author: Paul Ward, Associate Justice. Ed. F. McFaddin, Associate Justice,

text:
    The Housing Authority of the City of North Little Rock, Ark. v. Amsler, Judge
    5-3511
    393 S. W. 2d 268
    Opinion Delivered May 31, 1965.
    [Rehearing denied September 20, 1965.]

      Byron Bogard and U. A. Gentry, for petitioner.
    No brief filed for Bespondent.
   Paul Ward, Associate Justice.

Petitioner, the Housing Authority of the City of North Little Rock, in an eminent domain proceeding, instituted its complaint in the Pulaski County Circuit Court for the purpose of acquiring title to a certain parcel of land, such land belonging to the Arkansas Transportation Company, Inc., a domestic corporation. It was alleged in complaint that the land was necessary (Emphasis added.) for public use in the Authority’s undertaking of constructing low-cost housing, and the complaint set out that the appraised value of said land was $13,500.00. Arkansas Transportation Company did not question the right of the Housing Authority to proceed, but asserted that the land was worth $95,000.00. On trial, the jury returned a verdict of $45,000.00. Thereafter, but before the entry of judgment, the Board of Commissioners of the Housing Authority determined to exclude (Emphasis added.) the property from the housing project, rather than purchase same at the value fixed by the jury, and accordingly filed a motion to dismiss the complaint as to that particular parcel of land. Arkansas Transportation then filed a motion, praying that the court require the petitioner (Housing Authority) to reimburse it in the amount of $14,000.00 for expenses incurred in defense of the action. The court dismissed the complaint (as to lands owned by Arkansas Transportation)in accordance with the motion filed by petitioner, but, with reference to the motion by Arkansas Transportation Company, set a date for a hearing to determine the expenses, if any, to which the company was entitled.

Petitioner, in this action, seeks a Writ of Prohibition to restrain the trial court from conducting the aforementioned hearing, contending that the court has no jurisdiction to award the landowner expenses incurred in the defense of the eminent domain proceeding, and further, that, even though the expenses of Arkansas Transportation were recoverable, such recovery would have to be sought in an independent suit.

In support of the petition two principal arguments are made: (a) The matter of eminent domain is exclusively statutory, and (b), the circuit court (in the absence of a statute) has no authority to assess against petitioner expenses incurred by the property owner.

(a) In petitioner’s brief it is stated:

“The proceeding for the condemnation of lands is not a common-law action, but is exclusively statutory. In the case of Mountain Park Terminal Railway Co. v. Field, 76 Ark. 239, 88 S. W. 897, the Court said:
'The proceeding under our statute is a special one, directed solely to the object of determining the compensation to be paid the owner of property proposed to be taken’. Citing Bentonville Railroad v. Stroud, 45 Ark. 280.”

Petitioner failed, however, to point out that the cases cited in support of this point deal with a special statute relating to railroads — being § § 6545 and 6546 of Kirby’s Digest [Ark. Stat. Ann. § § 73-305 and 73-306 (Repl. 1957) ]. To show conclusively that the matter of eminent domain was cognizable at common law we need only to refer to Nichols on Eminent Domain (1964 Ed.) § 1.12 where it is pointed out that the power to take private property for public use has always been exercised since the days of the Romans. Also, § 1-14 [2] of the same authority, in speaking of eminent domain, states, “It does not require recognition by constitutional provision, but exists in absolute and unlimited form”. To sustain the above the author cites cases from 35 states including the case of Young v. City of Gurdon, 169 Ark. 399, 275 S. W. 890, and Smith v. Arkansas Irrigation Co., 200 Ark. 1022, 142 S. W. 2d 509.

(b) We find no merit in petitioner’s contention that the trial court is powerless (in the absence of a statute) to require it to reimburse the landowner for expenses incurred in the condemnation suit under the facts in this ease. To sustain its contention under this point petitioner quotes extensively from, and relies almost entirely upon, a former decision of this Court in the case of Selle v. City of Fayetteville, 207 Ark. 966, 184 S. W. 2d 58. We have, carefully studied that decision and are not convinced it supports petitioner’s contention. In the first place, the reasoning and the conclusions reached appear to ns to he contradictory. On the one hand, the case seems to hold the trial court had no authority to assess against the condemner expenses incurred by the landowner because there was no statute authorizing it ot do so. On the other hand, the opinion seems to hold that if the landowner could prove bad faith on the part of the condemner then the trial court could assess said expenses .against condemner — overlooking the very obvious fact that there was no statutory authority for such action. We are unable to understand why a statute would not be as necessary in one instance as in the other.

There are also practical and equitable reasons why, in a case like the one here under consideration, the circuit court has and should have the right to require the condemner to reimburse the property owner. To hold otherwise would, in effect, be in violation of Article 2, § 22 of the Arkansas Constitution which says “. . . . private property shall not be taken . . . for public use without just compensation therefor”. It is certainly reasonable to assume that a property owner would be under great pressure to sell his property to the Housing Authority for less money if he knows that otherwise he may have to spend hundreds or thousands of dollars and get absolutely nothing in return. When the Housing Authority (which is supported by taxes) forces a property owner into a state court (which is also supported by taxes) to ask a jury to fix the price it must pay the owner and then chooses to renege merely because the jury verdict is not to its liking, then, we submit, the trial court must have the inherent right to require the Housing Authority to reimburse the owner (for all legitimate and reasonable expenses), otherwise the court is powerless to protect its own processes, the property owners, and the constitution.

There is, in addition to what we already said, another reason why the writ should not be granted in this case. The Selle case (upon which petitioner relies so heavily) holds that the property owner can recover said expenses if he can show the condemner acted in bad faith in refusing to accept the jury verdict. The pleadings in this case show petitioner did not act in good faith. The complaint in the condemnation suit filed by the Housing’ Authority, and sworn to, states that the property involved is being taken in the public interest and is necessary for the public use. (Emphasis added.) Then, without any reason or explanation the Housing Authority merely stated in its motion that it had ‘ ‘. . . determined not to purchase said property at the value affixed by the jury . . . .” In the Selle case, heretofore mentioned, there appears this language:

“Bad faith on the part of the city is alleged, and, if true, constituted a cause of action, which would have entitled the land owners to recover a reasonable attorney’s fee and any damages that may have resulted from placing a cloud upon the title during the period of the existence of the option to purchase the land.”

We are cognizant of the annotation in 92 A.L.R. 2d 355, 366, under the title, “Liability for counsel fees, expenses, and disbursements”, in condemnation cases. The essence of this annotation appears to be that in the absence of statute such fees and expenses cannot be recovered by the landowner, but a careful reading of the annotation and the cases-cited in support, indicates very clearly it does not rule out recovery of expenses if the condemner does not act in good faith. Some of these cases are noted below. In State ex rel. Morrison v. Helm, 86 Ariz. 275, 345 P. 2d 202, 206, we find this statement: “This rule [refusing to allow expenses], however, is subject to the qualification that the condemning party shall have acted in good faith both in instituting and in abandoning the proceedings. . . .” In the case of Hamer v. State Highway Com. (1957, Mo.) 304 S. W. 2d 869, the Supreme Court of Missouri, in considering the same question with which we are concerned here, disallowed the landowner to recover expenses, stating: “But it is held, in the abseoice of bad faith or unreasonable delay . . . .” the landowner is not entitled to recover his expenses. (Emphasis added.) Mentioned also is the Selle case. In the same volume of A.L.R. at page 363, § 4, under the sub-head “Effect of condemner’s bad faith or unreasonable delay”, there appers this statement:

“The rule denying the condemnee’s recovery of damages upon the abandonment of eminent domain proceedings, in the absence of statute, is subject to the qualification that the condemner must have acted in good faith

Many cases, including the Selle case, are cited in support of the quoted rule.

Accordingly the writ is denied and, at the next hearing, the trial court can determine the question of good faith or the lack thereof and also the amount of damages, if any, suffered by the condemnee.

Writ denied.

Robinson, J., concurs; Harris, C. J., and McFaddin, J., dissent.

Ed. F. McFaddin, Associate Justice,

(dissenting). My personal feelings are on the side of the landowner in this case, and in most other eminent domain cases. A citizen buys property with his own money, pays taxes, and improves his property under the belief that his home is his castle. Then one fair day some public agency — be it the Highway Commission, the Housing Authority, or what not —decides to take the citizen’s property because the Legislature has granted such public agency the power of eminent domain!

And what happens ? The citizens is hailed into court; the public agency, with the power of eminent domain, makes the citizen either accept the small amount determined ex parte by the public agency to be the value, or else the citizen, at his own expense, must employ an attorney and fight the public agency to get what the citizen feels he is entitled to receive. Finally, the citizen gets a jury verdict in his favor for the value of the property taken by the public agency; but the citizen does not recover from the public agency the amount the citizen has paid for attorney’s fees; so the citizen is never made whole!

Under the Workmen’s Compensation Law the claimant gets his attorney’s fee' (Ark. Stat. Ann. § 81-1332 [Repl. 1960] ). Under the Insurance Law the policy holder in some cases recovers his attorney’s fee (Ark. Stat. Ann. § 66-514 and § 66-524 [Repl. 1957] ). But the citizen landowner never gets his attorney’s fee from the public agency that takes his property. Why? Simply because the Legislature has never seen fit to enact legislation which gives the citizen landowner his attorney’s fee in condemnation matters; and the matter of awarding attorney’s fee and costs is in the discretion of the Legislature. I think attorney’s fees should be allowed in all eminent domain cases; but my personal feelings do not make the law. I am sworn to enforce the acts of the Legislative Department and to be guided by our former cases. So in the case at bar I lay aside my personal feelings and proceed to view the case as a judge; and, as such, I must dissent from the Majority holding.

There is no sound distinction between this case and our holding in Selle v. City of Fayetteville, 207 Ark. 966, 184 S. W. 2d 58. We there recognized that if the condemnor had not taken possession of the property before the jury’s verdict, then the condemnor, if dissatisfied with the verdict, could dismiss the case. That identical situation exists in the case at bar. We certainly should not overrule the Selle case because the great weight of authority throughout the nation is in accord with our holding in Selle v. Fayetteville, supra. In Nichols on Eminent Domain, Third Edition, Volume 6, § 26.42, cases from a score of jurisdictions are cited to sustain this textual statement:

“In the states in which condemnation is effected by judicial proceedings it is almost universally held that the mere fact that compensation has been assessed does not prevent a discontinuance of the proceedings. In fact, one of the strongest arguments in favor of this method of exercising the power of eminent domain is. the public policy requires the cost of a public improvement to be ascertained before it can be finally determined that it is advisable to undertake the work, and that this cannot be done until the compensation for the land taken has been finally assessed by the jury or other tribunal required by the constitution o rstatutes. The award in such states is merely an offer which the public agency contemplating the work may accept or decline as it sees fit.”

In 92 A.L.R. 2d 355 there is an annotation entitled “Liability, upon abandonment of eminent domain proceedings, for loss or expenses incurred by property owner, or for interest on award or judgment.” In discussing the liability of the condemnor for attorney’s fees, the text on page 366 reads:

“In the absence of a statute expressly imposing liability, it has usually been held that a condemnee is not entitled to a recovery for his attorney fees, expenses, or disbursements in connection with eminent domain proceedings by the federal government or a state government, or by an agency of either, upon the abandonment of the proceedings by the condemnor.”

Page after page of cases are cited and discussed to sustain the above quoted statement. There can be no doubt that the law is, or has been until the present Majority holding, that in the absence of a statute so declaring, the landowner cannot recover attorney fees if the condemnor dismisses the condemnation proceeding. In Romer v. Leyner, 224 Ark. 884, 277 S. W. 2d 66, this Court reaffirmed its statements from earlier cases as follows: “Attorney’s fees are not ordinarily held to be an element of damages which may be recovered for breaches of contract. Attorney’s fees cannot be allowed as costs in suits except as provided by statute, the same being regarded as a provision for a penalty and not to be enforced in the state courts.”

As regards the recovery of expert witness fees, Ave have specifically held that there cannot be a recovery in the absence of statute. Ark. Game & Fish Comm. v. Kizer 222 Ark. 673, 262 S. W. 2d 265, 39 A.L.R. 2d 1372; Ark. State Highway Comm. v. Union Planters Bank, 231 Ark. 907, 232 Ark. 200, 333 S. W. 2d 904, 334 S. W. 2d 879.

To overcome all these cases and reach the result that it desires, the Majority now, in effect, overrules Sello ^ Fayetteville, supra, and also says in effect that when the condemnor dismisses its case thén the Court will consider whether the condemnor was in bad faith in ever commencing the case. Such a holding is contrary to all the cases that I have found; and the Majority Opinion cites no case to support it. To say the least, the Majority holding in this case is certainly legislative enactment by judicial decision. I submit that it would be far better for this Court to follow the law than to start enacting statutes to reach a desired result.

So because, as I see it, the law is clearly against the Majority holding, I must dissent in this case.


source: Caselaw Access Project

author: Sam Robinson, Associate Justice.

license: Public Domain

text:
    Robinson v. Keaton
    5-3601
    393 S. W. 2d 231
    Opinion Delivered May 31, 1965.
    [Rehearing denied September 20,1965.]

      John W. Moncrief, George E. Pike, Milton G. Robinson, Wm. G. Gibson, for appellant.

      Fulk, Wood, Lovett, Parham é Mayes, for appellee.
   Sam Robinson, Associate Justice.

Appellant, Milton G-. Robinson, an attorney, represented appellee, Earl Keaton, in a claim before tbe Workmen’s Compensation Commission. The Commission allowed the claim in the sum of $2,363.50. In addition, there was an attorney’s fee allowed in the amount of $536.25. In the beginning, appellant and appellee had agreed to pool the total amount allowed by the Commission and to divide it equally. This was done, and appellant, therefore, received a fee in the sum of $1,449.25 for representing appellee in his claim before the Commission.

Later, Keaton took up with the Commission the question of whether he had been charged an excessive fee.. The Commission was of the opinion that there could be no valid contract for an attorney’s fee that was not approved by the Commission; that Ark. Stat. Ann. 81-1332 (Repl. 1960) is controlling as to the amount of attorney’s fee allowable in Workmen’s Compensation cases; that the Commission had allowed the maximum fee permitted by statute — $536.25, and since the attorney had collected as a fee $1,449.25, he should refund $913.00 to the claimant. The Commission entered an order to that effect, and further ordered that if the attorney failed to make the refund within thirty days the matter should be certified to the Circuit Court for contempt of court proceedings as provided in Ark. Stat. Ann. 81-1331 (Repl. 1960).

The attorney, Mr. Robinson, appealed to the Circuit Court. There, after fully considering the entire matter, the court entered judgment for Keaton in the sum of $913.00.

First appellant contends that the Workmen’s Compensation Commission did not have jurisdiction to determine whether the contract between the parties that appellant should have as his fee fifty per cent of all sums recovered, is valid, and that, therefore, the Circuit Court in this proceeding did not have jurisdiction.

There is no genuine issue of a material fact. The issue is the applicability of the statute regulating attorney's fees in a case of this kind. In the interest of justice, the proceeding may be treated as one for a declaratory judgment. Johnson v. Ford, 233 Ark. 504, 345 S. W. 2d 604; Culp v. Scurlock, 225 Ark. 749, 284 S. W. 2d 851. There is only an issue of law. Is Ark. Stat. Ann. § 81-1332 controlling as to fees that an attorney may charge for representing a claimant in a workmen’s compensation case? If the statute is controlling, appellant charged an illegal fee and appellee is entitled to judgment for the excessive charge, which, in this case, amounts to $913.00.

Ark. Stat. Ann. § 81-1332 (Repl. 1960) provides: “Fees for legal service rendered in respect of a claim shall not be valid unless approved by the Commission, and such fees shall not exceed thirty per centum (30%) on the first one thousand dollars ($1,000.00) of compensation, or part thereof, twenty per centum (20%) on all sums in excess of one thousand dollars ($1,000.00), but less than two thousand dollars ($2,000.00) of compensation, and ten per centum (10%) on all sums of two thousand dollars ($2,000.00) or more of compensation. ...”

Our view is that the statute regulating the amount of attorney’s fee that may be charged in a case of this kind is so clear that it admits of no doubt. First, the fee charged must be approved by the Commission, and then the Commission is limited as to the amount that may be allowed. In the case at bar, the Commission did not approve the fee charged, and it was in excess of the amount allowed by statute. The great weight of authority is in accord with the view we have expressed. Sarja v. Pittsburg Steel Ore Co., 191 NW 742; Terrell v. Wardlaw, 59 NE 2d 59; May v. Charles Hoertz & Son, et al, 170 NW 305; McCamey v. Payer, 22 NE 2d 127; Whittaker’s Case, 66 NE 2d 785; Silva’s Case, 25 NE 2d 708. See also 159 A.L.R. 926.

Ark. Stat. Ann. § 81-1331 authorizes contempt proceedings by the Commission in some instances, but here the facts are not such that the statute may be invoked.

The judgment for $913.00, as superseded, is affirmed.


author:
Jim Johnson, Associate Justice.
      Ed. F. McFaddin, Associate Justice, Paul Ward, Associate Justice,

text:
    Harmon v. Laney.
    5-3538
    393 S. W. 2d 273
    Opinion Delivered May 31, 1965.
    [Rehearing denied September 20,1965.]

      McMath, Leatherman, Woods S Youngdahl, for appellant.

      Luke Arnett and Arthur G. Frcmkel, Jr., for appellee.
   Jim Johnson, Associate Justice.

This is an unemployment compensation case.

The appellants are employees of the International Shoe Company. In the summer of 1963, the shoe company ceased operation of their factories for a two week plantwide vacation shutdown. Appellants had not worked for the company long enough to he entitled to a vacation. During this two week period, appellants performed no work and received no vacation pay or other remuneration from their employer. Appellants initiated or continued claims for benefits under the Arkansas Employment Security Act. From the record it appears that appellants met every qualification of the law required for entitlement of benefits. Ark. Stat. Ann. § § 81-1103 and 81-1105 (Supp. 1963). There was no indication that these appellants voluntarily and without good cause left their work so as to be disqualified under the provisions of the Act. Ark. Stat. Ann. § 81-1106 (Supp. 1963). Upon hearing, benefits were denied by the Employment Security Division, Appeal Tribunal, Board of Review and the Circuit Court. From such denial comes this appeal.

For reversal appellants contend that they are entitled to benefits based upon the established law and urge a reconsideration of the pirnciples enunciated in a. prior decision.

The sole basis given for the denial of these claims was the case of Thornbrough v. Schlenker, 228 Ark. 1012, 311 S. W. 2d 753 (1958). In that case this court after reviewing cases from other jurisdictions and the annotation in 30 A.L.R. 2d 366, said:

“It is impossible to reconcile all of the various cases. A reasonable distinction between the two lines of decisions might be: if, by the contract between the Union (the agent of the workers) and the management of the plant, there ivas reserved by the management of the plant the right to fix, at its own option, a plant wide vacation period, then the employees had agreed to such vacation and been ‘voluntarily unemployed’; and, therefore, not entitled to employment benefits. But if the contract had no provision whereby the management reserved the right to fix, at its own option, a plant wide vacation shutdown, then the employees had not agreed to such vacation period and were ‘involuntarily unemployed’ during such shutdoAvn period; and, being involuntarily unemployed, they Avere entitled to unemployment compensation.”

[Emphasis ours.]

This opinon concludes with the following language:

“We hold that under the contract between the Union and the Shoe Company, here involved, these twenty-four appellees are entitled to unemployment compensation benefits for the week ending July 10, 1954. This is true because there was no provision in the contract whereby the Shoe Company hacl the right to close dotvn its entire plant for a vacation period at any time it elected and thereby force the appellees to take vacations at such time, even though some of them had not worked long enough to be entitled to vacations, and others had taken their vacations with consent of the management. ’ ’

[Emphasis ours.]

The same annotation relied upon by this court for the “distinction” found to exist in the Schlenker case, supra, had this to say:

‘ ‘ On this question the courts have been divided some by a process of legalistic hairsplitting concluding that such workers are voluntarily unemployed and therefore not eligible for unemployment compensation, and others taking the more realistic vieiv that such employees are out of work through no fault of their own and therefore are entitled to benefits. ’ ’

[Emphasis ours.]

Appellants concede the historic fact that under our free enterprise system the right to close a manufacturing plant is a basic prerogative of management. N. L. R. B. v. New Madrid Mfg. Co., 215 F. 2d 908 (8th Cir.).

A leading authority on labor relations, Elkouri, How Arbitration Works (Eev. Ed. 1960), has this to say on pages 338-339: ‘ One of the prerogatives of management [is] to schedule vacations at such time as best meets the needs of the business.”

With these fundamental prerogatives of management thus established, it is our view that a contractual expression of those rights as is implicit in the dictum of the Schlenker opinion is manifestly superfluous. To give weight as a basis for a “distinction” to a contract clause which purports to grant to management that which management already possesses is to create an artificial criterion.

From the record in the case at bar it becomes obvious that if appellants and others similarly situated are to confidently meet the test implicit in Schlenher they must insist upon a labor contract which denies the employer the right to close. Such a contract of course would be against public policy and contrary to the economic system of this country.

On the whole case appellees urge, and Schlenher seems to hold, that entitlement to compensation during vacation shutdowns should be governed exclusively by the particular Avording of the employment contract. This is in direct contravention to § 81-1118 of the Employment Security Act: “Any agreement by an individual to Avaive, release, or commute his rights to benefits or any other rights under this Act shall be void. ’ ’ See Sallee Bros. v. Thompson, 208 Ark. 727, 187 S. W. 2d 956. Upon reconsideration of Schlenher we find the opinion and its resultant ramifications to be untenable.

The first paragraph of the Arkansas Employment Security Act is, in part, as folloAvs:

‘ ‘ § 81-1101. As a guide to the interpretation and application of this act, the public policy of this State is declared to be as folloAvs: Economic insecurity due to unemployment is a serious menace to the health, morals, and welfare of the people of this State. Involuntary unemployment is therefore a subject of general interest and concern Avhich requires appropriate action by the Legislature to prevent its spread and to lighten the burden A\drich may fall Avith crushing force upon the unemployed Avorker and his family. ’ ’

This law is remedial in nature and must be liberally construed in order to accomplish its beneficent purposes. Prince Poultry Co. v. Stevens, 235 Ark. 1034. 363 S. W. 2d 929; Holland v. Malvern Sand & Gravel Co., 237 Ark. 635, 374 S. W. 2d 822.

“It seems to us that a Avorker who is ready, Avilling and able to work but is left without work and pay because Ms employer’s plant lias temporarily sliut down comes fairly witMn the broad coverage of the Unemployment Compensation Law. The shutdown may be for a relatively short period or it may be for a relatively long period. In either event the worker does not receive his weekly pay check upon which he and his family are generally dependent for their food and shelter. In good times as well as bad there are unemployed persons who seek work and finally obtain it at plants which they understand may temporarily shut down thereafter. These persons are truly without employment during the payless shutdowns, even though they will resume when the plants reopen.” Teichler v. Curtiss-Wright Corp., 133 A. 2d 320 (N.J., 1957).

The Employment Security Division has long been recognized as a primary supplier of temporary labor. Contemplation of permanent employment is not and has never been a prerequisite for qualification *for entitlement for benefits, or for job placement, under the Arkansas Employment Security Act. “Playing with phrases like ‘vacation without pay’ or ‘leave of absence’ stems from want of better terms to avoid the words ‘laid off. ’ This is to say, the act should be liberally construed so as to insure a subsistence bridge for those who have been separated from employment under conditions whereby they are ready, willing and able to work, but cannot conscientiously secure it during the period of separation.” Dahman v. Commercial Shearing Co., 170 N. E. 2d 302 (Ohio, 1960).

Strict constructions which result in defeat of the intended purposes of the Act will not be sanctioned by this court. Accordingly, this case is reversed and the cause remanded for further proceedings consistent with this opinion.

McPaddin, Ward and Robinson, JJ., dissent.

Ed. F. McFaddin, Associate Justice,

(dissenting).

Although, there are numerous reasons for this dissent, I will urge only two points: (1) the present holding creates judicial uncertainty; and (2) the present holding is wrong.

I.

Judicial Uncertainty. This case is an attack on the Opinion of this Court in Thornbrough v. Schlenker, 228 Ark. 1012, 311 S. W. 2d 753. That Opinion was delivered on April 7, 1958 by a unanimous Court; and now, after seven years, the present Majority is saying: ‘ ‘.. . we find the Opinion and its resultant ramifications to be untenable.” Bear in mind that in 1958 this Court announced, in a unanimous Opinion, a yardstick whereby all concerned — the Commissioner of Labor, the labor unions, the employers, and the employees ■— would know how to proceed. We said:

“It is impossible to reconcile all of the various cases, A reasonable distinction between the two lines of decisions might be this: if, by the contract between the Union (the agent of the workers) and the management of the plant, there was reserved by the management of the plant the right to fix, at its own option, a plant wide vacation period, then the employees had agreed to such vacation and had been ‘voluntarily unemployed’; and, therefore, not entitled to employment benefits. But if the contract had no provision whereby the management reserved the right to fix, at its own option, a plant wide vacation shutdown, then the employees had not agreed to such vacation period and were ‘involuntarily unemployed’ during such shutdown period; and being involuntarily unemployed, they were entitled to unemployment compensation. ’ ’

The test of voluntary unemployment as opposed to involuntary unemployment during the period of a plant vacation was simply and succinctly stated. If what we said in' Thornbrough v. Schlenker was in error, the Arkansas Legislature could have changed it hy legislative enactment. Since 1958 there have been four regular sessions of the Arkansas Legislature — 1959, 1961, 1963, and 1965 — and there has been no legislative enactment to overcome the Opinion. If there was to be a change, it should have been by legislative enactment rather than by judicial decision, because a legislative enactment is prospective, whereas a judicial decision is retroactive. In Carter Oil Co. v. Weil, 209 Ark. 653, 192 S. W. 2d 215, this distinction was stated.

If the Majority of the Court desires to re-examine the correctness of our language in Thornbrough v. Schlenker, the Court could now issue a caveat that in all transactions arising after this date we will be free to reexamine the correctness of our language in Thornbrough v. Schlenker. This caveat method has been used in several cases since the usury cases and has been a notice to the public. It is fair. But the present holding, in changing the rule announced in Thornbrough v. Schlenker, is retroactive and creates uncertainty as to the stability of judicial holdings. If the Arkansas Supreme Court is'to change its holdings whenever the same question is again presented, our holdings will have become as uncertain as those of some other courts which have a tendency to reexamine every question whenever there is a change of personnel on the court. The Bench and Bar, and the public generally, have contracted in reliance on the holding in Thornbrough v. Schlenker. How will anyone know that the rule will not be changed again when the question is next presented to this Court? The present holding creates judicial uncertainty.

II.

The Present Holding Is Wrong. The basic question is: “When is a worker involuntarily unemployed?”, It is only when he is involuntarily unemployed that he can qualify for unemployment compensation benefits. Inyoluntary unemployment means unemployment without his own volition. When he works under a contract that provides that the plant may be shut down for a two weeks vacation — whether with or without pay — he cannot be heard to say that during that two weeks period he was involuntarily unemployed, since he had agreed to such vacation period.

Under the National Labor Relations Act, when a union becomes the bargaining agent for the employees at a plant it is the bargaining agent for all employees, not just those who belong to the union. In Thornbrough v. Schlenker there was no provision in the contract for a plant wide vacation period; but in the contract here involved there is a definite provision for a plant wide vacation period. The contract is dated November 27, 1962 (several years after the Schlenker Opinion) and is a document of some thirty typewritten pages. Section 13 of the contract concerns the matter of vacation, and provides:

“The COMPANY will close the plant the calendar week which includes the first Monday in June and during the following calendar week for the purpose of providing vacations to those employees who are entitled to vacation benefits except that in cases where process requirements make this impracticable (such as a tannery) the closing will start on the first working day of the week which includes the first Monday in June and will progress thereafter through the plant as rapidly as the process permits and work will resume two weeks after the last day worked before vacation started . . . “Upon request of either the employees or the COMPANY not later than April 15th the matter of changing the plant closing for the purpose of granting vacations will be discussed. If the parties are unable to agree as to any proposed changes, the plan as written herein shall remain unchanged. ’ ’

Thus we have a contract which provides exactly when the plant should be shut down for summer vacation. How can anyone say that he was “involuntarily unemployed” during such vacation period when he was working under a contract that specified the dates for the summer vacation? These men were certainly “voluntarily unemployed” during the annual vacation period covered by this contract; and no amount of judicial legerdemain can change that fact. The contract here involved was negotiated in 1962. If the union had wanted to provide that any man who did not get vacation pay would be considered involuntarily unemployed the contract had only to so state in one sentence; and yet there is no such provision in the contract here involved.

Since our decision in Thornbrough v. Schlenker the question here presented has been before the Supreme Court of Mississippi in the case of Mississippi State Employment Sec. Com’n. v. Jackson (decided January 11, 1960), 116 So. 2d 830. The language of the Supreme Court of Mississippi is so clear that I quote it and adopt it as my own:

‘ ‘ The question for our decision involves the right to unemployment compensation for a period when the plant was shut down for vacations in accordance Avith the union contract.
“In order to be entitled to unemployment compensation benefits under the statutes, an employee must be involuntarily unemployed and must be available for work, and it follows that if the employees are voluntarily unemployed and were not available for work within the meaning of the statute, the Commission was justified in denying unemployment benefits.
“The courts of Mississippi have not passed on this question. The case of Moen v. Director of Division of Unemployment Security, 324 Mass. 246, 85 N. E. 2d 779, 8 A.L.R. 2d 429, is directly in point. In that case the union contract was silent as to the status of those employees not entitled to vacation with pay Avhile the plant was shut down for vacations of those employees entitled to paid vacations, and the union contract permitted the company to designate any period of temporary shutdoAvn as the vacation period. The Court held that those employees who were not entitled to vacation with pay were on vacation without pay. The basis of the decision denying benefits to those employees who were not entitled to vacations with pay was that such employees were voluntarily unemployed. Other similar holdings are Mattey v. Unemployment Compensation Board of Review, 164 Pa. Super. 36, 63 A. 2d 429; In re Buffelen Lumber & Mfg. Co., 32 Wash. 2d 205, 201 P. 2d 194; Jackson v. Minneapolis-Honeywell Regulator Co., 324 Minn. 52, 47 N. W. 2d 449; In re Claims of Rakowski, 276 App. Div. 625, 97 N.Y.S. 2d 309; Naylor v. Shuron Optical Company, 281 App. Div. 721, 117 N.Y.S. 2d 775; In re Graziadei’s Claim, 286 App. Div. 911, 142 N.Y.S. 2d 380; General Electric Co. v. Unemployment Compensation Board of Review, 177 Pa. Super. 49, 110 A. 2d 258; Philco Corporation v. Unemployment Compensation Board of Review, 175 Pa. Super. 402, 105 A. 2d 176; Glover v. Simmons Co., 17 N. J. 313, 111 A. 2d 404.”

When one considers that the Mississippi case, and all .the other cases which the Mississippi opinion cites have the same rule that was announced by us in Thornbrough v. Schlenher, it is hard to see how the Majority of the Arkansas Court can now say that such rule is “untenable.”

The Majority Opinion quotes from Ark. Stat. Ann. § 81-1118 (Repl. 1960): “Any agreement by an individual to waive, release, or commute his rights to benefits or other rights under this Act shall be void.” This quotation leaves the impression that by the employment contract in this case’the workers are waiving or releasing their rights to draw unemployment compensation. I think such conclusion misses the entire point. Certainly a worker cannot “waive” the benefits of the Unemployment Compensation Act, but when he becomes employed he is not unemployed; and when a worker is employed he is not entitled to the benefits of the Unemployment Compensation Act. These appellants in this case are employed under a contract which gives them paid holiday as therein specified and which provides that when the plant is shut down they are voluntarily unemployed. While they are under such contract they are certainly not “involun tarily unemployed.” That is the test for their right to receive unemployment benefits.

For the reasons herein stated, I dissent.

Paul Ward, Associate Justice,

(dissenting). My purpose in dissenting is to attempt to bring some sort of order out of obvious confusion and to formulate a simple, workable rule to apply when the issue here involved arises. I fully realize this attempt may be fruitless.

I am not in complete agreement with the majority opinion or with the Schlenker case. The majority opinion in effect holds that an employee cannot, under any kind of contract or arrangement, agree to take a vacation without pay (and be unable to draw E. S. D. benefits) for a short period of time even though (under the contract) it would be to his financial advantage to do so. Such a conclusion, in my opinion, is illogical, unsound, unreasonable, and inequitable. I do not agree entirely with the Schlenker case, because, in my opinion, it does not sufficiently protect the employee from being the victim of an ■ inequitable contract. I readily agree that it would be a violation of Ark. Stat. Ann. § 81-1118 (a) (Supp. 1963) to allow an employee to agree (for example) to a four month vacation without pay, and then for this Court to hold he could not draw E. S. D. benefits.

The rule, in a case of this nature, which embodies my views and which easily could be applied to any factual situation, is this: Let the Employment Security Division (through its administrative agencies) decide (subject to approval by the courts) whether the employee (in any labor-management contract) has bartered away any of his unemployment benefit rights. If it be determined that he has done so, then he is involuntarily unemployed — otherwise, he is voluntarily unemployed.

       See Hare v. Gen. Contr. Corp., 220 Ark. 601, 249 S. W. 2d 973; Crisco v. Murdock, 222 Ark. 127, 258 S. W. 2d 551; and see also Clubb v. State, 230 Ark. 688, 326 S. W. 2d 816.

       The contract stated that if any person had worked for as long as one year he would get one week vacation with pay; if he had worked not less than five years he would get two weeks vacation with pay; and if he had worked longer he would get three weeks vacation with pay.


author: Jim Johnson, Associate Justice. Ed. F. McFaddin, Associate Justice, George Rose Smith, J.,

text:
    Harris v. Brewer
    5-3585
    390 S. W. 2d 630
    Opinion Delivered May 31, 1965.

      Harold L. Hall, for appellant.

      Virgil Roach Moncrief and John TV. Moncrief, for appellee.
   Jim Johnson, Associate Justice.

This is an inter-pleader action to determine the proper party to receive proceeds of certain life insuranc policies.

Appellant Nina Harris (Brewer) and Jerry Brewer, deceased, were divorced on March 4, 1963, after some twelve years of marriage. (Appellant was later restored to the use of her maiden name, Harris.) Approved and incorporated into the final decree was a property settlement agreement executed on January 10, 1963, purporting to ’be a complete settlement of all their property rights. The detailed agreement at length set off various parcels óf real property, personalty and money to each of the parties, and contained a provision in which appellant (concurrently with decedent’s quitclaim to appellant of certain valuable stock) “transferred and released any and all interest in” decedent’s Life & Casualty Insurance Company and Southern Equitable Insurance Company life insurance policies, and went on to state after this unconditional transfer that decedent would have the right to designate beneficiaries and exclude her if he so desired.

Jerry Brewer died on September 7,1963. His brother, appellee Claude Brewer, was appointed administrator of his estate in Arkansas Probate Court. The two life insurance policies were among decedent’s papers. The named beneficiary, “Nina Mae Brewer — Wife’’ was unchanged.

On June 24,1964, Southern Equitable Life Insurance Company filed a complaint in interpleader in Arkansas Chancery Court against appellant and appellee. The complaint alleged that at Brewer’s death there was in force a life insurance policy for $10,000, that both parties defendant claimed the proceeds, and it therefore inter-pleaded the proceeds to be held by the clerk of court until the court should determine which of the parties was entitled thereto. On August 7, 1964, Life & Casualty Insurance Company of Tennessee filed a similar suit inter-pleading $2,020.30. By stipulation these cases were consolidated for trial.

In the decree of November 27, 1964, the chancellor ordered payment of the proceeds to appellee administrator, and relieved the insurance companies of any further liability. The insurance companies no longer being parties, this appeal is between the adverse claimants.

For reversal appellant contends the trial court erred in awarding the proceeds of the policies to decedent’s estate instead of to the named beneficiary, appellant.

We are confronted with two theories: (1) decedent didn’t change the beneficiary because he wanted appellant to be the beneficiary, and (2) conversely, that he didn’t change the named beneficiary because he assumed the property settlement agreement had already effectively done so.

We are cited cases from other jurisdictions in support of either of the theories, there being none directly on all fours in Arkansas. However, a similar case directly in point in principle is Roman v. Smith, 228 Ark. 833, 314 S. W. 2d 225, in which the property settlement provided that the wife should receive $40,000 cash and savings bonds worth $1,800. The agreement was fully performed except $1,780 in cash was paid to the wife in lieu of delivering the $1,800 in bonds. After the divorce the husband died without cashing the bonds (which on their face were payable on death to the ex-wife). This court held that the ex-wife:

“received all that she was to get under the property settlement agreement which was at least approved in part by the Chancery Court, and now she seeks to get a part of that property which was set aside to the appellants’ decedent solely because he neglected to cash the bonds or have them reissued in his name alone during his lifetime pursuant to the Treasury Regulations. Such a construction of the Treasury Regulations is not supported by the authorities, and certainly is.contrary to the principles of equity and fair dealing.”

Under the law and practice in this State, property settlement agreements, especially after approval by a chancery court, are considered binding — and final — contracts between the parties. Settlements and compromises have historically been looked upon with favor by the courts. The parties having met and agreed upon a settlement, all prior claims were merged in the settlement. Burke v. Downing, 198 Ark. 405, 129 S. W. 2d 946. The agreement in the case at bar states in the preamble and again at the close that the agreement was intended to be and did constitute “a full and complete settlement of all property rights.” The decedent was not represented by counsel in the divorce proceedings and the appellant’s then counsel was under no legal or ethical duty to advise decedent about advisibility of changing the named beneficiary on the policies. Concededly, the contract was prepared by appellant’s divorce attorney and appellant is therefore bound by the rule that a contract U to be strict.lv construed against the party preparing it. Further, it is well settled in this jurisdiction that insurance beneficiaries may be changed by will, based upon the theory that the will is a later expression by the insured than the designation of the beneficiary made at the time the policy was issued. Pedron v. Olds, 193 Ark. 1026, 105 S. W. 2d 70; Eichelkamp v. Carl, 193 Ark. 1155, 104 S. W. 2d 814; Clements v. Neblett, 237 Ark. 340, 372 S. W. 2d 816. Here the property settlement agreement was executed long after the designation of the beneficiary in these policies.

Applying the law to the facts in this case, it is clear that appellant is foreclosed to claim any interest or proceeds from the policies she specifically transferred and released to decedent.

Affirmed.

McFaddin, J., concurs; Smith, Ward and Robinson, JJ., dissent.

Ed. F. McFaddin, Associate Justice,

(concurring). I dissented in the case of Roman v. Smith, 228 Ark. 833, 314 S. W. 2d 225; but under the Majority holding in Roman v. Smith, and under the unanimous holding in Mabbitt v. Wilkerson, 220 Ark. 270, 247 S. W. 2d 201, the decree of the Chancery Court in the case now before us must be affirmed; and I so vote.

However, I have concluded that we should now give notice to the Bench and Bar that we will re-examine our former cases when a ease like this one is next presented to us. For myself, I hereby give such notice. I think the weight of authority, and certainly the better reasoned cases, are contrary to our holding in Mabbitt v. Wilkerson supra, and Roman v. Smith, supra. Some of the cases which I consider as stating the better rule are these: Prudential Ins. Co. v. Broadhurst (Calif.), 321 P. 2d 75; Shaw v. Board (Calif.), 241 P. 2d 635; Pendleton v. Great Southern (Okla.), 273 P. 1007; John Hancock Co. v. Soluri (U.S.D.C. N.Y.), 134 F. Supp. 86; Parrish v. Kaska, 204 F. 2d 451; and Kurgan v. Prudential (Ill.), 91 N. E. 2d 620.

The fact that the insured, having the right to change the beneficiary, did not elect to do so, or to take any steps in that regard, leads me to believe that the insured decided to allow the beneficiary of the policy to remain exactly as written. The purpose of this concurrence is to give notice that I intended to re-examine the question anew should it ever again arise while I am a member of the Court.

George Rose Smith, J.,

(dissenting). The property settlement agreement contained this paragraph: “ [Nina Brewer] herewith concurrently agrees to and does hereby transfer and release to [Jerry Brewer] any and all interest she now has in any and all life insurance policies on the life of [Jerry Brewer] in the Life and Casualty Company and the Southern Equitable Insurance Company, including a certain endowment policy [Jerry Brewer] has in one of said companies; and agrees that [Jerry Brewer] shall have the sole right to designate beneficiaries of said policies, and exclude [Nina Brewer] as a beneficiary if he so desires.” If Jerry Brewer had died before the lapse of a reasonable time in which he might have effected a change of the beneficiary, or if there were extrinsic circumstances, such as a remarriage on his part, to assist us in discovering his true intent, then I should agree with the majority opinion.

These situations, however, are not before us. When Jerry Brewer read and signed the property settlement agreement it was brought directly to his attention that he had the power to exclude Nina as a beneficiary “if he so desire[d].” Yet in the nine months that elapsed between the execution of the agreement and Jerry’s death he took no steps to change the beneficiary of the policies. He did not contest Nina’s suit for a divorce. He did not remarry. He left no children. In the circumstances it is not unreasonable to believe that he wanted Nina to receive the proceeds of the policies. What the majority are doing is guessing that Jerry really meant to change the beneficiary but did not get around to doing it. Instead of making a guess that could as well go one way as the other I prefer to give effect to the written directions in the policies, which Jerry did not see fit to have changed.

Roman v. Smith, cited hy the majority, is not in point. There the settlement recited that the husband would pay the wife $40,000 and deliver to her $1,800 of U.S. bonds. In fact he gave her $1,780 in cash instead of the bonds, and it was noted on the agreement that “Cash $1,780 substituted for Bonds.” It was to the husband’s direct pecuniary interest to substitute cash for the bonds and not to have the bonds reissued in his name before their maturity. Hence in that case there was not the slightest doubt about the husband’s intention to exclude his wife from participation in the proceeds of the bonds. Here the facts are so materially different that the Smith, case is not authority for today’s decision. I would reverse the decree.

Ward, J., joins in this dissent.


author: Frank Holt, Associate Justice.

text:
    Coffelt v. Gordon
    5-3605
    390 S. W. 2d 633
    Opinion Delivered May 31, 1965.

      Kenneth G of felt, for appellant.

      House, Holmes & Jewell, By: Ed B. Dillon, Jr., for appellee.
   Frank Holt, Associate Justice.

The appellants filed separate complaints for malicious prosecution against the various appellees. The appellees demurred to both complaints and when appellants refused to plead further, the trial court dismissed the complaints. The cases are consolidated for appeal. For reversal appellants contend that “the complaints are good as against the demurrers.”

In each complaint it is alleged that appellees “conspiring together, wilfully, maliciously, and without probable cause, filed and caused to be filed, a petition for contempt citation against” appellants in a chancery court proceeding. The appellants sought compensatory and punitive damages for the alleged malicious prosecution.

It is true that a demurrer admits the verity of all facts that are well pleaded in a complaint in testing its sufficiency. Southwestern Publishing Co. v. Ney, 227 Ark. 852, 302 S. W. 2d 538. However, before one can successfully maintain an action for malicious prosecution his complaint must contain the essential allegation that the proceeding about which he complains has terminated in his favor. Haglin v. Apple, 65 Ark. 274, 45 S. W. 989; Twist v. Mullinix, 126 Ark. 427, 190 S. W. 851; Engler v. Creekmore, 196 Ark. 717, 119 S. W. 2d 497. See, also, 34 Am. Jur., Malicious prosecution, § 6. In the case at bar a review of the two complaints reflects that in neither is it alleged that the contempt proceedings filed against the appellants had terminated favorably to either of them.

The rationale for the necessity of alleging a favorable termination is well expressed in 34 Am. Jur., Malicious Prosecution, § 27:

í í * # * The rule is founded on the necessity of proving that a prosecution whicli itself puts in issue the truth of the charge on which it is founded is without probable cause. Until a complaining party has shown that the action against him was unsuccessful, he has not shown that he has suffered any damage, and if he were permitted to sue before he had won the first suit, he might seeure a recovery for the bringing of an action which the Court entertaining such cause may find to be well brought.”

Neither can it be said that appellants’ allegation of a conspiracy corrected the deficiency in their complaints. Ragsdale v. Watson, 201 F. Supp. 495 (Western District, Arkansas, 1962). There the court quoted with approval:

* * an act which, if done by one alone, constitutes no ground of an action on the case, cannot be made the ground of such action by alleging it to have been done by and through a conspiracy of several.”

Also see Southwestern Publishing Co. v. Ney, supra. Therefore, before the allegation of the existence of a conspiracy can benefit the appellants it is still necessary that they allege the prior proceeding has terminated successfully for them.

Since this essential element is lacking in appellants* complaints, we hold that the trial court was correct in sustaining the demurrers and dismissing the complaints.

Affirmed.

Robinson, J, not participating.


author: Carretón Harris, Chief Justice.

text:
    Lee v. Lee.
    5-3382
    391 S. W. 2d 29
    Opinion delivered June 7, 1965.

      John F. Gibson, for appellant.

      N. L. Schoenfeld, for appellee.
   Carretón Harris, Chief Justice.

This is a child custody case. The parents are Joseph Young Lee, the father, and Bicky Chau Lee, the mother. The child involved is Cosmo Lee, three years of age at the time of the trial.

Immediately following the marriage of the parties, they went to Dumas, Arkansas, where Joseph’s father was in business and made their home. In February, 1962, Bicky left the Dumas home, and went to New York City, New York, where her parents resided. In September of the same year, Joseph went to New York, taking Cosmo with him, resuming the marital relationship with Bicky until February, 1963, at which time he moved out of the home occupied by his wife and her parents, and obtained living quarters of his own. Apparently, Joseph took Cosmo with him, for on February 26, Bicky applied for a Writ of Habeas Corpus, commanding Joseph to bring the child before a New York justice. The writ was issued, and the child was returned to appellee by agreement between the parties. An action was instituted by appellee in the New York courts for permanent separation in April, 1963, and a temporary support order was granted, but not entered immediately, pending reconciliation attempts.

On Sundaj", July 14, 1963, Joseph, in accordance with an agreement with his wife, relative to visitation rights, took Cosmo from Bicky’s home, but instead of returning him, left the state and returned to Arkansas. Upon reaching Memphis, Joe called his wife, and informed her that he was taking the child back to his home in Arkansas. On August 20, appellee filed in the Desha Chancery Court a petition for a Writ of Habeas Corpus, seeking the return of the boy. In the meantime, Joseph had commenced an action against Bicky for divorce, and custody of the child, and the court consolidated the two actions, as far as custody was concerned, and commenced hearings on August 28. The court denied a motion to hear the divorce case at the same time. Final testimony in the custod3' case was taken on February 6, 1964, and the court made extensive findings on February 19. A decree was entered in March, granting the custody of the child to the mother, Bicky. Joseph appealed, obtained a Writ of Supersedeas, and retained possession of the child. This appeal questions the correctness of the trial court’s order in granting custody to appellee, appellant asserting that Bicky had deserted Cosmo, and that the court erred in failing to find that the best interest of the child required that it remain with its father, appellant herein.

We do not think the evidence establishes that the child was abandoned. Appellant testified that she left him and the child, hut appellee says that Joseph would not permit her to take Cosmo with her. Joseph himself stated that he would not have permitted her to take the child, even if she had asked. At any rate, the parties were reunited, and resumed the marital relationship, subsequently in New York, and the child there lived with both parents.

The record is rather large in this case, but no good point would be served in detailing the testimony. There are no intricate questions of law to be passed upon, nor is there any feature of the case that would serve as a precedent. A fact question, only, is involved. We agree with the Chancellor that, morally speaking, both parties are qualified to have custody of the child. The record makes plain that all involved are intelligent and well educated, and the family background is interesting. Appellant’s father is a prosperous grocer in Dumas, and appellee’s father operates a large restaurant in New York City. He [appellee’s father] formerly served in the Government of Chiang Kai-Shek, and subsequently became Controller with General Chenault’s C. A. T. (transport successor to the Flying Tigers). Mr. Chau, the father of appellee, attended Columbia University, graduated from New York University, and is a citizen of the United States. Joseph works in his father’s store, and Cosmo has been staying, during weekdays (8:00 A.M. to 7:00 P.M.) with a.Mrs. Lee Sharp of Dumas. The child’s meals are brought or sent to him from the grocery. Bicky is employed as a clerk at the Manhattan Savings Bank in New York City, and plans for her mother, 61 years of age, to look after Cosmo while she is working. The strongest evidence offered by Joseph was to the effect that his wife had been corresponding with one or two Chinese men, though, admittedly, no showing of adultery is made. Bicky’s chief complaint appears to be that Joseph did not make a proper living for them. From her testimony:

“Well, the thing is his father, his parents want him to marry Chinese girl and they told me — -and he told me if he wanted money from his father — and after Joe marry he has to tell his wife to work in store with them. And, they want, of course, a grandson for them. And, this is the main thing his married. His parents Idea. That he get married. And, he get married and all the expense from his father. At that time he didn’t have any regular income. If he has any money of course he has to ask his parents for money. * * *
‘ ‘ * # * After I came back to Dumas I try to pay all my attention to my child. I don’t want to work in the store. And, I don’t approve of his idea, to depend on his father or wait till his parents pass away and get the some money to support him. So, since I not work in the store his parents mad at him. And, his not make me to work in the store and the money they give him to marry me is their loss. They lost money. So, from that time they not give Joe any money. So, he cannot ask his párents for money he didn’t have any income.”

She testified that, while in New York, he lived with her parents, but paid no room and board; that he had a job, but would not tell her how much he made, or what he did with his money.

We have said many times that the paramount and controlling consideration in all custody cases is the child’s best interest and welfare, and that each case presents a different factual situation. Cushman v. Lane, 224 Ark. 934, 277 S. W. 2d 72. We have also stated that the mother is given preference where the child is of tender age. See Aucoin v. Aucoin, 211 Ark. 205, 200 S. W. 2d 316, and cases cited therein. In Aucoin, the court found that the mother was guilty of some misconduct, but stated:

“The real question in the case involves the right to the custody of the three-year-old child. Appellant earnestly insists that the charge of adultery was well established and that this fact alone entitles him to the custody of the older child. * * * The trial court also decided that even though appellee was guilty of some infidelity, such determination would not change the award of custody to the mother in view of the child’s tender age and the other circumstances in evidence. * * * Since we agree with the chancellor that the charge, if proved, would not necessarily change the award of custody in the instant case, we think it would be better for all concerned that the unsavory evidence adduced on this issue be left out of this opinion.”

As stated, all of the circumstances in custody cases must he taken into consideration before making an award. When this is done, we are unable to say that the Chancellor’s findings were against the preponderance of the evidence. The trial court retained jurisdiction of this cause, and, of course, is empowered to change the custody order, if circumstances arise that would make such change advisable.

Affirmed.

Johnson, J., dissents. For good cause shown, an immediate mandate is ordered.

See Tassin v. Reynolds, 222 Ark. 363.

       The court rendered a comprehensive order as a matter of protecting the rights of the parties, as follows:
      1. This court has the sole and exclusive jurisdiction to determine the custody, care, support, education and general welfare of the child in issue in this action;
      2. Bicky should be awarded temporary custody of Cosmo Joseph Lee;
      3. Bicky should be granted permission to remove child from the jurisdiction of this court to the City of New York, New York;

        4. That before Bicky is authorized to remove said child from the jurisdiction of this court she will (a) prepare or cause to be prepared and filed with the Clerk of this Court, a writing' appointing the Clerk of this Court and his successor in office as her true and lawful agent for service of all orders and process in this action relating to the custody, care, support, education and welfare of said child and (b) file with the Clerk of this Court, a good and sufficient bond in the amount of $1,000.00, to be approved by the Sheriff of Desha County, Arkansas, payable to the State of Arkansas, for the use and benefit of Joseph Young Lee, conditioned that she will comply with the decree of this court in this action and any subsequent orders of this court made and entered herein relating to the custody, care, support, education and welfare of Cosmo Joseph Lee.
      The Clerk of this Court should not issue any writ of attachment for the child in issue in this action until the above requirements have been fully satisfied by Bicky.
      5. Upon the entry of the formal decree herein, Joe should deposit with the Clerk of this Court the sum of $150.00 for the use of Bicky. This amount to be used by her to apply on the expense of her trip from New York to Desha County, Arkansas, and return, to receive the custody of the child in issue.
      6. The child is not to be removed from the United States without prior permission of this court.
      7. The name of said child is not to be changed, nor any adoption filed or had without prior permission of this Court. Bicky, nor any person, will make any effort or effect a change of domicile of said child from Desha County, Arkansas, without prior consent of this Court.
      8. Bicky will file or cause to be filed with the Clerk of this court a statement(s) showing the current address of the child at all times.
      9. The court retains the issue of support for adjudication until such time as Bicky files a petition and makes proof on this issue.
      10. Until the child in issue arrives at school age and begins to attend school, Joe should have the custody, for visitation purposes, during the months of June and July of each year. He should pay all expenses connected with said visitation.
      11. Each out-of-custody parent should be granted the right of visitation with, and said child with him/her, at all reasonable times.
      12. Should either party fail to surrender custody of the child, as directed by these findings, the Clerk of this Court, without further directions of the court, will, upon the filing of a verified pleading showing such failure, issue a writ of attachment to the proper officer authorizing and directing him to remove said child from the defaulting parent and deliver him to the other parent.
      13. The court retains full and complete jurisdiction of this action for further orders relative to the care, custody, support, education and welfare of the child in issue.”


author: Carleton Harris, Chief Justice.

text:
    Schulte v. Walthour.
    5-3582
    393 S. W. 2d 242
    Opinion delivered June 7, 1965.
    [Rehearing denied September 20,1965.]

      Warren & Bullion, for appellant.

      H. B. Stubblefield, for appellee.
   Carleton Harris, Chief Justice.

Melvin Holmes was the contractor in the construction of three houses on properties owned by his wife, Reba Holmes. J. D. Walthour, trustee, appellee herein, held four mortgages on these properties. The Holmeses were financially unable to finish with the construction, and closed down the jobs in October, 1963. Thereafter, the following events occurred :

Walthour filed suit to foreclose his mortgages on October 17, 1963, and summons was served on Mr. and Mrs. Holmes on October 22, 1963, in Faulkner County, their residence. In his suit Walthour not only sought to foreclose the mortgages, but sought priority for the mortgages over Big Rock Stone and Material Company, and Robinson Lumber Company, who were claiming materialmen’s liens. These two companies were made parties, and served with summons. W. C. Schulte, appellant herein, was the painting contractor on the jobs, but was not made a party defendant by Walthour.

On October 29, 1963, Schulte filed an Intervention in Walthour’s suit, and summons was issued and served upon Walthour, and summons was issued for the Holmeses, but a non est return was made. On November 14, Schulte obtained an order permitting him to intervene in the litigation. Walthour filed an answer to the Intervention, denying appellant’s right to a lien. Thereafter, Walthour, with the permission of all the parties, advanced sufficient money to complete the construction of the houses. By agreement with appellee, Schulte completed the painting', and on February 28, 1964, was paid $250.00 by Walthour, to be credited upon the amount claimed by Schulte under his original contract, said amount being $1,245.00. In the meantime, on February 12, Mr. and Mrs. Holmes had formally entered their appearance in the suit as to Big Rock. Subsequently, the court entered its decree, rendering judgment for Walthour, and ordering the property sold. The order directed that the proceeds of the sale be paid into the registry of the court, in order to give the lien claimants the opportunity to establish any amounts due them. Thereafter, a final decree was entered, in which the court held that Schulte’s “Intervention does not relate to the subject matter of this action, and that said Intervenor does not have any lien, but is entitled to judgment against Melvin C. Holmes and Reba M. Holmes for nine hundred ninety-five ($995.00) dollars.” From this final decree appellant brings this appeal.

The amount of the alleged mechanics’ and material-men’s lien is not disputed, nor is it disputed that the Intervention was filed within one hundred twenty days of the date of the furnishing of the last material. Admittedly, no service was had upon Mr. and Mrs. Holmes when the Intervention was filed by appellant (a non est return being made), and the principal question is whether it was necessary that service be had on the owner and contractor before a lien could be claimed by virtue of the filing of the Intervention. Appellant contends that, under our decisions, service is not necessary where the Intervention is filed with the permission of the court. Appellee contends to the contrary. The filing of this pleading (if service were unnecessary) obviated the necessity of complying with the provisions of Ark. Stat. Ann. § 51-613 (Supp. 1963) as to filing claim for lien. Plant v. Cameron Feed Mills, 228 Ark. 607, 309 S. W. 2d 312, and cases cited therein.

In 67 C.J.S. “Parties,” Section 67(d), it is pointed out that some jurisdictions require notice from an Intervenor to original parties that the Intervention has been filed, but other jurisdictions do not require such notice, but hold that a defendant, once served, is bound to take notice of pleadings filed by new parties. Among states mentioned, as holding that service of process on an original defendant is unnecessary, is our own state.

In Board of Directors of St. Francis Levee District v. Raney, 190 Ark. 75, 76 S. W. 2d 311, this court said:

‘ ‘ The intervention is not an independent proceeding, but is ancillary and supplemental to the main case. The landowners of Pecan Point were those to whom the Levee District was to pay the sum agreed upon. The complaint filed by Mixon sought to prevent the consummation of this agreement, and a decree in accordance with the prayer of his complaint would necessarily effect the rights of the landowners. * * *
“Intervention is not a common-law right, but has long been recognized by the courts upon the principle that a party should be permittted to do that voluntarily which, if known, a court would require to be done. In the original or main suit the petitioners here voluntarily submitted to the jurisdiction of the court by entering their appearance and filing an answer. * * *
“* * * If it be conceded that the landowners by an independent suit could sue the levee district in Crittenden County only, that did not prevent them from intervening in a suit in which they were interested in the subject-matter, where jurisdiction over the persons of the defendants had already been acquired. ‘Where jurisdiction would not obtain in an independent suit, an intervening proceeding may nevertheless be maintained as ancillary and supplemental under jurisdiction already subsisting.’ (Citing cases.)
“Section 1204, Crawford & Moses’ Digest, cited to support the contention that there must be process issued and served against the cross-defendant, has no application to proceedings by intervention. That section refers to a defendant already in court, and allows him to file a cross-complaint against persons other than the plaintiff where he has a cause of action affecting the subject-matter of the suit against a co-defendant or a person not a party to the action.
“In a suit where there is an intervention, the original parties are already in court, and must take notice of all subsequent proceedings in that action relating to the subject-matter of the suit. This includes intervening petitions. (Citing cases.) * *

Likewise, in Arkansas Bonding Company v. Harton, 191 Ark. 665, 67 S. W. 2d 52, we again said:

“Appellant complains that the judgment by default was rendered without summons having been issued on the intervention or served on it, and it had no notice that the intervention had been filed. This would be of no avail to the appellant. An intervention is not an independent proceeding where it is against the plaintiff in the original action, but is ancillary and supplemental to the main case. In a suit where there is an intervention, the original parties are already in the court and must take notice of all subsequent proceedings relating to the subject-matter, including intervening petitions.”

"We think appellant properly intervened in the litigation, since he was interested in establishing his lien, the same as the other two lien claimants, and his lien could only be satisfied through a sale of the houses, which the Chancellor ordered sold. The trial court was evidently not disturbed by the failure of appellant to obtain service on Mr. and Mrs. Holmes, for a personal judgment was rendered in favor of Schulte against those two; however, the court held that Schulte was not entitled to a lien, and refused to permit appellant’s claim to be satisfied from the money which had been paid into the registry of the court (from the sale of the property).

Let it be pointed out here that no complaint is being-made by Mr. and Mrs. Holmes; they apparently were not interested in how the money was distributed among-the other claimants. No relief was sought by them. Appellee was served with a summons, and, on the record, was aware at all times of the contention advanced by Schulte.

It is also interesting to note that Schulte completed his painting contract after Walthour, took over the construction, and, in fact, appellee paid $250.00 to appellant on February 28,1964, said sum applying on the indebtedness due under Schulte’s original contract with the Holmeses. This amount reduced Schulte’s claim from $1,245.00 to $995.00.

Summarizing, this is not a case wherein a new party was brought into a lawsuit, or where the determination of an unrelated issue was being sought. Walthour’s original action essayed, inter alia, to establish priority of liens between himself, as mortgage holder, and the lien holders, Big Rock and Robinson Lumber Company. Accordingly, it was entirely in order for the court to permit appellant to intervene, since the same property was involved, and since his claim presented the same legal question.

Mr. and Mrs. Holmes were parties to the litigation, and the Chancellor rendered judgment against them in favor of appellant. Under our cases, and the facts in this litigation, it would appear that the lien contended for by appellant was established.

Reversed.

       The suit was instituted by “J. D. Walthour, Trustee, and J. D. Walthour (individually).” The singular term, “appellee,” will be used in this opinion.

       This statute is presently Ark. Stat. Ann. § 27-1134 (Repl. 1962).


author: Ed. F. McFaddin, Associate Justice. Harris, C. J. and George Rose Smith, J.

text:
    Davis v. Ark. Best Freight System.
    5-3495
    393 S. W. 2d 337
    Opinion delivered June 7, 1965.
    [Rehearing denied September 20,1965.]

      Tom Gentry, for appellant.

      Thomas Harper, for appellee.
   Ed. F. McFaddin, Associate Justice.

This is a workmen’s compensation case. Sidney Davis (claimant and appellant), an employee of Arkansas Best Freight System (appellee) claimed that on December 30, 1960 he suffered a heart attack which arose out of and in the course of his employment. He testified that on December 30, 1960 he drove a truck and trailer loaded with pipe from Little Bock to Crossett; that he experienced considerable difficulty in Crossett in detaching the trailer from the truck and thereby overexerted himself; and that he suffered a heart attack shortly thereafter. The employer resisted the claim, insisting that there was no causal connection between the work appellant did and his heart ailment. The Beferee disallowed the claim; the Full Commission disallowed the claim; the Circuit Court affirmed the Commission; and the case is here on appeal. There is no necessity to state the facts in detail because this appeal does not challenge the finding of the Commission on the sufficiency of the evidence. Bather, the challenge here is that the Commission committed errors of law. We will, discuss the more important ones that appellant urges.

I. Allowing A Witness To Bead From A BooTi On Direct Examination. At the hearing before the Beferee the employer called Dr. Drew Agar as its witness and he testified that in his opinion there was no causal connection between claimant’s work and his heart attack. On .direct examination the Beferee allowed Dr. Agar to support his opinion evidence by reading typewritten excerpts from several medical textbooks and writers. The claimant duly preserved Ms objections and so we now bave before us tbe question whether a doctor- — on direct examination — may support bis own opinion evidence by reading excerpts wbicb he bas copied from medical textbooks and from tbe writings of other doctors.

It is true that tbe Workmen’s Compensation Commission is an administrative agency and that tbe technical rules of evidence do not apply to its procedure (Ark. Stat. Ann. § 81-1327 [B.epl. I960]), nevertheless it bas been repeatedly held that a litigant bas tbe right to cross-examine a witness. In 58 Am. Jur. 339 tbe text summarizes tbe holdings:

. ‘ ‘ Tbe cross-examination of witnesses is one of' tbe safeguards to accuracy and truthfulness. Tbe test of cross-examination is tbe highest and most indispensable known to tbe law for discovery of truth. When a witness bas been examined in chief, tbe other party bas tbe right to cross-examine for tbe purpose of ascertaining and exhibiting tbe situation of tbe witness with respect to tbe parties and to tbe subject of tbe litigation, bis interest, bis motive, bis inclinations, bis prejudices, bis means of obtaining a correct and certain knowledge of tbe facts to wbicb be bas borne testimony, tbe manner in which be bas used those means, and bis powers of discernment, memory, and description. Tbe purposes of tbe cross-examination is to test tbe truthfulness of the witness, to sift, modify, or explain what bas been said, to develop new or old facts in a view favorable to tbe cross-examiner, or to discredit tbe witness, and, if be is tbe plaintiff, to test bis good faith — tbe righteousness of bis case . . . In a judicial investigation tbe right of cross-examination is absolute, and not a mere privilege of tbe one against whom a witness may be called. In a civil action a party has the right to cross-examine .witnesses against him whether the evidence is given ore tenns or by deposition. ’ ’

Certainly, here, the claimant had no opportunity to cross-examine the writers of the textbooks and medical treatises which Dr. Agar used to support and bolster his own testimony. We have held that in a court trial a doctor cannot support his own testimony by reading from a medical textbook. In Moore v. State, 184 Ark. 682, 43 S. W. 2d 228, we said:

“The extracts from the medical and law books were not competent, and the court did not err in refusing to permit appellant to introduce them.
“ ‘It is very generally recognized that extracts from medical books are not admissible in evidence, and for the very sufficient reason that the author does not write under the sanctity of an oath and has not been subjected t.o a cross-examination, and the decisions of this State are to the effect that statements from these books may not be presented as such in the arguments of counsel or introduced by the means of questions put on cross-examination as by reading an opposing opinion from textbooks, and asking the witness if it is or is not true; for this would have the effect of putting the statement in evidence and thus accomplishing by indirection what is forbidden.’ State v. Summers, 92 S. E. 328. “The correct rale is that an attorney may use a medical book to aid him in framing questions to be asked of a physician testifying as an expert, but it is not permissible to read from such books to the jury . . .
“The witness, Dr. Foltz, put on the stand by the appellant, and was on direct examination. On cross-examination of an expert witness, where he bases his opinion on a textbook, he may be cross-examined, and for the purpose of impeaching him, extracts from the authorities may be read; but it is never proper to introduce the books, or extracts from them, except on cross-examination. ’ ’

The Commission may quote from medical books to explain the findings; but a doctor called to express his opinion; must express his own opinion so that he may be cross-examined. He cannot on direct examination bolster his own opinion by quoting from some other doctor who is not subject to cross-examination.

II. Refusal To Allow A Letter For Impeachment. After Dr. Agar testified on direct examination the claimant’s attorney sought to impeach him by a letter which Dr. Agar had written involving another patient. Dr. Agar had been testifying that work did not cause a heart attack and he had written a letter which indicated the contrary. The claimant’s attorney" offered the entire letter, but the only part allowed was the last sentence. In order to get the setting, we quote the last paragraph of the letter and emphasize the only sentence in the letter that was allowed for cross-examination and impeachment :

“It would appear from the history that Mr. Holmes has suffered two coronary occlusions, the first in 1957 doing heavy work and the second in 1960 again doing-heavy work. It also appears from the history that during the time Mr. Holmes was engaged in light work as a result of his first heart attack he had practically no symptoms of cardiac disease. However when he again engaged in heavy work involving the lifting of 75 to 100 pound weights he again had chest pains and had another coronary occlusion. It would appear therefore that there was a causal relationship between his work that he was doing on June 24th, 1960 and his subsequent heart attack. It is my professional opinion that there is a definite relationship in this case.”

In order to get the full effect of the attempted impeachment, certainly the claimant should have been allowed to introduce the letter and not merely one sentence from it.

III. Refusal To Allow Claimant To Offer Rebuttal Evidence. On December 6, 1962 the Commission closed the case and heard arguments. While the Commission had the case under consideration it caused the claimant to be examined by Dr. Kahn, who wrote the Commission a six page typewritten letter on March 30, 1963 telling in detail of the examination, the answers the claimant had made, and the doctor’s opinion as to the claim. Then on May 2, 1963 the Commission reopened the case for a further hearing, at which time Dr. Kahn offered his letter and testified, and claimant’s attorney cross-examined the doctor. The claimant then filed his motion that he be allowed to call two doctors in rebuttal to the testimony of Dr. Kahn. Here is the record of claimant’s offer:

“. . . . after the Commission has called another witness upon this subject after the case has been closed, it is our contention that the case has been reopened for all purposes, and for the Commission to deny the claimant the right to introduce other proof denies him of his substantial right of due process, and, therefore, we make the offer that if the claimant was permitted to do^so, we would introduce two doctors, qualified internists who would testify, in their opinion, that Mr. Davis suffered a coronary occlusion at the time alleged and at the time that Dr. Kahn testified that he had, and that such coronary occlusion and the resulting myocardial infarction bore a causal relationship to his employment, and that it at least aggravated his condition to such an extent that under the law it would be compensable ...”

The Commission denied the claimant the * opportunity to call witnesses in rebuttal to Dr. Kahn’s testimony; and we hold the Commission was in error. As aforesaid, the record was closed on December 6, 1962 and the case argued; the Commission then reopened the case on May 2, 1963 to hear further evidence, that of Dr. Kahn. Certainly when the Commission reopened the case to call a witness of its own selection, it should not have refused the claimant the right to offer evidence to rebut the testimony of such new witness. In 88 C.J.S. p. 226, “Trial” § 111, there is a discussion in regard to the reopening of a case to admit further evidence and' the holdings are summarized under the subject, “Right of Adverse Party to Reply: If the other party can show that he can probably repel the evidence which the court permits to be introduced after the reopening of the ease, and that it takes him by surprise, the court should permit him to do so, and should postpone, adjourn, or continue the case, on his request that the court should do so, . . .”

We can perceive no good reason why the Commission should have denied the claimant the right to offer evidence to rebut the testimony of Dr. Kahn when the Commission had reopened the case to have him testify.

CONCLUSION

This case involves only procedural matters but we have seen fit to go into these procedural matters in some detail because the Commission is entitled to have guidelines in these matters. We have a fine hard working Commission and these guidelines will be advantageous, to the Commission. The judgment of the Circuit Court is reversed and the cause is remanded, with directions that the case be returned to the Commission for procedure not inconsistent with this Opinion.

Harris, C. J., and Smith, J., dissent.

Harris, C. J. and George Rose Smith, J.

(dissenting). I would likewise reverse the case, for I agree with the majority on Point II, listed as “Refusal to Allow a Letter for Impeachment.” However, I disagree with the majority on the other two points, which are also listed as reasons for reversal.

I think it was entirely proper for the doctor to read from a medical textbook. As stated in 100 C.J.S., Workmen’s Compensation, § 537, p. 539:

“Since a compensation tribunal may not be bound to observe or follow the technical or strict rules as to the admissibility of evidence, as discussed supra § 525, such a tribunal has great leeway in the acceptance or rejection of medical testimony, and medical testimony may be admitted in a compensation proceeding although the same evidence would not be admitted were the case other than a compensation proceeding. It may be proper in a compensation proceeding to permit a physician to read a statement from a medical book, and the quotation may be competent evidence if the physician testifying represents the quotation to be an accurate statement of medical knowledge on the subject.”

I also disagree with the majority in permitting the case to be reopened. The matter of taking additional proof should properly lie within the discretion of the Commission, and I see no abuse of discretion in this instance. Counsel for appellant received, in advance of the final hearing, a copy of Dr. Kahn’s report, and thus knew what the doctor would testify to. In other words, the testimony was not a surprise, and appellant was afforded every opportunity to cross-examine the neutral witness. The majority quotation from C.J.S. refers to court trials.

It seems to be that, under the majority holding, the Commission will never feel that it can close a case, as long as one party is requesting the right to offer additional evidence. This simply means that the claim for compensation can drag on interminably. In my opinion, the Commission did not abuse its discretion in refusing to permit additional evidence.

I am authorized to state that Mr. Justice George Rose Smith joins in this concurrence and dissent.

       Here is the way it occurred. Dr. Agar testified: “It is my professional opinion that there is no causal relationship between the work he was doing and myocardial infarction. ... I have testified on several cases concerning myocardial infarction and for that reason I selected three or four of the widely accepted textbooks on heart disease — or on myocardial infarction with which we are dealing here, namely, Friedberg, Paul Dudley White, Levine, Cecil’s Medicine; and none of those four says that exertion is a causative factor in the production of myocardial infarction. I can read this verbatum if you would like me to.
      “Q. If you would.
      “MR. GENTRY:
      Now is that his opinion or is that the opinion of some other doctor he’s reading?

        “DR. AGAR:
      This is the opinion — these are the opinions — These are excerpts from highly recognized textbooks on heart disease. Dr. Levine in his Clinical—
      “MR. GENTRY:
      (Interrupting) Without the textbook being here, if your Honor please, I want to object.”

       We construed our statute in Ward Furn. Co. v. Reather, 234 Ark. 151, 350 S. W. 2d 691; and Holstein v. Quality Excelsior Co., 230 Ark. 758, 324 S. W. 2d 529. See also 15 Ark. Law Rev. 141, et seq.

       In 100 C.J.S. 539, “Workmen’s Compensation” § 537, the text reads: “It may be proper in a compensation proceeding to permit a physician to read a statement from a medical book, and the quotation may be competent evidence if the physician testifying represents the quotation to be an accurate statement of medical knowledge on the subject.” To sustain the text there are cited two cases, being Nicotra v. Bigelow (Conn.), 189 A. 603; and In re Sutton (Idaho), 361 P. 2d 793. An examination of these cases reveals that in each instance the situation was different from that in the case at bar. In the Idaho case the Court said: “Dr. Johnson’s quotation from medical treatises, upon which his opinion was, in part, based, was not assigned as error by appellant, but was discussed only inferentially.” The Connecticut ease of Nicotra v. Bigelow, supra, is based on a compensation act which reads entirely different from our act. The Connecticut statute says that the Commission “shall not be bound by the ordinary common law or statutory rules of evidence or procedure, but may make inquiry in such manner, through oral testimony or written and printed records, as is best calculated to ascertain the substantial rights of the parties and carry out justly the spirit of this chapter.” This is a much broader power than that contained in our Act.


author: Ed. F. McFaddin, Associate Justice.

text:
    Kansas City Southern Ry. Co. v. Whisnant.
    5-3598
    391 S. W. 2d 17
    Opinion delivered June 7, 1965.

      Hardin, Barton, Hardin & Jesson, for appellant.

      Byron Qoodson and Royce Weisenberger, Jr., Au-trey <& Goodson, for appellee.
   Ed. F. McFaddin, Associate Justice.

This is a case involving damage by fire claimed to have been caused by the train of appellant; and the facts are similar to those in K. C. Ry. Co. v. Beaty et al., 239 Ark. 187, 388 S. W. 2d 79.

The appellees, Whisnant and Parks, own lands north of the main track of the appellant, Kansas City Southern Railway Company, in Sevier County, Arkansas. Some time after noon on October 30, 1963 one of the appellant’s freight trains passed near the appellees’ lands; fire was immediately discovered on the railroad right of way; there was a strong wind from the south and the fire spread from the right of way to the lands of the appellees and caused the damages here sought. The landowners filed separate actions, which were consolidated for trial. The amount of the damage of each landowner was stipulated; but the appellant railroad company vigorously denied that the fire was caused by its train. Trial of the causes to the Court without a jury resulted in findings and judgments for the landowners, and this appeal resulted. Only one point is urged on appeal: “The evidence is not sufficient to support the verdict and judgment.”

We find no merit in appellant’s point. Shortly after the train passed near the lands the fire was discovered. Mr. Ted Brown, a disinterested witness, saw the train pass near the Whisnant land and saw the fire and testified that the conductor from the caboose of the train pointed out the fire to the witness. The railroad company never called the conductor to dispute the testimony of the witness Brown.

The town of Mineral is a short distance from the lands of the appellees; and, without objection, the witness J. E. Smith testified as to the fact that the train was setting fires on the right of way at Mineral. The testimony of this witness as abstracted by the appellant is as follows:

“While I was sitting at the table drinking coffee, I saw the fire beginning to burn and I broke and ran and got over there and wiped out two fires and about the time I got the third fire out the caboose of the train passed and the conductor was sitting there looking out of the window and I was beating on the fire and I showed him that he was setting fire. I didn’t see any sparks coming out of the train. I don’t know whether it came from the stack or whether it was a hot box, I just know the train was setting fires. The fire was beginning to burn at the time the train was pulling through. I pointed this out to the conductor. Later I learned about the fire at Mr. Whisnant’s place and on Mrs. Parks’ land. I could see the fire on Mrs. Parks’ land from where I was. Later I went down there and saw it, the right of way was still burning. We were having extremely dry weather at that time and the wind was blowing from the South.”

Mrs. J. E. Smith testified, as abstracted by the appellant, as follows:

“My name is Mrs. Joseph E. Smith and my husband just testified. I saw the fire when it ignited at the Mineral crossing. I was at the window watching. The train was going North and it was shortly after noon. I just went in to wash the dishes and of course I’m interested in the trains because I have a little dog and I watch the train to see where my dog is. When the train passed I saw fire come from the engine and it ignited immediately. I saw it when it lit and it just flared up.”

Witnesses for the railroad company testified that it was physically and mechanically impossible for any of the five diesel engines here involved to have caused fires; yet the two disinterested witnesses, Mr. and Mrs. Smith, testified that one or more of these identical diesel engines did set fire to the railroad right of way only a few miles from the appellees’ lands. Certainly the testimony of the appellant’s witness was rebutted.

There is no necessity to detail all of the evidence. It is sufficient to say that there was ample evidence to support the verdict and judgment. As we said at the outset, this case is strikingly similar to the case of K. C. Ry. Co. v. Beaty, supra.

Affirmed.