taken, no such allegation having been made in either of the first two informations. On this same date of May 11, after a jury was empaneled and seated to try case number 73231 (the case alleging the offense on March 20), the state moved to dismiss the charges, and the court granted the motion. Thereafter, on June 25, case number 73409 was called for trial, and upon a plea by appellees of former acquittal, the charge was dismissed by the court. From such order, the state brings this appeal.

The state argues only one point for reversal in its brief, and this opinion is directed to that point only. For the purposes of this appeal, the state concedes in its brief and argument that all three informations relate to the same offense, not separate and distinct ones. The state contends that appellees were never in jeopardy on the charges in case 73409, solely because the information in 73231, which was dismissed on the state’s motion after the jury was empaneled, had already been superseded by the filing of the second and third informations and was no longer a viable charge against the defendants; that they could not have been properly tried on this information because it had been superseded. This, says appellant, means that appellees were never placed in jeopardy as a result of the “trial” in case 73231. This argument is based upon the provisions of Ark. Stat. Ann. § 43-1031 (Repl. 1964), which reads as follows:

“If there shall be, at any time, pending against the same defendant, two (2) indictments for the same offense, or two (2) indictments for the same matter, although charged as different offenses, the indictment first found shall be deemed to be suspended by such second indictment, and shall be quashed.

As case authority for its position, the state cites Hudspeth v. State, 50 Ark. 534, 9 S. W. 1, and Bethel v. State, 162 Ark. 76, 257 S. W. 740.

These cases are not applicable, though both relate to the grand jury finding a second indictment (where the first had been destroyed or lost) but in neither instance had the defendant gone to trial on the first indictment. Also, the statute cited by appellant is not self-executing, i. e., the first indictment is not automatically suspended or superseded when a second information is filed, but only after an order has been entered. As long ago as 1846, this court, in the case of State v. Barkham, 7 Ark. 387, passed upon an identical statute, and quoted it at the outset of the finding which is pertinent to this appeal, as follows:

“ ‘If there shall be at any time pending against the same defendant two indictments for the same offense or two indictments for the same matter, although charged as different offenses, the indictment first found shall be deemed to be superseded by such second indictment and shall be quashed.’ This statute simply declares the effect of the pendency of another prosecution, but this would not authorize the court to take judicial notice of the fact. A party wishing to avail himself of the pendency of another indictment, or any other matter dehors the record would most unquestionably be required to bring such matter before the court by an appropriate plea. * * *”

It is thus apparent that the court must enter an order quashing the first indictment or information before the provisions of the statute become effective; indeed, the statute itself uses the language "shall be quashed”, and even then, such action would have to be taken before a trial of the defendant on that information. In State v. Clark, 32 Ark. 231, Clark was tried for stealing certain articles, convicted of stealing some of the articles, but acquitted on others. A new trial was granted Clark relative to his conviction on stealing part of the property. It was then shown to the court that another indictment had been subsequently found by the grand jury against the defendant for the same offense, and the court ordered that the first indictment be quashed. To the second indictment, the defendant pleaded double jeopardy and the court sustained the plea (as to those items wherein he had been acquitted) discharging the defendant and the state appealed. We said:

"The indictment being good on which this acquittal was had, he never could be put in jeopardy again on that indictment, or on any subsequent indictment, for stealing the same articles. The acquittal is a perpetual bar, though the court after granting him a new trial as to the articles which he was convicted for stealing, and after the second indictment was found, quashed the first indictment on which he was tried. The court could not deprive him of the bar by quashing the indictment, for the reason that a second indictment had been found for the same offense [emphasis supplied], and not because the first indictment was bad.”

Here, the second and third informations were for the same offense, and the information being valid on which the acquittal was had, appellants could not be put in jeopardy again on that information or any subsequent information for committing the same act.

Affirmed.

      “PULASKI CIRCUIT COURT FOURTH DIVISION
      MARCH TERM 1971
      TUESDAY, MAY 11, 1971
      STATE OF ARKANSAS 73231 vs. JIMMY WALTHALL DILA MAE NOLEN MARY JO DIMLER
      This day comes the State of Arkansas by James Guy Tucker, Prosecuting Attorney, and comes the defendants in proper person and by their attorney, Harold Hall, and defendants having previously entered pleas of not guilty, both parties announce ready for trial, thereupon come twelve (12) qualified electors of Pulaski County, viz: Charles Harper, Mrs. Ruth Robinson, Lewis Dukes, Mrs. Francis Mayham, George Vandergrift, Rev. J. V. Cooper, Charles Richeson, Fred Bowen, Mrs. Wanda Anthony, Mrs. Pat Blass, John M. Gardner, and Cletis Overton, who are empaneled and sworn as a trial jury in this case and on motion of the State, the charge herein is dismissed and defendants discharged; whereupon the Court doth discharge the Jury from this case.”

      As to what point jeopardy attaches, see Jones v. State, 230 Ark. 18, 320 S. W. 2d 645.

      3The state may validly charge by information rather than by indictment. See Stewart v. State, 241 Ark. 4, 406 S. W. 2d 313.

      In the statute in effect in 1846 (Digest of the Statutes of Arkansas by English), this word is “suspended”. Apparently, the writer of the opinion, in copying the statute, erroneously used the word “superseded”. In usage today, the word “suspended” generally means “temporarily debarred, inoperative, held in abeyance”. Webster’s Third New International Dictionary. At any rate, whichever word is used, there is a requirement that an order quashing the first indictment must be made before it is completely inoperative.


author: George Rose Smith, Justice.

text:
    Undra FURLOW v. STATE of Arkansas
    5641
    475 S.W. 2d 524
    Opinion delivered January 17, 1972
    [Rehearing denied February 21, 1972.]

      Bruce Bennett and Thorp Thomas, for appellant.

      Ray Thornton, Attorney General; James A. Neal, Asst. Atty. Gen., for appellee.
   George Rose Smith, Justice.

The appellant, charged with murder in the second degree, was found guilty and sentenced to imprisonment for fifteen years. He questions the sufficiency of the evidence and several rulings made by the court.

The evidence is amply sufficient to support the verdict. The appellant, Undra Furlow, and the decedent, Curtis Lumsey, had been shooting dice with several other persons in a beer tavern in Union county. A quarrel about money arose between Furlow and Lumsey. There is some dispute about whether Lumsey drew a knife from his pocket, but there is no question about Fur-low’s having drawn a pistol from his own pocket. In fact, Furlow admitted that fact in his testimony at the trial, though he also insisted that the weapon would not fire and that someone else in the room must have shot Lumsey. While no witness for the State testified that Furlow fired the fatal shot, there was an abundance of proof from which the jury might have so found. Moreover, the State introduced a confession in which he stated that he shot Lumsey. In similar cases we have held the State’s proof sufficient to sustain the conviction. Mumphrey v. State, 251 Ark. 25, 470 S. W. 2d 589 (1971); Murchison v. State, 249 Ark. 861, 462 S. W. 2d 853 (1971).

With respect to the confession, the appellant argues that the court erred in not submitting the issue of its voluntariness to the jury. There was no such request. The court conducted a Denno hearing in chambers and found, upon sufficient evidence, that the confession was admissible. That is all the statute requires. Ark. Stat. Ann. § 43-2105 (Supp. 1969).

We find no abuse of discretion in the court’s action in permitting the prosecuting attorney to treat the defendant’s father as a hostile witness, nor any prejudice even if the ruling had been erroneous. See Taylor v. State, 82 Ark. 540, 102 S. W. 367 (1907). Finally, there was no error in the court’s failure to instruct the jury upon the law of self-defense, not only because no such instruction was asked but also because Furlow testified positively that he did not shoot Lumsey at all and so could not have consistently urged that he acted in self-defense.

Affirmed.


text:
    Eugene B. HALE, SR. et al v. William H. HAYS et ux
    5-5738
    475 S.W. 2d 145
    Opinion delivered January 17, 1972

      Hale, Hale, Fincher ix Hale, for appellants.

      James H. Pilkinton, for appellees.
   George Rose Smith, Justice.

On February 24, 1969, the appellants, Eugene B. Hale, Sr., and his son, orally agreed to sell to the appellees, William H. Hays and his wife, a city lot in Prescott. On the same day the buyers paid the agreed purchase price of $1,500. During the next seven months the sellers unsuccessfully attempted to have a city water main extended to the lot in question, for without water services the purchasers could not obtain a building permit for the construction of a house on the property.

Finally, on September 25, 1969, the purchasers, having failed to obtain a conveyance of the property, brought this action for breach of contract. They sought $7,000 in damages. The defendants filed a counterclaim for $11,225, on the theory that the plaintiffs had broken their promise to build on the lot a beautiful brick home that would have enhanced the value of the rest of the sellers’ property, which they intended to develop as a residential subdivision. The issues were submitted to a jury, which returned a $7,901.25 verdict for the plaintiffs. The appellants assert three principal arguments for reversal, with other subordinate contentions.

First, the sellers insist that the purchasers failed to prove a contract enforceable under the statute of frauds. Ark. Stat. Ann. § 38-101 (Repl. 1962). It is true that in the first instance there was no memorandum sufficient to satisfy the statute. Later on, however, the purchasers decided that they needed an additional 25 feet of frontage. The sellers agreed to that proposal, the price being increased proportionately. In that connection the sellers sent the purchasers a detailed letter which we find to have been sufficient, with other correspondence, to take the contract out of the statute.

It was admitted by counsel during the oral argument that the letter in question satisfied the statute except with respect to (a) the date on which the buyers were to pay an additional $375 for the extra '¿b feet of frontage and (b) the sellers’ obligation to obtain water service for the property.

As to objection (a), the sellers’ letter closed with this paragraph: “Based on the original price of $1,500.00, and then adding 25 feet by 150 feet, I believe the figures check to be that an additional amount of $375.00 will be due. Please check these figures, and if there are any questions, please let us know.” This postscript was then added: “Both deeds will be ready for you at 4 p.m. this Friday.”

To support their argument the appellants cite Arkansas cases which state in general terms that the memorandum must show the price to be paid and the time for payment. Perrin v. Price, 210 Ark. 535, 196 S. W. 2d 766 (1946; St. L., I. M. & S. Ry. v. Beidler, 45 Ark. 17 (1885). That rule, however,'applies to cases in which the parties’ oral agreement contemplates some deferment in the payment of all or part of the purchase price. See Restatement, Contracts, § 207, Illustration 3 (1932). We think the following to be a correct statement of the law: “Nevertheless the true doctrine of most of the jurisdictions. in question seems to be simply that the time or times of payment must appear from the writing when deferred payments, or at least some substantial delay in payment, was agreed upon.” Annotation, 23 A. L. R. 2d 190 (1952).

Our decision in Kempner v. Gans, 87 Ark. 221, 111 S. W. 1123, 112 S. W. 1087 (1908), is in accord. There the memorandum contained this recital: “Price to be $35,500.00, payable $10,000.00 cash and balance to be arranged to satisfaction of owners.” Since the reference to the “owners” meant the sellers, we held the memorandum to be sufficient, because the sellers could have insisted upon a cash payment of the entire sum. Thus there was no agreement for deferred payments. Similarly, in the case at bar there is no intimation that the parties intended that the $375 payment be deferred. To the contrary, the purchasers paid the original $1,500 in cash; so it may fairly be inferred that the additional $375 was to be paid when the deeds were delivered on the specified Friday.

As to objection (b), the sellers recognized in other correspondence their duty to obtain a water line to the property. On April 28, 1969, one of the sellers wrote to the mayor of Prescott, asking that city utilities be provided for the lot. In sending a copy of that letter to the buyers the writer added this signed postscript: “Please be assured that you will have the utilities needed — and I will file a lawsuit at no cost to you if it becomes necessary.” Again, on July 14 the elder Hale wrote to the purchasers, stating among other things that the sellers had worked out an agreement with the city council for a water line, “and we agreed to pay $2,327.00 out of our pocket for same, in order that you would have adequate fire protection, and the water for your home.” The water line was never actually completed, but we find no want of compliance with the statute of frauds.

Secondly, the appellants insist that the court erred in allowing the jury to consider, and to include in the verdict, special damages not fairly in contemplation of the parties when the contract was made. Chicago, R. I. & P. Ry. v. King, 104 Ark. 215, 148 S. W. 1035 (1912). The plaintiffs’ proof of damages covered many items, including the original purchase price, the cost of sand and dirt used to level the lot, a penalty paid to a contractor who had agreed to build a house on the lot, increased building costs incurred in the construction of a house elsewhere, rent for living quarters while the plaintiffs were delayed in building a home, and storage charges for, and damage to, household furniture during that delay.

This issue cannot be raised for the first time on appeal. All the questioned items were specifically pleaded by the plaintiffs. The defendants allowed the evidence to be introduced without objection. No request was made for an instruction withdrawing any item from the jury’s consideration. It would be manifestly unfair to the plaintiffs, to the trial court, and to this court to allow the defendants to obtain a new trial at this late date, after they stood by without objection and permitted the plaintiffs, their attorneys, and the courts to devote time and expense to the trial of the case. Consequently it is our settled rule that where no objection to evidence is made in the trial court, its admission cannot be assigned as error on appeal. Caddo Transfer &Warehouse Co. v. Perry, 174 Ark. 1030, 298 S. W. 337 (1927); Scott v. McCraw, Perkins & Webber Co., 128 Ark. 397, 194 S. W. 230 (1917). In decisions specifically applicable here we have held that a party cannot assert on appeal that the trial court applied an incorrect measure of damages, where no objection was made to the evidence or to the instructions. St. Louis—S. F. Ry. v. Friddle, 237 Ark. 695, 375 S. W. 2d 373 (1964); Wolff v. Alexander Film Co., 186 Ark. 848, 56 S. W. 2d 424 (1933).

Thirdly, the appellants are correct in contending that the amount of the verdict should not be permitted to exceed the sum sued for. Turner v. Smith, 217 Ark. 441, 231 S. W. 2d 110 (1950). We cannot sustain the appellees’ suggestion that the pleadings be regarded as having been amended to conform to proof that was introduced without objection. The defendants could not have successfully objected to any item of damages on the ground that it brought the total above the amount prayed for in the complaint, because the plaintiffs were entitled to introduce all their elements of damage in the hope that some of them would be favorably considered by the jury. Where, as here, the record does not support the amount of the judgment, our practice is to reduce the judgment to the highest allowable figure and to affirm it as so modified. Brickey v. Lacy, 245 Ark. 860, 435 S. W. 2d 443 (1968). The amount of the judgment will therefore be reduced to $7,000.

Fourthly, as a subordinate contention the appellants argue that the circuit court should have granted a new trial for newly discovered evidence. It is enough to say that we perceive no probability that the added proof would have changed the result. Yellow Cab Co. v. Dossett, 244 Ark. 554, 426 S. W. 2d 792 (1968). The appellants’ remaining contentions are not of sufficient merit to warrant discussion.

Modified and affirmed.


author: Lyle Brown, Justice. John A. Fogleman, Justice,

text:
    ARKANSAS LOUISIANA GAS CO. v. M. H. VERSER et ux
    5-5689
    475 S.W. 2d 148
    Opinion delivered January 17, 1972

      James C. Cole, for appellant.

      Weldon O. Epperson, for appellees.
   Lyle Brown, Justice.

Appellant Arkansas Louisiana Gas Company by eminent domain acquired a right-of-way across 158 acres of land belonging to M. H. Verser and wife, appellees. Appellant poses three points for reversal and we shall successively list and discuss them

Point I. The court erred in allowing testimony of damages by way of alleged trespass outside the right-of-way described in the taking. No answer alleging special damages was filed. The right-of-way description set out in the complaint of taking described a strip sixty feet in width, reverting to forty feet after construction. Over the timely objections of appellant, three witnesses for appellees testified that appellant cut a swath far in excess of sixty feet in numbers of places. M. H. Verser testified (as abstracted) that shade trees were cut “and nice level places I could have used and developed alongside the right-of-way. The right-of-way in width runs all the way from sixty-five feet to 125 feet. What Lam trying to say is that I was damaged other than the right-of-way.” Lloyd Hardage testified: “[T]he width where the timber had been bulldozed off when this line was laid figures from sixty-five to 112 feet. I measured it. I would say it would average eighty to eighty-five feet in width.” Witness Arlin Jones testified: “I measured the gas line through the forest and woods at some twenty to twenty-five places with a hundred foot tape. Maybe a place or two. I found it sixty-five feet in width and it runs all the way up to 100 feet, averaging about eighty feet.” Since the right-of-way traversed diagonally 158 acres of land it can be seen that those witnesses were testifying to considerable damages due to leveling and bulldozing a substantial amount of acreage outside the legal right-of-way. To all of the recited evidence the appellant objected, moved for mistrial, and in the alternative asked for a continuance in order that appropriate defenses could be prepared. All of those requests were denied. The court fell into error.

In the early case of Railway v. Hunt, 51 Ark. 330, 11 S. W. 418 (1888), it was pointed out that the landowner is not required to file an answer unless he is claiming special damages not in contemplation on filing the petition. See Arkansas State Highway Comm’n. v. Lewis, 243 Ark. 943, 422 S. W. 2d 866 (1968). Then in Bradley v. Keith, 229 Ark. 326, 315 S. W. 2d 13 (1958), this court said that if a landowner claimed such special damages as the cost of building and maintaining fences along the strip of land taken, the claim should be pleaded. A case very much in point is Arkansas State Highway Comm’n. v. Schmoll, 245 Ark. 21, 430 S. W. 2d 852 (1968). At the trial, and without a special pleading to that effect, Schmoll was allowed to offer proof to the effect that the highway department was taking more land than was described in the taking. In the case at bar the landowners were allowed to offer proof that the taking constituted more lands than were described in the taking. In Schmoll we said that special damages such as that raised by the landowner should have been pleaded.

Appellees contend that the value of lands taken, together with any damages to the remainder is a well-recognized rule to achieve just compensation and does not have to be pleaded. That is true as to the diminution in value to the remainder which is reasonably expected to result because of the severance. But when special damages are alleged to arise, such as construction damages to lands not within the taking, those damages must be pleaded. It is only fair, as was said in Schmoll, supra, that allegations of special damages be “brought out in the open” before the day of trial in order that reasonable time be allowed for preparation.

Point II. It was error to permit the owner’s opinion of values to go to the jury. If a landowner has an intimate acquaintance with his property he may give value testimony even though he had no knowledge of other property values. On appeal we review his testimony to determine whether it was substantial. Arkansas State Highway Comm’n. v. Watson, 248 Ark. 422, 451 S. W. 2d 741 (1970). M. H. Verser had lived on or near the lands for forty-six years. He inherited half the lands from his father. He had surveys made for the purpose of selling small homesites, which was conceded to be its highest and best use. For valuation purposes he divided the land into four separate tracts based on topography as it would affect the construction of homes. He fixed a value on the land taken and gave his opinion as to the impact of the right-of-way to the remainder. We find no error in the landowner’s method of calculation.

Point III. There were numerous prejudicial rulings by the trial court. Here we treat only those points which touch on matters likely to arise in the event of another trial. Appellant attacks the admissibility of comparable sales used by experts Hardage and Jones. The witnesses used as comparable the sales of small tracts of acreage for homesites, ranging from 1.7 acres to three acres each. Appellant contends there is no comparability between those sales and the large Verser tract of 158 acres. What the two witnesses were attempting to do was to determine what the Verser tract was worth when put to its highest and best use. We find no error. Appellant attacks the testimony of witness Jones as tending to inflame the jury. We do not agree; however, there is merit in appellant’s suggestion that some of the witness’ answers were not responsive to the questions. Error is also suggested in that witness Jones related his experience in paying for gas mains to cross the streets in a sub-division developed by him. It was not improper for an experienced developer to describe the requirement because it is commonly recognized as a regular cost attached to new sub-divisions involving gas mains.

Reversed and remanded.

Fogleman, J., concurs.

John A. Fogleman, Justice,

concurring. I agree that the landowner in this case should have filed a pleading to assert his claim for damages to his lands outside the boundaries of the right-of-way described in the condemnor’s complaint. It is not at all clear to me whether the landowner was asserting that the condemnor tortiously damaged this part of his land, during the construction, or that the actions of the condemnor amounted to a taking of lands in excess of that described in the complaint. While I do not agree that the damages claimed by appellee are in the strict sense of the term “special (¿images,” I do agree that, in the absence of some pleading, a plea of surprise might have been anticipated and that a continuance should have been granted.

Procedures in condemnation by appellant are governed by Ark. Stat. Ann. §§ 35-201 — 207 (Repl. 1962). See Ark. Stat. Ann. § 35-602 (Repl. .1962). This procedure requires a petition by the condemnor to the circuit court to have damages for its right-of-way previously surveyed and located and described in the petition. Ark. Stat. Ann. §§ 35-201, 203. This definitely fixes the lands taken for which a jury must determine just compensation. Ark. Stat. Ann. § 35-204. The damages include many elements. See e. g., L. R., Miss. R. & Texas Railway Co. v. Allen, 41 Ark. 431, and cases cited infra.

If construction has been completed at the time of trial, as in this case, the damages to be assessed by the jury are to be based upon the state of facts then existing and viewed in the light of the actual construction and are to embrace all past, present and future damage which the location of the utility may reasonably produce. Springfield & Memphis Railway Co. v. Rhea, 44 Ark. 258. We said there, in rejecting the contention that certain elements claimed were not recoverable because they were attributable to faulty construction, that the law did not favor the splitting up of causes of action or the multiplication of suits for the same injury. Cf. Arkansas State Highway Commission v. Dixon, 247 Ark. 130, 444 S. W. 2d 571. But whether due to proper or improper construction, such damages are not required to be pleaded. Arkansas Central Railroad Co. v. Smith, 71 Ark. 189, 71 S. W. 947.

In Railway v. Hunt, 51 Ark. 330, 11 S. W. 418, we held that an answer was not necessary under these statutes, unless for the purpose of claiming special damages, which were not in contemplation on filing the petition. We said that there was no need for an answer in order to apprise the condemnor what it is expected to pay for in the way of damages to the owner’s lands remaining in the tract from which the right-of-way is taken. An analysis of our decisions leads me to the conclusion that the real test applied by this court is not whether the damages are special, but whether they are attributable to an injury which should be anticipated and of which the condemnor should take notice from the allegations of the petition itself. See Bentonville Railroad v. Stroud, 45 Ark. 278; Railway v. Hunt, supra; Arkansas State Highway Commission v. Lewis, 243 Ark. 943, 422 S. W. 2d 866. See also, Arkansas State Highway Commission v. Wilmans, 239 Ark. 281, 388 S. W. 2d 916; Arkansas Central Railroad Co. v. Smith, supra. The reasoning upon which it is held that no answer is required in such cases is that an answer which merely particularizes damages which may be contemplated from the allegations of the petition is unnecessary. Ft. Smith & Van Buren Bridge District v. Scott, 103 Ark. 405, 147 S. W. 440. We have said that the only purpose of a pleading by the landowner is to prevent surprise. Arkansas State Highway Commission v. Dixon, supra.

In sustaining judgments for elements of damages in cases in which no answer was filed by the landowner, the important consideration seems to be whether the condemnor was taken by surprise and made a specific objection on that account. Railway Co. v. Hunt, supra; Ft. Smith & Van Buren Bridge District v. Scott, supra; Arkansas State Highway Commission v. Dixon, supra; Arkansas State Highway Commission v. Lewis, 243 Ark. 943, 422 S. W. 2d 866.

The matter seems definitely settled in Arkansas State Highway Commission v. Schmoll, 245 Ark. 21, 430 S. W. 2d 852. There, the court did not say, and could not well say, that the landowner’s claim that the area of the unit damaged by the taking was greater than the acreage alleged in the complaint amounted to one for special damages. Still, it was held that the landowner should have apprised the condemnor of the issue as to total acreage involved by answer. An analogy was drawn to our holding that the condemnor’s failure to allege a material fact is prejudicial to the landowner if it puts him at an unnecessary disadvantage in the presentation of its case. See Urban Renewal Agency v. Hefley, 237 Ark. 39, 371 S. W. 2d 141. In Schmoll, the court sustained the condemnor’s contention that the landowner’s failure to plead the difference in acreage claimed by him caused the condemnor to be unfairly surprised.

By analogy to Schmoll, the condemnor was justified in pleading surprise here, however the landowner’s claim is classified. If the condemnor took land which was not the subject of the proceeding filed by it, the landowner had a remedy by an inverse condemnation proceeding or by injunction. Bentonville R. R. v. Baker, 45 Ark. 252; Cairo & Fulton R. R. Co. v. Turner, 31 Ark. 494; Ark. Stat. Ann. § 35-101 (Repl. 1962); McKennon v. St. Louis, I. M. & S. Ry. Co., 69 Ark. 104, 61 S. W. 383; Missouri & N. A. R. Co. v. Chapman, 150 Ark. 334, 234 S. W. 171. See also, Miller Levee District No. 2 v. Wright, 195 Ark. 295, 111 S. W. 2d 469. In such an action the owner could also seek recovery for damages to lands adjoining the right-of-way. Missouri & N. A. Ry. Co. v. Bratton, 92 Ark. 563, 124 S. W. 231. See also, St. Louis, I. M. & S. Ry. Co. v. Theodore Maxfield, 94 Ark. 135, 126 S. W. 83. In any such event a written pleading would have been required.

There is no case, whether with regard to lands inside or outside the limits of the right-of-way, in which railroads or others may injure the property of others by negligent or unskillful exercise of a right without a corresponding liability. St. Louis, I. M. & S. Ry. Co. v. Morris, 35 Ark. 622. See Am. Jur. 2d 408, Eminent Domain, § 478. A landowner is entitled to recovery for damages done to his adjoining lands which ordinarily and naturally result from the taking and use of the right-of-way, and is left to an action in tort only if negligence is involved. Arkansas State Highway Commission v. Steed, 241 Ark. 950, 411 S. W. 2d 17. If resort to a tort action were necessary, a written pleading would also be required. However, in keeping with our holding in Springfield & Memphis Railway Co. v. Rhea, supra, it is desirable that all damages be considered in the same action under whatever label they are to be classified in order to avoid a multiplication of suits, so it should have been possible for the landowner to assert any claim for damages by reason of the condemnor’s torts in regard to the taking and construction in the same action. But a pleading putting the condemnor on notice of such a claim should certainly be required, and in the absence thereof a plea of surprise should receive serious consideration. In my opinion, failure to grant a continuance in this case was an abuse of discretion requiring reversal.

      An answer was filed in this case.

      This was done in this case.


author: Lyle Brown, Justice.

text:
    Billy Ray DAVIS v. STATE of Arkansas
    5652
    475 S.W. 2d 155
    Opinion delivered January 17, 1972

      Floyd J. Lofton and Richard L. Mays, for appellant.

      Ray Thornton, Attorney General; Gene O’Daniel, Asst. Atty. Gen., for appellee.
   Lyle Brown, Justice.

Appellant Billy Ray Davis appeals from a conviction of murder in the first degree for which he received a sentence of life imprisonment. He contends that the court erred (1) in instructing on first degree murder and (2) in refusing to grant a continuance.

On the night of March 10, 1971, Kenneth Pederson, in company with Doyle Randy Burleson, attended a basketball game at Barton Coliseum in Little Rock. As the two men left after the game they walked through a fair exhibit barn which was used as an exit and there they were attacked from their rear by a person wielding a hickory post. According to the State’s evidence the assailant attacked Pederson by striking a violent blow to the head. Pederson died within thirty-six hours as a result of the attack. Appellant escaped by outrunning some bystanders who pursued him. Within a few days he was taken into custody. There was no evidence that appellant and deceased had ever met; particularly was there a total lack of evidence that they had ever had a confrontation of any kind with each other. Appellant is a black boy about seventeen years of age and the deceased was a young white technician and instructor at Arkansas Medical Center.

Appellant contends that there was a total lack of evidence of premeditation and deliberation, both being essential elements of first degree murder. The trial court properly defined deliberation as “a weighing in the mind of the consequences of a course of conduct, as distinguished from acting upon a sudden impulse without the exercise of reasoning powers.” Premeditation, the court said, meant “thought of beforehand. It is immaterial as to just how long premeditation and deliberation exist, but it must exist for a period of time and prior to the homicide.” It has also many times been said the necessary elements of premeditation and deliberation may be inferred from the circumstances as shown by the evidence. Walker v. State, 241 Ark. 300, 408 S. W. 2d 905 (1966). There is another well established rule we follow in resolving the issue before us, that is, we view the evidence in the light most favorable to the State, it being the appellee. Stanley v. State, 248 Ark. 787, 454 S. W. 2d 72 (1970).

There is not one scintilla of evidence to show that the deceased did anything to arouse the appellant’s anger. The weapon selected by appellant is significant. It is a hardwood post about three feet long and tapered on one end. It weighs approximately nine pounds. Appellant pushed one of his friends aside, apparently to enable appellant to get a full swing. The situs on the body which appellant chose to strike is also significant, being the head. The viciousness of the swing of the club was revealed by the physician’s testimony. Appellant struck with such force that the brain was lacerated on both sides. The brain was extensively lacerated, with hemorrhages both in the brain substance and on the cover thereof. The brain disintegrated. After striking the fatal blow appellant threw the post at the friend of the deceased and with such force as to knock him down. Whereupon the appellant fled the scene. The next day appellant went to school. There he was found reading a newspaper “to see if he had killed that man.” We are unable to say that the jury was wrong in inferring premeditation and deliberation.

The second and final point for reversal is that the court erred in refusing to grant a continuance. The appellant took the position that since the trial took place some six weeks after his arrest, newspaper publicity given the incident was so intensive and inflammatory that an impartial jury could not have been selected. The record is silent as to any publicity being given the incident of the homicide and of appellant’s arrest. Of course we can presume that the two Little Rock dailies carried an account of the incidents but, in the absence of some evidence, we cannot presume that the publicity was intense and inflammatory. In examining the jurors’ answers on voir dire we find that many of them had read a newspaper account of the. homicide but that they could not recall the details. Very few of them had formed any opinion about the guilt or innocence of the appellant. Appellant complains that he exhausted his peremptory challenges on prospective jurors who had read one or more newspaper accounts. Before he can be heard to complain he would have to show that he was forced to use his challenges on jurors who were in fact disqualified. We have repeatedly held that the mere reading of a newspaper account of an incident does not disqualify a juror for cause. If a juror has so formed an opinion he is still eligible if he can lay that opinion aside. Rower v. State, 224 Ark. 671, 275 S. W. 2d 887 (1955). There we said:

While it is true that some of the veniremen said that they had formed tentative opinions based upon newspaper reports or what someone had told them, all who were accepted stated that they could and would be guided solely by the testimony, giving to the defendant the benefit of all doubts that the law defines. There was no error in accepting these men. It is no longer practicable in an intelligent society to select jurors from a psychological vacuum or from a stratum where information common to the community as a whole is lacking.

For an extensive treatment of the same subject matter see Glover v. State, 248 Ark. 1260, 455 S. W. 2d 670 (1970).

The same question now before us — pretrial publicity — is found in the case of Perez v. State, 236 Ark. 921, 370 S. W. 2d 613 (1963). There we said the question of granting or refusing a motion for continuance because of a recent newspaper article addressed itself to the sound discretion of the trial court. We are unable to say the court abused its discretion in the case at bar.

The appellant relies on Irvin v. Dowd, 366 U. S. 717 (1961). In that case the United States Supreme Court reversed and ordered a second change of venue. Six murders had been committed and great excitement and indignation were aroused from extensive news media coverage, reciting, among other things, that the accused had admitted the murders. At the trial, 268 of the 430 veniremen were excused because they had fixed opinions of the guilt of the accused. Eight of the twelve jurors selected to try the case admitted they thought petitioner was guilty but stated they could render an impartial verdict. The facts in Dowd are foreign to the case at bar. In our case the presiding judge “bent over backwards” to see that no juror with a fixed opinion would be seated. After the appellant had exhausted his challenges there was one venireman who indicated that he thought a homicide was committed at the time and place in question. The court granted appellant an extra challenge to assist in getting a fair and impartial jury.

In Dowd the court approved substantially the statement we have quoted from Rowe v. State, supra. Dowd goes ahead to point out that the exception applicable is a situation wherein the build-up of prejudice is prevalent throughout the community and is so established by the evidence. Clearly the facts in Dowd are far removed from the facts in the case at hand.

Affirmed.


author: John A. Fogleman, Justice.

text:
    Agnes L. LOVELESS v. GARRISON FURNITURE COMPANY and TRI STATE INSURANCE CO.
    5-5779
    475 S.W. 2d 158
    Opinion delivered January 17, 1972

      Frank W. Booth, for appellant.

      Daily, West, Core ér Coffman, for appellees.
   John A. Fogleman, Justice.

We reverse that part of the judgment of the circuit court which held that appellant was not entitled to workmen’s compensation benefits because she did not show compliance with the requirements of Ark. Stat. Ann. § 81-1313(e) (Repl. 1960), but we affirm that part of the judgment sustaining the Workmen’s Compensation Commission’s holding that she was not entitled to permanent disability benefits.

Appellant was employed by Garrison Furniture Company putting bases on china cabinets. She had complained to the union shop steward that lifting the cabinets was causing her pain and making her sick. On September 12, 1969, she became ill and said that she observed a swelling in the region of her stomach following a considerable amount of lifting. She said that she became deathly sick, experienced sharp pains, thought she was going to black out, left work and stayed away for about three weeks while a doctor ran tests. She told her foreman when she left that she was sick and couldn’t work, and then went to Dr. J. Earle White III. This was the first time she had ever become ill as a result of lifting. She went back to the same job and kept getting sick and taking a day or two off to recover. She had more severe pain in March 1970. She was sick on Saturday and Sunday but returned to work on Monday, March 15, when she again became ill after lifting some china cabinets. She again went to Dr. White and was off work until April 6 or 7, 1970, after which she was changed to lighter work. Neither the claimant, nor anyone in her behalf, gave notice of an injury in September. She actually asserted a claim against United Furniture Workers Insurance Fund, and did not make any claim for Workmen’s Compensation until that claim was denied, partially on the ground that her doctor’s statement showed that her March disability was due to circumstances arising from her employment.

The medical evidence consists of a statement dated September 12, 1969, affirming that Mrs. Loveless was advised not to work for three weeks pending completion of medical evaluation, a letter dated May 11, 1970, and a report dated June 11, 1970, all by Dr. White.

The letter recited that the symptoms related by the claimant on September 12, 1969, were characteristic of a hiatus hernia. They consisted of pain in the epigastrium extending to the back, aggravated by lifting at her job. It also related a return visit by appellant on December 11 because of exacerbation of her epigastric pain to the back and her complaint of a knot under the sternum after she lifted heavy objects at work. Her symptoms were relieved, he related, by Gelusil M given in the office, and he said that medical therapy led to remission of symptoms on both occasions. On her return on March 19, it was revealed to the doctor, according to this letter, that she had a recurrence of the epigastric pain after lifting a 250-pound sack at her work. After, stating that the patient felt that the treatment of her hernia had relieved her symptoms until they returned after she lifted objects, the doctor added:

No x-rays of the stomach were obtained because of her clinically favorable response together with the fact that either demonstration of the hernia or not demonstration of it on x-ray would not affect the clinical evidence of prompt remission of symptoms with therapy. We shall be happy to get an x-ray of her stomach if you require it for your purposes.

The medical reports showed the date of accident as September 12, 1969, office visits on September 12, September 26, December 11, 1969, March 19, and May 25, 1970, diagnosis as hiatus hernia and thyroiditis (the latter not the result of accident), and disability of three weeks and three days, ending April 6, 1970. The treatment recommended was “Librax 1 qid, Gelucil M 15 cc per hour while awake, elevation of head of bed and avoidance of heavy lifting.”

The referee allowed temporary total disability benefits for the periods of September 13, 1969, through September 28, 1969, and March 16, 1970, through April 5, 1970. He denied the defense that the claimant had failed to meet the requirements of the hernia statute on the authority of previous holdings by the Workmen’s Compensation Commission that a hiatal hernia is not a hernia under the Workmen’s Compensation Act. The commission reviewed the claim thoroughly, after which a majority affirmed the referee’s decision, holding that a hiatal hernia is not a hernia within the meaning of Ark. Stat. Ann. § 81-1313(e). It noted that its position had been sustained on appeal to the Pulaski Circuit Court in one case and reversed by the Sebastian Circuit Court in another. In this case, the circuit court followed its earlier precedent and set aside the award made to appellant.

This is the first time this court has been called upon to determine the application of § 81-1313(e) to a hiatal (or hiatus) hernia. In making this determination, the cardinal rule to be observed is that the act be construed liberally and doubts resolved in favor of a claimant. Potlatch Forests, Inc. v. Funk, 239 Ark. 330, 389 S. W. 2d 237. In an earlier case construing this section we held that a prolapse of the uterus with cystocele was not a hernia as that word is used in the statute. Bottoms Baptist Orphanage v. Johnson, 240 Ark. 175, 398 S. W. 2d 544. There we said that the rule of liberal construction required a strict construction of this section, since it was in the nature of an exception. Application of this principle leads us to the conclusion that a hiatal hernia is not a hernia within the meaning of this section, and that appellant’s claim was governed by the general provisions of the Workmen’s Compensation Act and not the special requirements of the hernia section.

Both appellant and the commission rely upon the definition of hiatus hernia in Schmidt’s Attorneys’ Dictionary of Medicine (1969), which is as follows:

A herniation or protrusion through the diaphragm, at the place where the esophagus passes through it. The protruding structure is usually a part of the stomach. The diaphragm is a sheet of muscular tissue stretched transversely within the trunk so as to separate the chest from the abdomen. Since the stomach is below the diaphragm, the esophagus (gullet) must pass through the diaphragm to reach the stomach. (The esophagus or gullet conveys the swallowed food to the stomach.) At the point where the esophagus pierces the diaphragm, there is a weak spot called the hiatus. Occasionally, when this spot is weaker than normal, a piece of stomach may be pushed up through it, intermittently.

In Dorland’s American Illustrated Medical Dictionary, 22nd Edition (1951) the term is defined as the protrusion of any structure through the esophageal hiatus of the diaphragm.

In Bottoms, we expressly postponed the decision whether various types of abdominal hernia came within the purview of this section. Still, in reaching our conclusion there, we followed the general practice in confining the meaning of “hernia” in workmen’s compensation statutes to its popular, and, therefore, more limited sense. There we referred to the Texas cases holding that this word in the statute had a very narrow scope. In Texas Employers’ Ins. Assn. v. Shelton, 161 Tex. 259, 339 S. W. 2d 519, cited in Bottoms, the Texas Supreme Court held that a diaphragmatic hiatus hernia was not such a hernia as contemplated by the Texas statute, noting that the relative ease with which the usual inguinal hernia could be diagnosed and surgically corrected accounted for special legislative treatment of that sort of injury. We noted there that the Texas statute did not seem to restrict the word to the abdominal region, as does ours in requiring that it be shown that the occurrence of the hernia followed as a result of sudden effort, severe strain or the application of force directly to the abdominal wall. Because of this language in the Arkansas statute, and in view of other decisions, we held that the word meant a protrusion of an organ from .the abdominal cavity through an abnormal opening in the abdominal wall. The question before us then really turns upon whether the esophogeal hiatus is an abnormal opening in the abdominal wall. We do not believe that a finding that it is would be justified.

According to Dorland’s Medical Dictionary, the hiatus oesophogeous is the esophageal opening or foremen of the diaphragm — the opening in the diaphragm for the passage of the esophagus and the pneumogastric nerves. In Schmidt’s Attorneys’ Dictionary of Medicine the abdominal wall is defined as follows:

The tissues, composed of skin, fascia, muscles, peritoneum, etc., which make up the wall of the trunk in the region of the abdomen and contain the abdominal organs. Although, technically, the abdominal wall is continuous all around, in the manner of a barrel, the term is generally meant to designate the front and sides of this circumference, especially the front. Moreover, one often hears the term used in the plural, abdominal walls, by which is meant the front and side aspects of the wall.

In defining abdomen as the cavity between the thorax and the pelvis containing the viscera and inclosed by a wall, Dorland’s Medical Dictionary treats the adbominal wall or parietes as being formed by the abdominal muscles, vertebral column and the ilia. In 3 Gray’s Attorneys’ Textbook of Medicine, Third Edition (1971), par. 65.190, we find the following comment:

While the protrusion of some of the abdominal contents into the chest cavity through a defect in the diaphragm (congenital or traumatic) is in the true sense a "hernia,” and incarceration or strangulation of such abdominal contents by the hernial ring. is a serious and emergency condition, this type of congenital defect and especially this type of injury (to the diaphragm) more properly belongs in a discussion of chest injuries, than in a chapter mainly concerned with hernias involving the abdominal wall, inguinal, or femoral rings.

The Workmen’s Compensation Commission quoted from Blair’s Reference Guide to Workmen’s Compensation Law, § 7:00 (1971) as follows:

The term "hernia” as used in these special statutory provisions, is generally defined as a protrusion of an internal organ in whole or in part from its natural position. The term sometimes includes a prolapse of the rectum, diaphragmatic hernias and abdominal hernias, but excludes such herniations as a prolapse of the uterus, ruptured discs (hernia nucleus pulposus), and esophageal hiatus hernias.

We find that the Pennsylvania courts refuse to extend the application of the hernia statute to any purely internal hernia, i. e., one which is not evidenced by any external protrusion. See Kinsman v. R. F. Post Co., 152 Pa. Super. 67, 31 A. 2d 358 (1943); Fye v. Baltimore & O. R. Co., 133 Pa. Super. 550, 3 A. 2d 275 (1938). In Mississippi, the Supreme Court stated without elaboration that exclusion of one type of hernia and inclusion of another would be contrary to the legislative intent. Commans v. Ingalls Shipbuilding Corp., 240 Miss. 373, 128 So. 2d 114 (1961). This position, we said in Bottoms, was inconsistent with the reasoning of the Texas cases relied upon by us. Apparently, a prolapse of the uterus would be within the scope of the Mississippi hernia statute according to their construction. On the other hand, the Supreme Court of Tennessee held that it was not the legislative intent to require that a diaphragmatic hernia be proven according to the terms of the hernia statute. Sullivan v. Green, 206 Tenn. 42, 331 S. W. 2d 686 (1960). That court expressed doubt that the type hernia involved (hiatus) was generally known among the laity when the statute was passed in 1941. See Tenn. Code Ann. § 50-1009 (Repl. 1966). In Pendell v. Westland Life Ins. Co., 95 Cal. App. 2d 766, 214 P. 2d 392 (1950), an esophageal hiatus diaphragmatic hernia was held not to be a hernia subject to a specific indemnity limitation in an accidental bodily injury policy. Even though a statute was not involved, the same construction policy applied, because the clause involved was one limiting indemnity for a hernia.

In the cases holding that the hiatal hernia is not included in the general term hernia, empasis is given to the comparative lower incidence, the more frequent lack of readily discernible physical evidence and the more complex corrective surgery of this type than of the more familiar hernia, such as inguinal. While we certainly would not say that the word hernia in § 81-1313(e) means only an inguinal hernia, we feel that it would be more consistent with the reasoning and result of our holding in Bottoms to say that it was not the legislative intent that a hiatal hernia come within the purview of that section. It was clearly indicated by the physician’s statement in this case that response to appropriate therapy is a more reliable means of diagnosis of a hiatus hernia than even x-ray. This is certainly not the case with the usual hernia. Meeting the requirements of § 81-1313(e) would be difficult in all cases and impossible in most cases where hiatal hernia is involved.

Appellant argues that she should have been awarded permanent disability benefits because her condition will not permit her to do work requiring lifting. She contends that this limitation of activities and employment possibilities causes both physical and economic impairment for which she should receive benefits, saying that appellant did not produce sufficient evidence tion can never be corrected.

The evidence shows that claimant is working for the same employer in the same department, even though she is doing lighter work in the sense that lifting heavy objects is not required. There is nothing to indicate that either the amount of her earnings or her earning capacity was diminished. We cannot say that the Workmen’s Compensation Commission was in error in holding that appellant did not produce sufficient evidence on which to base an award for permanent disability.

That part of the judgment denying temporary disability benefits is reversed and that part denying any permanent disability benefits is affirmed.