author: J. Fred Jones, Justice.

text:
    Hurley Pickett Lake Farms, Inc. v. W. F. Sullivan and Abe Jones
    4717
    434 S.W. 2d 88
    Opinion Delivered November 25, 1968

      Hodges, Hodges & Hodges for appellant.

      Hout, Thaxton & Hout for appellees.
   J. Fred Jones, Justice.

In 1965 Abe Jones was the lessee of farm lands from Hurley Pickett Lake Farms, Inc. W. F. Sullivan was a regular employee of Jones, and while destroying a wasp nest outside a building on the leased lands, Sullivan negligently set fire to the building and it was destroyed. Lake Farms sued Jones and Sullivan in the Jackson County Circuit Court for $18,000 damages. A jury trial resulted in a judgment for $3,000 in favor of Lake Farms against Sullivan only, and Lake Farms has appealed. It relies on the following points for reversal:

“The trial court erred in overruling appellant’s motion to strike clarification of stipulation.
The trial court erred in overruling appellant’s motion for judgment notwithstanding verdict.
The trial court erred in overruling appellant’s motion for new trial.
The verdict of the jury awarding only $3,000.00 damages is contrary to the law and evidence and not supported by substantial evidence.
The verdict of the jury whereby they found W. F. Sullivan was not acting within the scope of his employment is not supported by substantial evidence and is contrary to the law and evidence.”

The record reveals the following facts: The appellee Jones had farm lands under lease from the appellant and on the farm was a frame building which had been built about 1960 for the purpose of housing itinerant Mexican farm laborers and which had not been used for some time. The appellee Sullivan was a regular employee of Jones and in July, 1965, Jones instructed his employee Sullivan to clean up some cotton picking machines. Sullivan and a fellow employee moved the cotton picking machines into one end of the frame building for the purpose of working on the machines. After the cotton picking machines were moved into the building on Friday, Sullivan and his fellow employee went about destroying wasp nests inside the building. Sullivan returned to the building alone on the following Monday to work on the machines. After his lunch hour he worked on one of the machines awhile and while taking a break from his work, he noticed a wasp nest on the outside of the building. He threw some tractor fuel on this wasp nest and then lit a cigar and threw the lighted match down. The building caught fire and was destroyed.

This case was tried and verdict rendered for $3,000 on May 15,1967. Judgment was not rendered immediately by the trial court and on May 24, 1967, appellant filed a motion for judgment notwithstanding the verdict. After the motion was finally disposed of, judgment was entered nunc pro tunc for $3,000 on November 17, 1967.

As a part of the procedure on appellant’s motion for judgment notwithstanding the verdict, the attorneys entered into a stipulation on September 15, 1967, as follows:

“That counsel for defendants, Abe Jones and W. F. Sullivan, did not enter any testimony, either by witnesses or by physical evidence, contradicting or disputing the damages sustained by plaintiff.
That no witnesses for the plaintiff or defendants disputed the testimony of Bob Gardner, called as witness for plaintiff in his capacity as Manager of Hurley Pickett Lake Farms, Inc., that the reasonable cost of replacing the building taking into consideration its depreciation was $17,524.87.”

On September 19, 1967, the attorney for appellees filed an instrument designated “Clarification of Stipulation” as follows:

“Comes Phillip D. Hout, attorney for Abe Jones and W. F. Sullivan, defendants herein, and in order to clarify the Stipulation of Facts filed herein on September 15, 1967, states:
That the defendants at no time prior to, during, or following the trial of this cause, admitted that the reasonable cost of replacing plaintiff’s building was $17,524.87; that this was a disiouted matter and an issue of the case for the jury’s determination ; that although no witnesses were called for the defense for the specific purpose of testifying as to a specific monetary amount of damages less than that to which plaintiff’s witness testified, the defense did in fact elicit testimony from Abe Jones, W. F. Sullivan, Bob Gardner and others as to the nature of said building prior to its destruction; that such testimony related to the size of the building, the materials used in the building, the construction of the building, the use of the building, and the general condition of the building prior to its destruction; that all of said testimony was such that the jury could consider in determining the accuracy of the testimony of plaintiff’s witness as to the reasonable cost of replacing the building.
The defendants, therefore, withdrew any and all stipulations in conflict herewith.”

The appellant filed a motion to strike the clarification, the motion was overruled by the trial court and appellant assigns this as error in its first point.

The stipulation, as well as the clarification, were filed within four days of each other. They were filed some four months after the case was tried and verdict rendered, and some two months prior to entry of judgment. The stipulation, as well as the clarification, had to do with what was and was not in the record pertaining to testimony on damages. The stipulation between the attorneys did not fix the amount of damages at $17,-521.87 rather than the $3,000 awarded by the jury, and the clarification filed by appellees’ attorney clearly sets out that such was not his understanding and intent. We hold that the court did not err or abuse its discretion in refusing to strike appellees’ clarification, and in looking to the record rather than the stipulation in passing on the motion for judgment notwithstanding the verdict.

The appellant’s second, third and fourth points are so closely related to the first point, and to each other, that we shall not treat them separately.

The facts in the case here are very similar to those in the case of Hall v. Gage, 120 Ark. 320, 179 S.W. 508, where the defendant’s wall fell on plaintiff’s building and damaged it. The plaintiff’s son in that case testified that the damage to the building amounted to $1,-500. The jury returned a verdict for $500, and on a new trial returned a verdict for $350. The plaintiff filed a motion for judgment for $1,500 notwithstanding the verdict, the motion was denied and judgment rendered on the verdict. In affirming the judgment this court said:

“It is true that no witness testified as to the amount of his damages except his son and that the jury might have found from the testimony of Hall’s son that he was damaged in the sum of $1,500, the amount sued for. But we do not think, under the circumstances, that it can be said that his testimony was undisputed. The plaintiff himself did not testify and it appears from the testimony of his son that the son was interested with his father in the building which was destroyed. Both the questions asked by plaintiff’s counsel and the answers made by the son indicate that the son was greatly interested in the building and was, therefore, directly interested in the result of the law suit. Moreover, the witness described the condition of the walls and the kind of building which had been erected by his father and himself. In other words, by the testimony elicited from him on his direct examination and cross-examination the jury were fully informed as to the character and kind of building erected and the probable damage thereto. ’ ’

The witness, Bob Gardner, was manager of the appellant corporation, and it cannot be said that he was a disinterested witness. He testified that on the basis of estimates procured from a lumber company, the replacement value of the building, less depreciation, was $17,524.87. He also testified that the building was constructed in 1959 to be used for the housing of Mexican laborers; that it had not been used since 1962, and that he had not attempted to determine the value of its loss of use. This court has held many times that the testimony of a party interested in the suit is not to be considered as undisputed, but the question must be submitted to the jury. Lynch v. East Arkansas Builders’ Supply Co., 193 Ark. 1004, 104 S.W. 2d 205; Zorub v. Missouri P. Rd. Co., 182 Ark. 232, 31 S.W. 2d 421; Lewis v. Lewis, 222 Ark. 743, 262 S.W. 2d 456.

In determining the sufficiency of the evidence to support a judgment, the evidence must be viewed in the most favored light to the appellee; and we must give thereto its greatest probative value in his favor, together with every reasonable inference deducible therefrom. Vaughan Hardware Co. v. McAdoo, 196 Ark. 471, 118 S.W. 2d 280.

Even though the appellant alleged damages in the amount of $18,000 in this case, the jury verdict for $3,-000 was a verdict for a substantial amount, and where a jury returns a verdict for substantial damages on conflicting evidence, a judgment entered thereon will not be disturbed on appeal ¡even though the evidence would have sustained a verdict for a greater amount. Fulbright v. Phipps, 176 Ark. 356, 3 S.W. 2d 49.

Now as to the appellant’s fifth point, the test of the master’s liability for the negligence of his servant is not whether the act complained of was committed while the servant was in his employ, but whether it pertains to something incident to the employment and which it was the servant’s duty to perform, or was for the master’s benefit. C. J. Horner v. Holland, 207 Ark. 345, 180 S.W. 2d 524; United Transport, Inc. v. Wilson, 228 Ark. 1058, 312 S.W. 2d 191.

Both the appellant and the appellees have cited two cases close to the border line of the point involved in this case. Lindley v. McKay, 201 Ark. 675, 146 S.W. 2d 545, supports the appellees’ position if the facts are parallel and Vicennes Steel Corp. v. Gibson, 194 Ark. 59, 106 S.W. 2d 173, supports appellants’ position if the facts in the case at bar coincide with the facts of that case. In the McKay case, Lindley operated a fleet of trucks from Memphis through Arkansas into Missouri. Some of the trucks were operated by independent contractors and some were driven by regular employees. Britt Pierce, one of the regular employees, while driving through Arkansas to Missouri, picked up a hitchhiker, Ace Garrett, in Little Rock who requested a ride to Springdale, Arkansas. The truck Pierce was driving met one of the leased trucks being driven by Wilson and the two trucks stopped for the purpose of the hitchhiker, Garrett, interviewing the leased truck driver, Wilson, about employment. The two trucks were stopped about thirty or forty minutes during which time the three occupants of the two trucks ate a watermelon produced by Wilson, and one of the three cast aside a lighted cigarette which started a fire causing damages which resulted in a suit for damages against Lindley.

The jury found that the Lindley employee, Pierce, started the fire and this was not disturbed on appeal, however, a judgment rendered on a jury verdict against Lindley was reversed by this court in the following language:

“It is, however, earnestly insisted by appellant that even though we should conclude the evidence sufficient to establish that appellant’s employee, Britt Pierce, actually started the fire, there can be no recovery for the reason that, at the time of starting the fire, Britt Pierce was not in the performance of the business of his employer, appellant, Lindley, but had stepped aside from his employment.
We think this contention of appellant must be sustained. The undisputed proof in this case discloses that the purpose for which these trucks stopped on the side of the road was to afford Ace Garrett an opportunity to contact Reece Wilson in an effort to secure employment. After stopping for this purpose, Wilson produced a watermelon which the three men proceeded to consume. On the record here, no act was performed during this stop that could be deemed in the furtherance of the master’s business or done by appellant’s employee, Britt Pierce, while in performance of any duty required of him. The stop was made without appellant’s knowledge or consent and solely, we think, for the accommodation of Ace Garrett.
In a case of this kind the test is not whether the negligent act was committed while the servant was in the employ of the master, but whether it was committed at a time when the servant was performing an act in furtherance of the master’s business or in line with the servant’s duty.”

In the Gibson case supra, the appellant, through its employees, was getting out rocks from the land of appellee and a fire was started by one of the employees lighting a cigarette. It was argued that the lighting of the cigarette was not in the prosecution of the master’s business, and that the employee had departed from the prosecution of the master’s business and was accomplishing his own personal desires, solely for his own personal satisfaction. In affirming the judgment against the employer in the Gibson case, this court said:

“The fire having been set out by one of the employees, the question is whether the master was relieved from liability because this act of the employee was not within the scope of his employment. ’ ’
Then citing from Rex Oil Corp. v. Crank, 183 Ark. 819, 38 S.W. 2d 1093, the court continued:
“ ‘It is the law of this jurisdiction, as settled in numerous decisions, that the master is responsible for the negligent act of his servant, if such act occurs during the time the servant is engaged in the service of the master, although the act itself might have been unauthorized; but it is essential to the master’s liability that the wrong complained of must have been occasioned by the negligent conduct of the servant who, at the time, was acting within the scope of his employment.’
* * * ‘. . . as there is no definite rule by which it can be said that the acts of a servant are within or without the scope of his employment, each case of necessity depending upon its own peculiar facts and circumstances.’
* * *-
In the instant case, however, although the fire was set out by one of the employee’s smoking, there is no evidence that he, at any time, departed from the business of the master. In this case the master sent his employees onto the land of the appellees to get rock, which he was permitted to do by the appellees. If the master himself had gone on the land of another to get rock and while engaged in getting it set out a fire by smoking or otherwise, he would be liable for the damage caused thereby. He has the right to go on the land to get the rock, but with the obligation that no damage will be done to the landowner in getting rock. Of course, if he would be liable himself for doing the act complained of here, he would be liable if the act was done by an employee whom he had sent there. He takes the right to go on another’s land with the obligation that he will remove the rock without committing damages to the landowner.”

So in the case at bar, Sullivan was engaged in working on cotton picking machinery for his employer, Jones. We cannot say, as a matter of law, that he was still engaged in the service of his employer when he went outside appellant’s building, threw fuel oil on a wasp nest on the outside of the building, and then lit a cigar.

We conclude, therefore, that there was substantial evidence to support the jury finding that Sullivan was outside the scope of his employment and was not engaged in the service of his employer, Jones, at the time of appellant’s damage caused by the negligence of Sullivan, and that the judgment of the trial court should be affirmed.

Affirmed.


source: Caselaw Access Project

license: Public Domain

text:
    Edwin Dwayne Wasson, et al v. Elmer Warren
    5-4743
    434 S.W. 2d 51
    Opinion Delivered November 25, 1968

      Wright, Lindsey & Jennings for appellants.

      Gordon, Gordon & Eddy for appellee.
   J. Fred Jones, Justice.

Appellee Warren sued Greyhound Lines, Inc. and its bus driver, Wasson, in the Conway County Circuit Court for $10,000 personal injury and property damage growing out of a highway collision in Conway County. Greyhound filed a counter-claim but a jury trial resulted in a judgment for Warren in the amount of $10,000. Greyhound and its driver, Wasson, have appealed. They rely on two points for reversal, as follows:

“The jury failed to take into account appellee’s contributory negligence.
The Court erred in giving AMI 902 because it is an erroneous statement of the law, it is confusing and it is in conflict with AMI 601.”

The facts briefly are these: On July 27,1967, Warren was driving his automobile in a direct course on Highway 64 in Conway County and appellant’s bus was traveling in a direct course in the same direction behind Warren. Appellant’s bus driver turned the bus from a direct course to the south, and his left hand side of the highway, in order to pass slower traffic, including Warren’s automobile. Warren turned his automobile from its direct course and from the north, to the south side of the highway, in order to cross the south side of the highway and enter a driveway to a grocery store and filling station on the south side of the highway. The right front corner of the bus collided with the left rear portion of appellee’s automobile and the appellee was injured.

The jury verdict was for $10,000, the full amount sued for, and appellants contend that the jury obviously did not consider comparative negligence as evidenced by a verdict for the full amount sued for. The thrust of appellants’ contention is that we should assess contributory negligence in this case on appeal as a matter of law.

We cannot agree with this contention. The verdict was general in nature and form, and no interrogatories were propounded to the jury as to the comparative negligence of the two drivers. The evidence as to damages is not abstracted and we find no evidence in the record that the jury even knew the amount being sued for. There is no evidence in the record at all, except the verdict itself, that would indicate the jury did not consider contributory negligence in arriving at its verdict of $10,000. The mere fact that a jury verdict, on conflicting evidence, is for all or more than the maximum amount for which judgment may be entered on the pleadings, does not raise a presumption that the jury disregarded its instructions on comparative negligence and failed to consider the evidence relating thereto. The presumption would be, under such circumstances, that the jury did consider contributory negligence and found none.

The question of negligence, as well as contributory negligence, are questions for the jury. Armour Co. v. Rose, 183 Ark. 413, 36 S.W. 2d 70. It is the province of the jury to pass upon the conflict in, and the weight of, the testimony, and the fact that the testimony is conflicting, and that the verdict may even appear to be contrary to the preponderance of the testimony, furnishes no ground for reversal and a question of contributory negligence properly submitted to a jury is concluded by the jury verdict. Arkansas Power & Light Co. v. Cates, 180 Ark. 1003, 24 S.W. 2d 846; Mississippi River Fuel Corp. v. Senn, 184 Ark. 554, 43 S.W. 2d 255; Missouri Pacific R. Co. v. Henderson, 194 Ark. 884, 110 S.W. 2d 516.

The appellant bus driver testified that when appellee first drove into the highway, he, the bus driver, had to put on brakes in order to keep from hitting appellee’s automobile; that he continued to follow the appellee west on the highway at forty-five or fifty miles per hour; that another automobile got between the bus and appellee’s automobile, and that there was an automobile and a truck ahead of appellee’s automobile when he sounded the horn on the bus, deviated from his direct course and started to pass the line of vehicles. He says that when he got about even with the rear window of the appellee’s automobile, it deviated from its direct course and started coming to the south side of the highway. He says that he sounded his horn but appellee’s automobile kept on coming and continued to crowd the bus from the highway to the point of collision. The bus driver testified that he was watching appellee’s automobile for turn signals and that none were given.

The appellee testified that he was driving his automobile in a direct course west in the north traffic lane of the highway and observed, in his rear-view mirror, the appellant’s bus following him in a direct course on the north side of the highway. Appellee says that he turned on the left blinker signal of his automobile indicating his intention to turn left from his direct course and into a driveway on the south, and his left side, of the highway. Appellee testified that his blinker signal had been on for a distance of from one hundred feet to one hundred yards when he turned his automobile from its direct course to, and across, the south traffic lane of the highway. Appellee testified that he heard no horn signal from the bus and that when his automobile had almost cleared the south traffic lane of the highway as he drove it into the side road or driveway to the filling station, the appellant’s bus struck the left rear of his automobile and injured him.

This case presented to the jury the usual sharp conflict in testimony attending collisions of this kind. Appellant says he sounded his horn, appellee says he heard no horn. Appellee says he turned his blinker signal light on, and appellant says he did not.

Several of the bus passengers testified for the appellants. They had all been on a six thousand mile sightseeing trip through the northern United States and a part of Canada with the same bus driver. These witnesses were sitting on both sides of the bus and they all testified that they saw appellee’s automobile turn left into the path of the bus without giving any signal of intention to turn. As to details of related events both before and after the collision, the testimony of these witnesses was in conflict with each other and with the driver’s testimony. They all testified as to their confidence in the driver’s proficiency during the two weeks trip, as well as at the time of the collision. One of the witnesses made pictures of the vehicles following the collision and gave them to the bus driver. They all saw the accident and testified that appellee gave no signal, but none of them saw the other automobile that the bus driver said was between the bus and the appellee’s automobile.

The police officer who investigated the accident testified that he talked with some of the bus passengers in the front portion of the bus at the time of the collision, and that none of them indicated at that time that they knew anything about how the collision occurred.

The appellants argue, in effect, that we should find contributory negligence as a matter of law in this case and reduce the amount of the verdict and judgment commensurate with the comparative negligence. If the appellee had admitted contributory negligence in this case, or if he had admitted facts that would have constituted contributory negligence as a matter of law, then appellants’ argument would be valid and Missouri Pacific Rd. Co. v. Magness, 206 Ark. 1081, 178 S.W. 2d 493, cited by appellants would be in point with the case here. In the Magness case, Dr. Magness admitted that he didn’t even look as he entered upon a railroad crossing where he was injured and that fact alone distinguishes his case from the case at bar.

The case of Missouri Pacific Railroad Co. v. Zolliecoffer, 209 Ark. 559, 191 S.W. 2d 587, is more in point with the case at bar. In the Zolliecoffer case an instruction was given similar to AMI 2105 given by the court in the case at bar, and in the Zolliecoffer case we said:

“Finally, it is argued that the judgment is excessive because the jury did not consider appellee’s contributory negligence. There are at least two answers: First, it is not shown that, as a matter of law, Zolliecoffer was negligent.
«5 # #
A second answer is that the fact-finders were instructed not to return a verdict for the plaintiff ‘unless you find from a preponderance of the evidence that Zolliecoffer was not guilty of contributory negligence.’ ”

We view the evidence in this case as we did in Cohen v. Ramey, 201 Ark. 713, 147 S.W. 2d 338, and in that case we said:

“It is true that appellant testified he was driving at a conservative rate of speed and that appellees suddenly turned their car in front of his car as he was about to pass them after he had blown his horn, and that the collision was due to their contributory negligence in doing so, but the jury by their verdict adopted the version of the affair given by appellees and not that testified to by appellant.
To say the least of it the evidence was in sharp conflict on the question of contributory negligence. This issue was submitted to the jury for determination and their verdict is conclusive as the evidence upon the point was in sharp conflict.
It cannot be said, therefore, that as a matter of law appellees were guilty of contributory negligence. ’ ’

We so hold in the ease at bar.

As to appellants’ second point, we find no conflict in AMI 902 and AMI 601 given to the jury by the court in this case.

Arkansas Model Instruction 601, as given to the jury, is as follows:

“You are further instructed that there was in force in the State of Arkansas at the time of the occurrence four statutes which provided: Section 75-609 of the Arkansas Statutes, annotated, reads as follows:
The following rules shall govern the overtaking and passing of vehicles proceeding in the same direction, subject to those limitations, exceptions, and special rules hereinafter stated:
(a) The driver of a vehicle overtaking another vehicle proceeding in the same direction shall pass to the left thereof at a safe distance and shall not again drive to the right side of the roadway until safely clear of the overtaken vehicle.
(b) Except when overtaking and passing on the right is permitted, the driver of an overtaken vehicle shall give way to the right in favor of the overtaking vehicle on audible signal and shall not increase the speed of his vehicle until completely passed by the overtaking vehicle.
Section 75-618 provides the following:
(a) No person shall turn a vehicle from a direct course upon a highway unless and until such movement can be made with reasonable safety and then only after giving a clearly audible signal by sounding the horn if any pedestrian may be affected by such movement or after giving an appropriate signal in the manner hereinafter provided in the event any other vehicle may be affected by such movement.
(b) A signal of intention to turn right or left shall be given continuously during not less than the last 100 feet traveled by the vehicle before turning.
Section 75-619 (a):
Any stop or turn signal when required herein shall be given either by means of the hand and arm or by signal lamps.
A violation of one or more of these statutes, although not necessarily negligence, is evidence of negligence to be considered by you along with all of the other facts and circumstances in the case.”
The trial court also gave AMI 902, as follows:
"When two vehicles are traveling in the same direction, the vehicle in front has the superior right to the use of the highway for the purpose of leaving it to enter intersecting roads or passageways, and the driver behind must use ordinary care to operate his vehicle in recognition of this superior right. This does not relieve the driver of the forward vehicle of the duty to use ordinary care and to obey the rules of the road.”

In analysing the instructions complained of, as applied to the evidence in this case, we conclude as follows: Ark. Stat. Ann. § 75-609 inserted under AMI 601 governs the overtaking and passing of vehicles proceeding in the same direction. It contemplates vehicles traveling straight ahead or in a direct course. Subsection (a) applies to the driver of the overtaking vehicle, (the bus driver in this case) and contemplates the simple procedure of passing at a safe distance on the left of another vehicle traveling in the same direction. It tells the jury that the overtaking vehicle is required to stay at a safe distance on the left hand side of the highway until it has passed the overtaken vehicle and can safely return again to the right hand side of the highway.

Subsection (b) applies to the driver of the vehicle being overtaken (the appellee in this case) and contemplates the simple procedure of continuing at the same or less speed, at a safe distance on the right hand side of the highway while being passed by another vehicle traveling in the same direction. It simply tells the jury that the overtaken vehicle is to stay on its right and proper side of the highway, is not to accelerate in speed, and is to move over if necessary (when passing is not also permitted on the right) upon signal that can be heard, from the overtaking vehicle.

Arkansas Statute Annotated § 75-618 (a) and (b) included in AMI 601 tells the jury that neither driver is to turn right or left from a direct course without giving an appropriate signal in the event any other vehicle may be affected by such movement. Common sense, as well as everyday experience, dictates that this requirement applies to changing lanes as well as changing from a direct course for any other purpose.

Section 75-619 (a) included in AMI 601 merely states how the signal mentioned in the preceding section is to be made. It tells the jury that the appropriate signal required in the preceding section is to be made by means of hand and arm or by signal lamps.

We conclude that there is no conflict between AMI 902 and AMI 601 as given by the court in this case. All drivers of vehicles have the same and equal rights to enter a highway, to drive in a direct course on a highway, and to drive off of or leave a highway. It is only when these rights conflict with each other that one has superior right over the other.

Arkansas Model Instruction 902 simply tells the jury that the driver of a vehicle who is turning his vehicle from the highway into an intersecting road or passageway, has a right to the use of the highway for that purpose superior to the driver of a vehicle traveling in the same direction behind him.

In other words, the jury was told that the driver of a vehicle has a right to turn his vehicle off of the highway as well as to drive his vehicle on the highway, and in turning his vehicle off of the highway, in order to enter a side road or passageway, his use of the highway for that purpose is superior to the right of a driver who is behind him (in either lane) to continue driving his vehicle straight ahead.

Arkansas Model Instruction 902 reminds the jury that the driver who is following must use ordinary care in recognizing that the driver in front of him has a superior right to use the highway in making his turn for the purpose of leaving it, and AMI 902 reminds the jury that the forward vehicle making a turn to leave the highway must also use ordinary care and obey the rules of the road, meaning §75-618 (a) and (b) and § 75-619 (a), supra, in this case. When the two instructions are used together, they tell the jury that the lead vehicle has the superior right to the use of the road (AMI 902) provided the driver complies with those responsibilities placed on him by AMI 601.

We are of the opinion that these instructions are as fair to the appellants as to the appellee; that they correctly state the law as applies to the evidence in this case; that the trial court did not err in giving the instructions and that the judgment of the trial court should be affirmed.

Affirmed.


author: Conley Byrd, Justice.

text:
    Mary Juanita Myers Hardy v. Bertie Myers Porter
    5-4754
    434 S.W. 2d 61
    Opinion Delivered November 25, 1968

      Fletcher Long for appellant.

      Lawson Glover; John Mann and Carroll C. Cannon for appellees.
   Conley Byrd, Justice.

The probate judge found that the real estate description in paragraph 3 of the first codicil to Mrs. Mattie Pipkin Smith’s will was defective and refused to amend the description to conform to the description that the testatrix allegedly gave to her lawyer. Appellant Mary Juanita Meyers Hardy, the sole beneficiary of paragraph 3 of the codicil, appeals alleging that the probate court erred in declaring void paragraph 3 of the codicil.

Paragraph 9 (b) of the will, executed on August 22, 1953, provides:

“Upon the death of the last surviving of my said sisters and brother, my niece Mary Myers Hardy, or her natural lawful children in equal shares if she be not then surviving, shall have in fee title absolute that certain one hundred (100) acres upon which my deceased husband, W. I. Pip-kin built our home, the same being bounded:
On the north by the Old Lockett Place (since owned by Merritt or Grobmyer and more recently by Hammond)
On the east by Tnni Creek
On the south by the Old Garner Place (now owned by Buford, I believe) and
On the west by the gravelled road which runs southerly or southwesterly from Crow Creek to Old Linden. ’ ’
The codicil executed on December 4, 1956, provides :
“3. In paragraph 9 (b) of my said last will and testament I devised to my Niece Mary Juanita Myers Hardy or to her lawful natural children if she should not survive me, a remainder title in fee to the tract of land by boundaries which I then estimated to contain about one hundred (100) acres. I am convinced now that those boundaries would not contain 100 acres, and I do hereby amend the description therein given by addition to that description the following, whether it shall make a total more or less than 100 acres, to-wit:
From the Northwest corner of the description in said paragraph 9 (b) run northwesterly in the West (or Southwesterly) line of Survey No. 2390 to the east line of the tract of land described in Deed from Hazel Powers and others to Oscie Hardy and Mary Hardy, dated September 29, 1956, and recorded at page 199 of Deed Record 202 in St. Francis County; thence South along the east line of said tract of land to the east and west center-line of Section 29, Township 4 North, Range 4, East: thence southeasterly to the Northwest corner of Survey No. 2413; thence northeasterly in the North (or Northwest) line of said Survey No. 2413 to the Southwest corner of Survey No. 2390 j thence Northwesterly in the West (or Southwesterly) line of said survey No. 2390, to the point of beginning,
which said additional tract is hereby given and devised in all respects the same as, and together with, the tract described in paragraph 9 (b) of my said Last Will and Testament.”

The record shows that Mrs. Mattie Pipkin Smith owned several hundred acres of land in T 4N, B 4E, some of which were held by United States Government survey descriptions and some of which were described according to “private surveys” numbers 2390 and 2413. For assistance in following the descriptions, the plat below is included showing the lands of Mrs. Mattie Pipkins Smith bounded by the heavy lines. The lands devised to appellant by paragraph 9 (b) of the will are shown in the shaded area.

For purposes of locating the lands devised in paragraph 9 (b), there was proof introduced showing the location of the Hammond property, the Buford property, Tuni Creek and the gravel road. In her brief, appellant admits that the description of the land purportedly devised in the codicil actually describes nothing. Taking the most favorable proof to appellant as to the location of the NW corner of the property described in paragraph 9 (b) of the will as the point of beginning, one cannot follow the land calls given in the codicil so that the description will close. To remedy this defect appellant relied upon the testimony of her husband, who went to the lawyer’s office with the testatrix for the purpose of assisting her in drawing the codicil. From notes he made in the lawyer’s office at the time the codicil was drawn, Mr. Hardy gave a description which would describe some 150 acres and which does not purport to be an explanation of the description, or any of the terms used in the codicil.

In McDonald v. Shaw, 92 Ark. 15, 121 S.W. 935 (1909), it was shown that Mary A. Hare had devised “one-half of all of my estate” to the Catholic Church for the purpose of taking care of her imbecile daughter, Ella Hare. The record further shows that Ella Hare was a pretermitted child under the will of her father, John Hare. Since John Hare’s will left all of his lands to Mary Hare, proof was sought to be introduced to show (for purposes of requiring Ella’s guardian to make an election) that the described “one-half of all my estate” included the lands devised by the will of John Hare. In holding that such proof could not be introduced, we said:

“In the present case the devise was for the benefit of Ella Hare, and was in the language, ‘one-half of all of my estate,’ and the testator owned property which fitted the language. We find it nowhere announced that evidence is inadmissible to show the circumstances with which the testator was surrounded in order to explain the language which he used or to identify property which he intended to devise. But the description of the property cannot be entirely supplied by evidence dehors the will, where there is nothing in the language of the will itself to point out what property is meant; nor where the language does point out the property, and some is found which answers the description, can the description be enlarged by parol testimony. We are therefore of the opinion that the parol testimony was inadmissible for the purpose of showing that Mrs. Hare intended to convey the property which Ella Hare held by inheritance from her father, and that no case was made out for an election.”

Appellant, however, contends that such proof is admissible under our decision of Eagle v. Oldham, 116 Ark. 565,174 S.W. 1176 (1915). However, in Jackson v. Wolfe, 127 Ark. 54, 191 S.W. 938 (1917), in answer to a similar contention, we said:

“Counsel for plaintiff insist that the case comes within the rule of this court announced in Eagle v. Oldham, 116 Ark. 565, and that under the rule there announced the will of Isaac Adair ought to be construed as devising the north half of the northwest quarter of Section 21, instead of the south half of the northwest quarter of said section, as set forth in the will. The doctrine of the case relied on is stated in the opinion as follows: ‘But while we may feel sure of the testator’s intention, we must gather that intention from the will itself. This idea has been expressed in a variety of ways by all the courts. But extrinsic evidence is generally held admissible in the interpretation of wills, not to show what the testator meant, as distinguished from what his words express, hut for the purpose of showing the meaning of the words used.’
“There were circumstances in that case surrounding the execution of the will which enabled the court to correct what was deemed by the majority of the judges to be an obvious error, but the rule stated above was adhered to. In the present case we find no circumstances whatever which would justify this court in declaring that the testator meant by the description used, to convey a tract other than the one which was specifically described. This tract was the homestead of the testator, and his wife had a life estate in it by operation of law, and that may have been the reason why the testator omitted it from the devise to her. To hold with the plaintiff in this case would be purely a reformation of the instrument, which in all the cases on that point this court has held could not be done.”

Here the language of the codicil does not point out the property devised nor does the testimony of Mr. Hardy enable this court to correct an obvious error by placing it in the position of the testatrix. It may be that the testatrix intended to convey the lands described by Mr. Hardy, but we are not at liberty to write the will as the testatrix may have intended. All of the cases are to the effect that oral testimony is admissible for the purpose of showing the meaning of words used or for the purpose of placing the court in the position of the testator at the time of using the words, but no case has gone so far as holding that oral testimony is admissible for the purpose of showing what the testator intended. Therefore, we hold that the language of paragraph 3 of the codicil is defective for lack of a valid description.

Affirmed.


author: Carleton Harris, Chief Justice.

text:
    Southern Farm Bureau Casualty Insurance Company v. Mrs. Emil (Betty) Gottsponer
    54739
    434 S.W. 2d 280
    Opinion Delivered December 2, 1968

      Cockrill, Laser, McGehee, Sharp & Boswell for appellant.

      Felver A. Rowell, Jr. for appellee.
   Carleton Harris, Chief Justice.

On May 2, 1967, appellee, Mrs. Emil (Betty) Gottsponer, individually, and as mother and next friend of Marsha Gottsponer, a minor, instituted suit against appellant, Southern Farm Bureau Casualty Insurance Company, seeking a total judgment in the amount of $9,900.00. The complaint alleged that the company had issued a policy of insurance to appellee’s husband, insuring him, Mrs. Gottsponer, and their minor daughter, Marsha, against bodily injuries and property damages sustained by reason of loss incurred from any uninsured motorist. It was asserted that about the 28th of February, 1967, Mrs. Gottsponer was driving an insured automobile, within the terms of the policy, when she was negligently struck by James Boss, an uninsured motorist, and, together with her daughter, suffered serious personal injuries. The company answered, admitting that it had issued the policy of insurance to Mr. Gottsponer, that premiums had been paid, and that the coverage existed for the spouse and minor daughter. Appellant also admitted the occurrence of the accident, but denied other allegations, including appellee’s assertion that Boss was the driver of an uninsured automobile. Further, appellant filed a third party complaint against Boss, as follows:

“That under the automobile policy here above referred to the policy provides that the company upon payment of any loss covered under this policy shall succeed to all the rights of recovery of the insured or any other person in whose behalf payment is made.
“The Defendant, Southern Farm Bureau Casualty Insurance Company, alleges that if the Plaintiffs are entitled to recover anything then the company is entitled to a judgment over and against the Defendant, James Boss, for any amounts that they pay the Plaintiffs under the terms of the uninsured motorist clause and in the event that a judgment is entered against the Defendant, Southern Farm Bureau Casualty Insurance Company, the company should be given a judgment over and against James Boss in that amount.
“Wherefore the Defendant prays for a judgment over and against James Boss as prayed for in the original complaint.”

Thereafter, Boss filed an answer to this complaint, denying each and every material allegation, and also denying each and every material allegation of the Gottsponer complaint. On trial, Mr. and Mrs. Gottsponer testified, as did Richard Branch, a trooper with the Arkansas State Police. These are the only witnesses whose testimony is included in the record. At the conclusion of appellee’s case, counsel for appellant made the following motion beyond the presence of the jury:

“The defendant, Southern Farm Bureau Casualty Insurance Company, at the conclusion of the plaintiff’s case and after plaintiff having announced they rest, move for a directed verdict for the reason that there is no evidence in the record that James Ross was an uninsured motorist; and the policy specifically provides that this coverage used as the basis for this lawsuit is conditioned upon the policy holder, that insured be involved in an accident with an uninsured motorist, or an uninsured vehicle. ’ ’

Counsel for Ross also moved for a dismissal on the grounds that there was no testimony identifying him as the driver of the other vehicle involved in the accident. The court denied both motions, and no further evidence was offered. The jury returned a verdict in favor of Mrs. Gottsponer against appellant in the amount of $4,-000.00, and from the judgment so entered, comes this appeal. For reversal, it is simply asserted that the trial court erred in refusing appellant’s motion for a directed verdict.

The company’s position is predicated on the contention that there was no substantial evidence offered that Ross was the driver of an uninsured automobile within the meaning of Ark. Stat. Ann. § 66-4003 (Repl. 1966) This fact is not disputed by appellee, but she asserts that the fact that Ross was an uninsured motorist was admitted by appellant in its answer, and further, that the third party pleading filed by the company admitted the coverage; that these admissions made out a ■prima facie case for appellee as far as this question was concerned, and the burden was on appellant to prove otherwise.

We do not agree. The answer only admits that the policy of insurance was issued, and was in force at the time of the accident, but there is nothing in the answer which admits that Ross was the driver of an uninsured automobile; in fact, this was denied by both appellant and Ross.

Nor does the third party complaint afford appellee any relief, for it will be observed that the company’s allegation is, “If the plaintiffs are entitled to recover anything, then the company is entitled to judgment over and against the defendant, James Ross. * * *” Certainly, there is nothing at all in this pleading that even alleges, let alone admits, that Ross was an uninsured motorist. The burden was on appellee to establish this fact. Though we have had no cases on this point, two cases from other states are cited by appellant, wherein the court held that it had not been established as a fact that the third party was an uninsured motorist. In those cases, some evidence was offered to establish that fact; here, there was no evidence offered at all on that question, though Ross was in the courtroom during the trial. Since the issue of whether Ross was an uninsured motorist was controverted, the burden was upon appellee to make this proof, and it is thus necessary that this judgment be reversed.

Appellant argues that the judgment should be reversed and the cause dismissed, but we do not agree with that contention. In Hayes Brothers Flooring Com pany v. Carter, Admx., 240 Ark. 522, 401 S.W. 2d 6, this court said:

“Appellant asks that we reverse and dismiss, but, after due consideration, we think it is possible that the case has not been fully developed. In fact, our ordinary procedure in reversing judgments in law cases is to remand for another trial, rather than dismiss the cause of action. It is only where it clearly appears that there can be no recovery that we consider it proper to dismiss the cause. [Citing cases.] ”

We then pointed out that, though the record did not contain substantial evidence of liability on the part of appellants, it appeared that such evidence might well be completely developed, and the case was remanded for another trial. See also the more recent case of St. Louis Southwestern Railway Company v. Earl B. Clemons, 242 Ark. 707, 415 S.W. 2d 332, where we said:

“The reversal at hand is based on failure of proof. It is not impossible that the defects in proof could he supplied on retrial.”

Appellant says that the latter case, as well as the cases cited therein, “stand for the proposition that when this court is confronted with a case of such nature that simple justice would require that a cause he remanded to the trial court for further evidence, then this court will remand. The particular issue involved in the Clemons case was whether or not plaintiff had proved willful and wanton negligence. At the trial plaintiff had attempted to prove such negligence unlike the instant action where plaintiff refused to introduce any evidence on the point.”

If James Ross was an uninsured motorist, we think simple justice would require that this cause be remanded, for it is undisputed that Gottsponer paid for this coverage, and he and the members of his family are entitled to it. The status of Boss (whether insured or uninsured) can certainly be ascertained, and there is no reason why the cause cannot be fully developed on retrial.

Beversed and remanded.

Fogleman, J., concurs.

      This section is a part of Act 464, enacted by the General Assembly of 1965, and entitled, “An Act to Provide Requirements for Uninsured Motor Vehicle Insurance Coverage; to Define ‘Uninsured Motor Vehicle’; and for Other Purposes.”

      Levy v. American Automobile Insurance Company (Appellate Court of Illinois, First District, Second Division), 175 N.E. 2d 607; Ross v. Hardware Mutual Casualty Company of Stevens Point, Wisc. (Supreme Court, Kings County, N.Y.), 173 N.Y.S. 2d 941.


author: Paul Ward, Justice.

text:
    Charles Ellis v. State of Arkansas
    5388
    434 S.W. 2d 275
    Opinion Delivered December 2, 1968

      Fred E. Briner for appellant.

      Joe Purcell, Atty. Gen.; Don Langston, Asst. Atty. Gen. for appellee.
   Paul Ward, Justice.

This is a Criminal Procedure Bule No. 1 proceeding wherein Charles Ellis (appellant) contends his constitutional rights were violated when he was sentenced to life imprisonment in the penitentiary.

On September 1, 1958 appellant was charged with murder in the first degree for slaying A. Z. Cromwell on August 26, 1958. Upon arraignment he pleaded guilty. A jury, upon hearing testimony, fixed his punishment as previously stated, and he began serving the sentence.

Approximately eight years later appellant filed a petition in circuit court of Saline County (where he had been sentenced) alleging his constitutional rights had been violated. His prayer was for “immediate freedom”.

On March 11, 1968 the court appointed attorney Fred Briner to represent appellant, and a hearing was held on June 26,1968. At that time the criminal docket sheet of the 1958 trial was introduced in evidence, and appellant took the stand and testified at length.

At the close of the hearing the trial court denied the relief prayed for, and this appeal follows.

We have carefully examined each of the grounds urged here by appellant to show a violation of his constitutional rights, but find no merit in any of them.

The docket sheet showing the proceedings at the original trial in 1958 was introduced in evidence and it reveals: Appellant was represented by Attorney Wendell Hall; He entered a plea of guilty on December 8, 1958; On the same day he was found guilty by a jury, he waived time for pronouncement of judgment, was sentenced to life imprisonment. No other evidence was presented to the court except the testimony given by appellant.

The only grounds urged here by appellant for a reversal are those mentioned below.

A. Appellant testified that he was apprehended in New Mexico and returned to Arkansas by Lt. McDonaid without an extradition hearing or waiver. We see no merit in this contention because this point was not raised when he pleaded guilty in 1958 after conferring with his attorney. Moreover, appellant does not contend he requested such hearing.

B. Here, it is contended his constitutional rights were violated because he “was not arraigned before a magistrate for a period in excess of thirty days after his arrest.” Again it is pointed out that no such objection was raised in 1958.

C. Finally, appellant contends his constitutional right was violated when he (allegedly) admitted the killing without having been warned of his right to keep silent (as required by the Miranda decision). A sufficient answer to this contention is that the Miranda decision was announced some eight years after appellant was convicted, and that it is not retroactive. See: James W. Moore v. State, 241 Ark. 745 (p.747), 410 S.W. 2d 399.

Finding no reversible error, the judgment of the trial court is affirmed.


author: Lyle Brown, Justice.

text:
    Metropolitan Life Ins. Co. et al v. Celia Long Gardner, et al
    5-4691
    434 S.W. 2d 266
    Opinion Delivered December 2, 1968

      Chowning, Mitchell, Hamilton & Burrow for appellants.

      Brockman & Brockman for appellees.
   Lyle Brown, Justice.

This litigation was instigated by appellees. They are Celia Long Gardner, Agnes Long "Whitehead, Tommie Dean Long, and McHenry Long, children of H. T. and Maulcie Long. The purpose of the two separate proceedings they filed was (1) to set aside a 1932 foreclosure by Metropolitan Life Insurance Company, and (2) to have the court construe, by declaratory judgment, various instruments in the chain of title to the lands involved. On the main issue the chancellor ruled that the mortgage foreclosed was executed by Maulcie Long, for herself and as guardian of the children; that at the time of execution the children were contingent remaindermen in a portion of the lands; and, as respects the children’s interest, the foreclosure was ineffective. Metropolitan and its grantee, Mrs. E. E. Burgess, appeal.

At the time of his death in 1924, H. T. Long resided on the SE1^, Sec. 2, Twp. 3 South, Rge. 8 West, in Jefferson County. When Long expired, he owned a one-half interest in the north eighty acres and held a purchase agreement to the other one-half interest. After H. T. Long’s death, Dovie Long Hayes, daughter of H. T. Long by his first wife, conveyed her interest in the north half to Maulcie Long, widow of H. T. Long. Maulcie Long then paid off a purchase agreement with one Leeth, and title to the north half of the SE% became vested in her and the four small children.

Title to the south eighty acres came into the Long family from a different source. In 1922, B. P. Davis conveyed his three-fifths interest by deed in which the grantees were named as follows: “ ... unto the said Mrs. Dovie Hayes, and Mrs. Maulcie Long, and to the bodily heirs of Mrs. Maulcie Long and her present husband, H. T. Long, and unto their heirs and assigns forever .. ” This language was repeated in the habendum clause. After the death of H. T. Long, his widow (Mauleie) obtained a quitclaim deed from Dovie Hayes and also title to the outstanding two-fifths interest.

In 1928, Mauleie Long, for herself and as guardian of the children, obtained a loan, secured by a mortgage on the entire acreage, to pay for the purchase from Leeth, to pay taxes, and to make minor improvements. Metropolitan became the owner of the mortgage. At that time Mauleie owned the 160 acres in fee, less whatever interest was held by the bodily heirs of Mauleie and H. T. Long by virtue of the deed from B. P. Davis. The acreage also constituted the homestead of Mauleie and her children.

In 1932 Metropolitan effected a foreclosure on the mortgage and obtained a commissioner’s deed to the entire acreage. Mrs. Long and children continued to occupy the lands as tenants for about one year and then moved. In 1949 Metropolitan conveyed the lands to Mrs. E. E. Burgess, one of the two appellants.

The Long children initiated this litigation by the filing of an action asking the court to declare the deed from B. P. Davis to have created a fee tail estate; they asked that the foreclosure decree be determined of no effect on them as contingent remaindermen; and subsequently they amended their pleadings and converted the a,ction to a petition for declaratory judgment because Mauleie Long, the alleged life tenant, was still living. In the foreclosure suit, they sought the right to redeem their alleged interest. They also alleged that the foreclosure involved the illegal sale of the minors’ homestead and entitled them to an accounting of rents and profits since 1932.

Metropolitan denied all allegations and specifically asserted that the probate and foreclosure proceedings were proper in all respects; and that any claims ever held by the Long children were barred by laches, estoppel, adverse possession, and limitations.

The trial court held that the deed from B. P. Davis created a joint life estate in Dovie Hayes and Maulcie Long, with a remainder over in Maulcie and H. T. Long’s bodily heirs, whose interest was not subject to mortgage; that the probate and foreclosure proceedings were ineffective to divest the children’s interest in the 160 acres; that they had and have a homestead interest in the north eighty acres and a leasehold interest in the south eighty acres; that they are not barred by laches, estoppel, or limitations; and that an equitable lien exists in favor of Metropolitan covering the homestead and leasehold interest for the amount of Metropolitan’s judgment in foreclosure, less credits to which the children may be entitled. Finally, the chancellor declared the children had no right of possession because the mother is still living. For the same reason he held the motion to vacate the foreclosure decree was prematui’e.

I. The estate created by the deed from Davis “unto the said Mrs. Dovie Hayes, and Mrs. Maulcie Long, and to the bodily heirs of Mrs. Maulcie Long and her present husband, H. T. Long, and unto their heirs and assigns forever ...” The deed did not contain any express declarations as to the nature of the tenancy given to Dovie and Maulcie. Ark. Stat. Ann. § 50-411 (1947) provides that an interest granted to two or more persons (other than executors and trustees) shall be a tenancy in common unless expressly declared a joint tenancy. It was stated in Ferrell v. Holland, 205 Ark. 523,169 S.W. 2d 643 (1943), that the construction should be against joint tenancy unless the intent to create it is clear. Also, Ark. Stat. Ann. § 50-403 (1947) says deeds shall be construed to convey fee simple title unless expressly limited by appropriate words. Construing the deed in harmony with the recited law, we conclude that Dovie Hayes acquired a one-half fee simple interest in the lands conveyed, that being a three-tenth’s interest in the sonth eighty acres.

We conclude that the other three-tenths interest was vested for life in Manlcie Long with a contingent remainder thereto in the bodily heirs of Manlcie and H. T. Long. Peebles v. Garland, 221 Ark. 185, 252 S.W. 2d 396 (1952); Gray, Trustee v. McGuire, 140 Ark. 109, 215 S.W. 693 (1919). A fee tail general was held to have been created by a deed “to the grantee and the heirs of her body.” Horsley v. Hilburn, 44 Ark. 458 (1884). Actually, we have here a deed which creates a fee tail special because it is restricted to the bodily heirs of Manlcie and H. T. Long. Our disentailing statute creates a life estate in Manlcie Long and a contingent reminder in the bodily heirs. Ark. Stat. Ann. § 50-405 (1947). It logically follows that the foreclosure was ineffective as to the three-tenths interest of the bodily heirs in the sonth eighty acres.

We cannot agree with the contention of appellants that the rule in Shelley’s Case is applicable. It is applied only “when the language of the will or conveyance creates a limitation to the heirs of the devisee or grantee in general. If the limitation is to the bodily heirs or the heirs of the body of the grantee, then the rule in Shelley’s Case has no application.” Gray, Trustee v. McGuire, supra.

In the deed before us the grant was to “Mrs. Dovie Hayes, and Mrs. Manlcie Long, and to the bodily heirs of Mrs. Manlcie Long and her present husband, H. T. Long, and unto their heirs and assigns forever.” The appellants contend that the final clause, “and unto their heirs and assigns forever,” refers all the way back to Dovie Hayes and Maulcie Long, thereby creating a fee simple estate in Mrs. Long under our holding in Hardage v. Stroope, 58 Ark. 303, 24 S.W. 490 (1893). We do not agree with that contention, because in our opinion the clause in question refers both grammatically and logically to the bodily heirs of Maulcie and II. T. Long, so that the rule in Shelley’s Case, as interpreted in the Eardage case, is inapplicable.

II. The latos of estoppel, laches, statute of limitations, and adverse possession, as they affect the rights of the children to claim any interest in the lands. These contentions asserted by appellants, as to the undivided three-tenths interest, fail because of our interpretation of the words of conveyance in the deed from B. P. Davis. In other words, the interest of the bodily heirs was never effectively mortgaged or foreclosed. In Love v. McDonald, 201 Ark. 882, 148 S.W. 2d 170 (1941), it was pointed out that a contingent remainder is an interest not capable of being transferred or mortgaged. In numerous cases it has been held that limitations do not begin to run against remaindermen until the death of the life tenant. Perry v. Rye, 223 Ark. 594, 267 S.W. 2d 507 (1954); Tennison v. Carroll, 219 Ark. 658, 243 S.W. 2d 944 (1951). We do agree with appellants that the children have no claim to any other interest at this late date. The youngest child, McHenry Long, became twenty-one years of age on March 22, 1946. If they were entitled to any credits for being deprived of their homestead rights during their minority, they should not have waited these many years to make their claim.

III. The alternative prayer of Metropolitan to be reimbursed by appellees proportionately for the original debt and the cost of supporting their title since 1928. We are cited no authorities which would approve the claimed reimbursement. As we view it, the lender was a volunteer. By operation of law it did not acquire any security in the future interest of the contingent remaindermen. The only bona fide security which Metropolitan obtained for the loan was a lien on Maulcie’s interest.

The cause is remanded with directions that the trial court’s decree be modified to conform to the views herein expressed.


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

text:
    Reynolds Mining Co., et al v. Howard Raper
    5-4712
    434 S.W. 2d 304
    Opinion Delivered December 2, 1968

      Wright, Lindsey & Jennings by Phillip S. Anderson, Jr. for appellants.

      McMath, Leatherman, Woods & Youngdahl and Silas H. Brewer for appellee.
   John A. Fogleman, Justice.

Appellants seek reversal of the judgment of the circuit court affirming an award of the Workmen’s Compensation Commission to Howard Raper, based on findings that he was totally and permanently disabled as a result of a compensable injury suffered on November 8, 1965. It is the contention of the appellants that there was no substantial evidence to support either a finding that there was a compensable injury or that the claimant was totally and permanently disabled.

In viewing the evidence it must be given its strongest probative force in favor of the action of the Commission. Herman Wilson Lbr. Co. v. Hughes, 245 Ark. 168, 431 S.W. 2d 487. The reason for doing so is that the drawing of inferences is the responsibility of the Commission when the testimony is open to more than a single interpretation. Bradley County v. Adams, 243 Ark. 487, 420 S.W. 2d 900. It must be kept in mind that the question is not whether the testimony would have supported a contrary finding, but whether it supports the finding made. The Commission’s decision should not be reversed unless the proof is so nearly undisputed that fair-minded men could not reach the conclusion arrived at by the Commission. Herman Wilson Lbr. Co. v. Hughes, supra.

Raper was 46 years of age at the time of his injury. He had a third-grade education. He cannot read and cannot write except to sign his name. He has acquired no special vocational skills. His work experience prior to employment by Reynolds Mining Company consisted of driving a log truck, working on a railroad section gang, cutting logs, and working as a general laborer and as a carpenter’s assistant. He had been employed by Reynolds approximately 20 years at the time of this alleged injury.

During his employment by Reynolds, appellee had earlier received a back injury for which he had undergone disc surgery and had been awarded a permanent partial disability of 20% to the body as a whole. Ultimately, lie returned to the same job he held before this injury. Appellants contend that Raper’s present complaints are attributable to the 1951 injury, for which he has been fully compensated.

Raper worked in an underground mine as a “skip tender.” His duties called upon him to assist in unloading' small Jeep trucks used in the mine. The bed of a truck ready for unloading would be raised automatically and Raper would pull a lever which caused the tailgate on the truck bed to open and permit the load to pour into a bucket. This operation required him to bend over and then to rise up. He would then pull a rope which rang a b.ell at the surface. On this signal, the bucket would be raised to ground level and emptied.

Raper testified that his duties included cleaning out the truck beds. He said that trouble with boulders was sometimes encountered in the performance of his duties. On the occasion of his alleged injury, at about 8 p.m. on a Monday in November 1965, he said that a tailgate on one of the jeeps became “sprung” so that it gapped open at the bottom and he couldn’t close it in spite of repeated efforts by pulling on the controlling-lever. He stated that he was assisted in his efforts by two Jeep drivers, Wayne Glover and Donald Lesage. Although he said his back hurt after this exertion, he completed the shift ending at 1 a.m. He made no report to his supervisor or the first aid officer, although he knew he was required to report on-the-job injuries to his foreman. His excuse was that he thought he would be all right in a day or two. Having been unable to return to work, he sent his wife to report to the plant safety director on the following Friday. He first consulted a physician (Dr. Joe Lester) on the Monday following the incident. He reported to the doctor that his injury was not a workmen’s compensation injury.

It is not clear from the testimony whether Raper gave the doctor a history of a work-connected injury until after he had engaged an attorney.

Lesage recalled the attempts to close the tailgate, but his memory as to the time of the incident and the time Raper quit working was faulty. He testified that Raper did not complain until after he made a few more loads after the tailgate was repaired. Raper was then holding his back, saying it had been hurt in his attempt to close the tailgate. He did remember, however, that he had told the safety director that he did not remember Raper’s complaining about his back while they were working together in the mine.

(Hover stated that he remembered the incident about the tailgate and that Raper went around in a stooped position the rest of the night.

Raper testified that his back had hurt some ever since his first injury, and when his back did hurt, he would lay off his job and rest a day or two.

After his first examination, Dr. Lester expressed the opinion that Raper had a long-standing history of lumbosacral strain following disc removal. Raper had reported to him that Drs. Jones and Murphy had recommended back surgery about a year earlier and that he had persistent low back pain, aggravated by bending and lifting. In January of 1966, Dr. Lester expressed the opinion that either minimal trauma of the nature related to him by Raper or aggravation by other minute trauma associated with his job could cause the back condition for which he was giving treatment. He further stated that, with good fortune, Raper could probably continue in his gainful employment and that there should be no additional permanent partial disability.

When Dr. Lester testified by deposition on April 11, 1966, however, he stated that with the chronic back instability of the nature Raper had, almost anything, such as a sudden slip* twist or fall, or even pulling on boots, could cause exacerbation; that Raper got along very well when he was not working, but had difficulty when he went back to work; that Baper had gotten by on a borderline basis, but, in his opinion, would not be able to do so in the future; that it was debatable whether the injury suffered in November 1965 caused Baper to quit work. This doctor compared Baper’s situation to that of a worn tire which will blow out sooner or later. He opined that appellee couldn’t hope to return to the work he had been doing at present, but in the near future could return to light work which did not require lifting or bending’. This doctor said there was no doubt that Baper had further aggravation of his condition by his last injury.

The Workmen’s Compensation Commission found that appellee suffered an accidental injury to his back which aggravated a previous injury sustained by him in 1954, and that both injuries arose out of and in the course of his employment by appellant. It further found that the injury in November 1965 was not only a separate and distinct injury from that suffered in 1954, but that it was superimposed upon a more gradual aggravation caused by his employment. We agree with the trial court that there is substantial evidence to support this finding.

Baper testified that after six weeks of treatment by Dr. Lester he was able to work only three days in each of the succeeding weeks. Thereafter, he wore a back brace supplied by Dr. Lester on February 11, 1966. He returned to work on February 28 and had not lost any further time from work up to the time of the hearing before the Beferee of the Workmen’s Compensation Commission on March 23, 1966. Later, on May 24, 1967, Baper said that he «tried to work three times but had last worked on March 18, 1966, although company records showed that he had worked a full shift from March 7 to 28, 1966. He said that when he worked he would be hurting so bad when he came home, he couldn’t even stay in bed. He also stated that if he made an awkward step, his back would hurt and that he had pain practically all the time.

Although Dr. Lester stated that the increase in Raper’s permanent partial disability was slight from the standpoint of anatomical physical impairment, he was of the opinion that Raper was now unable to perform the gainful employment he had performed. On one occasion this doctor stated that if Raper couldn’t obtain light work that did not require him to bend or lift with this employer, he should try to find it elsewhere.

Dr. Kenneth Jones testified that Raper had a poor adjustment to his illness and that his mental attitude made recovery difficult. Although Dr. Jones recommended that Raper retire from heavy manual labor, he did not think that he was doing this type of work. He testified, however, that he knew Raper’s job required some physical stress. He found Raper’s complaints of pain disproportionate to the objective symptoms. While Raper admits that he had not tried to find other work, he says that he would if he were able.

The trial court found “some” substantial evidence to support the Commission’s finding. While this evidence might better support a finding of something less than total and permanent disability, we cannot say that fair-minded men could not reach the Commission’s conclusion, considering, as the Commission must, appellee’s physical condition, age, lack of education, work experience, and other factors affecting his earning capacity. Glass v. Edens, 233 Ark. 786, 346 S.W. 2d 685; Wilson & Co., Inc. v. Christman, 244 Ark. 132, 424 S.W. 2d 863; Arkansas Best Freight v. Brooks, 244 Ark. 191, 424 S.W. 2d 377; Abbott v. C. H. Leavell & Co., 244 Ark. 544, 426 S.W. 2d 166.

The judgment is affirmed.

Jones, J., dissents.

J. Fred Jones, Justice.

I cannot agree with the majority opinion that the permanency of the appellee's total disability is sustained by substantial evidence in this case. When a percentage of disability is established by medical testimony relating to functional loss in the use of a part of the body, or of the body as a whole, then certainly the Commission may consider other evidence affecting the claimant’s capacity to earn in the same or other employment the wages he was earning at the time of his injury in arriving at his overall percentage of disability.

Total and. permanent disability to the body as a whole presupposes that the healing period has ended, that nothing more can be done to relieve the claimant’s condition, that he is totally disabled from earning in the same or other employment the wages he was earning at the time of his injury, and that such total disability will attend him the rest of the days of his life.

I am unable to find substantial evidence of that situation in the case at bar.

I would reverse.


author:
J. Fred Jones, Justice.
      George Rose Smith, J.,

text:
    Lily Mae Sands, widow of Wade C. Sands, Employee v. Albert Pike Motor Hotel, Employer
    5-4721
    434 S.W. 2d 288
    Opinion Delivered December 2, 1968

      Herrod & Cole for appellant.

      Terral, Rawlings, Matthews & Purtle for appellee.
   J. Fred Jones, Justice.

This is a workmen’s compensation case questioning the constitutionality of Act 501 of the Arkansas Legislature, approved April 4, 1967.

Wade C. Sands sustained an injury to his right hand and arm, on or about March 6, 1966, while in the course of his employment by the Albert Pike Motel. He was seen by Dr. John E. Stotts on March 7, and again on March 10, at which time he was admitted to the Veterans Administration Hospital. He remained a patient in the hospital, with the exception of one 3 day pass home, until his death on May 10, 1966.

On January 6, 1967, Mrs. Lily Mae Sands, widow of the decedent, filed claim for workmen’s compensation death benefits, contending that her husband’s death was caused by a pulmonary embolism resulting from the injury to his hand and arm. The referee, and the commission on review, found that Mr. Sands’ death was a result of complications arising from urinary tract infection unrelated to his injury, and the claim was denied by the referee and by the commission on review.

On August 9, 1967, an appeal was filed in the Pulaski County Circuit Court. On September 1, 1967, the circuit clerk assigned the case to the third division of the circuit court and on December 5, 1967, the case was docketed for nonjury trial on March 3, 1968. On March 28, 1968, judgment was entered by the Pulaski County Circuit Court as follows:

“It appearing that sixty days or more has elapsed since tbe record of this case from the "Workmen’s Compensation Commission was filed in this Court, it is hereby ordered and adjudged that the Order of the Workmen’s Compensation Commission is affirmed, in accordance with the provisions of Arkansas Statutes 81-1325.”

Act -501 of the Acts of Arkansas for 1967, Ark. Stat. Ann. § 81-1325 (Supp. 1967), amended paragraph (b) of section 25 of Initiated Measure No. 4 of 1948 (Ark. Stat. Ann. § 81-1325 [Repl. I960]) by re-enacting subsection (b) with the amendment included. Except for the enacting clause, the entire act, with the amendment in parenthesis, is as follows:

“AN ACT to Amend Paragraph (b) of Section 25 of Initiated Measure No. 4 of 1948 [Ark. Stats. 81-1325 (b)] to Provide That Appeals From the Workmen’s Compensation Commission Shall be Affirmed by Law at the End of Sixty (60) Days Unless Decided by the Circuit Court Before That Time.
* * *
SECTION 1. Paragraph (b) of Section 25 of Initiated Measure No. 4 of 1948 Arkansas Statutes 81-1325 (b) be and the same is hereby amended to read as follows:
([b] Effective date — Award of full Commission — Appeal. A compensation order or award of the full Commission shall become final unless either party to the dispute shall, within thirty (30) days from the receipt by him of the order or award, petition in writing for an appeal to the circuit court of the county in which the accident occurred or, if the accident occurred outside the State, in the county where the original hearing was had. Such appeal to the circuit court may he taken by filing in the office of the Commission, within thirty (30) days from the date of the receipt of the order or award of the full Commission, a notice of appeal, whereupon the Commission under its certificate shall send to the court all pertinent documents and papers, together with a transcript of evidence, the findings and orders, which shall become the record of the cause. Upon the appeal to the circuit court no additional evidence shall he heard and, in the absence of fraud, the findings of fact made by the Commission, within its powers, shall be conclusive and binding upon said court. The court shall review only questions of law and may modify, reverse, remand for rehearing, or set aside the order or award, upon any of the following grounds, and no other:
1. That the Commission acted without or in excess of its powers.
2. That the order or award was procured by fraud.
3. That the facts found by the Commission do not support the order or award.
4. That there was not sufficient competent evidence in the record to warrant the making of the order or award.
Appeals from the circuit court shall be allowed as in other civil actions. Appeals to the Circuit or Supreme Court shall have precedence over all other civil cases except election contests and if at the end of 60 days from the date the record of the Commission is filed in the Circuit Court as herein-above provided, said Circuit Court has not modified, reversed, remanded for rehearing, or set aside the order or award as hereinabove provided, the order or award of the Commission shall be deemed to be affirmed by lam and the Court shall enter its order to that effect. In all appeals the costs thereof shall be assessed as provided by law in civil cases. The Commission may require a bond from either party, if it deems necessary, in cases appealed to the Court.) APPROVED: April 4, 1967.” (Emphasis supplied to designate change.)

It is obvious that Act 501 was intended to eliminate long delays in final disposition of compensation cases in the circuit courts on appeal. Notwithstanding the provision in the act that “appeals to the circuit or Supreme Court shall have precedence over all other civil cases except election contests,” it is a matter of corn-man knowledge and judicial record, as well as obvious legislative concern, that many workmen’s compensation cases rest in litigation an unconscionable length of time before final decision. (See concurring opinion of Mr. Justice Cobb in Bottoms Baptist Orphanage v. Johnson, 240 Ark. 175, 398 S.W. 2d 544.) It is also a matter of common knowledge that compensation claimants are least able financially to endure such delays.

The circuit courts are not merely charged with the duty of affirming or reversing workman’s compensation cases on appeal. While circuit courts review only questions of law in compensation cases on appeal, they may modify, reverse, remand for rehearing, or set aside the order or award upon the grounds that the commission acted without or in excess of its powers; that the order or award was procured by fraud; that the facts found by the commission do not support the order or award, or that there was not sufficient competent evidence in the record to warrant the making of the order or award. The duties and authority of the circuit courts in compensation cases on appeal go further than merely affirming or reversing the orders and awards of the commission. St. Paul Fire So Marine Ins. Co. v. Central Surety & Ins. Corp., 234 Ark. 160, 350 S.W. 2d 685, is a good example. Appeals from the circuit court to this court shall be allowed in compensation eases as in other civil actions.

We deem it unnecessary to point out that Arkansas, as well as the other states, has three separate and distinct departments of government with separate and distinct functions, and that the legislative, executive and judicial departments are entirely separate and independent of each other.

There is no question that the legislature may limit or withdraw judicial jurisdiction conferred by legislative act, and there is no question that the legislature may amend the compensation law in any manner it deems proper. But once an appeal from the Workmen’s Compensation Commission has been lodged in the circuit court, it becomes subject to the constitutional jurisdiction of the judiciary the same as any other case properly filed in a judicial tribunal, and its judicial course or final disposition is not subject to legislative determination. So the question here is whether the legislature, by the terms of Act 501 of 1967, has encroached upon the separate constitutional powers, functions and duties of the judiciary, and we conclude that it has.

We readily recognize, and thoroughly appreciate, the problem the legislature was attempting to solve by the enactment of Act 501 of 1967. The problem of delay in workmen’s compensation cases on appeal, or at any other point along the line of final determination, is a serious matter and may be, in some instances, absolutely inexcusable. Justice delayed in a workmen’s compensation ease is indeed justice denied. If an injured and disabled workman is entitled to workmen’s compensation benefits, he needs the benefits, and if he xd not entitled to benefits, he needs to know it so that he can make other arrangements for the payment of his grocery and medical bills. A claimant’s attorney is not entirely exempt from responsibility in a compensation case. He is never exonerated from dne diligence in prosecuting an appeal of a workmen’s compensation case in the circuit court. He has no right or reason to fear an adverse decision by reminding the trial court that the case is pending and requesting early disposition.

Now returning to the specific question before us, the problem of court delay is not peculiar to Arkansas alone. The problem has arisen in other states with the same or similar legislative effort at solution and with the same or similar results that we reach here.

The Georgia legislature enacted a statute providing for the issuance of certiorari unless application therefor was refused in 90 days. Held: Unconstitutional as invasion of judicial power. Holliman v. State, 175 Ga. 232, 165 S.E. 11.

In Oklahoma an initiated act provided for the trial of certain cases relating to tax assessments within ten days after issues joined, and for appeals within ten days from judgment. Held: Unconstitutional as usurpation of judicial powers. Atchison, T. & S. F. Ry. Co. v. Long, 122 Okla. 86, 251 P. 486.

An Indiana statute provided that any issue of law or fact submitted to a court for trial and taken under advisement should be decided within 60 days and if not decided within 90 days, the judge should b.e disqualified and a special judge appointed. Held: Unconstitutional. State Ex. Rel. Kostas v. Johnson, 224 Ind. 540, 160 ALR 1118, 69 N.E. 2d 592.

The Ohio legislature enacted a penal statute with a provision that a writ of error to reverse a conviction for violation of the act, or to reverse a judgment affirming such conviction, could only be filed after leave granted by the reviewing court. The act then provided that such petition “shall be heard by such reviewing court within not more than thirty court days after filing such petition in error.” In holding the act unconstitutional the Supreme Court of Ohio, in Schario v. State, 105 Ohio 535, 138 N.E. 63, said:

“True, the general subject-matter of procedure by the parties to the cause, prescribing the manner of invoking the jurisdiction, the pleadings, and the time within which the jurisdiction shall be invoked, in short, the adjective law of a case, has always been regarded within the proper province of legislative action, yet the legislative branch of the government is without constitutional authority to limit the judicial branch of the government in respect to when it shall hear or determine any cause of action within its lawful jurisdiction.
Whether or not justice is administered without ‘ denial or delay’ is a matter for which the judges are answerable to the people, and not to the General Assembly of Ohio.”

The amendment contained in Act 501 simply affirms a compensation case in the circuit court after it has been on file for 60 days and makes it mandatory on the court to enter an order to that effect. This we hold to be an unconstitutional esercise of a judicial function by the legislative branch of the state government and as laudable as the purpose intended may be, we hold that the act is unconstitutional and void.

This cause is remanded to the circuit court for disposition on its merits.

Reversed and remanded.

Byrd, J., concurs.

George Rose Smith and Fogleman, JJ., dissent.

George Rose Smith, J.,

dissenting. It is a basic rule, essential to orderly procedure, “that before an erroneous declaration or application of law by a trial court can avail a party on appeal, he must show that he was prejudiced thereby.” National Union Fire Ins. Co. v. School Dist. No. 60, 141 Ark. 547, 199 S.W. 924 (1917).

That showing has not been made here. The appellant has not abstracted any of the testimony taken before the Compensation Commission. In fact, on this appeal she makes no contention that the Commission’s decision was wrong. If, upon remand, the circuit court affirms the Commission’s action on its merits, the appellant will presumably bring a second appeal to this court, requiring us to hear the case piecemeal.

Of course the situation would be different if the circuit courts tried compensation cases de novo, so that a summary affirmance would infringe a claimant’s substantive right to a hearing. But, under our statute, the circuit court tries the case upon the record made before the Commission. We review it in exactly the same way. Hence, if needless appeals are to be avoided, a case such as this one could and should be presented to us on its merits upon the first appeal, with the constitutionality of Act 501 presenting merely a preliminary procedural issue. I would affirm the judgment.

Fogleman, J., joins in this dissent.


text:
    Myrtle Norris Clark, et al v. New York Life Insurance Co.
    5-4751
    434 S.W. 2d 611
    Opinion Delivered December 2, 1968

      Dickey, Dickey & Drake for appellants.

      Coleman, Gantt, Ramsay & Cox for appellee.
   J. Fred Jones, Justice.

This is an appeal from the Lawrence County Circuit Court wherein a motion for summary judgment for statutory penalty and attorneys’ fees was denied by the court in a suit on a life insurance policy.

The appellants are the widow and children beneficiaries under a double indemnity benefit life insurance policy issued by the appellee on the life of the insured, Millard M. Clark. The insured died on March 19, 1967, from a pistol wound in the side of his head. Proof of loss form was filed on April 18, 1967, a homicide charge was filed against the widow on April 25, 1967, and on June 20, 1967, suit was filed for $10,000, the proceeds of the policy under its double indemnity provision for accidental death. Answer was filed on July 11, 1967, admitting the accidental death of the insured and on August 23, 1967, checks were issued and delivered to all the beneficiaries except the widow. On October 6, 1967, the widow’s share was paid into the registry of the court.

The double indemnity provision of the policy for death by accidental means contains language as follows:

“Provided, however, that such Accidental Means Death Benefit shall not be payable if the insured’s death resulted from . . . suicide, whether sane or insane; ...”

Motion for summary judgment for statutory penalties, attorney’s fees, interest and cost, was filed on October 11, 1967, and appellee resisted the motion on grounds that there had been no undue delay in the payment of the claims under the peculiar facts and circumstances of the case.

The motion was submitted to the trial court upon stipulations and affidavits tending to prove on behalf of appellants that such evidence as the investigating officers had obtained had been made public and was available to the appellee, and that there was no evidence of suicide that would have voided the double indemnity provision of the policy. On behalf of the appellee the stipulations and affidavits tended to prove that appellee was handicapped in its investigation of the claims in that the prosecuting attorney, as well as the beneficiaries, especially the widow, refused to give it any information concerning the circumstances of the insured’s death.

On April 12, 1968, appellants’ motion for summary judgment was denied and the trial court entered judgment as follows:

“On this day this cause came on to be heard, the plaintiffs appearing by their attorneys Dickey & Dickey and the defendant appearing by its attorneys Coleman, Gantt, Ramsay & Cox. By eon-sent of the parties this cause was submitted to the court for its consideration on a stipulation filed herein, the matters appearing in the motion for summary judgment and response to motion for summary judgment with affidavits in connection therewith, the pleadings and other matters of record. After reviewing the stipulation, having heard argument of counsel and considering all other facts, evidence and matters before the court, the court, being well and sufficiently advised, finds that the plaintiffs declined to give to the defendant’s representative information regarding the circumstances surrounding the death of Millard M. Clark; that said information was necessary for the defendant to make a proper determination regarding the claims filed by the plaintiffs; that the defendant did not deny liability; and that the time which it took in making the necessary investigation was not unreasonable under the circumstances that existed.
It is, therefore, considered, ordered, adjudged and decreed by the court that the prayer of the plaintiffs’ complaint for statutory penalties, attorneys’ fees and interest be and it is hereby denied and that the complaint, insofar as it related to the statutory penalties, attorneys’ fees and interest, is hereby dismissed.”
Appellants set out their points relied on as follows:
Court erred in not finding that the appellants were entitled to statutory penalties and attorney’s fee, because:
Filing suit is sufficient for the attachment of statutory penalties, etc.
Denial was made by the appellee in its original answer.
That the alleged withholding of information had no hearing on the determinations of appellee.
Date of payment was in excess of sixty-day period.
Appellee’s failure to act constitutes grounds for imposition of statutory penalties, etc.
Court erred in not awarding appellants interest and court costs.”

Arkansas Statute Annotated § 66-3238 (Repl. 1966) under which appellants claim penalty, attorneys’ fees and cost is highly penal in nature and should be strictly construed. Clarke Center v. Nat. Life & Acc. Ins., 245 Ark. 563, 433 S.W. 2d 151. This section of the statute, insofar as it applies here, is as follows:

“In all cases where loss occurs and the . . . life, . . . insurance company . . . liable therefor shall fail to pay the same within the time specified within the policy, after demand made therefor, such . . . corporation . . . shall be liable to pay the holder of such policy or his assigns, in addition to the amount of such loss, twelve per cent (12%) damages upon the amount of such loss, together with all reasonable attorneys’ fees for the prosecution and collection of said loss; said attorney’s fee to be taxed by the court where the same is heard on original action, by appeal or otherwise, and to be taxed up as a part of the costs therein and collected as other costs are, or may be by law collected; and writs of attachment or garnishment filed or issued after proof of loss or death has been received by the company shall not defeat the provisions of this section, provided the company or association, desiring to pay the amount of the claim as shown in the proof of loss or death may pay said amount into the registry of the court, after issuance of writs of attachments and garnishment in which event there shall be no further liability on the part of said company.”

The language in § 66-3238, supra, to the effect “shall fail to pay the same within the time specified in the policy after demand made therefor” contemplates that the insurer shall have a reasonable time to make necessary investigation in reference to the loss and the circumstances thereof after demand. Taylor v. The Mutual Life Ins. Co. of N.Y., 193 Ark. 251, 98 S.W. 2d 944.

The insured was found in his apartment dead from a pistol bullet wound in the side of his head. If the death was a suicide, appellee would not have been liable for double indemnity under the provisions of the policy. If the death was the result of homicide committed by the wife and for which she stood indicted, she would not have been entitled to share in policy benefits. Metropolitan Life Ins. Co. v. Shane, 98 Ark. 132, 135 S.W. 836; Horn v. Cole, 203 Ark. 361, 156 S.W. 2d 787.

Even though the accused widow agreed to forfeit her rights as beneficiary in this case, the appellee insurer was still entitled to a reasonable time after receipt of proof of loss in which to make its investigation before the statutory penalties for delay would attach. Clark Center v. Nat. Life & Acc. Ins., supra.

We conclude, therefore, from the record before us in this case, that there was substantial evidence upon which the trial court based its decision that the appellee was not guilty of such unreasonable delay that would subject it to the statutory penalties under the facts and circumstances of this case, and we conclude that the judgment of the trial court should be affirmed.

Affirmed.