author: JOHN A. FOGLEMAN, Justice.

text:
    UNITED STATES FIRE INSURANCE CO. v. Mr. and Mrs. Wilson MONTGOMERY et al
    74-76
    511 S.W. 2d 659
    Opinion delivered July 22, 1974

      Barber, McCaskill, Amsler & Jones, for appellant.

      James C. Cole, McMillan & McMillan by: II. W. McMillan, F. Hugh Lookadoo, for appellees.
   JOHN A. FOGLEMAN, Justice.

This is an appeal from a judgment of the Circuit Court of Hot Spring County in favor of appellees Mr. and Mrs. Wilson Montgomery in the amount of $7,000, plus interest, penalty and attorney’s fees as provided by Ark. Stat. Ann. 66-3238 (Repl. 1966), based on a fire insurance policy issued by appellant covering a tenant dwelling owned by the Montgomerys. Appellant contends the trial court erred in holding the policy to be in full force and effect on the date of the loss since it asserts the policy had been cancelled. It also alleges the trial court’s finding that the two third-party defendants, Broyles Insurance Agency and Stone-Lookadoo Insurance Agency were free of any liability to it was erroneous. We affirm the judgment of the trial court.

In order to treat appellant’s contentions it is necessary to closely examine the factual background. Prior to May 15, 1969, the Montgomerys had purchased a $4,000 fire insurance policy issued by appellant from the Stone-Lookadoo Insurance Agency. On that date they renewed the policy for an additional three-year period. On May 28, 1969 appellant informed the Stone-Lookadoo Agency that unless the coverage on the dwelling was increased to $7,000 it would cancel the policy.

Thomas Gunnin, an underwriter for appellant, testified that onjune 10, 1969 he wrote a letter, a copy of which was introduced into evidence, to Stone-Lookadoo in which he stated that since no endorsement increasing coverage had been received the company must ask that the policy be cancelled. His letter further offered to assist Stone-Lookadoo by mailing direct notice of cancellation to the policy holders if no contrary instructions were received from Stone-Lookadoo within the next ten days. Gunnin said he mailed separate notices of cancellation to Mr. Montgomery, Mrs. Montgomery and the Stone-Lookadoo agency. Copies of these notices, certificates of mailing dated July 16, 1969 and copies of two credit “memos” showing a pro rata premium refund on the original $4,000 coverage and a full premium refund on the attempted endorsement were introduced into evidence. According to Gunnin, the cancellation was effective on July 10, 1969. The refunds went to the agency.

Mrs. Montgomery testified she contacted the Stone-Lookadoo Agency and asked for coverage on the tenant dwelling. She stated she did not specify any particular company but that the agency picked the company with which to place the coverage. According to Mrs. Montgomery all premium payments were made by checks payable to the Stone-Lookadoo agency and, after it bought out Stone-Lookadoo, to the Broyles agency. She said she was never notified by United States Fire Insurance, Stone-Lookadoo or Broyles that the United States Fire Insurance Company policy had been cancelled and had never been informed that any other insurance policy had been written covering the house.

Jerry Karber, agency manager for Stone-Lookadoo in June and July of 1969, said he issued the increased coverage endorsement that appellant requested but then received a letter from United indicating that the policy had been cancelled. It apparently had crossed the endorsement in the mails. It was admitted by Gunnin that the endorsement was received in the company’s Little Rock office on July 17. According to Karber, he felt it would be easier to issue a new policy in another company than attempt to reinstate the United States Fire policy and so without notifying the Montgomerys he placed the coverage with National Investors Fire and Casualty. No one ever explained what happened to this policy after the agency was sold to Broyles.

In November of 1969 the Stone-Lookadoo agency was purchased by the Broyles agency. Joe Jarrett, accounting manager for appellant, testifying from company records, stated that in July of 1970 United States Fire Insurance received a statement from the Broyles agency which included an $81.00 premium payment on the Montgomery policy. Jarrett said the Broyles agency was informed on September 25, 1970, and again on December 8, 1970 the policy had been cancelled and that it would be credited with the return premium. He said that upon receiving the November, 1970 statement from Broyles which reflected a balance of $1,-113.48 due to United States Fire Insurance, the company prepared a supplementary accounting crediting Broyles with $411.70 for return of premiums on cancelled policies including the Montgomery policy. He said the accounting, a copy of which was introduced into evidence was sent to Broyles. According to his testmony, in January Broyles sent United States Fire a check for $701.78, that being the difference between the original statement less the credited premiums. According to Jarrett’s testimony the May, 1971 payment from Broyles also included a premium payment on the Montgomery policy. He said that on September 21, 1971, the agency was once more informed the policy had been cancelled and that a credit should be taken for that amount on its next statement. They were again informed of the cancellation on December 10, 1971. Jarrett testified that since no credit was taken by Broyles, in April of 1972 the company finally sent its check for the return premium to the agency. That check was still outstanding at the time of the trial.

The Montgomery house was destroyed by fire on January 13, 1972 and the Montgomerys made a demand on United States Fire Insurance for payment under the policy. The company denied liability on the grounds that the policy had been cancelled.

Notice of cancellation of an insurance policy is not effective unless communicated to the insured. Commercial Union Fire Insurance Company v. King, 108 Ark. 130, 156 S.W. 445; Merrimack Mutual Fire Insurance Co. v. Scott, 219 Ark. 159, 240 S.W. 2d 666. The trial court made a factual determination that the Montgomerys never received notice of cancellation. Appellant contends the dual agency rule as set forth in cases such as Allemania Fire Insurance Co. v. Zweng, Trustee, 127 Ark. 141, 191 S.W. 903; Insurance Underwriters Agency v. Pride, 173 Ark. 1016, 294 S.W. 19 and Firemen's Insurance Co. v. Simmons, 180 Ark. 500, 22 S.W. 2d 45 requires a finding that the insurance agencies were the agents of the Montgomerys for receipt of notice of cancellation or, in the alternative, that it have judgment over against Stone-Lookadoo and Broyles, alleging their actions in not cancelling the policy and returning the premiums to the insured were negligent and the proximate cause of appellant’s loss.

We have long recognized that the requirement of notification to the insured is for his benefit and may be waived by him and that the agent of the company may also be the agent of the insured to accept notice of cancellation. Insurance Underwriter's Agency v. Pride, supra; Firemen's Insurance Co. v. Simmons, supra. The rule is applied in cases where the court has found that an agreement existed between the insured and the agent that the agent would keep the property insured without specifying a particular company with which the coverage was to be placed. Such an agreement may be express or, as is more often the case, implied from circumstances such as where the agent renews the policy on expiration and accepts notice of cancellation and issues replacement policies without notifying the insured. Insurance Underwriter’s Agency v. Pride, supra; Firemen's Insurance Co. v. Simmons, supra.

Although appellant makes a strong argument that such an agreement existed between the Montgomerys and the insurance agencies we do not have to decide whether it did in fact exist. Appellant undertook to provide direct notice of cancellation and relieved Stone-Lookadoo of any responsibility. Thus, there was a question of fact as to whether the company, by its own action, deprived the insured of notice which the agent might otherwise have provided. The dual agency concept assumes notice to the agent is notice to the insured because an agent is under a duty to keep his principal apprised of all facts and circumstances that may be important to the principal’s interest. Denton's Ex'rs. v. Embury & Young, 10 Ark. 228. In his testimony Gunnin admitted that after the company mailed direct notice of cancellation to the insured it did not look to Stone-Lookadoo or Broyles to do anything in connection with the cancellation. The trial judge, in his written findings of fact, determined the proximate cause of the policy being in force on the date of the fire was the ineffectiveness of appellant’s attempted cancellation. We cannot say this finding lacks substantial evidentiary support. It is clear from the record that appellant relied solely on the cancellation notice purportedly given by Gunnin-to Mr. and Mrs. Wilson Montgomery and the idea of notice through the insurance agency was an afterthought.

These same facts provide ample evidentiary support for the trial court’s finding that Stone-Lookadoo had no liability to appellant. Having been informed that direct notice of cancellation would be sent, Stone-Lookadoo was clearly relieved of any duty that it might have had to appellant to provide the insured with notification of cancellation. As a matter of fact, there is no evidence that Stone-Lookadoo disregarded any instruction given it by United. An agent certainly should be able to rely on his principal’s instruction that no action is expected of him in a matter in which he ordinarily would be under a duty to act and to be free of any liability to the principal who, having attempted to handle the matter directly and failing, seeks to reassert the agent’s duty. There is no evidence that Stone-Lookado accepted any further premium payment on the policy.

The Broyles agency contends it is relieved of liability to appellant under an estoppel theory because appellant retained the premiums which Broyles erroneously collected and forwarded to the company. For authority appellee Broyles cites us to National Life & Accident Insurance Co. v. House, 104 Ind. App. 403, 9 N.E. 2d 133. In that case the insurance company, without questioning in any way the policy on which the premiums were paid, collected weekly premiums until the death of the insured seventeen weeks later. Only then did the company seek to avoid liability and to return the premiums alleging that a policy clause had been violated. The Indiana court held that retention of the premium payments constituted an estoppel. We find that case to be clearly distinguishable from this one.

It was admitted that Broyles continued to bill the Montgomerys for the premium on the policy. The evidence indicated the Broyles agency took credit for the 1970 premium in its January, 1971 check to United States Fire Insurance. Thus this payment was not retained by the company. After receiving the May, 1971 payment appellant notified Broyles that since the policy was no longer in force the premium should be taken as a credit in its next account. A similar notice was sent in December but Broyles never applied the credit and in April of 1972, after the loss had occurred, a check was sent to the agency. Estoppel can arise due to the acts or inaction of a party, but it does not exist unless the adverse party has in good faith relied upon the act or inaction. Hendrix v. Hendrix, 256 Ark. 289, 506 S.W. 2d 848 (1974); Bowlin v. Keifer, 246 Ark. 693, 440 S.W. 2d 232. In view of all the dealings between Broyles and appellant, Broyles cannot in good faith assert that it believed the policy to be in force because appellant retained the premium payments. No explanation of Broyles’ actions was ever given.

An agent is liable to his principal for negligence in the handling of the principal’s business entrusted to him, or for an omission or neglect to perform a duty on his part with reference thereto, if the principal suffers a loss by reason thereof. Houston Rice Co. v. Reeves, 179 Ark. 700, 17 S.W. 2d 884; Emerson v. Turner, 95 Ark. 597, 130 S.W. 538. See Restatement of the Law, 2d, Agency, 187, 237, Secs. 383, 401. Mrs. Montgomery testified that she handled the payment of premiums on this insurance.When she went to the Broyles agency in 1971 to make payment, a Mrs. Epperson at the agency made out the checks and made notations thereon as to the items paid. Mrs. Montgomery simply signed the checks.

Even if it be said that Broyles breached its duty to United it was necessary that United show that its loss was occasioned by the default or negligence of Broyles. See Emerson v. Turner, supra. The fact that Broyles remitted premiums for two years after the alleged cancellation was substantial evidence that should have put United on notice that something had gone awry in connection with the cancellation, for which it took sole resonsibility. Still, it did nothing to give the Montgomerys further notice or to direct the Broyles Agency to do so. We cannot say that there was no substantial evidence that the loss was attributable to appellant’s actions and not to Broyles’s breach in the matter.

The judgment is affirmed.


source: Caselaw Access Project

author: JOHN A. FogleMAN, Justice.

license: Public Domain

text:
    Donald H. BRIDGES d/b/a/ YELLOW SIGHTSEEING & CHARTER SERVICE v. ARKANSAS MOTOR COACHES, Ltd. INC., et al
    74-93
    511 S.W. 2d 651
    Opinion delivered July 22, 1974

      Hobbs and Longinolli, for appellant.

      Warren & Bullion by: Bruce T. Bullion, for appellee.
   JOHN A. FogleMAN, Justice.

Appellant asks us to reverse an order of the Circuit Court of Pulaski County remanding to the Arkansas Transportation Commission the order of that agency granting a certificate of public convenience and necessity to appellant. The abbreviated record upon which this case is submitted consists only of a motion by Arkansas Motor Coaches, Ltd. Inc. to remand, with attached exhibits, appellant’s response and an amendment thereto and the resulting circuit court order from which this appeal is taken. Our consideration of this case must be made upon the face of this partial record, because we cannot presume that the judgment is supported by any omitted matter. Kimery v. Shockley, 226 Ark. 437, 290 S.W. 2d 422.

It is apparent that on some unspecified date the Transportation Commission granted appellant a certificate of public convenience and that appellee appealed that decision to the circuit court. Review there was to have been by trial de novo solely on the record made before the Commission, in a manner not essentially different from our review of a chancery case on appeal. Ark. Stat. Ann. § 73-133, 134 (Repl. 1957); Torrans v. Arkansas Commerce Commission, 246 Ark. 930, 440 S.W. 2d 558; Missouri Pacific Transportation Co. v. Inter City Transit Co., 216 Ark. 95, 224 S.W. 2d 372. See also Fishery. Branscum, 243 Ark. 516, 420 S.W. 2d 882; Motor Truck Transfer v. Southwestern Transportation Co., 197 Ark. 346, 122 S.W. 2d 471. While the appeal was pending, appellee filed the motion to remand to the Commission for the purpose of taking additional evidence on the fitness of appellant to receive and hold a certificate. The motion was made pursuant to Ark. Stat. Ann. § 5-713 (f) and (h). The ground alleged was that an incident had occurred subsequent to the grant of the certificate that depicted a wilful disregard by appellant of the limitations of the privilege granted him by the Commission and of the rules and regulations of the Commission and so reflected upon appellants fitness to enjoy a certificate that evidence should be included in “this record” and officially brought to the attention of the Commission. The motion was supported by attached newspaper clippings telling of an incident in which several passengers being transported on one of appellant’s buses were overcome by carbon monoxide fumes.

Appellant asserted in his response that any relief to which appellee was entitled should be addressed to the Transportation Commission and that the circuit court lacked jurisdiction until all administrative remedies before the Commission had been exhausted. He also alleged that the Commission had complete control of all violations of its orders and of complaints in that respect. By his amendment, appellant asserted that the circuit court lacked power to order a remand because the Administrative Procedure Act [Ark. Stat. Ann. §§ 5-701 - 714 (Supp. 1973)] specifically provides that.it shall not apply to the Arkansas Commerce Commission (now Arkansas Transportation Commission).

The circuit court entered its order on the motion upon its finding that, encompassed within the meaning of the term “fit,” as applied to those holding certificates of public convenience and necessity, is “the willingness and performance of the applicant, or certificate holder, to strictly abide by the law (including safety requirements) and the rules and regulations of the regulatory commission, but also to observe, strictly, and abide by any and all restrictions and limitations imposed upon the transportation services proposed, performed or to be performed.”

This court has the discretion to treat an appeal from a judgment or decree which lacks judicial support as if it were brought up on certiorari. Howell v. Howell, 213 Ark. 298, 208 S.W. 2d 22. Certiorari lies to correct proceedings erroneous on the face of the record where there is no other adequate remedy. State v. Nelson, Berry Petroleum Co., 246 Ark. 210, 438 S.W. 2d 33; North Little Rock Transportation Co. v. Songster, 210 Ark. 294, 195 S.W. 2d 549; Burgett v. Apperson, 52 Ark. 213, 12 S.W. 559; Martin v. Hargrove, 149 Ark. 383, 232 S.W. 596. It is available in the exercise of superintending control over a tribunal which is proceeding illegally where no other mode of review has been provided. State v. Nelson, Berry Petroleum Co., supra; McCain v. Collins, 204 Ark. 521, 164. S.W. 2d 448, Merchants and Planters Bank v. Fitzgerald, 61 Ark. 605, 33 S.W. 1064. It may only be resorted to in cases where an excess of jurisdiction is apparent on the face of the record. State v. Nelson, Berry Petroleum Co., supra; Martin v. Hargrove, supra. See also, McKenzie v. Burris, 255 Ark. 330, 500 S.W. 2d 357.

Appellant is correct in his assertion that the Transportation Commission is excluded from the provisions of the Administrative Procedure Act; however this does not necessarily mean the circuit court erred in ordering the remand. The only reference in the record to Ark. Stat. Ann. § 5-713 (f) & (h) is in the motion to remand and the amended response to that motion, but the remand order by the circuit judge makes no reference to the Administrative Procedure Act as authority for his action. Even if it could be said that he erroneously relied on the Act, his action would not be reversed if the order to remand can be supported on other grounds, for we have often held that error without prejudice will be no ground for reversal. Wheeler, Adm'x. v. Delco, 237 Ark. 55, 371 S.W. 2d 130; Keathley v. Tates, 232 Ark. 473, 338 S.W. 2d 335.

The court’s order recited that:

“. . . this cause be and is hereby remanded to the Arkansas Transportation Commission with directions to it to hold further hearing herein for the sole purpose of inquiring into the fitness of appellee to hold and possess this, or any other, permit or certificate which would authorize him to engage in public transportation under the Arkansas Motor Carrier Act; and for said Commission to enter its final report and order as to its findings and conclusions that the evidence so adduced bears upon this issue.”

Appellee suggests that the order is not appealable. We have recognized that a proper order of remand by a circuit court to an administrative agency lacks the requisite finality to be an appealable order. Nolan Lumber Co. v. Manning, 241 Ark. 422, 407 S.W. 2d 937; Floyd v. Arkansas State Board of Pharmacy, 248 Ark. 459, 451 S.W. 2d 874. However, we find this to be a proper case in which to treat as being brought up on certiorari. We conclude the circuit court clearly acted in excess of its jurisdiction, in its remand of this case. The order mandated the Transportation Commission to hold further hearings on the fitness of the appellant to hold any permit or certificate which would authorize them to engage in public transportation. It is clear that the evidence to be adduced under the order related only to appellant’s performance, subsequent to the granting of the original certificate, as to obedience of the laws and Commission rules and regulations and observance of restrictions and limitations. It is not the proper function of the circuit court to attempt to control the issuance of certificates of public convenience but only to inquire whether the Commission’s determination, based on the record, was contrary to the weight of the evidence. Motor Truck Transfer Inc. v. Southwestern Transportation Co., 197 Ark. 346, 122 S.W. 2d 471; Missouri Pacific Transportation Co. v. Inter City Transit Co., 216 Ark. 95, 224 S.W. 2d 372.

Ark. Stat. Ann. § 73-1767 (Repl. 1957) provides the procedure by which complaints against a certificate holder for failure to comply with Commission rules and regulations may be filed with the Commission which, after notice and a hearing, has the power to suspend, amend or revoke the holder’s certificate. We conclude that the evidence which appellee wished to introduce before the Commission on remand, was clearly in the nature of a complaint that appellant’s performance failed to meet Commission rules and regulations and therefore should have been filed as a complaint under Ark. Stat. Ann. § 73-1767.

In view of this we are compelled to say the circuit court’s order clearly went beyond its jurisdiction in remanding this case to the Transportation Commission for a reconsideration of its grant of a certificate of public convenience and necessity to appellant on the only evidence suggested by the motion to remand and the court’s order. The order must be vacated.

The order of remand is quashed and the case remanded for further proceedings not inconsistent with this opinion.


author: John A. Fogleman, Justice.

text:
    Thelbert BROOKS v. STATE of Arkansas
    CR 74-40
    511 S.W. 2d 654
    Opinion Delivered July 22, 1974

      Harold L. Hall, Public Defender, by: Dep. Public Defender, Robert L. Lowery, for appellant.

      Jim Guy Tucker, Atty. Gen., by: 0. II. Hargraves, Dep. Atty. Gen., for appellee.
   John A. Fogleman, Justice.

Appellant seeks reversal of his conviction for possession of marijuana with intent to sell upon the basis that the trial court’s instruction No. 7 amounted to a comment upon the evidence prohibited by Article 7, Section 23 of the Constitution of Arkansas. The instruction was virtually in the words of Ark. Stat. Ann. § 82-2617 (d) (Supp. 1973). Appellant relies upon French v. State, 256 Ark. 298, 506 S.W. 2d 820 (1974).

The record shows that appellant raised objections to instruction No. 7 at three points in the record. The first objection was made immediately prior to the commencement of the instructions as follows:

Mr. Schmidt: I object to the charge, with intent to deliver part, making it a felony. I am objecting to it as being unconstitutional.

The second objection was made at the conclusion of instruction No. 7 and is reflected by the transcript as follows:

The defendant objected to the action of the Court in giving the State’s Requested Instruction No. 7 and at the time asked that his exceptions be noted of record, which was accordingly done.

The appellant’s final objection came at the conclusion of the instructions as follows:

Mr. Schmidt: The only objection I have is as to the constitutionality of the presumption, that it’s the intent to deliver.

The State contends, and we agree, that the objections made by appellant were not sufficient to raise the question relied upon on appeal. The objections made cannot be construed to raise any question other than the one we disposed of adversely to appellant in Stone v. State, 254 Ark. 1011, 498 S.W. 2d 634, where we said,

Although, according to the stipulated record, the question of constitutionality arose upon appellant’s objection to a jury instruction in the language of the statute, the only objection made went to the question of constitutionality of the statute. No mention or hint of the instruction’s being a comment on the evidence appears anywhere in the record until appellant’s reply brief was Tiled. There, appellant invokes Article 7, Section 23, of the Constitution of Arkansas by asserting that to adopt the state’s conclusion that the act is constitutional would be contrary to that constitutional provision. A complete answer to that particular argument is that there is no language whatever in the statute that requires the court to instruct the jury as to the impact or effect of proof of possession of more than 100 milligrams of heroin. Consequently, the section of the act in question cannot possibly be unconstitutional because of conflict with that section of our state constitution.
The question whether the instruction quoting the statute insofar as it related to possession of heroin, violates Article 7, Section 23, is not properly before this court, even if the recited argument, advanced for the first time in appellant’s reply brief, could be said to raise it. . .

Since Stone, we refused in Abbott v. State, 256 Ark. 558, 508 S.W. 2d 733 (1974), to construe another objection to such an instruction to be sufficient to constitute an assertion that it was a comment on the evidence. Our action in those cases was consistent with our well-established precedents in this regard, but this would be a clear departure therefrom. In Burnett v. State, 80 Ark. 225, 96 S.W. 1007, we said that when the trial court uses the language of a statute, which is reasonably clear, in an instruction, the accused, if not satisfied, must point out the defect in the instruction by a specific objection.

We have recognized that the question about the instruction given here is closely related to that often given with reference to a permissible inference from the possession of recently stolen goods. In Sons v. State, 116 Ark. 357, 172 S.W. 1029, error was assigned pertaining to the giving of an instruction stating that possession of recently stolen goods constituted prima facie evidence tending to establish the guilt of one in whose possession they were found, unless a reasonable explanation of that possession was made. We held that the defendant could not complain of the instruction, on appeal, when he only made a general objection without asking the court to modify or explain it and without specifically calling to the court’s attention the objection that it invaded the province of the jury, particularly when the judge instructed the jury that they were the sole judges of the weight and sufficiency of the evidence.

In Rebecca v. State, 158 Ark. 165, 250 S.W. 513. we held that a general objection to a statement by the trial court was not sufficient to raise the question that the lanaguage used was an instruction on the weight of the evidence, but that a specific objection should have been called to the court’s attention, in order that he might have properly explained to the jury in language which could not be misunderstood.

The state relies upon Rule 13 of Uniform Rules for Circuit and Chancery Courts which reads:

No party may assign as error the giving or the failure to give an instruction to a jury unless he objects thereto before or at the time the instruction is given, stating distinctly the matter to which he objects and the grounds of his objection. The trial judge shall give all parties an opportunity to make objections to instructions out of the hearing of the jury.
A mere general objection shall not be sufficient to obtain appellate review of the trial court’s actions relating to instructions to the jury except as to an instruction directing a verdict or the court’s action in declining to do so.
This rule shall apply to any case tried after December 31, 1971. [Ark. Stat. Ann., Vol. 3A, (Supp. 1971)].

We called attention to this rule in Ulmer v. State, 253 Ark. 106, 484 S.W. 2d 691. The objection made here is no more than a general one because appellant did not state distinctly the grounds of objection urged on appeal.

We applied the rule in Cassidy v. State, 254 Ark. 814, 496 S.W. 2d 376, wherein we even declined to entertain the contentions on appeal that an instruction was abstract and that it contained an inherently erroneous statement of the law because those objections were not made in the trial court.

A specific objection is one which apprises the court of the particular vice or error of which a party complains sufficiently to afford the trial court an opportunity to make necessary corrections. Rutledge v. State, 222 Ark. 504, 262 S.W. 2d 650; Pope v. State, 216 Ark. 314, 225 S.W. 2d 8; Fields v. State, 235 Ark. 986, 363 S.W. 2d 905. Scifres v. State, 228 Ark. 486, 308 S.W. 2d 815; See also Griffin v. State, 141 Ark. 43, 216 S.W. 34; Bailey v. State, 227 Ark. 889, 302 S.W. 2d 796, cert. den. 355 U.S. 851, 78 S. Ct. 77, 21 L. Ed. 2d 59.

The trial judge could not possibly have known that appellant was objecting to this instruction as a charge with regard to matters of fact, an invasion of the province of the jury, a comment on the evidence or the weight to be given it or as a violation of Art. 7, § 23 of the Arkansas Constitution.

The judgment is affirmed.

Byrd and Holt, JJ., dissent.


author: J. FRED Jones, Justice.

text:
    PLANTERS PRODUCTION CREDIT ASSOCIATION v. Charles W. BOWLES et al
    74-300
    511 S.W. 2d 645
    Opinion delivered July 22, 1974

      Swift, Alexander & Burnett and Reid, Burge & Prevallet, for appellant.

      Oscar Fendler, C. E. Lynch, Jr., Butler & Hicky, for appellees.

      Joe C. Barrett, for Planters PCA, amicus curiae.
   J. FRED Jones, Justice.

This is an appeal by Planters Production Credit Association, hereafter referred to as “PCA,” from a chancery court decree denying judgment against the purchasers of cotton from Charles W. Bowles in a suit brought by PCA against Bowles and the purchasers of cotton raised by him and upon which PCA had perfected a secuity interest lien.

PCA was an association composed of approximately 365 members who borrowed money from the association to finance their individual farming operations. The association obtained the money it loaned to its members from federal sources and each member paid a membership fee of $5.00 for each $100 he borrowed. PCA took notes, financing statements and security agreements pledging crops and proceeds as security for crop loans made to its members.

Bowles farmed approximately 2,500 acres of Mississipp’ County land primarily in cotton and soybeans. He had beer, a member of PCA from whom he obtained loans in financing his farming operations since 1950. He always repaid his loans without difficulty until in 1969 when he began having difficulty in making his crop loan payments to PCA. By March 15, 1971, he owed PCA $146,162.99 which included a carryover from the previous year of $80,147.36 on a crop loan; $6,634.42 on a past due equipment loan, and $59,-381.11 on a so-called “interim financing” loan for current miscellaneous expenses. On March 15, 1971, he borrowed an additional amount of $63,085.00 with which to finance his 1971 crop and gave a note to PCA for $209,622.99. On the same date he executed a financing statement and security agreement pledging his 1971 cotton, wheat and soybean crop, as well as certain farm equipment, as security to PCA.

During the 1971 crop year PCA refused to finance Bowles further unless he reduced his past due indebtedness, so he became indebted to others for chemicals and other supplies, and in 1971 he produced approximately 1,100 bales of cotton. He sold futures on a part of his cotton and when the cotton was harvested, he sold it but failed to apply all the proceeds to his indebtedness to PCA.

The relationship of the parties is set out in the complaint filed by PCA on May 31, 1972, in which it alleged in part as follows:

“2. . . .[T]he Defendant, Charles W. Bowles, produced approximately 1100 bales of cotton of an approximate value of $160,000.00 for which the plaintiff was entitled to receive the proceeds.
3. . . . [T]he Defendant, Charles W. Bowles, failed to pay plaintiff the proceeds or to deliver said cotton crop and instead delivered 704 bales of cotton to the Defendant, Keiser Supply Company, which were ginned and sold to the Defendant, Hohenberg Brothers Company, which issued its drafts to Lee Wilson Company through Keiser Supply Company, which in turn, applied the proceeds to accounts with Lee Wilson Company Seed and Chemical Division, an open account, and to Keiser Supply Company, all in direct contravention and with prior notice of the plaintiff’s prior and paramount lien by way of its recorded mortgage. That the Defendant, Charles W. Bowles, also delivered 137 bales of cotton to Allen Seagraves, who ginned said cotton, which was subsequently sold to the Defendant, Gordon Wiseman; that an additional 110 bales were sold under the fictitious name of ‘Dunbar Bradey’ with the intention of defrauding plaintiff and others. That the Defendants, Bluff City Cotton Company and Bluff City Cotton Company, Inc., purchased 176 bales of cotton delivering their drafts to the Defendant, Charles W. Bowles, without delivering the proceeds from said sale to the plaintiff. ...”

PCA prayed joint and several judgment in the amount of $160,000 against all the named defendants, or in the alternative it prayed a return of the cotton collateral.

The chancellor decreed judgment in favor of PCA against Bowles for $75,867.49 and decreed that PCA was not entitled to judgments against the other defendants on findings recited in the decree as follows:

“[T]he court expressly finds that the Plaintiff, Planters Production Credit Association, by its course of conduct through a number of years in regard to authorizing the Defendant, Charles W. Bowles, and all of its other borrowers to sell and otherwise dispose of crops which Bowles and the borrowers had produced and harvested receive the cash proceeds from the sale and dispose of same and to use such proceeds in such manner as the Defendant Bowles and other borrowers deemed proper, waived its lien under the financing statement and security agreement that the Plaintiff had taken from the Defendant, Charles W. Bowles, for the year 1971 and for the crops involved in this lawsuit. As a result of said waiver, all of these Defendants and Cross-Defendants except the wife of the Defendant, Jane C. Bowles, purchased such crops grown by the Defendant Bowles in 1971 free of the lien claimed by the Plaintiff or received the money from the sale of those 1971 crops free of any such lien.”

On appeal to this court PCA has designated the points on which it relies for reversal as follows:

“Appellant had a security interest in Bowles’ crops and the proceeds therefrom for $75,867.49 plus interest and costs.
The lower court erred in ruling that appellant waived its lien by reason of a course of dealing between it and its debtor-Bowles, or as a result of custom and usage in the trade.
Appellee, Lee Wilson & Company’s alleged landlord’s lien for furnish and supplies is invalid and appellant is entitled to judgment against it for $40,337.50.
Appellant is entitled to judgment against appellee Hohenberg Brothers Company for $40,337.50.
Appellant is entitled to judgment against appellee Gordon Wiseman for $30,720.70.
Appellant is entitled to judgment against Louis B. Strong, d/b/a Bluff City Cotton Company for $17,-946.45.
Appellant is entitled to judgment against Jane Bowles, d/b/a Bowles Liquor Store, Bowles Stop and Shop Grocery and Bowles Pawn Shop for $34,806.37.”

We disagree with the appellant’s.first two contentions, consequently we find it unnecessary to discuss the others.

The real question before us, and actually one of first impression in Arkansas, is whether a secured creditor may waive his security interest in collateral in favor of a third party purchaser of the collateral simply by his course of dealing with the debtor rather than by express or written waiver under the Uniform Commercial Code, as adopted in this state. We agree with the chancellor that PCA did so under the peculiar facts and circumstances of the case before us.

Ark. Stat. Ann. § 85-9-306 (1) (2) (Repl. 1961) provides as follows:

“(1) ‘Proceeds’ includes whatever is received when collateral or proceeds is sold, exchanged, collected or otherwise disposed of. The term also includes the account arising when the right to payment is earned under a contract right. Money, checks and the like are ‘cash proceeds.’ All other proceeds are ‘non-cash proceeds.’
(2) Except where this Article [chapter] otherwise provides, a security interest continues in collateral notwithstanding sale, exchange or other disposition thereof by the debtor unless his action was authorized by the secured party in the security agreement or otherwise, and also continues in any identifiable proceeds including collections received by the debtor.”
Ark. Stat. Ann. § 85-9-316 (Repl. 1961) reads as follows:
“Nothing in this Article [chapter] prevents subordination by agreement by any person entitled to priority.”

The Code definition of “agreement” is found in § 85-1-201 (3) as follows:

“ ‘Agreement’ means the bargain of the parties in fact as found in their language or by implication from other circumstances including course of dealing or usage of trade or course of performance as provided in this Act (Sections 1-205 and 2-208 [§§ 85-1-205, 85-2-208]). Whether an agreement has legal consequences is determined by the provisions of this Act, if applicable; otherwise by the law of contracts (Section 1-1-3 [ § 85-1-103]). . . .”

As already stated, the security agreement in this case covered crops to be raised by Bowles on specifically described land. The proceeds from the sale of wheat and soybeans were applied on the TPCA indebtedness and only the sale of cotton is involved in this case. Under Item 5 of the security agreement it was extended to “products and proceeds” in lanaguage as follows:

“All products into which the goods and property described or referred to under Items 1 to 4, inclusive, or any part thereof, have been or shall at any time hereafter be manufactured, processed, or assembled; and all cash and non-cash proceeds from the sale, exchange, collection, or other dispostition of any of said goods and property; and all accounts receivable resulting from the sale or other disposition of any of said goods or property.”

Under the heading “Terms, Conditions, Warranties, and Agreements,” the financing statement and security agreement contain language as follows:

“Secured Party shall have the right to inspect said goods and property at any time. If said goods and property or any part thereof shall not, in the opinion of Secured Party, properly develop or progress, or be properly cultivated, tended, cared for, harvested, or marketed, or if the security shall depreciate in value, or if Secured Party shall deem itself insecure, Secured Party shall be under no obligation to make advances in accordance with any commitment, and may, in amy such case, at the expense of Debtor (s), take possession of any of said property, and cultivate, tend, care for, harvest, and market the same; and all moneys paid or obligations incurred by Secured Party for any such purpose shall immediately be due and payable by Debtor(s) to Secured Party, with interest at the rate borne by the primary indebtedness hereby secured, and shall be secured hereby. Debtor(s) shall pay to and reimburse Secured Party for any and all other sums paid, furnished, or advanced by Secured Party for insurance, taxes, satisfaction of liens or encumbrances, and costs and expenses paid or incurred by Secured Party, including reasonable attorney fees, in the preservation of the security, or in any action or proceeding to establish or enforce the lien hereof; and all such sums, with interest at the rate borne by the primary indebtedness hereby secured, shall be secured hereby.
If default be made in the payment of the indebtedness hereby secured or any part thereof, or with respect to any of the terms, conditions, warranties, covenants, or agreements herein contained'; or in the event of a marked depreciation in the value of the security; or if Secured Party shall deem itself insecure; then the entire debt and obligations hereby secured shall, at the option of Secured Party, its successors and assigns, and without notice, be and become immediately due and payable and Secured Party, its successors and assigns, may thereupon enter upon the premises on which said property is situated and take possession of the goods and property covered hereby, and harvest, gather, store, pack, and prepare the same for market; and may sell, lease, or otherwise dispose of any or all of the collateral in its then condition or following any commercially reasonable preparation or process thereof. Disposition of the collateral may be by public or private sale. If the collateral is perishable, or threatens to decline speedily in value, or is of a type customarily sold on a recognized market, the collateral may be sold without notice to Debtor(s). Secured Party shall give Debtor(s) notice in writing of the sale of all other collateral, three days prior to sale, by mailing a copy of said notice, postage prepaid, addressed to the last known place of business or residence of Debtor(s). The reasonable expense of retaking and holding said property, and of preparing the same for and conducting the sale, and the reasonable expenses paid or incurred in connection therewith, including all legal expenses paid or incurred and reasonable attorney fees, shall be paid, or reimbursement therefor shall be made, out of the proceeds of the sale or disposition of said property.”

The testimony of the parties and witnesses is not germane to the precise issues before us, except the testimony of Mr. Conrad White, the president and general manager of PCA. We shall not set out Mr. White’s testimony in detail because according to his uncontroverted testimony there is simply no question and no doubt that PCA, as a general practice and as a general course of procedure, permitted all its members to sell or dispose of collateral at will, and relied on the member-debtor’s honesty and integrity in applying the proceeds from such sale or disposition to the payment of his indebtedness to PCA.

According to Mr. White, it would appear that PCA was satisfied with this procedure and it worked very well. He said membership loans increased from approximately seven million dollars in 1965 to over fifteen million in 1971, and their loss ratio had been much less that one per cent. Mr. White testified that prospective third party purchasers of collateral had requested lists of PCA member-debtors and that such requests had been denied because it was the policy of PCA to refuse such requests.

It is recognized by the attorneys for all parties that there is a split of authority as to the interpretation the courts have placed on that part of the Code provision § 85-9-306 (2), supra, reading, “a security interest continues in collateral notwithstanding sale, exchange or other disposition thereof by the debtor unless his action was authorized by the secured party in the security agreement or othenvise. ” (Emphasis added). Of course, such action was not authorized except by implication in the security agreement in the case at bar so, the question comes down to whether it was authorized under the “or otherwise” phrase.

The parties recognize the 1967 New Mexico case of Clovis Nat'l Bank v. Thomas, 77 N.M. 554, 425 P. 2d 726, as the leading case in which the secured party waived its lien under the “or otherwise” phrase of the Code. In that case the New Mexico Code § 50A-9-306 (2) was identical to our § 85-9-306 (2) supra. The bank had loaned money on cattle in Clovis and the security agreement required written permission to sell. The bank, as secured party, permitted the debtor to sell the collateral (cattle) and relied on his honesty to apply the proceeds on the loan. The borrower finally sold some of the cattle at auction and failed to apply the proceeds to the secured indebtedness. In a suit against the auctioneer for conversion, the court held that the bank’s course of dealing in permitting the debtor to sell collateral and deposit the proceeds from such sales in his bank checking account from which he then made payments on his indebtedness, the bank waived its security interest lien on the cattle.

We have been favored with an excellent amicus curiae brief in this case in which it is pointed out that the Clovis decision brought about such storm of protest that the New Mexico Code was amended as follows:

“A security interest in farm products .and the proceeds thereof shall not be considered waived by the secured party by any course of dealing between the parties or by any trade usage.”

No such amendment has been added to the Arkansas Code § 85-9-306 (2). The above amendment to the New Mexico Code was adopted in 1968, and in the 1973 case of Lisbon Bank & Trust Co. v. Murray v. Meier, 206 N.W. 2d 96, the Iowa Supreme Court seemed unimpressed by whatever protest might have brought about the amendment of the Code in New Mexico following the Clovis decision because in Lisbon the Iowa Court followed the same reasoning and reached the same results as the New Mexico Court did in Clovis in applying an identical section, 554.9306 (2), of the Iowa Code to almost identical facts appearing in Clovis. The Lisbon Bank & Trust Company was the secured party in the Iowa case and perfected a security interest in cattle purchased by Meier with money he borrowed from the bank. Meier sold some of the cattle to Murray for $2,428.80 and subsequently defaulted on his note to the bank and filed bankruptcy. The bank sought to recover the $2,428.80 from Murray on the theory he purchased the cattle subject to the bank’s lien. The trial court found that the cattle were purchased free of the lien. In affirming the judgment the Iowa Supreme Court said:

“Sale may be authorized by the secured party ‘in the security agreement or otherwise.’ § 554.9306 (2), The Code. The security agreement in this case did not authorize sale and therefore the bank cannot be held to have waived its security interest in the collateral unless it ‘otherwise’ consented to the sale.
There was evidence the Meiers lived on a 33 acre tract near Lisbon where they bred sows, farrowed feeder pigs, grew hay and grazed livestock. The bank started loaning Glenn Meier money on his livestock operation in January 1968. Several loans covered by security agreements were made prior to January 15, 1969. At trial the bank acknowledged a general course of dealing, notwithstanding the security agreements, permitting him to sell collateral and apply the proceeds either to substitutions or on the notes.
# * *
A leading case on establishment of authority to sell secured farm products under the Uniform Commercial Code is Clovis National Bank v. Thomas, 77 NM 554, 425 P2d 726 [4 UCC Rep 137] (1967). There the security agreement expressly prohibited sale of the collateral without the prior written consent of the secured party. The court found the sécured party had nevertheless as a matter of common practice permitted the debtor to make such sales without prior written consent. The secured party was held to have waived the requirement of written consent and its security interest.”

In the Clovis and Lisbon cases the secured parties were regular bank lending institutions and the evidence as to prior mode of dealing was between secured banks and the individual borrower involved. The collateral was cattle actually purchased with the money borrowed. In the case at bar the secured party was an association composed of the debtor Bowles and approximately 365 other like member-debtors of the association. The collateral was growing crops to be harvested and sold. PCA not only had a policy among all its member-debtors of permitting them to sell and dispose of collateral at. will and be individually responsible to PCA in applying the proceeds of such sales to the loan indebtedness; PCA protected its membership identity from prospective purchasers of the members products.

We conclude that under the facts and circumstances of this particular case, the chancellor’s findings were not aginst the preponderance of the evidence, and the chancellor did not err in applying the law to the facts in this case.

The decree is affirmed.

Byrd J., dissents.


text:
    Eva Marie NEAL v. HANFORD PRODUCE Company and MARYLAND CASUALTY Company, Insurance Carrier
    74-85
    511 S.W. 2d 636
    Opinion delivered July 22, 1974
    [Rehearing denied September 23, 1974.]

      Parker Parker, for appellant.

      Jones, Gilbreath & Jones, for appellees.
   J. FRED Jones, Justice.

This is a workmen’s compensation case in which the appellant, claimant-employee, Mrs. Eva Marie Neal, was awarded a 20% permanent partial disability to the right arm below the elbow. The award was affirmed on appeal by the circuit court and the circuit court denied Mrs. Neal’s motion to remand to the Commission for the submission of newly discovered evidence. On appeal to this court Mrs. Neal contends that she is totally and permanently disabled and there was no substantial evidence before the Commission to the contrary. She also contends that the trial court abused its discretion in refusing to remand the case to the Workmen’s Compensation Commission for the purpose of hearing additional testimony.

It is, of course, well settled that this court, as well as the circuit courts on appeals, in workmen’s compensation cases, must affirm the award or decision of the Commission if there is any substantial evidence to support the decision or award. Tigue v. Caddo Minerals Co., 253 Ark. 1140, 491 S.W. 2d 574. With the issue thus narrowed, we proceed directly to that question in the case at bar.

Mrs. Neal had worked for a number of years in a chicken or poultry processing plant and on July 16, 1969, she suffered pain and swelling in her right arm following prolonged and rapid use of the right hand in removing crops and the intestines from chicken carcasses, apparently while the carcasses were moving on an assembly line type of apparatus above Mrs. Neal’s head. Mrs. Neal’s condition was diagnosed by the company doctors as tendinitis and she was treated for that condition. The condition was accepted by the employer and compensation insurance carrier as occasioned by accidental injury as alleged by Mrs. Neal and her temporary total disability was compensated without controversion. Mrs. Neal did not respond to the medical treatment recommended and administered by numerous doctors, including orthopedic specialists who were treating her for tendinitis, bursitis and other conditions relating only to her right arm. When the attending physicians apparently concluded they could do nothing further to relieve Mrs. Neal’s condition, differences arose between the attorneys as to further medical examinations.

Mrs. Neal’s attorney insisted that she be sent to Dr. Joe K. Lester, an orthopedic surgeon in Little Rock, for additional examination and possible treatment, and the respondent insisted that she be sent to a clinic in Fort Smith for that purpose. The Referee resolved the impasse between attorneys by referring Mrs. Neal to Dr. Charles McKenzie, an orthopedic surgeon in Little Rock, for examination. Dr. McKenzie rendered his report to the Commission on August 28, 1970. Dr. McKenzie’s medical report is not well abstracted but that portion most germane to the question before us appears as follows:

“X-RAY EXAMINATION: * * * AP, lateral and oblique views of the cervical spine reveal the patient has rudimentary cervical ribs. There are degenerative changes at the C3-C4 and C5-C6 levels. There is some narrowing at the C5-C6 level, and to a slightly lesser degree at the C3-C4 level. There is foraminal encroachment, somewhat greater on the left than on the right.
* * *
DIAGNOSIS I: Degenerative joint disease, cervical spine.
DIAGNOSIS II: Possible rheumatoid arthritis.
OPINION: * * * The changes in the cervical spine are long-standing and account for the pain in the intra-scapular area, and this is not related to the injury she describes with the hand. I do not see anything to indicate a shoulder-hand syndrome and I would suggest she continue on her anti-rheumatoid medication as I think this will give her some relief. * * *” (Emphasis added).

Mrs. Neal’s attorney had her examined by Dr. Joe K. Lester on October 6, 1970, and the pertinent portions of his report, dated November 3, 1970, are as follows:

“At the time of this examination she still complains of severe headaches, neck, and right arm pain. She complains of tingling and numbness in the fingers of the right hand, the middle three being the most severely involved.
Examination of the right arm at this time reveals interesting atrophy of the flexor tendon group and some suggestion of nerve involvement of the median nerve. Examination of the neck reveals marked restriction of motion and accompanying stiffness, but no definite muscle spasm.
X-rays of the cervical spine were obtained. These films reveal evidence of degenerative disc disease most pronounced at C5-C6 with some posterior wedging. Oblique films do show evidence of some foraminal encroachment.
Parker, this patient has had adequate orthopedic evaluation. In the opinion of this examiner, she should have an electromyogram and possibly a cervical myelogram. She does have evidence of neurological involvement manifested by atrophy and a suggestion of some reflex sympathetic dystrophy of the right hand.”

It is noted that Dr. Lester does not mention the relation, or lack of it, between the disc condition and the injury described by Mrs. Neal.

The Referee’s opinion was filed on January 25, 1971, and amended on February 4, 1971, whereby, on the basis of other medical reports, Mrs. Neal was awarded a 10% permanent partial disability to her right arm below the elbow. Following review by the full Commission, its opinion was filed on June 16, 1971, under which Mrs. Neal was awarded 20% permanent partial disability to the right arm under pertinent findings stated as follows:

“That claimant suffered from degenerative joint disease of the cervical spine not connected with her injury that arose of and in the course of her employment.
That as a result of said injury, claimant has sustained a 20 percent permanent partial disability to the right arm below the elbow, or 30 weeks.”

On July 16, 1971, Mrs. Neal perfected her appeal to the circuit court. On July 27, 1971, the respondent-appellees filed a motion in circuit court to dismiss the appeal. Apparently the appeal lay dormant in the circuit court until on January 13, 1972, Mrs. Neal filed a motion in circuit court to remand the case to the Commission for the introduction and consideration of newly discovered evidence.

It appears that while the appeal was pending in the circuit court, Mrs. Neal followed Dr. Lester’s recommendation as to myelogram and as a result of such procedure, under the sponsorship and authority of the Arkansas Rehabilitation Service, an extruded disc was surgically removed by Dr. Lester from the C5-C6 level of Mrs. Neal’s cervical spine on October 14, 197Í. Following a fusion performed by Dr. Lester, Mrs. Neal experienced dramatic results in the relief of pain and other symptoms in the right arm. Under date of October 26, 1971, Dr. Lester reported to the Rehabilitation Service in part as follows:

“As a follow-up to previous correspondence in her regard, Mrs. Neal was admitted to Memorial Hospital on October 12, 1971, and a cervical myelogram performed October 13, 1971. This revealed evidence of an extruded disc at C5-C6. Therefore, anterior disc removal was performed October 14, 1971, together with anterior cervical fusion. Her post-operative course was excellent with dramatic relief of pain and she was permitted to be discharged home October 19, 1971.
Myelographic findings at this time unequivocally show that this patient’s problems have been related to an extruded disc at C5-C6 and this has been the cause of her arm pain. This examiner feels it is unfortunate the State and Federal Government have been placed in the position of paying for medical services which probably were related to an industrial injury. The main thing from the standpoint of the patient is that she now has relief of her longstanding arm pain. However, by copy of this report to her attorney, he is being informed of our findings. If it is possible for him to recover this money, certainly we will be happy to return it to the Rehabilitation Service as we know your funds are unfortunately only too limited.”

In Dr. Lester’s subsequent deposition taken on March 22, 1972, in connection with Mrs. Neal’s motion to remand, his testimony appears in part as follows:

“Q. Dr. Lester, did you have occasion to have Eva Marie Neal as a patient?
A. Yes, sir.
Q. When did she first come to you?
A. I first saw her on October 6, 1970.
Q. What was your diagnosis?
A. My diagnosis was degenerative disc disease of the cervical spine, C-5, C-6, with posterior wedging. She had evidence of neurological involvement with atrophy. And I felt at this time she should have an electro-myelogram and possibly a cervical myelogram to evaluate her from the standpoint of a cervical disc.
Q. Did she follow your advice?
A. Approximately one year later she did, sir. She came back into the office and we admitted her to Memorial Hospital. Did a cervical myelogram on October 13, 1971. This myelogram showed a persistent extra dural defect at the C-5, C-6 interspace, bilaterally into the right, which was consistent with herniation or rupture of the intervertebral disc.
* * *
A. She stated that she worked for a produce company where she was required to do multiple, rather rapid, repetitive movements with her hands, using scissors I believe.
Q. Pulling craws?
A. Yes, sir.
Q,. Do you connect that type of work with her injury?
A. Yes, sir, I do.
Q. Have you seen other cases similar?
A. Yes, sir, I have seen one in particular almost identical, yes.
Q. In other words, that is an occupational hazard that an employee has to go through if they stay on that kind of work too long?
A. Yes, sir. I think this may be perhaps an unrecognized occupational hazard, but I feel very strongly that this is an occupational hazard.”

We shall not pass upon or discuss the extent of the circuit court’s jurisdiction to remand a compensation case to the Commission for additional testimony on the grounds of newly discovered evidence because that question is not properly before us in the case at bar. Dr. McKenzie as well as Dr. Lester found evidence of degenerative joint and disc disease in the cervical spine as early as August and September, 1970, while the claim was still pending before the Commission Referee.

As already pointed out, this court as well as the circuit court, is bound by the substantial evidence rule in workmen’s compensation cases on appeal. In the case at bar Dr. McKenzie expressed the opinion that the changes in Mrs. Neal’s cervical spine were of long standing and were not related to the injury she described. There is nothing alleged in “newly discovered evidence” that was not before the Commission, or by diligent effort could have been before the Commission, while the matter was still pending before that body. The question before the Commission was not whether Mrs. Neal did or did not have an extruding disc in her cervical spine, and the question was not whether the extruding disc caused the pain and other symptoms in Mrs. Neal’s right hand and arm. The real question before the Commission was whether Mrs. Neal’s disc condition was related to her occupational injury. Dr. McKenzie said it was not and the Commission had a right to accept his opinion and base its decision or award thereon.

Mrs. Neal’s attorney as well as Dr. Lester refer to “occupational hazard” in connection with Mrs. Neal’s occupation and her condition. There is considerable difference between “occupational hazards” and “occupational diseases” in relation to workmen’s compensation law. The occupational diseases are defined under Ark. Stai. Ann. § 81-1314 (Repl. 1960), but occupational hazards are incidental to most all industrial occupations. In any event, the relationship between either an occupational disease or an occupational hazard and the disability complained of, boils down to a question of fact to be established by competent evidence.-

We are of the opinion that the trial court did not abuse its discretion in refusing to remand Mrs. Neal’s case to the Commission for further evidence. We are also of the opinion that there was substantial evidence to sustain the findings and award of the Commission, and that the judgment of the trial court must be affirmed.

The judgment is affirmed.


author: CONLEY Byrd, Justice. J. FRED JONES. Justice, JOHN A. FOGLEMAN, Justice,

text:
    City of SEARCY, ARKANSAS v. Ora Mae ROBERSON, Verna Odean ROBERSON and BRUCE ROBERSON
    73-280
    511 S.W. 2d 627
    Opinion delivered July 22, 1974

      Lightle, Tedder & Hannah, for appellant.

      Pollard, Cavane.au & Hatfield, for appellees.
   CONLEY Byrd, Justice.

This is an appeal by the City of Searcy, Arkansas from a circuit court judgment entered on a jury verdict adverse to the city in which the city claimed a 50 foot right-of-way for a street and the appellees, Robersons, claim title to a part of it by adverse possession.

The present City of Searcy was an incorporated town prior to 1891 and 1859 Watkins and Quarles Addition was platted as a part of the Town of Searcy. The Watkins and Quarles Addition consisted of the NW14, Sec. 11, Twp. 7 N., Range 7 W., and the plat of the Addition as certified by the county surveyor under date of July 10-15, 1859, contains four parallel streets, each of them being designated as 50 feet wide and running east and west across the Addition. The Addition as platted contains 24 numbered plots numbered consecutively from the northwest corner of the Addition, with plots 1, 2, 3, 4, 5 and 6 constituting the first tier of plots on the north side of the Addition. These plots are bounded on the north by the section line and on the south by Race Street. The next tier of plots immediately south of Race Street is numbered consecutively from east to west as plots 7, 8, 9 and 10. Plot No. 7 is hereafter referred to as “Block No. 7” and contains the area involved in this case. Block No. 7 is designated on the plat as fronting 13.14 chains on the south side of Race Street and 13.11 chains on the north side of Market Street. It extends south 5.53 chains from Race Street to Market Street which is the next street south of Race Street. It was stipulated at the trial that the 50 foot right-of-way for Race Street as platted was dedicated to public use by recorded plat and the sale of lots under plat description.

The litigation in this case arose when the City of Searcy attempted to widen Race Street to the full width of its 50 foot right-of-way as originally platted, and the appellees, Ora Mae Roberson, Verna Odean Roberson and Bruce Roberson resisted the city in its efforts to widen Race Street. The city filed its complaint against the Robersons alleging and praying relief as follows:

“1. That plaintiff is a City of the First Class having been duly incorporated under the laws of Arkansas.
2. That plaintiff is the owner of a fifty (50) foot right-of-way to be used and maintained as a street known as East Race Avenue through the Watkins and Quarles Addition to the City of Searcy, Arkansas; that the plat of Watkins and Quarles Addition to the City of Searcy, Arkansas, has been duly filed of record and East Race Avenue, including the 50 foot right-of-way has been duly dedicated to the public.
3. That defendant Ora Mae Roberson, is the owner of record of the following described property located in White County, Arkansas, to-wit:
The West 165 feet of the East 450 feet of the North 150 feet of Block 7 of Watkins and Quarles Addition to the City of Searcy, Arkansas.
4. That defendant, Verna Odean Roberson, is the owner of record of the following described property located in White County, Arkansas, to-wit:
The East 186 feet of the West 376 feet of the North 182 feet of Block 7 of Watkins and Quarles Addition to the City of Searcy, Arkansas.
5.That plaintiff is in the process of widening the present East Race Avenue where it abuts the North side of defendants’ property; that the said widening of said street will cause plaintiff to utilize the full 50 foot right-of-way.
6. That defendants have refused to allow plaintiffs to proceed with the widening of said street.
WHEREFORE, plaintiff prays that this Court enter an Order restraining defendants from in any way interfering with plaintiff’s use and development of its 50 foot right-of-way of East Race Avenue where said street abuts the North side of defendants’ property, and for all other proper relief.”

The Robersons filed an answer admitting paragraphs 1, 3 and 4 of the complaint and denying paragraphs 2, 5 and 6 and all other allegations in the complaint. The Robersons filed a counterclaim designated “cross-complaint” as follows:

“1. Cross-complainant, Ora Mae Roberson is the owner and in possession of the following lands located in White County, Arkansas, to-wit:
All property between the North line of the property set forth in paragraph 3 of the Complaint and the present South curb of East Race Street.
2. Counter-complainant, Verna Odean Roberson, is the owner and in possession of the following lands in White County, Arkansas, to-wit:
All property located between the North line of the property set forth in paragraph 4 of the Complaint and the present South curb of East Race Street.
3. Counter-complainants and those under whom they claim title have possessed said property openly, notoriously, adversely, peacefully, exclusively, hostilely, and continuously and have paid duly assessed taxes thereon for a period of eighty-two (82) years.
WHEREFORE, counter-complainants pray that the claims and purported interests of’ said counter-defendant in and to said lands be canceled and removed as clouds upon counter-complainants, that the title to said lands be quieted and confirmed in counter-complainants, for costs, and for any and all relief to which they may be entitled.”

By amendment to their answer the Robersons alleged in part as follows:

“2. The Act of the State Municipal Board of September 29, 1891, in ordering that the Town of Searcy be advanced to a city of the second class, was void ab initio for the reason that there were less than 2,500 inhabitants within the town limits of the Town of Searcy as of that date and as of the date of September 25, 1891, the date of the special census.”

They then alleged that the special census taken in 1891 by which Searcy was declared a city of the second class was fraudulently obtained and reported and the Robersons prayed as follows:

“. . . [T]hat the order of the State Municipal Board dated September 19, 1891, be declared null and void; that plaintiff’s Complaint be dismissed; for their costs; and for all other proper relief.”

Following a jury trial the trial court entered judgment, the pertinent part of which is as follows:

“After having heard all the evidence adduced, the instructions of the Court and argument of counsel, the jury retired to consider its verdict, and, after deliberating thereon, returned in due course the following verdict:
‘We, the jury, find for the defendants, Ora Mae Roberson, Verna Odean Roberson, and Bruce Roberson. * * *
IT IS, THEREFORE, ORDERED AND ADJUDGED BY THE COURT that plaintiff’s complaint filed herein be dismissed with prejudice.”

On appeal to this court the City of Searcy has designated 17 points on which it relies for reversal. The appellant has discussed these points rather briefly and we shall do likewise. It is necessary, however, to relate some of the background and procedure followed in this case in order to understand the significance of the points relied on.

The city, of course, had the burden of proving the allegations of its complaint, including the location of its 50 foot right-of-way in relation to the presently open and improved Race Street, and in relation to the appellees’ property. Mr. Moody Jones, a land surveyor, testified as an expert for the city. After extended examination, he concluded that Race Street as constructed was 28 feet wide from curb to curb, and the south line of the 50 foot right-of-way as platted would be about 11 feet south of the south curbline of Race Street. Mr. Max Mehlburger, a civil engineer called by the appelles, testified that on the west end of Race Street the center of the street, as presently laid out, is 7.23 feet south of the true center line of the 50 foot right-of-way as platted, and that on the east end the difference is 7.66 feet.

The appellees had the burden of proving their claims of adverse possession against a municipality long immune to such defense in possessory actions.

Prior to the enactment of Act 24 of June 5, 1897, Ark. Stat. Ann. § 19-2305 (3d) (Repl. 1968), cities of the second class were subject to the statute of limitations on recovering property in adverse possession the same as incorporated towns were until the enactment of Act 426 of May 28, 1907, Ark. Stat. Ann. § 19-3831 (Repl. 1968). Act 24 of 1897 barred the running of the adverse possession statute as of the effective date of the Act. Mebane v. City of Wynne, 127 Ark. 364, 192 S.W. 221, (1917). Consequently, it was incumbent upon the appellees, in order to sustain their burden of proving their claim of adverse possession, to prove not only the usual elements of adverse possession, but it was necessary to prove that they and their predecessors in title held adversely to the City of Searcy for the statutory period of seven years prior to June 5, 1897, when Searcy, as a second class city became immune to the statute by Act 24; or, in the alternative, it was necessary for them to prove that Searcy did not become a second class city and subject to Act 24 until after the seven year statute had run against Searcy as an incorporated town.

In September, 1891, the Town of Searcy was declared raised to a city of the second class under a special census taken between the taking of federal census as provided in Ark. Stat. Ann. § 19-206 et seq. (Repl. 1968). The appellees attacked the second class classification as fraudulent and void ab initio by offering testimony that many of the alleged citizens of Searcy appearing in the special census of 1891 did not actually live inside the city limits; and, that Searcy did not become a city of the second class containing the necessary 2,500 population until sometime after 1910 when the population, according to the federal census, amounted to 2,331. Thus, the appellees based their claim of adverse possession as spanning a period of seven years prior to, at least, 1910. In support of their claim of adverse possession they offered testimony to the effect that a fence had been up along the south side of Race Street from 1894 until about 1949.

Tom Holston testified that he was born in 1889 and prior to leaving Searcy to live in Little Rock in 1904, he played with other boys in the vicinity of Race Street. He said there was a little pasture “back there” south of Race Street. He said there was a fence between the pasture and Race Street and that livestock was inside the pasture. He said that Race Street was then a regular dirt road but he did not know how wide it was. He said there was a ditch on each side, of Race Street, and that there was a drainage ditch between Race Street and the fence on the south side, and there was a path walk between the drainage ditch and the fence. He said he did not remember anything in particular about the fence except that it was an old one not in too good condition. He said that Race Street was paved and curbs put in somewhere around 1911, if he is not mistaken. On cross-examination this witness said he was around nine years of age when he first remembers the fence along Race Street. He said the drainage ditch on the south side of Race Street was probably four or five feet wide as he remembers it, and that the path between the ditch and the fence would have been three or four feet wide.

Claude Parker testified that he was 81 years of age; that he moved to Searcy on August 1, 1911, and had been familiar with Race Street since about 1912. He said that in 1912 Race Street was a dirt road but he does not know how wide it was. He said there were ditches on the sides of the road and in 1912 there was just a field where the Roberson property now is and there was a fence between the rqad and the field. He was asked to describe/the fence and answered as follows:

“A. Well it was just a wire fence. Wasn’t no good fence but it was patched up barbed wire, chicken wire and every kind of wire.
Q. What did it look like the first time you can recall seeing it?
A. That’s what it looked like.”

Mr. Parker said that strawberries and potatoes were raised inside the fence and that a pasture was built “on the far end. ” He said he believes it was about 1928 when curbs vvere installed on Race Street. He said the south curb was placed one and one-half feet from the fence.

Joe Knox next testified that he was born in Searcy and was 81 years of age. He said that when he was a small boy his father was in the transfer business and rented “Jack Roberson’s property” for a pasture. He said at that time, Race Street was just a dirt road. He said there was a ditch along the south edge of the dirt road and then a fence. He then testified as follows:

“Q. Is your memory of the width of east Race Street back in those days good enough to give a reasonably accurate estimate of the width of that road?
A. Oh, I would say around forty feet.
Q. What all are you including in that width, Mr. Joe?
A. Well I am including the ditches, had a ditch on each side. From those ditches it would be about forty feet wide.
Q. How much space was there between the ditch, bottom of the ditch and — on the south side of the street to this fence?
A. I’d say two feet.
Q. What, if you remember, was that fence like when you were going down there as a boy putting mules and horses in that pasture?
A. Well, it was just woven wire and barbed wire. Bailing wire, patched most any kind of way.
Q, How would you describe that fence at that time, back there when you were a boy in so far as being a new or old fence?
A. Well, I would say it was kind of old.”

He said that he would not say whether the fence was there in 1920, but he knows it was there in 1910. He said he does not remember the fence being there after the street was paved. He said he does not remember when the fence was taken down.

John Wesley Roberson testified that he was born in 1893; that he is the father of Jack Roberson and first came to Searcy in 1921. He said that in 1921 Race Street was just like any country road, and that south of Race Street, where his son’s property now joins the street, there was a pasture or something like that, he does not remember what was growing on it but it was enclosed. He then testified as follows:

“Q. How was it enclosed?
A. Wire fence of some nature. That fence was so old that it had just been patched from time to time — patched with bailing wire and all kinds of wire. Some of the older wire you could just break with your hands.
Q. How far from the ditch there was it to this fence? I am talking about the road ditch.
A. Oh, I would imagine that it was from six to four feet, maybe.”

He then testified that he assisted in taking the fence down in 1942 or 1943 and that in his judgment the curbing was about 18 inches from the fence.

One of the appellees, Jack Roberson (apparently one and the same as “Bruce”), testified that he was born in Sear-cy in 1921 and remembers the fence along the south side of Race Street between Race Street and the property he now owns. He testified at length as to his activities before and after he purchased the property and then testified as follows:

“Q. Did you advise the city council or any other city official that you were claiming all the way to the paved portion of Race Street? Out here where the subject property is located?
A. The question never arose before.
Q. You didn’t bring it up did you?
A. No, sir.
Q. Did you advise them at any other time? — that you were so claiming the property?
A. Yes, sir.
Q. When was that?
A. The date,. I do not remember.
Q. What—
A. It was when the highway department started staking out the area.”

The above constitutes the entire evidence as to adverse possession.

Landers Nance testified that he was born on July 15, 1879, and is 73 years of age or older. He was then questioned ás to the names appearing as residents of Searcy in the special census of 1891. He identified many of the names as individuals residing outside the corporate limits of Searcy when he was 11 or 12 years of age. Angie Mae Dillinger 91 years of age also testified as to who did and did not live in Searcy in 1891.

We return now to the points relied on. The appellant first contends the trial court erred in permitting the appellees to attack the validity of the proceedings elevating Searcy to a second class city. The appellant sets out several sub-points to this contention, but we are of the opinion we answered all of them adversely to the appellant’s contention in McClellan v. Stucky, 196 Ark. 816, 120 S.W. 2d 155 (1938). See also Waldrop v. K.C. So. Ry. Co., 131 Ark. 453, 199 S.W. 369, (1917).

The appellant’s next two contentions are that the trial court erred in refusing to dismiss appellees’ allegations of fraud and in permitting the introduction of federal census. We find no merit in either of these contentions. Under the appellant’s next three assignments it contends that the trial court erred in refusing the appellant’s instructions 19, 21 and 23. Proffered instruction 19 simply defined “estoppel.” Proffered instruction 21 recited the text of Act 167 of 1909 declaring legal and binding previous actions of town councils raising the municipal classification notwithstanding irregularities, defects, errors or informalities in such proceedings, and proffered instruction 23 had to do with the five year statute of limitations in bringing action. These instructions are not fully abstracted but we find no merit to appellant’s contentions because there was simply no power or authority whereby a municipality could be raised to a city of the second class if it did not have the requisite number of inhabitants; and, any effort to raise a town to a city of the second class without the requisite number of inhabitants is void ab initio. New life cannot be breathed into a body politic that never existed in the first place.

The appellant’s remaining assignments, with our own brief comment on each one, are as follows:

“YU court errecj ¡n denying appellant’s motion to strike all testimony on the issue of adverse possession.”

In arguing this point the appellant refers to its memorandum brief filed with the trial court and cites cases defining proof necessary to establish adverse possession.

“VIII. The court erred in denying appellant’s motion to strike all testimony on the issue of estoppel.”

The appellant’s total argument on this point appears as follows:

“At the conclusion of Appellees’ case Appellant renewed its Motion to Strike the testimony going to the issue of estoppel, and referred the Court to the Arguments contained in the Memorandum Briefs previously submitted. (Tr. 280) The arguments set forth in the brief are enumerated above. (Argument I-C) Objection was also made to the Court’s refusal to give requested Instruction No. 19 defining estoppel. (Tr. 286, 304).”
The remaining nine points appear as follows:
“IX. The court erred in giving instruction No. 6, as modified.
X. The court erred in giving instruction No. 7, as modified.
XI. The court erred in giving instruction No. 9, as modified.
XII. The court erred in giving instruction No. 11, as modified.
XIII. The court erred in giving instruction No. 12 as modified.
XIV. The court abused its discretion in providing a general form of verdict to the jury.
XV. The court erred in refusing to exclude testimony of witness, Mehlburger.
XVI. The court erred in permitting hypothetical questions.
XVII. The court erred in overruling appellant’s motion to strike Mehlburger’s testimony regarding interpretation of Jones’ plat.”

The appellant has failed to fully abstract the instructions it complains of; however, the instructions which were refused by the trial court are identified by number and set out in the record as has already been indicated, but the instructions given by the court are not so identified by number. As an example, as to instruction No. 6 challenged by the appellant, the record is as follows:

“THE COURT: Instruction No. 6 will be given as modified.
MR. TEDDER: The plaintiff objects to the giving of Instruction No. 6 as modified generally and specifically for the same reasons as the objections that were made to the giving of Instruction No. 5 in that it does not include any other allegations upon which the City relies with respect to defendants counter-claim as to adverse possession or fraud.”

The instructions, as given by the court, were actually given to the jury in the usual continuous narrative form. They appear in the record as continuous narrative instructions separated into paragraphs, but nowhere in the record are the separate instructions which was given identified by number. In the appellant’s contention that the court erred in giving instruction No. 6, as modified, his entire argument under this point is as follows:

“Instruction No. 6 purports to inform the jury that Appellant’s sole claim was that the disputed strip of land was a part of the 50 feet right-of-way shown on the Watkins and Quarles Addition plat. The instruction as given omits the contentions of appellant with regard to defenses of Statute of Limitations, the curative statute, and estoppel of Appellee.
It is inherently wrong to give an instruction which ignores a material issue in the case and allows the jury to find a verdict without considering the omitted issue, and such error cannot be cured by correct instructions separately given. Miller v. Ballentine, 242 Ark. 34. 411 S.W. 2d 655, (1967).”

We find no merit in assignments IX through XIII. Neither do we find merit in assignments XV through XVII.

Some suggetion has been made that perhaps the trial court should have submitted the issues to the jury on special interrogatories instead of the verdict forms used. We have consistently held that the submission of special interrogatories to the jury is within the discretion of the trial court, St. Louis & S.F. Ry. Co. v. Jones. 59 Ark. 105. 26 S.W. 595 (1894) and St. Louis Southwestern Ry. Co. v. Jackson, 242 Ark. 858, 416 S.W. 2d 273 (1967). On the record as abstracted, we cannot say that the court abused its discretion in this instance.

Affirmed.

Harris. C.J. and Jones. J., dissent.

FOGLEMAN. J., concurs.

J. FRED JONES. Justice,

dissenting. I do not agree with the majority opinion in this case. The city is the one who owns title to the property in dispute, and the appellees are the ones who contend the city lost title through adverse possession more than seventy years ago. It is quite true that the appellant does not argue the lack of substantial evidence to sustain adverse possession in its brief, but it does argue that the trial court erred in giving instruction No. 12 and in not striking testimony as to adverse possession. The record in this regard appears as follows:

“MR. TEDDER: Based on the Memorandum Briefs submitted by the plaintiff, the plaintiff moves the Court to strike all the testimony dealing with the issue of adverse possession for the reason that there is no substantial evidence in the record to support the defendants allegations. He testifies specifically as to the property which he is claiming and for the further reason that the testimony reflects that the possession has been permissive and that the testimony does not support the adverse possession in any other respect.
* * *
MR. TEDDER: The plaintiff objects to the Courts giving of Instruction 12 generally and specifically for the reason that there is no evidence in the record as to when the defendant’s adverse possession title was perfected. The plaintiff objects to the Court’s refusal to give Instruction No. 12-A.
THE COURT: Instruction No. 13 will be given.
MR. TEDDER: The plaintiff objects to the giving of Instruction No. 13 generally and specifically for the reason that there has been no evidence introduced into the trial as to when the defendants so-called adverse possession title was perfected and the exact boundaries that they obtained by such possession and for the further reason that the testimony of Mr. Parker, w'ho was called as a witness for the defendant, indicated that there was some break in the possession and the erection of the fence over a five year period between 1910 and 1915.
THE COURT: Instruction No. 15 defining adverse possession will be given.”

The majority has correctly set out the entire evidence pertaining to adverse possession and it comes nowhere near making a case for the jury in this case.

It was stipulated, and the jury was so advised, that the persons who platted Watkins and Quarles Addition to Searcy were the actual owners of such land at the time when the plat was filed for record in 1870. There is no evidence whatever that the original owners parted with title to this land between the date they platted it in 1870 until after the crucial period of the alleged seven years adverse possession between 1894 and 1910. The only evidence that there was ey.cn a fence along the south edge of Race Street in 1884 describes it as an old fence and there is no evidence whatever as to who owned the fence, or who claimed title or possession of the land in the vicinity, or that the original owners who platted the land had parted with possession of any part of it in 1894 or prior thereto.

In so far as the record in the case at bar discloses, this case is very similar in time and nature to the case of Little Rock v. Wright, 58 Ark. 142, 23 S.W. 876 (1893). In that case Mr. Wright on February 5, 1870, executed a plat and bill of assurance to land he owned and called “Weldon E. Wright’s Addition to the City of Little Rock." The streets as shown in the plat were dedicated to public use under .a Legislative Act in 1873 and the Addition became a part of the City of Little Rock. Mr. Wright continued to live on some of the land until his death, after which his heirs continued to live oYi and use the land until in 1889 when the City of Little Rock attempted to open Gaines Street, a part of which had remained in possession of the Wrights. The Wright heirs who were in possession sought an injunction to prevent the opening of the street and claimed title because they had held possession of the property under claim of title for the statutory period. The chancery court granted the injunction and in reversing the chancellor’s decree, this court said:

“No possession consistent with the right of the true owner can be adverse to him. In this case the land was dedicated to public use for streets, but it remained enclosed and obstructed after the dedication. The city had the right to postpone the removal of the obstructions, and the opening of the streets, until such time as its resources permitted, and the public necessities demanded. As the city only acquired the right to use the land as streets, and Weldon E. reserved all other rights, he had the authority to use the land lor pasturage, or the growth of crops, or for any other purpose consistent with the right of the city, until the authorities of the city, in the lawful exercise of its power, determined to open the streets.”

In the case at bar there is no evidence who owned the property during the alleged period of limitations.

The trial court was correct in the instruction given defining adverse possession but the trial court was not correct in giving it. In other words, the trial court was correct in the instruction given, but the trial court erred in giving it. The court’s instruction was as follows:

“If you find that from a preponderance of the evidence, Searcy legally became a city of the second class on the first Tuesday of April, 1892, then for the defendant to establish title to the disputed strip by adverse possession they must prove by a preponderance of the evidence that for a period of more than seven (7) years prior to June 5, 1897, their predecessors in title had actual, notorious, hostile, continuous, adverse and exclusive possession of the disputed tracts with the intent to hold same adversely to the City of Searcy.”

I am unable to find in the record in this case one shred of evidence to sustain either of the propositions the trial court told the jury was necessary in this case, and it is my opinion that the trial court erred in giving the instruction and in submitting the issues of adverse possession to the jury.

I would reverse this case and remand it to the trial court for a new trial for the purpose of resolving the differences between the two engineers as to the exact location and boundaries of the 50 foot right-of-way platted and dedicated to the public as Race Street.

JOHN A. FOGLEMAN, Justice,

concurring. Although I have very serious reservations about the properiety of the submission of this complex litigation with its many issues, on some of which appellant bore the burden of proof and on some of which appellees had that burden, I must reluctantly concur. This is a matter in which the circuit judge has a very wide latitude of discretion. This is conceded by appellant, who also points out that this court will riot reverse the trial judge for failure to submit interrogatories unless there has been an abuse of discretion. This, of course, means that the discretion involved is a sound judicial discretion. But we have recognized that trial attorneys have a responsibility in the matter. See Rudolph v. Mundy, 226 Ark. 95, 288 S.W. 2d 602. Appellant also had the burden of demonstrating error here. I simply cannot say the circuit judge erroneously exercised his discretion when I am unable to find anywhere in any abstract or brief, the interrogatories requested by appellant or anything more than the statement that they requested the court to submit these issues on interrogatories. This is not enough.

I cannot join in my brother Jones’s dissent because I do not find the instructions abstracted, so I must concur on that point also.

      The 1920 population as shown by federal census amounted to 2,836.