text:
    Mohr v. Hampton.
    5-3268
    382 S. W. 2d 6
    Opinion delivered September 21, 1964.

      Gus R. Camp, James Foreman, Metropolis, Illinois, for appellant.

      Howard A. Mayes, Kirsch, Cathey & Brown, for appellee.
   Frank Holt, Associate Justice.

The appellants brought this action to establish ownership of $16,418.00 in cash and securities in their uncle’s lock box by gift inter vivos or causa mortis. The Chancellor held that the decedent did not make a gift in either manner to the appellants. On appeal the appellants contend “that the proof substantiates a gift either inter vivos or causa mortis.”

The decedent, Fred Folks, was 67 years of age at the time of his death. His permanent residence was in Rector, Arkansas where he had resided in the home of his aunt, Mrs. Adelia Hampton, for many years. Folks had been estranged from his divorced wife since 1931. His relationship with his daughter, Chelsene Lohranz, and only surviving heir, was marked by occasional correspondence and visits. He made annual visits to his home town of Vienna, Illinois to see his sister, the mother of the appellants, until her death in May, 1962. Folks’ next visit to Vienna was on December 22, 1962. On this occasion he was visiting in the home of appellant, Mary Georgia Elliott, his niece, and her husband, Don Elliott. Except for a one-day return trip to Rector to attend to some business matters he remained in their home until his death on January 21, 1963.

Don Elliott testified that he was- awakened about 11 or 11:30 P.M. by Folks who complained of being short-winded. After walking around, Folks stated he was better and returned to bed. Folks had previously complained of a heart ailment. Shortly thereafter Folks again called Elliott. Dr. Wakefield came to the Elliott home and an ambulance was summoned for the purpose of removing Folks to the hospital if it became necessary. Mr. and Mrs. Elliott, Dr. Wakefield, J. W. Robinson, owner of the ambulance and funeral directo?*, his assistant, Mr. Lillidoll, Ernestine Mohr, appellant and Folks’ niece, and her hubsand, Ernest Mohr, were all present in the Elliott house where Folks died at 1:15 A.M. Only-two witnesses, Don Elliott and J. W. Robinson, testified as to any knowledge of the alleged gift which occurred during the last ten or fifteen minutes of Folks’ life.

Elliott’s first version of what occurred at the time of the alleged gift was that while the doctor was making arrangements on the phone for Folks’ admittance to the hospital, Folks asked for his overalls and pulled out a little blue book [a savings account book indicating a balance of $2,815.64 in a Kennett, Missouri bank] and “these keys and he just opened it up and he put them in there like that and * * *” he asked me to give them to Mary Georgia and Ernestine [appellants] and said: “These keys is theirs and whatever is behind that lock belongs to them. Don’t give the others a thing”; that he, Elliott, then gave his wife and sister-in-law each a key. Upon further questioning Elliott declared the decedent told him the lock box was in the Bank of Rector. Elliott first testified that when Folks placed the keys in the bank book there were two sets of keys; one consisting of the two lock box keys and the other set consisting of three keys. On further questioning Elliott testified that in addition to the two separate sets there was, a loóse key which later proved to be a key to the Dalton Hardware Store in Rector where decedent kept his carpentry tools. Elliott and appellants declared emphatically that each of appellants thereafter retained in their exclusive possession the lock box key which he had given to them and at no time thereafter were the lock box keys placed on a ring with the other keys.

This testimony is squarely' contradicted by Arthur McNiel whom appellants visited in Rector the day following their uncle’s death for the purpose of establishing if a will existed. Mr. McNiel testified that appellants and their husbands showed him several keys which were together on a ring or string; that he voluntarily identified the lock box key; that neither the appellants nor their husbands indicated that they had any knowledge of the fact that the key was to a lock box and made no statements concerning their claim of ownership to its contents; that they questioned him concerning a will and that he told them he had advised Folks to make a will but that he knew of none.

After their conversation with McNiel, appellants and their husbands went to the Bank of Rector and talked to Miss Mary Lee Hill, an official of that bank. She testified that they told her the funeral director had asked the nieces to guarantee payment of the funeral expenses and “they told me that they didn’t know if he had one [a will] and then they presented this key which they said they thought might be a key to a lock box”. Whereupon she ascertained from the bank records that it was the key to a box in her bank; then they asked permission to examine the box to see if it contained a will; that this was “permitted and no will was found; that upon examining the contents of the box. it was observed that the box contained an undetermined amount of money and securities and that the appellants asserted no claim whatsoever to the ownership of the contents of the box at that time. She testified that it was on February 20, 1963, or a month later, that the bank first learned about such a claim when an Illinois attorney called and advised that he represented appellants who were claiming the contents of the box by virtue of a gift from their uncle: “Of course we don’t know whether there’s anything in the box or not.”

Elliott testified on cross-examination that after Folks had given the keys to him Folks took $10.00 from his pocket while they were getting him on the stretcher and handed it to his niece, Mrs. Elliott, the appellant, with the statement that the money was to be used by her and her sister, Mrs. Mohr, to buy cigarettes for him while he was in the hospital. This does not.indicate that Folks was apprehensive of impending death.

Mr. Robinson was the only other witness present at the time of the alleged gift. To some extent his testimony corroborated Don Elliott’s. However, in other respects it was contradictory.

An asserted gift, whether causa mortis or inter vivos, must be established by evidence which is “clear and convincing”. Smith v. Clark, 219 Ark. 751, 244 S. W. 2d 776; Lowe v. Hart, 93 Ark. 548, 125 S. W. 1030. In Baugh v. Howze, 211 Ark. 222, 199 S. W. 2d 940, we said that to constitute a gift inter vivos there must be, among other essential elements, ‘ ‘ a clear intent to make an immediate present and final gift beyond recall and at the same time unconditionally releasing all future dominion and control by the donor over the property so delivered.” See, also, Bennett v. Miles, 212 Ark. 273, 205 S. W. 2d 451.

Further, the tenor of appellants’ evidence is that a close relationship existed between them and their uncle. In Baker v. Eibler, 216 Ark. 213, 224 S. W. 2d 820, we said:

' ‘ The claim of a gift causa mortis, where a confidential relationship exists, * * * imposes a heavy duty of proof on the claimant. A rebuttable presumption arises from the mere existence of the relationship that the gift was obtained by undue influence or improper means. The burden is on the alleged donee to rebut this presumption and to establish that the claimed gift was fairly and properly made to him.” [Emphasis added.]

We agree with Chancellor that the appellants have not met the burden of proof necessary to establish the asserted gift inter vivos or causa mortis by the required standard of clear and convincing evidence. Certainly it cannot be said that the Chancellor’s findings are against the preponderance of the evidence.

The decree is affirmed.


source: Caselaw Access Project

author: Carleton Harris, Chief Justice. George Bose Smith, J.,

license: Public Domain

text:
    Jordon v. State.
    5113
    382 S. W. 2d 185
    Opinion delivered September 28, 1964.

      Odell G. Garter and T. S. Lovett, Jr., for appellant.

      Bruce Bennett, Attorney General, By: John P. Gill, Asst. Atty. Gen., for appellee.
   Carleton Harris, Chief Justice.

Appellant, Omar Jordon, was charged by Information with the crime of murder, the information alleging that Jordon murdered James Scott by shooting him with a pistol. On trial, Jordon was convicted of voluntary manslaughter, and was sentenced to six years imprisonment. From the judgment so entered, appellant brings this appeal. The sole contention of error raised by appellant is that the court refused to instruct the jury on the defense of justifiable homicide.

The proof reflected that Jordon was a partner with Willie Jordon, his brother, in the operation of a pool hall and cafe at Grady, Arkansas. Appellant would assist in operating the establishment on weekends. On December 14, 1963, Omar Jordon went to the place of business; while sitting on a bench he was struck in the head by a bottle thrown at him by Joe Nathan Hill, a patron of the cafe. Appellant, knocked off the bench by the blow, reached for his pistol, which he was/Carrying in his belt. While being drawn, the pistol fired, and James Scott, a bystander, was struck by the bullet, and subsequently died. Jordon stated that Hill (who, after hitting appellant with the bottle started toward the outside door) was facing appellant, and backing out the door with a pistol in his hand.

Appellant requested the following instruction:

“Justifiable homicide is the killing of. a human being-in necessary self-defense, or in defense of habitation, person or property, against one who manifestly intends or endeavors by violence or surprise, to commit a known felony. ’,

The court refused to give the instruction, and, as stated, appellant contends that the failure to so instruct constituted prejudicial and reversible error.

It is first the position of the state that self-defense, or justifiable homicide, is not a valid defense where the testimony reflects that the killing resulted from an accidental or unintentional act. Of course,, if the sole defense of a defendant is that a killing was accidental, there would be no occasion for an instruction on self-defense or justifiable homicide. As stated in Curry v. State, 97 S. E. 529:

‘ ‘ Furthermore, if there was no intent to kill, the law of killing in self-defense, in the ordinary sense in which that is understood, does not enter into the case, since that only applies where the accused intentionally kills his assailant to protect his own life, or to prevent the commission upon him of a serious injury amounting to a felony.”

It is true that appellant testified that Scott was killed when the weapon discharged accidentally, and appellant’s brother, Willie Jordon, testified that Omar told him, immediately following the shooting, “my pistol went off.” However, appellant testified that he was in the act of drawing the pistol as a matter of defending himself from Hill; that the weapon discharged accidentally when someone grabbed his arm, and the bullet struck Scott. From appellant’s testimony:

“When I fell I went to get up and try to defend myself and someone had my hand and the gun, the gun went off; where it was pointed I don’t know, but I did reach for the gun. * * * When I was hit I fell and I could see him reach for his gun. I reached for my gun and someone grabbed me and the gun went off.
Q. You lay it on somebody else for grabbing the gun in your hand?
A. I could see it all myself, he did have the gun.
Q. Then you say it was completely an accident, it wasn’t to protect yourself at all?
A. When I drew the gun I was trying to defend myself. ’ ’

According to this evidence, though Scott was killed by the accidental discharge of the weapon, the -weapon itself was brought into play intentionally by Jordon as a means of defending himself against Hill. It follows that we do not agree with this argument advanced by the state.

It is also asserted that the instruction was properly refused by the court because the evidence established that the assailant (Hill) was retreating at the time of the homicide. McDonald v. State, 104 Ark. 317, 149 S. W. 95, is cited by the state on this proposition. In that case, we said that if an individual, though the assailant, endeavored to withdraw in good faith from the combat, the danger had ceased to be immediate and urgent, and the defendant had no right to make and continue the pursuit of the deceased, and could not justify a killing, on the ground of self-defense.

■In the case before us, it is undisputed that Hill struck Omar Jordon with a bottle at a time when there was no altercation between these individuals, i.e., the assault was unprovoked. Likewise, three witnesses, besides appellant, testified that Hill had a pistol, though only appellant himself testified that Hill was standing in the doorway pointing the gun toward appellant when the latter reached for his weapon. All witnesses agree that Hill, after striking appellant, went to the outside door, but the testimony is in conflict as to whether he stood in the door or went on to the outside. Hill himself testified, “I turned and backed out. * * * I saw him go for his gun as I began to turn to run.” Hill, however, denied that he had a pistol.

The circumstances in McDonald were vastly different from those at hand. According to appellant’s testimony, his assailant had not actually retreated (and there was certainly no pursuit); rather, Hill was standing in a position, and with the means (the pistol) to continue the assault. The state’s contention might be valid, if, under the testimony, Hill had only been armed with a knife, or brass knucks, for appellant would have been in no immediate jeopardy. But the possession of the pistol would have enabled Hill to inflict death, or great bodily harm, upon the appellant from the doorway. Under these conditions, there was no duty to retreat. As was stated in Luckinbill v. State, 52 Ark. 45, 11 S. W. 963:

“The deceased never retreated to a place from which, he could not, if he had desired, have shot the defendant. The evidence tended to show that he was not attempting to retire from the combat, but was merely seeking a situation more favorable for waging it. If such was true, it was not incumbent on the defendant to suspend his defense until the deceased had gained the situation he sought, but he had the same right to defend himself as if the deceased were standing and attempting to shoot him.

This citation also completely refutes the state’s contention that the instruction offered was incorrect, because it did not include the defendant’s duty to retreat. Let it be remembered that, undisputedly, the whole chain of events lasted for only a few seconds, and appellant, suddenly knocked to the floor by the throwing of the bottle (according to his own testimony) reached for his pistol on observing Hill in the doorway with the pistol.

The general instructions ordinarily appropriate in a homicide case were given, i.e., the reasonable doubt instruction, the definition of murder, the meaning of the terms “express malice” and “implied malice,” the difference between first and second degree murder, and the definition of voluntary manslaughter. The court also instructed the jury that the defendant claimed that the killing was the result of an accident, and further instructed that body as to the definition of involuntary manslaughter.

The court’s Instruction No. 12 was as follows:

“If you believe from the evidence beyond a reasonable doubt that the defendant in Lincoln County, Arkansas, on the' 14th day of December, 1963, wilfully, unlawfully and feloniously, with malice aforethought, shot at Joe Nathan Hill at a time when Joe Nathan Hill was doing him no barm nor attempting to do him any harm, and the bullet struck James Scott and killed James Scott, you will convict the defendant of the crime of murder in the second degree.”

This instruction was correct. In Ringer v. State, 74 Ark. 262, 85 S. W. 410, which bears a strong similarity to the case at bar, the evidence reflected that the defendant (appellant) was violently assaulted by one John McCollum, who cut the defendant with a knife. McColbum then turned, and ran over a hill to the rear of the store, but the defendant did not know this. Excited- and bleeding from the wounds he had received, the defendant hurried to the back of the store, seized his gun, and turned and fired toward the door. During the difficulty, York McCollum, father of John, had been seated in the store. About the time Ringer reached his gun, York McCollum started toward the door, and the shot fired by Ringer struck York McCollum in the back and killed him. Ringer expressed regret, stating that he “did not intend to hit York” but that he had fired toward the door under the belief that John McCollum was about to, reenter and renew the assault upon him. In discussing f íese facts, this court said:

“So in this case the guilt of the defendant depends to a large extent on whether his intention at the time he fired the shot was to do an act made criminal by the law. If the act he intended to do was criminal, then the law holds him responsible for what he did, even though such result was not intended. On the other hand, if he intended only a lawful act, he will not be punished for a result that he did not intend, if he acted with due care.
“As a matter of course, if defendant intended to shoot York McCollum, the man he killed, he is guilty, for this man had done nothing; but if, on the other hand, he fired the shot to protect himself against John Mc-Collum, then whether his intention was criminal or not must depend upon the circumstances as they appeared, to him at the time he fired the shot. The law does not hold it unlawful or criminal for a man to shoot in necessary self-defense; and if the defendant believed that John McCollum was still following up the attack, and that it was necessary to shoot in order to protect himself, then the intention with which the act was done was not criminal; for, as before stated, it is not unlawful to intend to do an act which one honestly believes to be necessary to protect himself, when the circumstances justify such belief. Again, if the defendant knew that John Mc-Collum was not in the doorway, but believed that he was near there, and, thinking that he might renew the attack, fired in order to frighten him, then for a much stronger reason he is not guilty of a criminal intent in firing the shot; for, if one may take life in self-defense, it follows, of course, that he may commit an act designed only to frighten and drive away a person whom he believes is about to assault him. * * *
“* * * Believing that McCollum was about to enter the doorway and follow up his assault with a knife, defendant seized his gun and fired towards the. door to protect himself against the assault upon his life which he belived was impending, but with no intention of hitting York McCollum, who was in the store at the time with the defendant. Under these circumstances, we are not able to say, as a matter of law, that the intention of the defendant in firing this shot was unlawful and criminal. We think that was a question for the jury.”

This is the same contention urged by appellant in this case, i.e., that Scott was killed without intent, at a time when Omar Jordon was justified in defending himself against Joe Nathan Hill.

We think Jordon was entitled to this instruction, particularly after the court had given, on its own motion, Instruction No. 12. The defendant’s requested instruction was the direct opposite, the antithesis, of Instruction No. 12. If the jury was to be instructed that appellant was guilty of murder in the second degree, if he unlawfully and feloniously shot at Hill and killed Scott, then, at his request, appellant was entitled, under the proof, to have the jury told that, if the killing of Hill would have been justifiable homicide, he was not guilty of any offense in shooting Scott. Though an instruction using the names of the parties would probably have presented the matter more clearly, the proffered instruction was a copy of the statute, and, we think, together with all the other instructions given by the court, made clear the position of the appellant. No instruction was given defining self-defense or justifiable homicide, though these terms are referred to in two or three other instructions.

While the jury might not have believed appellant’s testimony to the effect that Hill was standing in the door with a pistol, and might well have reached the same verdict, we think Jordon was entitled, under the evidence, to have his version presented. We cannot say that the failure to give this instruction constituted only harmless error.

Because of the error heretofore set out, the judgment is reversed and the cause remanded to the Lincoln Circuit Court.

Smith, J., dissents.

George Bose Smith, J.,

(dissenting). A new trial is being ordered because the court refused to give this instruction: “Justifiable homicide is the killing of a human being in necessary self-defense, or in defense of habitation, person or property, against one who manifestly intends or endeavors by violence or surprise, to commit a known felony.” Jordon was entitled to an instruction submitting the defense of justifiable homicide, but I do not think the one he asked for was proper in this particular case.

The requested instruction stopped short after telling the jury in general terms that the killing of a person in necessary self-defense is justifiable. It did not tell the jury, as I think it should have, that if the killing of Hill would have been justifiable then the killing of Scott in the course of an attempt to exercise the right of self-defense against Hill would also have been justifiable. Nor was that point of law explained to' the jury in any o|ther instruction. It is such a difficult point that I cannot believe the jury, upon being told that Jordon had a right of self-defense against Hill, would have inferred that the right might also be carried over to justify the accidental killing of Scott. Thus the requested instruction was an abstract one and was, in my judgment, properly refused.

       As a reason for carrying the pistol, Jordon stated:' “I come out there and set stuff on the counter, sometimes I put cash you have to have for Saturday night at the back.”

       Ark. State. Ann. § 41-2231 (1947).

       Of the sixteen instructions given by the court, only No. 12 and No. 13 specifically used names.


author: Ed. F. McFaddin, Associate Justice.

text:
    Wallace v. Hamilton.
    5-3279
    382 S. W. 2d 363
    Opinion delivered September 28, 1964.

      Parker Parker, for appellant.

      Williams é Gardner, for appellee.
   Ed. F. McFaddin, Associate Justice.

This appeal is the consummation of litigation that has been pending in the Pope Chancery Court since June 5, 1957. Finally, on January 24,1964, there was a decree for the plaintiffs, and this appeal by defendants challenges the correctness of such decree.

On June 5, 1957, Joe Hamilton (appellee) filed this suit against James H. Wallace and Virginia Darr Wallace (appellants), seeking judgment against the defendants on their note to him dated August 19, 1954, for the face amount of $7,938.85 and interest thereon, and for the foreclosure of a mortgage on certain real estate. In due time the defendants filed a demurrer, which was overruled; and'then on November 29, 1957, defendants filed their answer, which was a general denial. The next entry in the record before us is the filing of an amendment to the defendants’ answer on August 1, 1963, in which, they pleaded limitations, nsnry, and payment’ of the note sued on. The -case was tried in the Chancery Court and resulted in the decree heretofore mentioned. On appeal appellants claim these points:

“1. The Court erred in refusing Appellants’ petition to set aside his Findings and Ruling of the Court.
“2. Where an original note was usurious, all renewal notes of the original note are usurious.
“3. The Trial Court erred in permitting the introduction of $3,000.00 note, Exhibit 2, Transcript 67; mortgage, Exhibit 4, Transcript 72; and note, $7,938.85, Exhibit 5, Transcript 74, over objection of Appellant.
“4. The Finding of Facts by the Trial Court are contrary to the preponderance of the evidence..
“5. The pleadings cannot be treated as amended after trial to conform to proof which amendment amounts to stating a new cause of action. ”

We consolidate and discuss these five points under our own topic headings.

I. Appellants’ Efforts For A Continuance. Even though the cause had been pending for many years, the appellants sought further delay; and now ask that the findings of the Court be set aside for failure to grant such delay. They -claim they were hurried into a trial without due notice', and were never allowed to have some of their witnesses present in person. We find no merit in this assignment.

In the course of the trial, the defendants’ attorney asked the Court to delay the trial, and the Court remarked: “The'Court directs the defendants to proceed and put on whatever evidence they do have here, and then I will consider your motion.” After all proffered witnesses had testified, the Court said: “I am going to take this case under submission for a decision to be handed down any time after twenty days from this date, but at any time prior to the end of that twenty days, the defendants in the case will be permitted to take the depositions of those parties mentioned — -Mrs. Wallace or any one or all of those three witnesses named — and file them in this case and it will be considered 'by the Court as a part of the record ...” There was no objection by the defendants’ counsel to this ruling of the Court. As a matter of fact, the defendants subsequently filed the depositions of four witnesses and never thereafter complained of any lack of opportunity to take other depositions; nor did defendants comply with the statute in any way as to what any absent witness would testify. In short, there was no compliance with Ark. Stat. Ann. § 27-1403 (Repl. 1962). We have repeatedly held that the granting or refusing of a continuance is in the sound discretion of the Trial Court. Supreme Lodge v. Robbins, 70 Ark. 364, 67 S. W. 758; B. & O. v. McGill, 185 Ark. 108, 46 S. W. 2d 651. We find no abuse of such discretion by the Trial Court in the case at bar.

II. The Amount Awarded The Plaintiff. The Trial Court awarded the plaintiff judgment for the note sued on ($7,938.85), together with interest thereon at the contract rate from the date of the note until the date of the decree; and in Points 2 to 4 inclusive, appellants complain of such result. The original note sued on was introduced in evidence. Both Mr. Wallace and his wife admitted signing the note. With the record in such condition, the plaintiff had dischárged his burden of proof, and the burden shifted to the defendants to sustain their claimed defenses. Daugherty v. Merrifield, 190 Ark. 537, 80 S. W. 2d 72; and Lynch v. Garnes, 227 Ark. 767, 301 S. W. 2d 739. There were three of these defenses. The first was limitation. Of course, there can be no merit to the plea of limitation because the note was dated August 19,. 1954, and this suit was filed June 5, 1957; and the statute of limitation on a promissory note was and is five years. Ark. Stat. Ann. § 37-209 (Repl. 1962).

The second defense ivas usury; and the defendants, having pleaded that defense, had the burden of proving it. Cox v. Darragh Co., 227 Ark. 399, 299 S. W. 2d 193. The Trial Court found that they failed to sustain such burden; and ive agree with the Trial Court. The evidence to support this usury claim was, that in 1949 AVallace had borrowed $5,000.00 from Hamilton to pay some labor bills on construction work at Mountain Home, Arkansas, and had executed a note for $7,000.00, which was usurious; and that the note sued on herein was a renewal of the said usurious note. Hamilton testified that he loaned Wallace some money to pay labor bills on work at Mountain Home, but there was no usury in that transaction. Furthermore, Hamilton strongly maintained that the consideration for the present note was for money loaned by Hamilton to Wallace to pay labor bills in some work at Stuttgart. After studying the record, we conclude that the Chancellor made no error in refusing the plea of usury.

As regards the plea of payment, the record is quite voluminous. It appears that Wallace was in the building-business and frequently borrowed money from Hamilton. On April 27, 1951, Wallace and wife executed two notes' to Hamilton, each for $3,000.00, due in one year, and bearing interest from date until paid at the rate of 10% per annum; and these notes were secured by one or more mortgages. On August 19, 1954, Wallace and wife executed to Hamilton the note here sued on for $7,948.85. Hamilton claims that this note was a renewal of the two notes executed in 1951. The Wallaces claim: (a) that one of these notes was a duplicate of the other and should have been destroyed; and (b) that on August 20, 1954— the day after the execution of the note — there was paid to Hamilton the sum of $3,680.00, which paid in full all amounts due him. It is strikingly strange that on August 19, 1954, a note was executed by the defendants to Hamilton for $7,938.85 if the AVallaees only owed him $3,-680.00, which was paid the day following- the execution of the said note; yet that is the testimony of'the defendants. As we have previously observed, when Hamilton introduced in evidence the note of August 19, 1954, and the defendants admitted signing the note, the burden of proving payment shifted to the defendants. The Chancellor found that they had not paid the note; and we cannot say that such finding was in error.

III. The Description Of The Mortgaged Property. The mortgage to the appellee covered a tract 173 feet by 160 feet; but Mr. and Mrs. Lowrey intervened and claimed that Hamilton had released from the mortgage a tract 173 feet by 71 feet when the Lowreys purchased it. The Court thereupon amended the decree to allow foreclosure only on the tract of 173 feet by 89 feet, not claimed to have been released from the mortgage. Appellants argue- in their fifth point that the decree should not have been so amended. We find no error prejudicial to the appellants in the amending of the decree. Furthermore, this point may now be moot as a practical matter because (a) the appellants filed a supersedeas bond which superseded the judgment for the debt, and (bj we have affirmed the judgment for the debt.

Finding no error, the decree is affirmed.

       Hon. Bob Bailey, who filed this cause for the plaintiff, died on December 26, 1957. There was subsequent counsel for plaintiff, and then finally the present counsel became the attorneys for the plaintiff. The defendant changed from his original counsel to the present counsel. Furthermore, the regular Chancellor of the Pope Chancery Court was disqualified in the cause, and that fact necessitated an exchange of circuits.


author: (xeorge Hose Smith, J.

text:
    Hudspeth Motors v. Wilkinson.
    5-3283
    382 S. W. 2d 191
    Opinion delivered September 28, 1964.

      Fitton é Meadows, for appellant.
    No brief filed for appellee.
   (xeorge Hose Smith, J.

O. N. Wilkinson, the defendant below, bought a used truck from Hudspeth Motors, Inc., and executed a conditional sales contract calling for eighteen monthly payments. After having paid two installments during a period of some five months Wilkinson attempted to repudiate the contract, asserting a breach of warranty. The seller repossessed the truck, resold it, and brought suit under the Uniform Commercial Code for the balance still assertedly due. Ark. Stat. Ann. § 85-9-504 (Add. 1961). Wilkinson admitted his original obligation but relied upon the breach of warranty as an affirmative defense. The trial court let the case go to the jury, who returned a general verdict for the defendant.

In the absence of a brief for the appellee we have been able to discover only two grounds upon which the verdict might be sustained. First, before reselling the. truck by private sale Hudspeth gave Wilkinson more than a week’s notice, by certified mail, of the proposed resale. Wilkinson, who was living on a rural mail route, presumably received a notice from' the postoffice that this piece of mail ivas being held for him, but he did not send his son to pick it up until about two weeks after the sale. Although this want of notice was not pleaded as a defense the trial court, instructed the jury that if Wilkinson had no knowledge of the proposed resale before it took place he was entitled to a verdict.

This instruction was wrong. All the Code requires is that the buyer be given reasonable notification. § 85-9-504. Notification is defined as the taking of such steps as may be reasonably required to inform the person to be notified, 4 4 whether or not such other actually comes to know of it.” § 85-1-201 (26). There is no evidence in the record to indicate that notice by certified mail was not reasonable.

Secondly, the court submitted to the jury Wilkinson’s principal defense, the asserted breach of warranty. It is clear from Wilkinson’s own testimony, however, that he waived any breach that might have occurred by failing to take the necessary steps to reject the truck within a reasonable time.

Wilkinson, a dairyman, bought the truck on February 13, 1962, with the intention of using it on his milk route. He testified that Hudspeth’s salesman assured him that the vehicle was suitable for that purpose, that it was in good shape mechanically, and that it used little or no oil. Wilkinson stated that on the first day he drove the truck he found that its two-speed mechanism was not working properly and that it used two quarts of oil on his route of from 80 to 85 miles. Wilkinson made some attempt to report his dissatisfaction to the salesman he had dealt with, but he admits that his efforts to get hold of the salesman were unsuccessful. He also says that he complained to two mechanics employed by Hudspeth, but after a test drive one of them denied that there was anything wrong with the truck. Wilkinson eventually had the defective two-speed mechanism repaired by someone else at his own expense. He concedes that he drove the truck daily for a period of months. Finally, on about June 19, more than five months after he bought the vehicle, its engine “blew up,” and he employed a mechanic to dismantle the engine and see how badly it was damaged. There is no proof to indicate that this mechanic found that the explosion was due to a defect that existed when Wilkinson bought the vehicle.

Under the Code if the truck did not conform to the terms of the contract Wilkinson was required to reject it within a reasonable time, notifying the seller of his decision. 85-2-601 and -602. His failure to make an effective rejection amounted to an acceptance. § 85-2-606. Although the buyer could have revoked his acceptance if it had been induced by the seller’s assurances that the defects would be corrected, § 85-2-608, there is no such proof in this case. Wilkinson did not testify that anyone at Hudspeth Motors ever led him to believe that the vehicle could or would be put into good condition. Under the principles announced .in Kern-Limerick v. Mikles, 217 Ark. 492, 230 S. W. 2d 939, and similar cases, Hudspeth was entitled to an instructed verdict upon the buyer’s cross complaint. There being no substantial evidence to support "Wilkinson’s affirmative defense the cause will be remanded for the entry of a judgment in favor of the plaintiff.

Reversed.


author: George Rose Smith, J.

text:
    Owen v. Kroger Co.
    5-3313
    382 S. W. 2d 192
    Opinion delivered September 28, 1964.

      George F. Hartje, Jr., and Moses, McClellan, Arnold, Owen & McDermott and James R. Howard, for appellant.

      Cockrill, Laser, McGehee & Sharp, for appellee.
   George Rose Smith, J.

This is an action by Ed Owen and his wife to recover damages for personal injuries and loss of consortium resulting from Mrs. Owen’s having slipped and fallen upon a banana peel on the floor of the Kroger Company’s grocery store at Conway. At the close of the plaintiffs’ proof the trial court directed a verdict for the defendants (the company and its local manager) on the ground that the peel was not shown to have been on the floor sufficiently long for the defendants to be chargeable Avith negligence in having failed to discover it. Kroger Gro. & Baking Co. v. Dempsey, 201 Ark. 71, 143, S. W. 2d 564. The sufficiency of the evidence is the only' question before us.

The fall took place betAveen 10:30 and 11:00 in the morning. Mrs. OAven testified that as she Avas leaving the check-out counter she stepped on a slippery object and fell and hurt herself. She said that “one of the boys” (apparently a store employee) picked up a large dark object aiid said that it Avas a banana peeling. Mrs. TurnboAV, the clerk at the counter, exclaimed: “I’m sorry, Mrs. Oavgh, but there Avas small boys in here eating bananas earlier this morning.”

Giving the proof its strongest force in favor of the plaintiffs Ave think an issue of fact Avas made. The jury might reasonably have believed that the boys bought the bananas in the store, in Avhich case their peelings Avould be apt to be yelloAV rather than dark in color. The darkening process, as Ave all knoAv, takes time. Moreover, the clerk’s expression, “earlier this morning,” ordinarily connotes something more than the lapse of a very short time, as the appellees suggest. Had the interval been extremely brief Mrs. TurnboAV might be expected to have said “a feAv minutes ago,” or Avords to that effect. At the very least there is an area of uncertainty that entitles the plaintiffs to the benefit of our doubts until the defendants come fonvard with more explicit testimony. If the plaintiffs were required to shoAV the exact time Avhen the peeling Avas dropped the defendants Avould be right in arguing that the ansAver lies in the realm of speculation. But the plaintiffs’ burden Avas merely to shoAV that the interval, though indefinite, Avas substantial. AVe think their testimony fairly supports that inference.

Reversed.


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

text:
    Gyngard v. Garner.
    5-3306
    382 S. W. 2d 369
    Opinion delivered September 28, 1964.
    [Rehearing Denied October 26, 1964.]

      Bon M'cCourtney and Claude B. Brinton, for appellant.

      W. G. Wiley, for appellee.
   Paul Ward, Associate Justice.

This is a taxpayer’s suit to recover (for’ the benefit of Izard County) the rental value of county road machinery' allegedly used by Lloyd Garner (County Judge of said county) in constructing ponds, terraces, etc. on private property. Garner, appellee, filed a motion to dismiss the complaint which was sustained by the trial court. Appellants failed to plead further, their complaint was dismissed, and this appeal follows.

This litigation stems from our decision in Needham, v. Garner, County Judge, 233 Ark. 1006, 350 S. W. 2d 194, decided October 16, 1961. In that case we upheld the right of a taxpayer to maintain a suit in chancery court to enjoin Garner (who was and still is the County Judge of Izard County) from using county road machinery to construct ponds, terraces, etc. on private property.

The present suit was also brought by a taxpayer in circuit court (for the benefit of the county) to recover from the same Lloyd Garner the rental value of the county road machinery used as described in the Needham case. The record in this case contains" the complaint and the decree in the Needham case which'were introduced by appellee with the approval of the trial court.

After various pleadings wqre filed by both parties (including a complaint and amended complaint) appellee filed a “Motion to Dismiss” on the grounds that . . . “the complaints of the plaintiff fail to state a cause of action” and because the “court is wholly without jurisdiction”. The said motion to dismiss was sustained by the trial court using the following language: “It is determined that the defendant’s motion to dismiss, which contains some aspects of a demurrer, should be sustained ...”

A careful study of our former decisions leads us to conclude that the judgment of the trial court must be affirmed. In Robertson v. Evans, 180 Ark. 420, 21 S. W. 2d 610, we affirmed a decree in chancery holding the former suit to redeem land and declare a deed a mortgage to be res judicata of a subsequent suit by the grantor to recover rents and damages for waste by defendants, although the grantor failed to assert such claim in the original suit. We there said:

“The test in determining a plea of res judicata is not alone whether the matters presented in a subsequent suit'were litigated in a former suit between the same parties, but whether such matters were necessarily within the issues and might have been litigated in the former suit. Gosnell Special School Dist. No. 6 v. Baggett, 172 Ark. 681, 290 S. W. 577; Cole Furniture Co. v. Jackson, 174 Ark. 527, 295 S. W. 970; Prewitt v. Waterworks Imp. Dist. No. 1, 176 Ark. 1166, 5 S. W. 2d 735”.

The samé issue of res judicata was involved in the case of Olmstead v. Rosedale Bldg. & Supply, et al., 299 Ark. 61, 313 S. W. 2d 235, in which this Court affirmed the holding in the Robertson case quoting extensively therefrom on page 65 of the Arkansas Reports. For other decisions to the same effect see Crump v. Loggains, 212 Ark. 394, 205 S. W. 2d 846 and Timmons v. Brannan, 225 Ark. 220, 280 S. W. 2d 393.

The rule above announced is applicable to the case here under consideration. It is not contended by appellant that appellee has misused any of the county road machinery since the decision in the Needham ease. It is obvious therefore that all claims here asserted arose before, and could have been litigated in, that ease.

Affirmed.

MoF addin, J., concurs.

Ed. F. McFaddin, Associate Justice

(concurring). I concur in the result reached by the Majority because I am firmly of the opinion that the demurrer was properly sustained to the amended complaint. In the amended complaint (on which the appellants stood) there are these allegations: “. . . that the defendant was and is at all times hereinafter mentioned and set forth the duly elected and qualified County Judge of Izard County. That the defendant herein named, as such Judge, was in direct control of all property, real and personal, belonging to and owned by said County ...”

It is thus clear that appellee Garner was sued because of acts he did as County Judge; and the case of Hutson v. State, 171 Ark. 1132, 287 S. W. 398, is directly in point, to the effect that a County Judge may not he made personally liable for acts that he does as County Judge. I consider the above case ruling here. Thus I never reach the matter of res judicata, since I am firmly of the opinion that the demurrer should have been sustained in accordance with our holding in Hutson v. State, supra.


author: Frank Holt, Associate Justice.

text:
    American Metal Window Co. v. Watson.
    5-3303
    382 S. W. 2d 576
    Opinion delivered September 28, 1964.
    [Rehearing denied November 2, 1964.]

      Patten é Brown, for appellant.
    No brief filed for appellee.
   Frank Holt, Associate Justice.

This is an action by appellant to collect an account of $1,029.89 from the appellee. Upon a trial before the court, sitting as a jury, a judgment was rendered in favor of the appellee. For reversal appellant contends that (1) the appellee is indebted to the appellant for materials furnished; (2) an account stated existed between appellant and appellee; and (3) there is no substantial evidence to support the court’s finding that the account had been paid.

For about two years appellee Watson, a contractor, had purchased windows as needed from John Triska, owner of Tri-Hall Window Company. On February 1, 1962, appellee Watson paid Triska his current account in full. On the same date it appears he sold to Triska a duplex and lot, taking, a note and second mortgage as security for the $2,250.00 balance. At that time Triska promised to pay for this balance by crediting Watson’s pending and future purchases to this $2,250.00 balance. The note and mortgage indicated future credits were to be made.

At this same time Triska was also indebted to the appellant, American Metal Window Company, Inc., as his supplier. Three weeks later, or on February 22, 1962, Triska sold his business [Tri-Hall Window Company] to appellant together with accounts receivable. Triska was retained by appellant as their agent with authority to make sales and collections. On this same date several orders of window materials were delivered to appellee’s construction site. Delivery and packing slips accompanying the deliveries reflect the name of appellant as the supplier. According to Watson, these orders were placed with Triska before lie sold his business to appellant.

Upon receiving a March invoice from appellant, Watson reported it to Triska who told him: “You forget them. I’m taking care of your windows.” Appellee Watson contends this was in accordance with their agreement. Thereafter, two smaller orders were delivered through Triska as agent of appellant. Monthly statements were mailed by appellant to appellee. When a demand was made by appellant in August, 1962, that he pay his account, appellee informed appellant that he had paid their general manager and agent, Mr. Triska.

Appellant contends that the packing slips accompanying the deliveries gave notice of their ownership of the material before it was used by appellee and, therefore, appellee was indebted to appellant by virtue of his acts as well as by express contract and that the said slips and monthly statements made “an account.stated” between appellant and Watson. In rejecting these contentions of appellant the court found: “That the defendant paid the agent of the plaintiff for the items set forth in the account and that said agent was acting in the apparent scope of his authority.” Thus, the entire issue revolves around appellant’s third point.

The appellant, American Metal Window Company, was a supplier of Trisha’s business firm [Tri-Hall Window Company] before appellant acquired ownership of it. Appellee Watson was a customer of Trisha’s before the change in ownership. According to Watson, he had no knowledge of the change in ownership from Tri-Hall Window Company to American Metal Window Company. Furthermore, the truck making his deliveries continued to bear the name of Tri-Hall Window Company and the telephone number remained the same. Appellee also testified that Triska advised him to ignore appellant’s invoice and, accordingly, appellee applied his purchase to Trisha’s account as agreed. It is not disputed that Trisha’s agency encompassed the right to make sales and collect appellant’s accounts.

When the evidence as to the nature and,extent of an agent’s authority is in conflict it is a question of fact for the jury. Bradley Advertising, Inc., v. Froug Stores, Inc., 193 Ark. 639, 101 S. W. 2d 789. In the ease at bar the court, sitting as a jury, determined that appellant’s agent was acting within the scope of his authority when appellee made his payment to the agent in the manner claimed by appellee.

It is well settled law in this state that the finding of the trial court, as the trier of the facts, has the verity and binding effect of a jury verdict and will be sustained if there is any substantial evidence to support it. In International Harvester Company v. Layton, 148 Ark. 156, 229 S. W. 22, where the trial court sat as a jury, we said:

“ * * * it 110t our provillce on appeal to determine where the preponderance lies. Under the often announced rule of this court, we must give the evidence its strongest probative force in favor of the court’s finding.”

In determining the sufficiency of the evidence to support a verdict all the evidence must be viewed with every reasonable inference derived therefrom in the light most favorable to the appellee. Harkrider v. Cox, 232 Ark. 165, 334 S. W. 2d 875; Missouri Pacific v. Dotson, 195 Ark. 286, 111 S. W. 2d 566.

The judgment is' affirmed.


author: Per Curiam Order 3345. Ed. F. McFaddin, Associate Justice

text:
    Greer Lumber Co. v. Doles.
    5-3445
    382 S. W. 2d 189
    Opinion delivered September 28, 1964.

      P>. 8. Clark, for appellant.

      John Sizemore, for appellee.

   Per Curiam Order 3345.

Greer Lumber Co. et al. v. Joe S. Doles, from Prairie Circuit; So. Dist.; by consent, the parties are given leave to apply to the Workmen’s Compensation Commission for approval of a joint settlement.

Harris, C. J., and McFaddin, J., dissent.

Ed. F. McFaddin, Associate Justice

(dissenting). This case was appealed to the Supreme Court from the Prairie Circuit Court, Southern District; and here in this Court all parties have now filed a pleading as follows :

“JOINT MOTION TO REMAND TO THE ARKANSAS WORKMEN’S COMPENSATION COMMISSION FOR FURTHER PROCEEDINGS. “The appellants and the appellee have reached an agreement to settle the above captioned matter by Joint Petition in accordance with Ark. Stat. Ann. §' 81-1319 (1) (Repl. 1960) subject to the approval of the Arkansas Workmen’s Compensation Commission.' Therefore, the appellants and the appellee jointly move that the Supreme Court of Arkansas remand the above captioned matter to the Arkansas Workmen’s Compensation Commission for further proceedings.”

This Court is granting the Motion and is remanding the case directly to the Workmen’s Compensation Commission. In short, the cause will be taken from the Supreme Court to the Workmen’s Compensation Commission, and the Circuit Court of Prairie County will be entirely ignored and bypassed in the matter. 1 respectfully dissent from such direct proceeding. If the parties want the cause remanded, we should send it back to the Prairie Circuit Court, from whence we received it. The word “remand” in Black’s Law Dictionary is defined as: “ The sending the cause back to the same court out of which it came, for purpose of having some action on it there.” Adjudicated cases follow the definition. See State v. Swafford (Tenn.), 198 S. W. 2d 1007; and State v. Slater (Ida.), 241 P. 2d 1189.

The Arkansas Workmen’s Compensation Law says in Ark. Stat. Ann. § 81-1325 (Repl. 1961) : “Appeals from the circuit court shall be allowed as in other civil actions.” In other civil actions it has been the rule of this Court that if-the cause is to be remanded, it be remanded back to the court from which the Supreme Court receives it.- As early as Poindexter v. Russell, 11 Ark. 664 (decided in 1850), this procedure was recognized. In that case there had been an attempted appeal from the Justice of the Peace Court to the Circuit Court and then to this Court. There was some irregularity in the method of appeal from the Justice of the Peace Court. The Supreme Court sent the cause back to the Circuit Court, rather than to the Justice of the Peace Court. So far as I can find, the procedure is uniform that causes are remanded to the. court from which they are received. If the People of Arkansas had wanted appeals to be made directly from the Workmen’s Compensation Commission- to the Supreme Court, they could have so provided; but Ark. Stat. Ann. § 81-1325 (Repl. 1961) provides for appeals from the Workmen’s Compensation Commission to the Circuit Court, and from that tribunal to the Supreme Court. We have no right to bypass the Circuit Court on remand; and I therefore respectfully dissent from the order remanding this cause directly to the Workmen’s Compensation Commission.


author: Carleton Harris, Chief Justice.

text:
    Rowe v. Rowe.
    5-3323
    382 S. W. 2d 370
    Opinion delivered October 5, 1964.

      Kenneth G of felt, for appellant.

      W. J. Walker, for appellee.
   Carleton Harris, Chief Justice.

On June 11, 1959, Irene Rowe, appellee herein, was granted an absolute divorce from William E. Rowe, appellant herein, and was awarded custody of the two minor children, Keith Rowe and Garry Rowe. The decree, inter alia, provided, ‘ ‘ The defendant shall pay into the registér of the Master of this court, $25 each and every week hereafter as alimony, maintenance and child support. ’ ’ On December 18, 1963, appellee filed a petition in the trial court, setting-out the aforementioned language, and praying, “for an order of this court amending the original decree by deletion of the word ‘alimony’ from the decree.” On January 8, 1964, the chancellor granted the relief prayed, and an order was entered amending the decree of divorce, “in that the word alimony is deleted from the decree and henceforth the $25.00 per week payments made by the defendant to the plaintiff shall be for the maintenance and support of the parties’ two minor children.” From the decree so entered, appellant brings this appeal.

In response to the question as to why she was requesting that the word “alimony” he deleted, and that the payments he declared child support, Mrs. Rowe replied :

“With the word ‘alimony’ in there I have had to claim that in addition and add it on to my teaching salary as my whole salary and I have met with the income tax people and even had to pay them back because I did not know that in the beginning and that is why that I would like for it all to be claimed as child support instead of the word ‘ alimony. ’ The way it is worded I have to claim it all as my income. ’ ’

In other words, Mrs. Rowe was required to add the $1,300.00 paid to her by appellant, to her own teaching income, which made a difference in the amount of income tax due.

For reversal, appellant asserts that at the time of the entry of the amended decree, the court term, at. which the original decree had been issued, had expired, and the court was therefore without jurisdiction to amend. We have, many times, held that the court has continuing-jurisdiction to modify allowances. In Perry v. Perry, 229 Ark. 202, 313 S. W. 2d 851, this court said:

“As a matter of law the trial court retains control of the cause with jurisdiction to modify an allowance of alimony or maintenance.”

See also Watnick v. Bookman, 209 Ark. 696, 192 S. W. 2d 131.

It is also argued that there was no change of circumstances (following the rendition of the original decree) that would justify the court in entering the order here appealed from. It is true that we have held that one seeking- modification of a prior decree, involving custody or support of children, has the burden of establishing changed circumstances that necessitate the modification. Stovall v. Stovall, 228 Ark. 1077, 312 S. W. 2d 337. Of course, in practically all of our cases of this nature, the necessity for showing change in circumstances relates to an application seeking a change of custody of the children from one parent to another, or an application requesting an increase, or decrease, in child support payments. Here, neither of these questions is involved. No change in the custody order was sought, or made; nor was the amount of payment, that Mr. Rowe had been making, changed. The order simply designates the $25.00 per week entirely for support of the two children, rather than including any support for the wife. Mrs. Rowe testified that she was able to support herself. Of course, we think the time element itself establishes a change of circumstances, for the children, at the time of the amended decree, were four and a half years older-than when the original divorce decree was granted and support order entered. Both children are now of school age, rather than only one, and we think it readily apparent, under normal circumstances, that more money is required to support boys 13 and 8 years of age, than would be necessary for the maintenance of boys 9 and 4 years of age. Likewise, we do not think it can be successfully argued that $50.00 per month for each child is an unreasonable amount to require the father to pay; appellant’s income has not been reduced since the rendition of the divorce decree; in fact, he has received a slight increase in salary.

Mr. Rowe stated that he was not claiming these children as dependents in filing his Federal income tax return, but does claim them in preparing his state income tax return.

Appellant does not set out any specific reason for opposing the dropping of the word, “alimony,” and for this court to mention any possible reason or reasons, would be only to speculate.

We think the court had full authority to amend its original decree, and we are unable to say that such action was improper under the testimony presented.

Affirmed.

       The order was actually made on December 19, 1963, but was entered nunc pro tunc on January 8, 1964.

       When asked why he carried them on one and not the other, Mr. Rowe replied, “It is my affair, isn’t it?”


text:
    Terry v. State.
    5-3323
    382 S. W. 2d 361
    Opinion delivered October 5, 1964.

      Anthony G. Kassos, for appellant.

      Bruce Bennett, Attorney General, By: Beryl F. Anthony, Jr., Asst. Atty. Gen., for appellee.
   Ed. F. McFaddin, Associate Justice.

Appellant, Andrew Otis Terry, was tried on an information which charged the statutory offense of burglary, being Ark. Stat. Ann. § 41-1001 (1947), which, as amended by Act No. 185 of 1955, now reads:

“Burglary is the unlawful breaking or entering a house, tenement, railroad car, automobile, airplane, or any other building, although not specially named herein, boat, vessel or water craft, by day or night, with the intent to commit any felony or larceny.”

From a jury verdict of guilty and judgment pronounced thereon, there is this appeal by court appointed counsel; and the point urged is that the evidence was insufficient to establish the offense of burglary. There was no evidence of entry, so the answer to the posed question is whether there was sufficient evidence of breaking to constitute burglary.

The evidence indicated rather clearly that appellant was a “peeping tom” (see Act No. 156...of 1955, as found in Ark. Stat. Ann. § 41-1426- (Supp. 1963). He was caught outside the bathroom window of the prosecuting witness. The window was several feet above ground level and appellant had pushed back into the brick foundation the iron grill over the ventilator in order to stand on the brick and look in the bathroom window. The ventilator opening was below the floor level of the house and allowed entrance to no part of the dwelling. The metal grate was still in the back of the brick opening. Only a foothold space had been accomplished, so the pushing of the iron ventilator could not be termed a “breaking,” as will be shown by the cases hereinafter cited.

Appellant had also pried loose one of the lower corners of the metal screen framing over the bathroom window, but the window was locked and none of the glass was broken. The window facing and sash had been painted during the day and there were no marks of any kind on the window or the newly painted sash or-facing; so there had been nothing more than the prying loose of the lower corner of the metal screen frame. The appellant was seen as he was looking in the window and was immediately apprehended. There was no entry and only the foregoing detailed efforts toward breaking.

Has there been a sufficient breaking to establish the offense of burglary1? That is the question. Governed by our own cases on breaking we must answer the posed question in the negative. In Minter v. State, 71 Ark. 178, 71 S. W. 944, a similar question was posed, and Justice Riddick, in holding that there had been no breaking, used this language:

“No one contends that there was an entry of the house by the defendant in this case, and in our opinion no breaking is shown. Actual breaking, as applied to burglary, means the making of an opening or mode of entrance into a building by force. 5 Am. & Eng. Enc. Law (2d Ed.) 45; Bishop, Stat. Crimes (3d Ed.) 312. But the evidence does not show that any opening- was made into the house. The defendant removed some slats on the outside of the window, and removed some tacks and putty from the window sash, but the glass of the window sash was still in place, and was between the defendant and the inside of the house. We are, therefore, of the opinion that the evidence did not show either a breaking or an entry into the house, and that the crime charged was not proved.”

In Anderson v. State, 84 Ark. 54, 104 S. W. 1096, the appellant had been tried and convicted of burglary and in reviewing the conviction this Court said:

“The statute does not change the character of the ‘breaking’ that was essential at common law to complete the offense. Such breaking at the common law was ‘ any disrupting or separating of material substances in any enclosing part of a dwelling house, whereby the entry of a person, arm, or any physical thing capable of working a felony therein may be accomplished.’ 2 Bishop, Cr. Law § 91. Rapalje, Larceny & Kindred Offenses, 375. That the term ‘break’ in the statute is to be given the same meaning as that term at common law, see numerous authorities collated in 6 Cyc. 175. The essentials of the above definition as to the ‘breaking’ must be met by proof before the crime of burglary by ‘breaking’ is complete. The proof in this case falls short of it. There was no ‘opening or mode of entrance’ here by which a felony could have been committed within the building. Minter v. State, 71 Ark. 178. The only opening into the building was the hole in the door, and it is not shown that it was possible to abstract anything through this opening, or that any latch or fastening could have been reached whereby to effect an entrance. Therefore the judgment has no evidence to support it, and the cause is reversed and remanded for new trial.”

The Attorney General admits the effect of the foregoing cases, but insists that our definition of burglary should be “modernized,” and to support his contention cites, inter alia; Simmons v. State (Ga. App.), 88 S. E. 904; State v. Chappell, 185 S. C. 111; State v. Wilson (Mo.), 125 S. W. 479; State v. Rosencrans (Wash.), 167 P. 2d 170; and State v. Maxey (S. C.), 62 S. E. 2d 100. This desire to have the definition of burglary “modernized” should be addressed to the Legislative branch of Government, rather than to the Courts. Under our holdings, as previously cited, we cannot find any ‘ ‘ breaking” to have been accomplished in this case.

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

       In 9 Ark. Law Rev. 402 there is a short discussion of the Act No. 185 of 1955. In the same connection see also 3 Ark. Law Rev. 466.


author: G-eorge Eose Smith, J. The appellee,

text:
    Nunez v. O. K. Processors.
    5-3328
    382 S. W. 2d 384
    Opinion delivered October 5, 1964.

      A. A. McCormick, for appellant.

      Bethell & Pearce and Donald P. Callaway, for appellee.
   G-eorge Eose Smith, J. The appellee,

0. K. Processors, Inc., brought suit against the appellant, Art Nunez, in the state of Nevada. Nunez won the case and was awarded a judgment for costs of $15.85 and for an attorney’s fee of $400.

Nunez and his Nevada lawyer, John F. Mendoza, then filed the present petition, verified by their local attorney, to register the Nevada judgment in the Sebastian circuit court under the Uniform Enforcement of Foreign Judgments Act. Ark. Stat. Ann., Title 29, Ch. 8 (Eepl. 1962). Upon filing their petition they obtained a writ of execution against O. K., the judgment debtor. The trial court sustained a demurrer to the petition, directed that any future petition be verified by Nunez himself, and quashed the writ of execution. Pursuant to our suggestion in a preliminary opinion, Nunez v. O. K. Processors, 238 Ark. 346, 381 S. W. 2d 754, the parties corrected a deficiency in the record by obtaining a final judgment in the court below. We now consider the appeal under its merits.

The petition to register the Nevada judgment was awkwardly drafted, in that both the caption and the body of the petition followed the style of the Nevada case by referring to O. K. as the plaintiff and to Nunez as the defendant. It was, however, signed and verified by A. A. McCormick as attorney for the petitioners, Nunez and Mendoza. This ostensible reversal of roles was the basis of O. K.’s demurrer, which asserted that the failure to identify the petitioners created a defect of parties.

The demurrer should have been overruled. On demurrer doubts must be resolved in favor of the sufficiency of the petition. This petition asked that the Nevada judgment be registered under the Uniform Act, supra. An authenticated copy of the Nevada judgment was attached as an exhibit to the petition. There cannot be the slightest donbt that Nunez and Mendoza are seeking to enforce the Nevada judgment. It is absurd to suppose that 0. K. was misled into thinking that it was really the plaintiff in the Arkansas proceeding. This petition was good against demurrer.

In insisting that Nunez should have verified the petition in person the appellee relies upon Ark. Stat. Ann. § 27-1108 (Eepl. 1962). This statute permits a party to object to verification by the opposing attorney when the moving party does not believe that the attorney can truthfully verify the pleading and that the matters alleged are within the personal knowledge of the adverse litigant himself. The basic premise for the appellee’s motion to verify — that the facts were within Nunez’s personal knowledge — is wanting. The petition asserts only one essential fact, that a judgment was rendered in Nevada. (A second allegation, that nothing had been paid upon the judgment, was confirmed by the clerk of the Nevada court, as the Uniform Act contemplates. § 29-803.) An authenticated copy of the judgment was attached to the petition. Thus McCormick knew just as much about the cause of action as Nunez did, if not more. Personal verification by Nunez Avould have added nothing to the credibility of the petition.

In fact, 0. K. admitted in its motion and in its trial brief that its real reason for seeking Nunez’s verification lay in 0. K.’s doubts about AAdiether McCormick Avas really authorized to represent Nunez in this proceeding. A laAvyer’s authority to represent his client in litigation is presumed and can be put in issue by the adverse party only upon a shoAving of facts tending to indicate a want of authority. Pekin Stave & Mfg. Co. v. Ramey, 104 Ark. 1, 147 S. W. 83. No such facts are asserted here. Hence the allegations essential to a direct attack upon McCormick’s authority are absent. The motion to verify cannot serve as a tactical means of attaining the same end by indirection.

The Avrit of execution was properly issued when the petition to register the Nevada judgment Avas filed in the court below. A salient purpose of tbe Uniform Act is to permit the judgment creditor to obtain that relief more promptly than he used to be able to. Ark. Stat. Ann. § 29-806; Commissioners’ Note to § 6 of the Uniform Act; Leflar, The New Uniform Foreign Judgments Act, 3 Ark. L. Rev. 402, 415. When the petition is reinstated in the trial court the writ should also be reinstated.

Reversed.


author: Paul Ward, Associate Justice.

text:
    Dixie Auto Ins. Co. v. Goudy.
    5-3310
    382 S. W. 2d 380
    Opinion delivered October 5, 1964.

      Levine $ Williams, for appellant.

      Carlton Currie, for appellee.
   Paul Ward, Associate Justice.

This appeal calls for an interpretation of certain language in a liability insurance policy. An outline of the pertinent facts involved is set out below.

On December 16, 1960 the Dixie Auto Insurance Co. (appellant herein) issued its policy to W. G. Goudy (appellee herein) covering a specifically described 1956 Ford passenger automobile. [A copy of the policy was put in evidence and certain pertinent parts are set out in the briefs to which reference will be made.] On August 15, 1961 appellee bought a 1949 model Ford car. On the same day appellee, while driving this car, had a collision with a car belonging to a Mr. Robert P. Fratesi, resulting in injuries to appellee and Mrs. Fratesi and in damage to Mr. Fratesi’s car. Mr. and Mrs. Fratesi filed suit against appellee, and on February 16, 1962 they recovered a default judgment for $5,880.

On September 27, 1962 appellee filed suit against appellant setting out many of the above stated facts and particularly the Fratesi judgment, and prayed for judgment in the amount of $5,880 together with statutory penalty and attorney’s fee. Appellant filed an answer, raising the points and issues hereafter discussed.

By consent of the parties the cause was tried before the circuit judge sitting as a jury. The trial resulted in a judgment in favor of appellee as prayed for. This appeal follows.

After a careful study of the record, the briefs, and the points relied on by each party, we find that certain issues relied on by appellant for a reversal are properly raised and they will be discussed in the following sequence.

One. Was the 1949 Ford covered by the policy? The trial court held it was, and we agree. Both parties rely on the wording found in § 4 of Paragraph IV of the policy which in material part reads as follows:

“(4) Newly Acquired Automobile — an automobile ownership of which is acquired by the named insured or his spouse if a resident of the same household if (i) it replaces an automobile owned by either and covered by this policy, or the company insures all automobiles owned by the named insured and such spouse on the date of its delivery, and (ii) the named insured or such spouse notifies the company within thirty days following such delivery date; but such notice is not required under coverage A, B and division i of coverage C if the newly acquired automobile replaces an owned automobile covered by this policy.” (Emphasis added.)

Appellant relies on the italics in above quotation. It is contended, and we agree, that the 1949 car was not used to replace the 1956 car. However, we think other language makes this contention immaterial. Following the italicized language we find: “or the company insures all automobiles owned by the named insured . . .” (Emphasis added.) It is, however, appellant’s argument that the latter language applies only when the insured owns a fleet of cars and not when he owns just one car. We agree this argument sounds reasonable but it is not sustained by the authorities. The case of Horace Mann Mutual Casualty Company v. Howard K. Bell et al., 134 F. Supp. 307 (W. D. Ark. 1955) is very much in point, and sustains appellee herein. There appellant had issued its policy to cover (only) Bell’s 1950 Plymouth — being the only car he owned at that time. Later Bell bought a pickup truck which was involved in a collision. The pertinent terms of the policy (set out in the opinion) were like those in this case. In stating the issue the opinion says:

. ‘ ‘ The evidence in the instant case clearly establishes that the pickup truck purchased by the defendant Bell did not replace the Plymouth automobile described in the policy . . . Thus the crucial question is whether the plaintiff insured ‘all automobiles owned by the named insured’ at the delivery date.”

In holding the pickup truck was covered, the court quoted with approval the following from Dunmire Motor Co. v. Oregon Mutual Fire Ins. Co., 166 Or. 690, 114 P. 2d 1005:

“ ‘It is our opinion that, taking the automatic coverage provision in its entirety, it was intended to apply to any other automobile acquired by the assured who owns one or more automobiles, provided that all the automobiles, whether one or more, then owned by him were insured by the defendant corporation.’ ”

No decision of our Court in point has been called to our attention, nor do we know of any.

Two. Appellant says.the judgment of the trial court should be reversed because appellee gave no notice to appellant of the accident as required by the terms of the policy. As stated previously, this case was tried before the court, and, therefore, all findings of fact must be sustained if supported by substantial evidence. It is not denied here that appellee testified he gave notice of the accident involving the 1949 car on the day after it occurred. It is also not disputed that later the matter was turned over to an adjuster who made a detailed report to appellant. It is, however, argued by appellant that the report showed appellee was only interested in being repaid for medical expenses incurred by him as a result of the accident, but we find abundant evidence in the record to sustain a finding that appellant knew of, and investigated, the accident with Fratesi.

Three. We cannot agree with appellant that the case must be reversed because Fratesi secured a default judgment against appellee. We agree with appellant that ordinarily a jury must be impaneled to assess damages in a case like this. [See Naperskie v. Trevillion, 202 Ark. 638, 151 S. W. 2d 992.] However in our opinion appellant waived any right it might have had at any time to refuse payment because of the default judgment by denying all liability as further hereafter explained and discussed.

Four. It is now strenuously contended by appellant that it is not liable to appellee in any amount because appellee failed to give notice of the Fratesi suit as required by the terms of the policy. In support of its contention, appellant quotes portions of the policy as follows :

“Notice of Claim or Suit — Coverages A and B. If claim is made or suit is brought against the insured, the insured shall immediately forward to the company every demand, notice, summons or other process received by him or his representative.
“Action Against Company — Coverages A and B. No action shall lie against the company unless, as a condition precedent thereto, the insured shall have fully complied with all the terms of this policy, nor until the amount of the insured’s obligation to pay shall have been finally determined either by judgment against the insured after actual trial or by written agreement of the insured, the claimant and the company.”

Again, it is our conclusion that appellant waived its right under the above provisions by denying any and all liability.

Not only does appellant contend there is no substantial evidence to show such a denial but also contends that even so, such denial did not constitute a waiver. We .are forced to disagree with appellant on both counts.

The exhibits (introduced in evidence by appellee) Included reports, dated November, 1961, to appellant by the adjusting agency. Among other things they showed: (a) an investigation had been made as to the extent of injuries to Mrs. Fratesi as a result of the collision; (b) .an investigation had been made as to how the accident ■occurred; and (c) that appellee was clearly to blame for the accident. Exhibit No. 6 shows that the adjusting agency advised appellant in these words:

“As per your instructions we have contacted the assured and advised that there would be no coverage. * * *
“We have contacted Attorney Jack Davis, who was representing the claimant’s collision carrier for their subrogation rights and advised him that Mr. Goudy has no coverage under his policy with your company and we have further contacted Attorney Jay Dickey, who was representing operator of the adverse vehicle for personal injuries, advising him that there is no coverage.”

Appellant did not contend it counteracted or modified the above reports.

In view of the above we must conclude there was substantial evidence to sustain a finding that appellant disclaimed all liability under the terms of the policy.

Applying the relevant law to the facts we find appellant waived its' rights under the above quoted provisions of the policy.

In the case of American Fidelity & Casualty Company, Inc. v. Northeast Ark. Bus Lines, Inc., 201 Ark. 622, 146 S. W. 2d 165, many of the pertinent facts were similar to those of the case under consideration. The policy (as set out in the opinion) provided that assured shall ‘ ‘ give immediate notice ’ ’ of any accident, and shall forward to the insurer ‘ ‘ every process, pleading and paper” in ease suit is brought. Notice of the accident was not given until six months had elapsed after the accident, and suit was filed against the insured about the same time. There was a trial before the judge and a default judgment was entered in favor of Shelton, the injured party. Appellant paid the judgment, but sued the insured to recover the amount paid on the ground that he had not complied with the provisions of the policy relative to notice. The trial court and this Court held against the insurer’s contention upon the ground that the insurer had ‘ ‘ denied all possible liability under the insurance contract ... * * * The law does not impose upon appellees [the insured] the doing of a vain and useless thing. ’ ’ In the case under consideration it seems to us that it would have been a vain and useless thing for appellee to give notice to appellant of the Fratesi suit since it had already disclaimed all liability.

In this connection the general rule seems to be well stated in 45 C. J. S. Insurance % 1062:

“• — Repudiation of Liability on Different Ground. As a general rule, the insurer under a policy of liability insurance waives objections as to notice of claim and failure to forward papers where it repudiates liability on a different ground.” •

The reason for this rule is concisely stated in Haskell v. Eagle Indemnity Co., 108 Conn. 652, 144 A. 298:

“ ‘The denial by the defendants of all liability in this case expressly conceded that there was a loss, and was a notice to the plaintiffs that they would not be bound in any event, though formal proofs were furnished. * * * . . . the law rarely, if ever, requires the observance of an idle formality. . . ”

See also 76 A. L. R. 147, 123 A. L. R. 974, and 18 A. L. R. 2d 491. In the latter citation there appears this statement:

“It is well settled by the later cases involving'this point that the insurer is precluded from defending successfully against an action brought under a liability policy on the ground of a violation by the insured of the provisions as to notice and the forwarding of suit papers where it had denied liability on some other ground.”

Fifth. Finally it is argued by appellant that the Fratesis should have been made parties to this suit. The answer to that argument is that appellee tried to make them parties but appellant objected, and his objection was sustained by the court.

It follows that the judgment of the trial court must ■be, and it is hereby, affirmed.

Harris, O. J., not participating.


text:
    Pitts v. Greene, Adm'r.
    5-3311
    382 S. W. 2d 904
    Opinion delivered October 5, 1964.
    [Rehearing denied November 9, 1964.]

      Mahony £ Yocum, for appellant.

      Brown, Compton £ Prewett, for appellee.
   Paul Ward, Associate Justice.

Susan Ann Russell, at the age of seventeen years, was fatally injured while riding in an automobile which was struck by a large trailer truck. The truck was owned by the Pitts Trucking Company (hereafter called “Pitts”) and it was being driven by appellant Henry Gibson. The car in which Susan was riding was being driven by her high school classmate, Fifi Greene. It is not denied that Miss Greene was entering a street intersection in El Dorado with the green light when the truck ran the red light and struck her car.

Suit was filed against Pitts and Gibson by Chester L. Greene, as Administrator of the Estate of Susan Ann Russell, deceased. Although other issues are involved on appeal, the prime contention of appellants at the trial was and here is that the collision ivas caused by the failure of the truck’s brakes to function and that the collision was a result of an unavoidable accident.

At the conclusion of a trial the jury returned a verdict in the amount of $2,179.28 for the use and benefit of the Estate of Susan, $25,000 in favor of Susan’s mother, and $15,000 in favor of her father. Judgment was rendered accordingly, and this appeal follows.

For - a reversal appellants rely on seven separate points which we will discuss under the following headings : One, appellants ’ request for instructed verdicts; Two, alleged error in giving certain instructions; Three, alleged error in refusing to give a requested instruction; and Four, excessive judgments in favor of Mr. and Mrs. Bussell.

One, appellants contend the court should have instructed a verdict in favor of each of them, it being conceded apparently that any negligencé shown on the part of Gibson would be attributed to Pitts. Simply stated, the issue is whether the record contains any substantial evidence to support a finding of negligence on the part of Gibson. Appellants strongly contend the record contains no such evidence. We are unable to agree with appellants.

Several witnesses who saw the accident testified as to how it happened. We think it will suffice to summarize this testimony since there is slight dispute as to the material facts. The collision occurred at the intersection of West Hillsboro Street and South Washington Street —the former running east and west and the latter north and south. Just west of said intersection and at each intersection there was a red-green traffic signal. For convenience we may hereafter refer to where South West Avenue intersects Hillsboro Street as the “first intersection” and to the intersection where the collision occurred as the “second intersection”. The truck consisted of a tractor or cab and a 37-foot trailer. It was loaded with 25,000 pounds of steel at the time, and the overall weight of the truck and the load was a little over 54,000 pounds. Gibson stated he had been driving cross-country since 6:30 that morning, and the collision occurred at about 3:30 o’clock p.m. West Hillsboro Street slopes 5 feet from the first intersection to the second intersection and then it begins to rise as it goes over a viaduct 37 feet high.

The testimony of Appellant Gibson was in material respects substantially as follows: I am 36 years old; I had been driving for Pitts 7 years and had driven this truck 4 months when the accident occurred; previous to the accident I had used the brakes several times that day and had had no trouble; the first stop I made in El Dorado was at the first intersection — there were two cars in front of me and when the light turned green I started east along West Hillsboro Street — I was driving 20 to 25 miles per hour; when I was about 200 feet west of the second intersection I saw the light turn red at the second intersection — I didn’t attempt to put on my brakes until 1 had run about 50 feet and then when 1 did try to apply the brakes I found they didn’t work; I first tried the service brake and then the emergency brake and after that I tried to put the truck in low gear — just as 1 tried to put the truck in low gear the cab of the truck was entering the intersection and collided with the automobile in which Susan was riding; if I had put the truck in low gear when I was 200 feet from the second intersection it would not have stopped the truck but it could have slowed it down and likely have missed the car; the truck picked up speed because of the down slope without applying any power; when I tried to put the truck in low gear it was already entering the second intersection.

This Court has held that any material facts may be established by circumstantial evidence. St. Louis, I.M. & S. Ry. v. Hempfling, 107 Ark. 476, 156 S. W. 171. In the case of Adams v. Browning, 195 Ark. 1040, 115 S. W. 2d 868, this Court reversed the action of the trial court in directing a verdict for the defendant,"saying:

“Under our system of jurisprudence, it is the province of the jury to pass upon the facts. It is not only their privilege but their right to judge of the sufficiency of the evidence. The credibility of the witnesses, the weight of their testimony, and its tendency, are matters peculiarly within the province of the jury. If there is any substantial evidence it is the duty of the court to submit the matter to the jury.”

When applying the factual situation in this case to the law as set out in the above case, we are unable and unwilling to say there is no substantial evidence of negligence on the part of Gibson to support the finding of the jury. The jury had a right to believe all or any part of his testimony, and the jury might have' concluded that appellant was driving at too great a speed compatible with the slope of the street and the weight of the truck and its contents; at one time Gibson seems to say that as soon as he learned that the brakes would not work he tried to put the truck in low gear while at another time he seems to say he tried to apply the service brake and the emergency brake before attempting to put the truck in low gear. Gibson also testified that just as he attempted to put the truck in low gear it had already entered the second intersection; but at another time it would appear that ho was 150 feet away from the intersection when he tried to shift to low gear. Such apparent discrepancies of course could have been considered by the jury.

There is another ground under which Pitts might have been held liable aside from any negligence on the part of Gibson. See Brand v. Rorke, 225 Ark. 309, 280 S. W. 2d 906. The facts in that case were somewhat similar in principle to the facts of the case under consideration. Appellant, Brand, was injured while riding in a car driven by appellee, Rorke. In appellant’s complaint against Rorke it was alleged that the latter was driving an automobile without brakes which was the cause of her injuries. At the trial appellant testified that appellee was driving down a mountain highway when the brakes failed, etc. The trial court directed a verdict in favor of appellee. In reversing the trial court we made this statement:

“It is insisted by the appellee that this proof falls short of establishing negligence, since the mechanical defect might have arisen suddenly and without fault on Rorke’s part. Even so it was not necessary for the plaintiff to anticipate and disprove this possible explanation. By statute every motor vehicle must be equipped with adequate brakes. Ark. Stats. 1947, § 75-724. It has often been held that proof of the violation of such a. safety measure is evidence of negligence. [Oases cited.] The appellant’s testimony constituted substantial evidence to the effect that the statute had been violated; it was for the jury to say whether the defendant was guilty of negligence.”

Tioo, appellants objected to several instructions given to the jury. It would’ serve no useful purpose to set out all these instructions and comment on each one of them. However, we have carefully examined each and find no reversible error. We deem it sufficient therefore to comment only on the principal objections raised.

Instruction No. 12 reads as follows:

“You are instructed that it is the duty of every person operating a motor vehicle upon a public street or highway to keep a lookout for other vehicles which •may be upon the streets or highways, and to have his or her vehicle under such control as will enable him or her to check its speed or to stop if necessary in order to avoid injury or damage, where danger is reasonably to be anticipated or is apparent.”

Appellants’ objection to the above instruction is that it imposes an absolute duty on the driver to keep a lookout and to have his vehicle under control, etc. while the law requires only reasonable care. We cannot agree that the instruction, as given, constitutes reversible error when it is considered in connection -with previous statements of this Court and with other instructions given by the court in this case. In Livingston v. Baker, 202 Ark. 1097, 155 S. W. 2d 340, we said:

‘ ‘ Criticism of this instruction is particularly directed to the language, ‘When the driver of a motor vehicle sees danger ahead, or it is reasonably apparent if he is keeping a proper lookout, or if he is warned of approaching imminent danger,’ then it is his duty to bring his vehicle under control and to stop it if necessary to avoid the danger. We see no objection to this language when applied to the undisputed facts in this case or to the facts which the jury found by its verdict to be true, even though disputed.”

The above comment is indeed applicable to the facts here. Unquestionably Gibson was warned of “approaching imminent danger” when he saw the signal light at the second intersection turn red.

In the case of Northwestern Casualty & Surety Co. v. Rose, 185 Ark. 263, 46 S. W. 2d 796, where the issue was similar to the one here raised, we said:

“It is the well-settled rule that the duty rests upon the driver of an automobile to exercise ordinary care in its operation, and in the exercise of such care it is his duty to keep a constant lookout to avoid injury to others. This is particularly incumbent upon him when driving on the street of a city in order to avoid injury to pedestrians, as he should anticipate their presence upon such streets and their equal right to their use.”

Prom the above it is apparent that at least two duties rest upon the driver: one is the duty to exercise reasonable (or ordinary) care in operating a vehicle while the other is the duty to keep a proper lookout for the safety of others. Instruction No. 12 covered the latter duty only. Other instructions of the court- correctly defined negligence and ordinary care as applied to Gibson in operating a vehicle on a street or highway.

The trial court gave Instruction No. 22 which deals with the question of damages for mental anguish. Appellants objected on the ground that “it ignored this court’s rule that damages for mental anguish can only be awarded for such anguish over and above normal mental anguish”. Granting that appellants’ objection is sustained by Peugh v. Oliger, Admx., 233 Ark. 281, 345 S. W. 2d 610, we do not agree that the suggested defect in the given instruction calls for a reversal. We think it was cured by other instructions given to the jury. Instruction No. 21 given by the court told the jury that in order to recover damages for mental anguish it “must be more than the normal grief over the loss of a loved one”. In addition, the court, in Instruction No. 1, told the jury it must consider all instructions as a whole.

Three, appellants here contend that the court erred in failing to give Instruction No. 17 requested by them, and set out in appellants’ argument as follows:

“You are instructed that a motorist, in a sudden emergency, and who is required to act quickly and acts according to his best judgment, or who, because of want of time in which to forpi a judgment, omits to act in the most judicious manner, is not chargeable with negligence, provided he exercised, in the emergency, care of a reasonably prudent individual under like circumstances.”

We find no error. First, because the court had already given Instruction No. 15A which we find correctly covered the same subject matter. Also, it appears that the instruction copied above omits a portion of the requested instruction which was refused by the court. The omitted portion appears to us to be argumentative and therefore objectionable. Anyway it was not necessary for the court to give both instructions.

Four, finally, it is urged that the judgments based on mental anguish are excessive. As stated, the jury gave Susan’s mother $25,000 and her father $15,000. Appellants now ask us to reduce these judgments, but we are not persuaded to do so. In approaching this question we are 'reminded of what we said in the case of J. Paul Smith Co. v. Tipton, 237 Ark. 486, 374 S. W. 2d 176:

“. . . there has not been and never will be devised a definite and satisfactory rule by which to determine the amount of money required to compensate parents for mental anguish.”

We have recently been called on to consider the same question in the cases of Tiner v. Tiner, 238 Ark. 222, 379 S. W. 2d 425, and Peugh v. Oliger, supra, in which size-able amounts were approved for mental anguish. In none of these cases ivas there shown more evidence of mental anguish than is shown here, particularly as applied to Mrs. Russell. Susan is pictured by several witnesses as a lovely girl, active in school and church affairs, and attached to her parents. Susan’s mother said she went to pieces and had to go to work since she couldn’t stay at home, that she was unable to work and had to leave town several times — but nothing helped. The nurse drew a touching picture of how Mrs. Russell acted when she visited the hospital, indicating excessive grief — this was continuous while the nurse was there. The extent to which Susan’s death affected the father is indicated by the showing he was visibly upset while testifying — his face was contorted and it was hard for him to make audible answers. At times he covered his face with his hands.

It was within the province of the jury to fix the pecuniary remuneration to compensate the parents for their grief because of the death of Susan. We are not able to point to any satisfactory reason why we could or should, under the facts in this ease, reduce the amounts fixed by the jury.

Affirmed.