text:
    Jefferson Square v. Hart Shoes.
    5-3501
    388 S. W. 2d 902
    Opinion delivered March 8, 1965.
    [As amended on Denial of Rehearing May 3, 1965.]

      Coleman, Gcmtt,' Ramsay & Cox and William C. Briclgforth, for appellant.

      Bridges, Young & Matthews, for appellee.
   Paul Ward, Associate Justice.

The essence of this litigation is the construction or interpretation of one paragraph in a lease agreement.

Jefferson Square, Inc. (appellant), an Arkansas Corporation, owns and operates a shopping center in Jefferson County within the city limits of Pine Bluff, known as Jefferson Square. Under date of July 11, 1960 appellant (as lessor) entered into a lease agreement with James V. Thomas (as lessee) under which the latter leased a designated store space in Jefferson Square for a period of fifteen years with option to renew for another five years. In this lease agreement lessee was bound to pay a minimum of $540 per month in advance. In addition lessee agreed to pay 5% of all gross sales in excess of $129,600 during each lease year. Lessee agreed to use the designated store space as a retail Family Shoe Store, selling “all styles of shoés, rubber footwear, tennis shoes, hosiery, bags, findings, and all other kindred items usually sold by a family shoe store”.

The lease also provided lessee could assign its lease “to a wholly owned subsidiary, or to a corporation formed, or to be formed. ...” On June 9, 1961 lessee assigned the above described lease agreement to “Hart Shoes, Inc.”, the appellee herein.

On July 18, 1960 a lease similar to the one above described had been entered into by appellant (as lessor) and the “Dan Cohen Company” (as lessee). The latter company operated a “family shoe store” in the Jefferson Square shopping center until July, 1963 when it went into bankruptcy and it was allowed to cancel its lease. On August 1, 1963 appellant permitted “Holiday, Inc.” to assume the provisions of the Dan Cohen Company’s lease.

Paragraph 26 of the lease agreement between appellant and appellee reads as follows:

“Lessor covenants that it will not lease to another family shoe store (with the exception of the Dan Cohen Company) in the shopping center as shown on Exhibit A. This instrument will not prevent the sale of shoes in a ladies’ ready-to-wear, junior department store, major department store, variety store, Herbert Cox Corrective Shoes or women’s specialty shoes in a higher price bracket than generally carried by International Shoe. ’ ’

On November 29, 1963 appellee instituted suit against appellant, alleging (among other things) that appellant had violated the provisions of paragraph 26 of its lease agreement.

Under the view we take of this case (as hereafter expressed) we think it is important to understand the-exact issue raised by appellee, and therefore we set out verbatim the pertinent parts of the complaint.

“Under Paragraph 26 of said Agreement- of Lease the defendant covenanted that it would not lease to another family shoe store with the exception of the Dan Cohen Company in the Jefferson Square Shopping Center.
“The retail shoe business operated by the Dan Cohen Company specialized in lower priced merchandise which was not competitive with the retail selling business of the plaintiff. The provisions of said Paragraph 26 were a substantial part of the consideration contained in said lease on the part of lessor and induced this plaintiff to assume the obligations of Lessee by assignment.
■ “The Dan Cohen Shoe Company has now vacated the premises in Jefferson Square and over the objections and protests of plaintiff the defendant is renting said space to Holiday Shoes City, a family shoe store which competes directly with - the retail shoe business maintained by the plaintiff.”

The prayer was (a) that the defendant (appellant be restrained “from continuing to violate the provisions of said lease” and (b) that appellee be given damages “sustained up to date of the trial of this cause”. In an amendment to the complaint appellee alleged it had been damaged in the amount of $3,587 “in loss of profits resulting from damage to its business operation caused by the defendant’s violation of paragraph 26 of the lease between the parties.”

The pertinent part of appellant’s answer is:

“Further answering, this defendant states that in paragraph 26 of the agreement of lease mentioned ill plaintiff’s complaint wherein lessor covenanted that it would not lease to another family shoe store, with the exception of Dan Cohen Company, it referred to a class or type of shoe store; that the Dan Cohen Company was declared a bankrupt and Holiday, Inc., which operates the shoe store known as Holiday Shoe City, is a compar- ■ able operation to the Dan Cohen Company; and that the operation by Holiday Shoe City is not in violation of the plaintiff’s lease.”

The trial court entered a decree (a) restraining appellant “from continuing in effect the lease of space in the Jefferson Square Shopping-Center to Holiday, Inc. ...” and (b) denying appellee damages from violation of the lease by appellant. In a comprehensive and written opinion the trial court made this comment relative to part (a) of the decree: “. . . the main issue before the court is whether said paargraph 26 is ambiguous and if it is ambiguous, did the defendant’s evidence establish that the lease had not, as a matter of law, been violated”. Relative to part (b) of the decree, the trial court found the evidence was conflicting and did not show any loss of business suffered by appellee.

Appellant prosecutes this appeal relying on two points for a reversal, and appellee prosecutes a cross-appeal on the question of damages. Having concluded the case must be reversed on the point raised by appellant, it will not be necessary to discuss the other points.

Appellant’s point is expressed in these words:

“Paragraph 26 of the lease between Jefferson Square, Inc. and James V. Thomas that was assigned to Hart Shoes, Inc. is ambiguous and parol testimony should have been allowed to clear up this ambiguity.”

We point out that we do not entirely agree that the trial court erred in refusing to allow the introduction of certain pertinent testimony offered by appellant. In fact we have searched the briefs in vain to find where any objections were made by appellee to any testimony offered by appellant. After diligently searching the somewhat voluminous record we find where appellee did object to certain testimony by witness Parris on the ground of hearsay (E. 153) and also objected when the same witness attempted to state his “intentions”. This testimony was clearly inadmissible and the trial court so ruled. While the records also show a few other objections, we find much other testimony in the record introduced by appellant which was not objected to and much testimony introduced by appellee. Under the view we take, it is immaterial that the trial court refused, over proper objections by appellee, to allow certain competent testimony to be introduced. This is true because the record contains other testimony introduced by both appellant and appellee which, we think, reveals the true meaning of paragraph 26. That meaning is, we think, that there were to be two, and only two Family Shoe Stores in the shopping-center. We are inclined to think the language used in paragraph 26 is susceptible of no other reasonable interpretation — that is, that the words “Dan Cohen Company” referred to a “type” of shoe store and did not mean that no other company of the same “type” could ever sell shoes in the place set aside for Cohen. It admitted that the lease (to Thomas) gave Thomas the right to assign it, and that it was assigned to appellee; and, it is revealed by the record that the lease to Cohen could also be assigned. The result is that appellee is now in the position it would have been if Cohen had assigned its lease to Holiday, Inc. Any other interpretation of paragraph 26 would probably mean that the spot assigned to Cohen would have to remain vacant for the rest of the lease period — or about thirteen years. The record further shows that all the parties here involved (appellee, Cohen and Holiday) operated a Family Shoe Store. It is certainly reasonable to assume that all these parties and also appellant knew full well the character and meaning of a Family Shoe Store. That being true, it would appear presumptuous for this Court or a trial court to distinguish between them on conflicting and confusing testimony relative to bulk sales, net profits, and overlapping prices charged for different types of shoes.

The facts and circumstances mentioned above, together with many other similar facts and circumstances revealed in the record, too numerous to mention, make clear the meaning of paragraph 26. Under numerous decisions of this Court all the above matters can be considered in arriving at the meaning of this paragraph. See Boyd v. Lloyd, 86 Ark. 169, 110 S. W. 596; Arkansas Amusement Corporation v. Kempner, 182 Ark. 897, 33 S. W. 2d 42. In the Kempner case we said:

“It is the settled rule iii this state that parol evidence of conversations and negotiations leading up to the execution of a contract, as well as the relation of the parties thereto and the attendant circumstances to explain and aid in the interpretation of uncertainties and ambiguities contained in writing may be admitted. ’ ’

In reaching the result previously indicated we have not overlooked the rule well established by this Court (as in Arkansas Power & Light Company v. Murry, 231 Ark. 559, 331 S. W. 2d 98) that where there is any doubt or ambiguity about the meaning of a contract it will be resolved against the party who prepared it — and it is conceded that appellant prepared the lease contract here under consideration. However, the rule just mentioned is not to be applied until and unless a “doubt” exists after the court has given consideration to the parol evidence referred to in the Kempner case, supra. After considering the language in paragraph 26 together with the facts and circumstances revealed by the record, we take the position that no reasonable doubt exists.

In accordance with what has heretofore been said, we conclude that the decree must be reversed and the cause of action dismissed. It is so ordered.

Reversed.

Harris, C.J., not participating.

McFaddin, J., dissents.


source: Caselaw Access Project

author: Sam Robinson, Associate Justice.

license: Public Domain

text:
    Butler v. Reynolds & Draper Lbr. Co.
    5-3497
    387 S. W. 2d 607
    Opinion delivered March 8, 1965.

      Hickey & Hickey, By: Jay W. Hickey, Jr. for appellant.

      Bridges, Young & Matthews and Eugene S. Harris, for appellee.
   Sam Robinson, Associate Justice.

Shortly before dusk on June 7, 1963, appellant’s agent (hereinafter ealled appellant) drove a tractor-trailer truck out of Stuttgart, Arkansas in route to Pine Bluff. Some four miles later tire trouble developed. Appellant pulled over onto the shoulder of the road but left the truck partly on the main portion of the highway. Several hours later, appellee’s agent (hereinafter called appellee), while proceeding in the same direction in a similar truck, struck the rear of appellant’s truck. Appellant brought suit for the damages to his trailer and appellee cross-complained of the damages to his truck.

The Trial Court, sitting as a jury, found both parties equally at fault and accordingly dismissed the complaint and cross-complaint. There is no appeal from the dismissal of the cross-complaint. Appellant, on appeal, contends that the evidence is insufficient to sustain the findings of the Trial Court as trier of the facts.

After parking his truck and upon discovering a flat tire, appellant caught a ride to Stuttgart, procured a jack, and returned to the tractor-trailer truck. While attempting to jack the trailer up, the jack began to sink, and the driver was forced to procure a board to go under the jack in to remove the tire. When the tire was removed, it was discovered that appellant had a “busted rim”. He placed reflector flares at the scene and returned to Stuttgart to obtain this part. Between 11:00 and 11:30 P.M. appellant returned to the scene and found that the truck had been struck from the rear by appellee’s truck.

Ark. Stat. Ann § 75-647 (Repl. 1957) prohibits the parking of any vehicle upon the main or travelled portion of any highway outside a business or residence district when it is practicable to park the vehicle-off such part of the highway. Disabled vehicles are excluded from the prohibition if it is impossible to avoid leaving them in such a position. The Trial Court found that it was neither impossible nor impracticable under the facts of this case.

Appellant testified that his truck protruded onto the highway at least two feet. According to Trooper Cavins, it extended onto the highway three feet. The trooper further testified that the highway was twenty-four feet wide, plus asphalt shoulders of approximately seven or eight feet. Appellant’s truck was eight feet in width. Though appellant stated lie failed to move further off the highway for fear of “bogging down”, it readily appears that he could easily have moved a few more feet and still have remained entirely on an asphalt surface. If he feared the jack would bog down he had solved that problem with the plank. If he feared the entire truck (which was loaded with soybean meal) would bog down, certainly it' would be a jury question as to the reasonableness of that belief and his subsequent actions in light of all the facts and circumstances.

In determining the sufficiency of the evidence to support a verdict, all of the evidence must be viewed, with every reasonable inference derived therefrom, in the light most favorable to the appellee. Further, it is well settled law in this state that the findings of the Trial Court, as trier of the facts, have the verity and binding effect of a jury verdict and will be sustained if they are supported by any substantial evidence. Zullo v. Alcoatings, Inc., 237 Ark. 511, 374 S. W. 2d 188.

In the case at bar, appellant deprived a heavily travelled twelve foot trafic lane of some three feet when apparently he could have greatly relieved the situation, as the Trial Court found, by moving further off the highway onto the remaining feet of asphalt shoulder. This perilous condition was allowed to exist from dusk until at least 11:00 P.M. Since most of this time was during the night, the danger was even greater.

It cannot be said there is no substantial evidence to sustain the findings of the Trial Court sitting as a jury.

Affirmed.

Harris, C. J., not participating.


author: Jim Johnson, Associate Justice.

text:
    Buffington v. Wright.
    5-3473
    388 S. W. 2d 100
    Opinion delivered March 8, 1965.
    [Rehearing denied April 12,1965.]

      Trantham S Knaxvts, for appellant.

      Frierson, Walker $ Snellgrove, for appellee.
   Jim Johnson, Associate Justice.

This is an action for personal injuries sustained by three passengers in a car that overturned.

The Corning Business and Professional Women’s Club had entered a team in the Women’s International Bowling Tournament at Memphis on April 14 and 15, 1963. There were vacancies on the club team when tournament time approached and appellants Carolyn Buffington and Rebecca Waldon Dortch of Corning and Mary Jane Riley of Paragould, who were not club members, were recruited to fill the complement of the club team for the tournament. The club president, Mrs. R. O. Smith, wms the team captain and appellee Notra Wright was a team member. Mrs. Smith drove to Memphis for the tournament and picked up appellant Riley on the way. Appellants Buffington and Dortch were two of appellee’s passengers to Memphis. Mrs. Smith, the team captain, paid the team’s expenses at Memphis including a meal, lodging, entry fees, a team photograph, team shirts, and bought gasoline for appellee’s return trip to Corning. After the tournament on April 15th, all the appellants and another team member were to be driven home by appellee, at the behest of Mrs. Smith, who planned to remain in Memphis another night.

The parties had an anxious drive through Memphis, according to appellants’ testimony, including misdirections, wrong lanes and courteous drivers who yielded at the last moment, appellants each eagerly offering to drive in appellee’s place. After leaving Memphis the drive was uneventful until appellee passed a tractor-trailer near Gilmore. As appellee Avas pulling back into the right lane after passing the vehicle, she lost control of the car, Avent off the road to the left and turned over, resulting in injuries to the passengers including appellants.

Appellants filed suit in the Western District of Clay Circuit Court on January 23, 1964, against appellee for their injuries and other damages. The cause came on for trial on April 6, 1964. At the close of appellants’ case the trial court granted appellee’s motion for a directed verdict on the ground that appellants were guests in appellee’s vehicle. From judgment dismissing the complaint, appellants have prosecuted this appeal.

The question here is whether there has been sufficient evidence presented to make appellants’ status as guests a matter for jury determination.

We are dealing here with the so-called guest statutes, Ark. Stat. Ann. §§ 75-913 — 75-915 (Repl. 1957), which prohibit a guest from suing the owner or operator of a motor vehicle unless there was willful misconduct or willful and wanton operation of the vehicle. § 75-914 defines the term “guest” to “mean self-invited guest or guest at sufferance.’'’

This court has quoted or cited with approval on several occasions, inter alia, Ward v. George, 195 Ark. 216, 112 S. W. 2d 30; Simms v. Tingle, 232 Ark. 239, 335 S. W. 2d 449; Whittecar v. Cheatham, 226 Ark. 31, 287 S. W. 2d 578; Blashfield’s summary of the law on geusts as follows:

“One important element in determining whether a person is a guest within the meaning and limitations of such statutes is the identity of the person or persons advantaged by the carriage. If, in its direct operation, it confers a benefit only on the person to whom the ride is given, and no benefits, other than such as are incidental to hospitality, companionship, or the like, upon the person extending the invitation, the passenger is a guest within the statutes; but, if his carriage tends to the promotion of mutual interests of both himself and the driver and operator for their common benefit, or if it is primarily for the attainment of such objective or purpose of the operator, he is not a guest within the meaning of such enactments. Of course, a passenger for hire is not within their operation, regardless of whether the passenger or some one else pays or promises to pay for the transportation.” Blashfield, Cyclopedia of, Automobile Law and Practice, § 2292.

Ordinarily the issue of whether one is a guest is a question of fact. Brand v. Rorke, 225 Ark. 309, 280 S. W. 2d 906. “Viewed in the light most favorable to the party against whom the verdict is [to be] directed, ... if there is any conflict in the evidence, or . . . the evidence is not in dispute but is in such a state that fair-minded men might draw different conclusions therefrom, it is error to directa verdict.” Smith v. McEachin, 186 Ark. 1132, 57 S. W. 2d 1043; Spence v. Vaught, 236 Ark. 509, 367 S. W. 2d 238. Review of the record in the case at bar reveals the testimony of appellants about their recruitment for the club’s tournament team and the trip to Memphis to promote that end, together with the payment of appellee’s gasoline by the team captain, fair-minded men could easily as not conclude the carriage tended to promote the mutual interests of both the passenger and the operator for their common benefit, as well as that payment for the transportation. The state of the record being thus, the trial court erred in directing a verdict at the close of appellants’ case.

Reversed and remanded for new trial.

Harris, O. J., dissents.


author: Frank Holt, Associate Justice.

text:
    Gray v. Ouachita Creek Watershed Dist.
    5-3454
    387 S. W. 2d 605
    Opinion delivered March 8, 1965.

      E. V. Trimbmle, for appellant.

      Smith, Williams, Friday & Bowen, By: Ben Allen, for appellee.
   Frank Holt, Associate Justice.

The appellant brought this action to enjoin the appellee from using his property in its watershed construction project. The chancellor sustained appellee’s plea of res judicata, holding that the same issue between the same parties was previously before this court in Gray v. Ouachita Creek Watershed Dist., 234 Ark. 181, 351 S. W. 2d 142. On appeal we do not reach the merits of the case since there is a failure by appellant to comply with the requirements of Rule 9 (d) of this court.

The abstract cannot be said to be a condensation or abridgment of the record as required since it contains a copy in full or is a mere reproduction of the entire transcript. Sellers v. Harvey, 222 Ark. 804, 263 S. W. 2d 86. A considerable part of the matter reproduced is not material to the issue raised nor necessary to an understanding thereof. The object sought by Rule 9(d) is to confine the abstract to only that part of the record as is necessary to give this court a clear understanding of the issue or issues presented.

Affirmed.


author: Carretón Harris, Chief Justice.

text:
    Young, Adm’r. v. Dodson.
    5-3516
    388 S. W. 2d 94
    Opinion delivered March 15, 1965.
    [Rehearing denied April 12,1965.]

      W. F. Denman, Jr. and Basil II. Munn, for appellant.

      McKay, Anderson & Crumpler, for appellee.
   Carretón Harris, Chief Justice.

Appellant, Melvin A. Young, was severely injured, and his wife, Fay, was killed in a head-on collision on May 4, 1963, on U. S. Highway No. 82, in Columbia County. The collision (according to the complaint filed in the Circuit Court by Young) occurred when a gravel truck, operated by Dalton Dodson, attempted to go around an International truck with attached trailer, which had stopped upon the highway, and within the mouth of a concrete underpass. The latter vehicle was operated by George Burns, an employee of Elk Roofing Company, owner of the International truck and trailer. In his complaint, Young alleged permanent injuries, and likewise sought damages because of the death of his wife. The complaint asserted negligence on the part of Dodson in operating the loaded gravel truck at an excessive and reckless rate of speed; in failing to observe the stopped truck (and the automobile of a non-party to this litigation, which was stopped behind the Elk truck), and also asserted that Dodson was driving without adequate brakes.

It was alleged that Elk Roofing Company and its agent and employee, George Burns, were negligent in voluntarily stopping the International truck on the traveled portion of the highway, and at a point within the narrow confines of the highway tunnel, or underpass. Appellant asserted that the collision and resulting damage were due to the “sole, joint, combined and concurrent carelessness and negligence” of each of the defendants. Subsequently, appellant filed his “Request for Admission” on each of the parties sued, and the latter filed their responses. Based on these responses, Young sought a summary judgment against appellees, but this was denied. Thereafter, the case proceeded to trial, and the jury returned a verdict of $31,800.00 against Dodson, but found for appellees Burns and Elk Roofing Company. From the judgment entered in accordance with the jury verdict, Young brings this appeal. For reversal, appellant relies upon five separate points, which we will refer to in the order listed.

It is first asserted that the trial court erred in failing to grant appellant’s motion for summary judgment. Appellant, on February 17, 1964,. directed certain Requests for Admission to each of the appellees,, and it is contended that their responses had the legal effect of admitting most of the requests, leaving no genuine issue as to any material fact relating to liability on the part of the appellees.

It is true that most of the responses were inadequate and deficient. For instance, Elk Company and Burns responded to twenty-one requests, with the answer, “The defendant refuses to admit this statement is true.” These responses were improper, and do not constitute a denial. The procedure adopted by appellant is authorized under Ark. Stat. Ann. § 28-358 Subsection (a) (Repl. 1962), which is identical with Rule 36, Federal Rules and Civil Procedure, 28 U.S.C.A. In Southern Ry. Co. v. Crosby, 201 F. 2d 878, under Rule 36, a very similar response was held insufficient. There, instead of making a denial under oath of the truth of the matter requested, the defendant replied, “You will please take notice that the defendant denies the accuracy of the statements contained in your notice, and refuses to admit the truth thereof.” Chief Judge Parker, in an opinion for the United States Court of Appeals (Fourth Circuit), stated:

“It is manifest that a denial of the accuracy of a statement is not a denial of its essential truth and certainly a refusal to admit does not amount to a denial. [Citing cases] Parties may not avoid the failure to deny matters necessarily within their knowledge by giving any such evasive answer as was given here. The rule requires a sworn statement denying ‘specifically’ the matters of which an admission is requested of a statement ‘setting forth in detail’ the reasons why an admission or denial cannot truthfully be given.”

The court held that the effect of this response was to admit the truth of the particular request. It is thus apparent that the twenty-one responses, made by Burns, and Elk Company, can only be characterized from a legal standpoint as admissions of the truth of the statements contained in the requests. Dodson responded to numerous requests with the statement, “Not having any information, he denies.” This, too, is an improper response. In White River Limestone Products Co. v. Mo-Pac Rd. Co., 228 Ark. 697, 310 S. W. 2d 3, this court said:

“The Bequest for Admission included eight different items, the first being as follows: ‘That the total costs of defendant, Missouri-Pacific Bailroad Company’s repossession of the materials covered by Exhibit “A” attached to the Complaint and Cross-Complaint' was $1,350.53, itemized as follows: * * * ’ Number 2, 3, 4, 5, 6, 7, and 8 were objected to on the grounds that they were wholly immaterial and irrelevant to the issue. To Number 1, appellant answered, ‘Plaintiffs are without knowledge of the correctness or exactness of defendant’s request Number 1 as to costs of repossessing materials as per Exhibit “A”. We hold the court’s action in ruling that this response, in effect, amounted to an admission insofar as item one is concerned, was correct. The statute requires a sworn statement denying specifically the matters of which an admission is requested, or setting put in detail the reasons why same cannot be admitted or denied, or written objections thereto.”

The responses, under the rule, are not limited to matters within the personal knowledge of the respondent. In Dulansky v. Iowa-Illinois Gas and Electric Company, 92 Fed. Supp. 118, it was said:

“The rule dealing with requests for admission is not limited in its application to matters within the personal knowledge of the respondent and the respondent may be required to make an investigation of third persons in order to acquire sufficient knowledge to comply with the request if the truth can be ascertained by reasonable inquiries made of third persons.”

This is also the better view, as expressed in Volume 2A, Federal Practice and Procedure (Barron and Holtzoff), Chap. 9, Sec. 833, Page 509, where it is said:

“Some cases have held that a party should not be required to admit or deny facts which are not within his knowledge, although the means of acquiring knowledge are readily at hand. The better view, consistent with the purpose of Buie 36, is that a party must answer a request for admission, even though he has no personal knowledge, if the means of information are reasonably within his power.”

It appears that several of these requests could have been answered from personal knowledge, and the proper information on others could have-been ascertained by reasonable inquiry. For instance, Bequest for Admission No. 27 through No. 31 (with possible exception of No. 30) should have been answered without great difficulty, since these dealt with matters that Dodson could have personally observed. On the other hand, Nos. 32, 33 and 34 could hardly have been properly answered, and, for that matter, do not appear to be of any value. These requests, in order, read, “That Burns knew of said gravel road ’ ’■ — ‘ ‘ That Burns knew gravel road, was maintained” — “That Burns knew there was no tunnel on said gravel road by-pass. ’ ’ Dodson responded to each of these with the statement, “Not being informed as to Questions 32, 33, and 34, he therefore denies them.” In the first place, Dodson could certainly not have responded from personal information, and he could only have responded by seeking the answer from another defendant. These requests were also made of Burns, who was the proper party to respond. Of course, even if Dodson had- admitted these requests, such admissions would not have been binding on Burns or Elk Company.

"While most commentators agree that the purpose of the rule is to eliminate from controversy matters' which will not be disputed, and also concur that one of the main purposes of Buie 36 is to ascertain whether an opposing- party admits or disputes certain facts, we call attention to the case of Benton v. McCarthy, 23 FRD 235, where the court commented that Buie 36 “is not intended to be used to cover the entire ease and every item of evidence.”

Actually, in the case at hand, we think, and find, that all responses to requests for admissions are improper and inadequate, because of the fact that the responses were sworn to by the attorneys for the respective parties, rather than the parties themselves. This question has not hereofore been passed upon by this court, and though there are some cases to the contrary, the greater weight of authority favors the practice of requiring the party to swear to the response. Volume 2A, Federal Practices and Procedures (Barron and Holtzoff), in a discussion of Rule 36, Sec. 834, Page 516, states that “the party, rather than his attorney, must make the verification.” Volume 4, Moores’ Federal Practice (Second Edition), Sec. 36.05, Page 2717, states, “This statement should1b be sworn to by the party himself.” We think it better practice, inasmuch as many of the admissions sought will be actually within the personal knowledge of the party (rather than the attorney), that the response should be sworn to by the litigant himself. Appellees, Elk Roofing Company and George Burns, contend that the response could be sworn to by the attorney under the provisions of Ark. Stat. Ann. § 27-1107 (Repl. 1962), but we think it evident that both this section and 27-1108 apply only to verification of pleadings and affidavits. Accordingly, from what has been said, it is apparent that the responses given by all parties were inadequate and deficient, and should have been considered as admissions. However, this is not to say that the trial court erred in not granting a summary judgment, for, as pointed out by appellees, even with all requests being admitted, absolute liability on the part of any appellee had not been established. The most that had been established was that Burns and/or Dodson was guilty of violating a statute. For instance, it is a violation of the law to stop within a highway tunnel (although there are exceptions), but we have held, on several occasions, that a law violation does not constitute negligence per se, but is only evidence of negligence. Rogers v. Stillman, 223 Ark. 779, 68 S. W. 2d 614, and cases cited therein. In addition, the matter of proximate cause of the injuries sustained by appellant remained to be decided by a jury. It follows that the refusal to grant a summary judgment was not error.

It is urged that the trial court erred in failing to determine, and to set out, the facts about which there was no genuine issue or controversy (as established by the “Request for Admissions”). This point has reference to the provisions of Ark. Stat. Ann. § 29-211 (d) (Repl. 1962), which is the same as Federal Rule 56, and which requires that the court shall make an order specifying the facts that appear to be without substantial controversy. The statute further provides that, upon trial, the facts so specified shall be deemed established, and the trial conducted accordingly. We agree that the court committed error in neglecting to follow this section, and so find.

The next alleged error refers to the failure of the court to proceed according to Section 29-211, relative to the motion for summary judgment. We have already stated,' under Point 1, that appellant was not entitled to a summary judgment, and there is accordingly no need to discuss this point further.

Appellant asserts that the trial court erred in allowing appellees, Elk Company, to amend its answer to an interrogatory, propounded to it by appellant, relative to the height of the Elk truck at the time of the collision. Elk Company first answered that the truck was 13 feet and 10 inches high, but subsequently amended its answer to show that the height of the truck was 13 feet and 2 inches. This interrogatory was served upon the Elk Company pursuant to the provisions of Ark. Stat. Ann. § 28-355 (Repl. 1962), which correspond to Rule 33 of the Rules of Federal Procedure. In Volume 2A, Federal Practice and Procedure (Barron and Holtzoff), Section 777, Page 380, it is stated:

“Answers to interrogatories may be amended in the discretion of the court.”

Certainly, the amendment here conld not have been made without the approval of the court, and we find no abuse of discretion, for it is not shown how appellant was prejudiced. Of course, the jury would be entitled to know that a change had been made, and to know the nature of the change. In McInerney v. Wm. F. McDonanld Const Co., D.C. 35 F. Supp. 688, 689, the court made a statement which seems entirely logical, as follows:

“Speaking generally, there is no apparent reason why a witness should not be permitted to correct or amend his testimony, and that occurs frequently at trial before a court or jury; no good reason has been shown for not permitting the same practice where the witness is being examined under deposition, and quite naturally the trier of the facts must be apprized of the exact change in testimony, so that the apparent reasons for such change may be given due weight in the appraisal of that withess’ testimony in its entirety.”

Finally, it is urged that the court committed reversible error by commenting on the weight of the evidence in the presence of the jury. We agree that the remarks of the trial court plainly constituted reversible error, but inasmuch as we are reversing this judgment for reasons already pointed out, and, since it appears that the error complained of is not likely to occur again in a second trial, nothing would be accomplished by elaborating on this point, and any discussion would only serve to prolong this opinion.

For the reasons herein set forth, the judgment is reversed in its entirety, and the cause is remanded to the Columbia County Circuit Court for further proceedings. ■

       1b Our emphasis.

       No brief has been filed on behalf of Dodson.

       Ark. Stat. Ann. § 75-649 (Repl. 1957).


author: Ed. F. McFaddin, Associate Justice.

text:
    Cobb v. Atkins.
    5-3441
    388 S. W. 2d 8
    Opinion delivered March 15, 1965.

      Macom and Moorhead, Jimason J. Daggett, for appellant.

      George E. Pike and Milton G. Robinson, By Milton G. Robinson, for appellee.
   Ed. F. McFaddin, Associate Justice.

A traffic mishap, involving a farm tractor and two automobiles, resulted in the death of three persons and injuries to three others; and this litigation resulted. Appellees were the plaintiffs, and appellants were the defendants.

At about 9:30 A.M. on February 6, 1963, Mr. H. E. Cox was driving his automobile north on State Highway No. 11 enroute to Stuttgart, and in the car with him were his wife, and Mr. and Mrs. Charles Atkins. Also going toward Stuttgart, and in front of the Cox car, there was a farm tractor owned by Clarence Cobb and being driven by his employee, Archie Earls. Mrs. Wanda Callison was driving her car south from Stuttgart and in the car with her were her two children, Pamela and Sue Callison. The testimony is in hopeless conflict as to exactly how the traffic mishap occurred; but by its verdict the jury found that as Mr. Cox started to pass the tractor it swerved to the left and struck the Cox car and caused the car to turn over and rest on its left side; and while the Cox car was in that position it was struck by the Callison car. The result of the mishap was that Mr. and Mrs. Cox and Mrs. Atkins were killed; Mr. Atkins sustained severe injuries; and Mrs. Wanda Callison and her daughter Pamela were both injured; and Mrs. Callison’s car was damaged.

Two actions for damages were filed against Mr. Cobb, the owner, and Archie Earls, the driver of the farm tractor. In one of these actions the plaintiff was Mr. Atkins; and in the other the plaintiffs were Mrs. Callison and her daughter Pamela. In both actions it was alleged that Archie Earls was driving the tractor as the servant of Mr. Cobb and in the scope of his employment; that Earls was driving the tractor in a negligent and dangerous manner; that as the Cox car undertook to pass the tractor on the left side of the road the tractor swerved to the left and struck the Cox car and caused it to overturn and rest on its left side in the path of the approaching Callison car, resulting in the collision and damage; that neither the driver of the Cox car nor the driver of the Callison car was negligent; and that all the negligence was that of the driver of the tractor.

Against the Callison complaint the defendants answered with a general denial; and against the Atkins complaint there was a general denial and also a plea of contributory negligence. The two actions were consolidated and tried to a jury, resulting in verdicts and judgments against the defendants in favor of the plaintiffs; and from these judgments Mr. Cobb and Archie Earls bring this appeal, listing five points, which we will discuss in the order listed.

I.

The Callison complaint alleged: “The driver of the tractor failed to observe traffic conditions or keep a lookout for same, and disregarded same.” The Atkins complaint alleged: ‘ ‘ The driver of the tractor was keeping no look out whatever for the safety of this plaintiff or others.”

At the close of the plaintiffs’ case in chief the defendants moved that the foregoing allegations be stricken, insisting that the plaintiffs had offered no evidence to sustain the allegations. The Court denied the motion to strike and the correctness of that ruling is presented in appellants’ first point. We hold that the ruling of the Trial Court was correct. Mr. Atkins had testified: that Mr. Cox blew his horn four or five times before attempting to pass the tractor; that the tractor was going back and forth across the middle line of the road; that Archie Earls in driving the tractor was ‘ ‘ going so fast it was bouncing him up and down”; that the tractor would swerve from one side to the other; and ‘ ‘ sometimes he was over in the right lane and sometimes he was over in the left lane.” The testimony as to such driving would certainly be sufficient to take the case to the jury on whether the driver of the tractor was observing traffic conditions.

It is true that Atkins said of Archie Earls: “He looked over that way at us ”; but whether a mere glance over the shoulder at a vehicle attempting to pass constitutes a sufficient lookout, is a question for the jury to decide. We like what the Supreme Court of Iowa has said concerning a proper lookout in automobile cases. In Mueller v. Roben, 82 N. W. 2d 98, the Iowa Court said:

“With reference to motor vehicle operation ‘lookout’ is that watchfulness which a prudent and reasonable person must maintain for his own safety and the safety of others, taking into consideration the circumstances with which he is immediately concerned or confronted. ’ ’ In Ehrhardt v. Ruan, 61 N. W. 2d 696, the Iowa Court said:

“... proper lookout means more than to look straight ahead, or more than seeing the object; that it implies being watchful of the movements of his own vehicle as well as the movements of the things seen; that it involves the care, prudence, watchfulness and attention of an ordinarily careful and prudent person under the circumstances.”

We find no merit in the appellants’ first point.

II.

Both the Callison and the Atkins complaints alleged that the-tractor was being driven in the middle of the road “in such manner that cars traveling in the same direction were unable to pass the tractor.” At the close of the plaintiffs’ case in chief the defendants moved to strike these allegations, insisting that there was no evidence to support them. The Trial Court denied the motion to strike; and we hold that the ruling was correct. The testimony that we referred to in Topic I (supra) is applicable here; and also there is positive testimony of Mr. Atkins regarding the tractor: “. . . sometimes he was over in the left lane.” If the tractor was in the left lane, certainly there was no room left for cars to pass.

III.

Appellants’ third point is an insistence that there was no substantial evidence that Archie Earls was guilty of negligence and that the Trial Court should have instructed a verdict for the defendants in both cases. But here, again, the evidence of Mr. Atkins made a jury case. He testified:

“Q. Now as you started to pass the tractor on which side was your ear with reference to the white line?
“A. We were on the west side of the white line.
“Q. Where was the tractor with reference to the white line?
“A. When we started to pass the tractor, he was on the east side but when we got on the west side of the highway the left rear wheel of the tractor came across the line to the west side and that is what hit us.
“Q. When he wobbled or when the tractor wheel crossed the center line over to the west side that is when it hit you or the car you were in?
“A. That is correct.
“Q. And again at the time the tractor wheel struck the car you were in on which side of the highway was it?
“A. The tractor wheel came across the center of the highway to the west side and that is what struck the car.
“Q. Are you sure that you were on the west side of the highway in your proper lane?
“A. I am sure we were.
‘ ‘ Q. And are you sure when he wobbled he wobbled into your lane or was he still in his own lane?
“A. He wobbled over into our lane and hit us. He was moving back and forth.
“Q. Over the center of the highway?
“A. Yes, sir.
“Q. What actually hit the ear?
“A. Well it was the lugs on the tractor tire.
‘ ‘ Q. What happened when the lugs hit the car ?
“A. It turned our car over in the road.”

The copied evidence was sufficient to take the cases to the jury on the question of the negligence of the driver of the tractor. The appellants vigorously attacked the testimony of Mr. Atkins; but the verity of his testimony was a matter for the jury to decide. The Trial Court was correct in refusing the motion for an instructed verdict.

IV.

The appellants’ fourth point is a claim that the proximate cause of the accident was not the striking of the Cox car by the tractor; but we are unable to follow the appellants in such argument in view of the Atkins testimony as above copied. There was enough evidence to take the case to the jury and to support the verdict, that the proximate cause of the mishap was the tractor crossing over the center line and striking the Cox car. Furthermore, the physical facts support the verdict because the top of the Cox car was torn back, thus indicating that the Cox car was on its side when struck by the Callison car.

V.

The appellants’ fifth point relates to the refusal of the Trial Court to submit the case -to the jury on special interrogatories. There were four of these special interrogatories requested: the first was whether the defendants were .guilty of any negligence; the second was whether Mr. Atkins was guilty of any negligence; the third was the percentage of negligence of Atkins and the defendant Earls; and the fourth was the amount of damages sustained by each defendant. The Trial Court refused these special interrogatories and submitted the case to the jury for a general verdict. The appellants call our attention to the panel proceedings as found in Arkansas Law Review, Volume 10, Page 94, -et seq., and say:

“We are quite aware that the mandatory provisions of the original 1955 'Comparative Negligence Act’ (Act 191) were repealed bv the 1Q57 Act CAct 296), and the 1961 Act (Act 170). This does not mean, however, that when a proper request is made for the use of interrogatories in connection with the current act that the trial court can arbitrarily ignore it and thereby preclude the jury’s consideration of a properly presented defense.” There was a short period of time — when Act No. 191 of 1955 was in force — that it was mandatory for the court to submit the case to the jury on special issues when such request was made. But that legislative enactment was repealed by Act No. 296 of 1957 (see St. L. S. W. Ry. v. Robinson, 228 Ark. 418, 308 S. W. 2d 282); so that now the Trial Court has discretion as to whether to submit on a genera] issue or on special issues. It is often advisable to submit the case to the jury on special issues; but in the case at bar, after reviewing the record and the instructions given, we cannot say that the Trial Court abused its discretion. The appellants have not so demonstrated.

Affirmed.

       Appellants’ five points are:
      “I. The Court erred in permitting the jury to consider the question of whether a lookout was kept by Archie Earls since no evidence was offered relating thereto.
      “II. The Court erred in denying the defendants’ motion to strike from the complaint and from the jury’s consideration the allegation that the tractor was being driven in the middle of the road in such manner as to prohibit cars traveling in the same direction to pass it.

        “III. There is no substantial evidence of any negligence on the part of Archie Earls and the Court erred in refusing to instruct a verdict in favor of the defendant in both cases.
      “IV. Conceding, for argumentative purposes, that the tractor did weave across the center line; as testified by Atkins, this act was not a proximate cause of the accident and the trial court should have instructed a verdict in favor of the defendants.
      “V. The Court erred in refusing to submit the Atkins case to the jury upon the interrogatories requested by defendants (Transcript 217) and although instructing the jury on the issue of contributory negligence he thereby precluded the jury in arriving at its verdict from giving consideration to the issue of comparative negligence.”


author: George Rose Smith, J.

text:
    Warner v. Eslick.
    5-3475
    388 S. W. 2d 1
    Opinion delivered March 15, 1965.

      Josh W. McHughes, for appellant.

      G. Richard Crockett and Burl G. Rotenberry, for appellee.
   George Rose Smith, J.

In December of 1959 tbe plaintiffs below Matt Warner, Jr., and his wife, bought from the principal defendants, Elmer Eslick and his wife, a piece of property on Kanis Road, near Little Rock. About two and a half years later, in July of 1962, the Warners brought this action in ejectment to obtain possession of part of the property lying within the description contained in their deed. The Eslicks filed a' counterclaim asking that the description in the deed be reformed, on the ground of mutual mistake. The case was transferred to equity, where the chancellor entered a decree granting the Eslicks’ prayer for reformation. The only question we need to consider on appeal is whether the decree is supported by clear and convincing evidence, which is conceded to be the standard of proof required in a case of this kind. Beneaux v. Sparks, 144 Ark. 23, 221 S. W. 465.

For convenience we insert a simplified plat, taken from one of the exhibits in the record, showing the western part of the three-acre tract that was owned by the Eslicks when they sold part of their land to the Warners in 1959:

The deed that was executed actually described the tract having as its four corners the points ABCD. The Eslicks contend, however, and the chancellor found, that the parties really intended that only the triangular tract ABE be conveyed.

The testimony of the litigants is in sharp conflict. At the time of the sale the Eslicks were living in the house marked “Eslick,” which sits back some 40 feet from Kanis Boad. According to Eslick, when Warner approached him about buying part of his property he took a tape and measured the 115 feet of frontage along Kanis Road, between points A and B. Beginning at point B there was a chain' link fence that extended for about 60 feet along the line BE. Eslick testified that he pointed-along the line of this fence and told Warner that he would sell the land lying north and west of that fence for $2,500. At that time there was a small garage or service station on the triangular tract ABE. Eslick says that Warner accepted his offer to sell.

Eslick, who cannot read or write, went to an abstract office and attempted to describe the property that he meant to sell. On the basis of Eslick’s information the abstractor prepared a deed describing tract ABCD. The Eslicks executed that deed. Warner made a down payment of $500 and gave a mortgage for the unpaid balance. The Eslicks continued to occupy their home and, in fact, were still living there when the case was tried in 1964. Their daughter and son-in-law were occuping a second house on the land and using a shed, both of which are crossed by the line CD.

Warner testified that he agreed to buy, and Eslick agreed to sell, a tract having a frontage of 115 feet on Kanis Road and a depth of 150 feet. He states that he intended to buy whatever was described in the deed, but he admits that he did not know where the boundary lines were and that he had no intention of buying the Eslicks’ home. After receiving his deed he constructed a home and a grocery store on the triangular tract, at a cost of about $12,000. He and his wife moved into their new home a few months after the sale and were living there at the date of trial. This litigation, filed in 1962, was the immediate result of Eslick’s having attempted to extend the fence to point E. Warner then consulted a lawyer and brought suit to obtain possession of all the land described in his deed.

We try the case de novo. Although the evidence to justify a reformation for mutual mistake must be clear and convincing, it need not be undisputed. Foster v. Richey, 192 Ark. 683, 93 S. W. 2d 1258. Hence the bare fact that Warner insists that he meant to buy whatever was described in the deed is not in itself necessarily sufficient to preclude a finding that a mutual mistake occurred. We must arrive at our conclusion from a study of the testimony as a whole.

In our judgment the overwhelming impact of the proof supports the chancellor’s decree. To begin with, the significance of the 115-foot frontage on Kanis Road is simply that that was the distance from the northwest corner of the Eslick property to the chain link fence. We can think of no reason why the parties took the trouble to measure the exact distance to the fence if the fence was to be of no importance whatever. On the other hand, if the fence line was to be the boundary between the two properties, as it is reasonable to believe, then the precise location of that line was an essential fact to be determined.

Warner took possession only of the property that lay north and west of the fence line. He spent $12,000 in improving the triangular tract, but there is no indication that he asserted any claim to the land lying on the other side of the fence line. To the contrary, the Eslicks and their daughter and son-in-law continued for more than two and a half years to occupy their houses. Warner himself frankly admits that some sort of mistake occurred, for he concedes that he had no thought of purchasing the Eslicks’ home. We can readily understand how Eslick, an illiterate man, made a blunder in attempting to supply a description of the land that he was selling. AYe cannot understand why the AYarners, if they really meant to acquire a rectangular tract at least 115 by 150 feet in size, were content for years to confine their possession to a much smaller area. In our opinion the proof offered by the appellees fully satisfied their burden of proving by clear and convincing testimony that a mutual mistake took place.

Affirmed.


author: Paul AYard, Associate Justice.

text:
    Black, Adm'x v. Ainsworth.
    5-3496
    388 S. W. 2d 3
    Opinion delivered March 15, 1965.

      Shaver, Tackett £ Jones, for appellant.

      Dennis K. Williams, Larey £ Larey, for appellee.
   Paul AYard, Associate Justice.

This case involves a joint bank account. The money belonged to Mrs. J. S. Ainsworth and was deposited in her name and the name of her daughter-in-law. The question for decision is: At the death of Mrs. Ainsworth does the money belong to the daughter-in-law or to the estate of the deceased? The essential facts which gave rise to this litigation are hereafter summarized.

Mrs. J. S. Ainsworth’s husband was a railroad man who retired on a pension. After his death in 1938 the pension was paid monthly to his wife. Mrs. J. S. Ainsworth died on August 24, 1962. We may hereafter refer to her as the deceased. She was survived by five sons and daughters. The deceased lived in her own home with her son (C. R. Ainsworth) and his wife Viola from 1936 until she sold her home in 1948. After that she lived with C. R. and Viola in their home until her death.

On March 19, 1936 Mrs. J. S. Ainsworth made a deposit of $510 in The State National Bank of Texarkana in an account designated

“Mrs. J. R. Ainsworth, Sr. and Mrs. Viola S. Ainsworth or either of them or the survivor”

—as shown by the original bank book, introduced into the record as Exhibit “2”. This book reveals numerous deposits and withdrawals up to February 10, 1949 when it showed a balance of $3,537.02. Exhibit No. “1”, introduced in the record, is an original bank book with the same bank, showing the same joint account. In this book the first deposit dated January 28, 1950 shows the above mentioned balance ($3,537.02) plus $35.45 — designated as interest- — or the sum of $3,572.47. This book also reveals numerous deposits and withdrawals until the account was closed on January 2, 1963, showing a withdrawal in the amount of $6,783.64. It is admitted that Viola Ainsworth withdrew the money and claims it as her own by virtue of the joint account heretofore mentioned.

On May 8, 1963, one of the deceased’s daughters (Mrs. J. K. Black) as administratrix of her mother’s estate filed suit in chancery court against C. R. Ainsworth (a son of the deceased) and his wife Viola to require them to turn over to her (as administratrix) “all of the money, property, and effects left by Mrs. J. S. Ainsworth at the time of her death.”' It is conceded that the deceased left no property except the aforementioned joint bank account. Admittedly this sole question is properly presented: Does the joint bank account belong to the deceased’s estate or to Viola Ainsworth?

The above question was presented to the trial court on the facts above set out, on certain exhibits, and on testimony of witnesses presented only by the administratrix. In ruling against the administratrix (appellant herein) the trial court, in a memorandum opinion, found that the joint account agreement was properly signed by the deceased and Viola Ainsworth; that thereupon title to the money in said account vested in Viola; and, that there is “no substantial evidence in the record” to show the deceased intended for said money to be distributed among her children.

After a careful study of the record, the able arguments, and the pertinent authorities, we conclude the trial court is right and that its findings are in accord with the weight of the evidence. In many respects the case of Von Tungeln v. Chapman, 233 Ark. 219, 343 S. W. 2d 782, is similar to the one here under consideration both as to the facts and the law. In that case we said:

“Beviewing the evidence on trial de novo here, we find the record utterly bare of evidence to overcome the prima facie intent which we hold the signature card creates as to the existence of a joint tenancy.” Although, as pmuted out by this Court in the above cited case, there was testimony that Mrs. Reed (who stood in the position of Viola here) did give some of the money to certain heirs, and although the deceased indicated at one time she wanted a certain daughter to have some money, yet, Ave said this:
“We find such testimony insufficient to overcome the clear intention expressed on the signature card and the savings certificates both of AAdiich are made out to Mrs. N. C. Chapman or Mrs. Bertha Reed. The signature card, Avhich is signed by both Mrs. Chapman and Mrs. Reed, declares an intent to create a joint account.” In the case under consideration there cannot be the slightest doubt a prvma facie case is established showing it Avas the intent of the deceased and Viola to form a joint account Avith the right of survivorship. Each deposit book (Exhibits “1” and “2”) contains a section 5 AAdiich reads:
“If any account is opened in the name of two persons, payable to either or the survivor, either person may, during his life, on production of the pass-book, draw the whole or any part of the moneys in said account, and at the death of either, the sum remaining in such account shall be the sole property, absolutely, of the survivor, and be subject to his or'her order as herein provided for all other depositors.”

Not only so, but the signature card (dated March 19, 1936) signed by “Mrs. J. S. Ainsworth and Mrs. Yiola S. Ainsworth” contains this language:

“We agree each with the other, and with the State National Bank of Terarkana, Ark., that all sums heretofore or hereafter deposited by said depositors or either of them, with said Bank, to their credit as such joint depositors, shall be owned by them jointly, with right of survivorship and be subject to the check or order, or receipt of either of them or the survivor of them . . .”

It would serve no useful purpose, we believe, to set out at length tlie testimony in order to show there was no sufficient evidence to overcome this clear prima facie case. The essence of Mrs. Black’s testimony was that she did see the “book” but didn’t see Yiola’s name on it, but she admitted that she didn’t pay much attention to it and didn’t examine it carefully. Yiola, who was called as a witness by appellant, asserted emphatically she understood the money was to go to the survivor. She did admit that on occasions she had offered to divide some of the money with the other children (as was done in the Yon Tungeln case) but this could well be interpreted to mean she owned the money and had a rig'ht to do as she pleased with it.

In fairness to all it must be pointed out that this litigation is not the sordid picture of greedy children putting the love of money over and above love and respect for their mother — -it is nothing more than a legitimate attempt to solve a legal problem. The record is replete with evidence that some of the children wanted nothing; that some wanted Yiola to have it all regardless of the legal aspect; that Mrs. Black (appellant) visited and attended her,mother twice a day, and washed her clothes for two or three years and wanted no pay for it, and that she thought Viola had done a wonderful job taking care of Mrs. Ainsworth (her mother-in-law) in her home for more than a dozen years.

In view of the conclusion we have reached it is unnecessary to discuss other questions raised by appellant.

Finding no error, the decree of the trial court is affirmed.

Affirmed.


text:
    Central Investments v. Polk.
    5-3509
    388 S. W. 2d 381
    Opinion delivered March 15, 1965.
    [Rehearing denied April 19,1965.]

      Shackleford & Shackleford, for appellant.

      Paul K. Roberts, for appellee.
   Sam Robinson, Associate Justice.

On December 29, 1961, this suit was filed in the Bradley Circuit Court by appellees, Norman and Kay Polk, to recover $1,000 paid to the defendants as the purchase price of certain corporate stock. The suit was brought under provisions of the Securities Act of 1959, Ark. Stat. Ann. § 67-1256 (1947). Paragraph “e” of this section provides: “No person may sue under this section more than two years after the contract of sale ...”

All of the defendants moved to quash service of summons, alleging that the Bradley Circuit Court had no jurisdiction of the parties. In addition, the defendant, Central Investments, Inc., among other defenses, pleaded the statute of limitations. There was a verdict and judgment for the plaintiffs. Defendants have appealed. Several points are argued, but we reach only the question of whether the cause of action is barred by the aforesaid statute of limitations.

When the suit was filed in the Bradley Circuit Court summons was issued for each defendant, including Central Investments, Inc., and directed to the Sheriffs of Union and Nevada Counties. No summons was placed iii the hands of the Sheriff of Bradley County. The individuals against whom suit was filed and officers of the defendant corporation live in Union and Nevada Counties and were served with summons in those counties.

The contract for purchase of the corporate stock was made in January, 1960. The suit can not be maintained if commenced more than two years after the date of the contract. Here, the two year period expired in January, 1962. The question is whether suit was commenced within the meaning of the statute prior to that time.

On the 25th day of May, 1962, appellants had a new summons issued for Central Investments, Inc. by the Bradley Circuit Court, directed to the Sheriff of Bradley County. On that same date, the sheriff of that county served summons on J. E. Goodwin, Manager of the Warren Motel, owned and operated by Central Investments, Inc. There is no question about the validity of the service on Goodwin as a proper agent of Central. The question is whether, in the circumstances, the suit against Central was commenced within the two year period allowed by statute. Of course if the cause of action against Central is barred by statute, the judgment against the other defendants cannot stand because Central was the only defendant served with summons in Bradley County. Ark. Stat. Ann. § 27-615 (Bepl. 1962).

Ark. Stat. Ann. § 27-301 (Bepl. 1962) provides: “A civil action is commenced by filing in the office of the clerk of the proper court a complaint and causing a summons to be issued thereon, and placed in the hands of the sheriff of the proper county or counties ...” If suit was not commenced against Central on December 29, when the complaint was filed and summons placed in the hands of the Sheriffs of Union and Nevada Counties, it is barred because more than two. years had expired when a new summons was issued and placed in the hands of the Sheriff of Bradley County.

The suit filed in Bradley County was on a transitory cause of action. To give the Bradley Circuit Court jurisdiction of the parties it would be necessary to serve one. of the defendants in Bradley County. Neither the Sheriff of Union nor Nevada County was the proper officer to serve summons in Bradley County. Hence, the summons was not placed in the hands of the sheriff of the proper county; there was no commencement of the action within the meaning of the statute. Wilkins v. Worthen, 62 Ark. 401, 36 S. W. 21; Sims v. Miller, 151 Ark. 377, 236 S. W. 828.

When summons was obtained and placed in the hands of the sheriff of the proper county — Bradley County — the time in which this kind of action could be brought had expired.

Beversed and dismissed.


text:
    Barnhill v. State.
    5112
    388 S. W. 2d 99
    Opinion delivered March 15, 1965.
    [Rehearing denied April 12,1965.]

      E. L. Holloway, for appellant.

      Bruce Bennett, Atty. General, By William L. Patton, Jr., Asst. Atty. General, for appellee.
   Jim Johnson, Associate Justice.

This is an appeal from a conviction for involuntary manslaughter. Appellant Roy C. Barnhill was charged by information in Clay Circuit Court, Western District, with the crime of involuntary manslaughter following an automobile collision which resulted in a death on April 29, 1963. After trial on January 21 and 22, 1964, the jury returned a verdict of guilty of involuntary manslaughter and fixed the punishment at three years in the penitentiary. From judgment on the verdict comes this appeal.

Appellant filed no motion for new trial. In the absence of a motion for new trial, this court will only determine whether there is error on the face of the record. Howell v. State, 180 Ark. 241, 22 S. W. 2d 47; Whelehon and Pepper v. State, 233 Ark. 229, 343 S. W. 2d 563. We have examined the record and find no error apparent on the face of-the record. The judgment is therefore affirmed.


author: Prank Holt, Associate Justice.

text:
    Mid-South Ins. Co. v. Dellinger.
    5-3481
    388 S. W. 2d 6
    Opinion delivered March 15, 1965.

      Smith, Sanderson, Stroud & McClerkin, for appellant.

      Larey & Larey, and Shaver, Tackett é Jones, for appellee.
   Prank Holt, Associate Justice.

This is an action for a declaratory judgment to determine appellant’s liability under the terms of its insurance policy in a pending damage suit action. The suit for damages was instituted by appellee Raymond M. Oliver against appellee Carolyn S. Dellinger to recover for personal injuries and property damage sustained in an automobile collision. In that action the answer was filed four days after the statutory limit. A few days after this late answer was filed on. behalf of-appellant’s insured, appellee Dellinger, the appellant filed the present action against appellees Dellinger, Oliver, and its soliciting agent, Charles O. Wade, Jr., for a declaratory judgment contending that the insurance policy issued by it to appellee Dellinger did not cover the particular Dellinger vehicle involved in the collision and, therefore, the appellant insurance company should be relieved from any responsibility to the insured as the defendant in the pending action. The appellees filed aii answer insisting that the insurance policy covered the automobile being driven by appellee Dellinger at the time of the collision.

The court, sitting as a jury, held that appellee Dellinger had substantially complied with the requirements of the appellant insurance company as to notice of any change of vehicle and, thus, the appellant was obligated to defend the pending suit for damages. Upon refusal by appellant to accept the responsibility to defend appellee Dellinger pursuant to the terms of the policy, the court then proceeded to grant appellee Oliver’s motion to strike the late answer in the pending damage suit and rendered a default judgment in his behalf against appellee Dellinger. Appellant does not appeal from the action of the court in striking the late answer and rendering a default judgment. This appeal is from the action of the court finding substantial compliance by the insured with the terms of the insurance policy.

Appellant ably summarizes its three points for reversal by stating it is appellant’s contention that the trial court erred in finding that appellee Dellinger had substantially complied with requirements of the liability insurance policy as to securing an endorsement for a newly acquired or substituted vehicle and that the court further erred in finding that appellant was obligated to defend the damage suit action filed by appellee Oliver against appellee Dellinger.

We review the judgment of the circuit court in a declaratory judgment proceeding in the same manner as any other judgment. Ark. Stat. Ann. § 34-2506 (fiepl. 1962). Therefore, if there is any substantial evidence to support the finding upon which the judgment is based we must affirm.

The policy provided no coverage on a substituted vehicle until the endorsement change was actually issued. None was ever issued. However, appellant’s own forms, “Request for Change of Policy,” supplied to its soliciting agent, appellee Wade, provided inter alia that it was understood that a change of car endorsement “will be- effective at date on envelope forwarding this request. ’ ’ Appellee Dellinger testified that she had completed such a request on appellant’s form and both appellee Wade and an employee testified that the form was forwarded to appellant about two weeks before the accident involving the substituted vehicle. Appellant denied receiving the form request. Appellant’s own witness, however, admitted the standard procedure was that when such a form was received by appellant that the date on the-envelope controlled the date of coverage rather than the date of the issuance of the endorsement. Appellant admitted it had previously recognized such requests forwarded by appellee Wade, appellant’s soliciting agent. Although appellant had knowledge of the accident before the damage suit was filed and disclaimed any coverage because its insured was driving a vehicle not “named” in the policy, appellant proceeded to have a late answer filed on behalf of its insured.

It is well settled that any condition inserted in a policy for the benefit of the insurer can be ivaived by it. So. Farmers Mutual Ins. Co. v. Garrett, 212 Ark. 577, 206 S. W. 2d 463; Service Fire Ins. Co. v. Payne, 218 Ark. 499, 236 S. W. 2d 1020.

We think there is substantial evidence to support the finding of the trial court that appellant’s insured, appellee Dellinger, complied with appellant’s requirements respecting the endorsement coverage of a substituted or newly acquired automobile. The finding of a trial court, sitting as a jury, has the verity and binding effect of a jury verdict and is conclusive of an issue of fact. Zullo v. Alcoatings, Inc., 237 Ark. 511, 374 S. W. 2d 188.

By their counter claim the appellees urge that they should be awarded the statutory penalty and attorney’s fee as provided in Ark. Stat. Ann. § 66-3238 (Supp. 1963) since they were required to defend appellant’s action for a declaratory judgment. While an attorney’s fee may be allowed in a case of this nature, Ark. Stat. Ann. § 66-3239 and Maryland Casualty Co. v. Turner, 235 Ark. 718, 361 S. W. 2d 646, nevertheless, we think justice is fully served by denying an attorney fee in this particular case.

Affirmed.


text:
    Walker v. State.
    5116
    388 S. W. 2d 13
    Opinion delivered March 15, 1965.

      Harold L. Hall and Howell, Price <£ Worsham, for appellant.

      Bruce Bennett, Atty. General, By John P. Gill, Asst. Atty. Gen., for appellee.
   Oscar F'endler, Special Associate Justice.

Appellant, James Dean Walker, was charged in the Pulaski Circuit Court with the crime of First Degree Murder. It is alleged that on April 16, 1963, he murdered Jerral Vaughan by shooting him with a pistol. Appellant entered pleas of not guilty and not guilty by reason of insanity. He was committed to the Arkansas State Hospital for Nervous Diseases for observation.' On May 5, 1964, appellant was tried and convicted of First Degree Murder as charged in the information. The trial court, on May 18,1964, sentenced him to death by electrocution. He has appealed to this court.

On the night of April 15, 1963, the appellant and his companion, Russell Freeman Kumpe, together with two young women, Linda Ford and Mary Louise Roberts, visited several Little' Rock night clubs. Walker and Kumpe were apparently involved in some trouble in one of the downtown clubs. Several hours later the men checked out of their motel, and accompanied by only Linda Ford, drove their automobile to North Little Rock and out on the England Highway (Arkansas Highway No. 130). They were followed by Miss Roberts in a taxicab that she had hired since she had been excluded from the group. Miss Ford contended that she had been forced at gunpoint to accompany the men.'

It is undisputed that Kumpe was driving; that Miss Ford was sitting on the front seat next to him, and that Walker was on the same seat to her right and next to the door. The car was traveling at reasonable speed when it was stopped by a police officer from North Little Bock, Gene Barrentine. The deceased, Jafrel Vaughan, in a separate police car, assisted in stopping Kumpe’s vehicle. Both Barrentine and Vaughan, and other police officers who came to this location within a matter of minutes of each other’s arrival had received word by radio to intercept and stop a white Oldsmobile. The Oldsmobile promptly pulled over on the shoulder of the highway and stopped when Kumpe saw the red light on the police car.

Kumpe got out of his car by order of Officer Barrentine, and came to the rear of the Oldsmobile; he leaned against Barrentine’s police car while the officer searched him. As this was being done, Officer Vaughan approached the passenger side of the Oldsmobile from the rear; as he reached the car door, gunfire broke out. Kumpe ran off to the side of the highway. Officer Barrentine fired twice at Kumpe and fired four rounds into the Oldsmobile. He then got on the radio in Vaughan’s car and asked for help because he knew Vaughan had been shot. As he reloaded his pistol, he saw Walker’s head come up again and he fired, one more shot through the rear view glass of the Oldsmobile at Walker. Walker had also shot at Barrentine through the same window. • .

More police arrived; they went to the Oldsmobile and found Walker lying outside that car on the passenger side, and Officer Vaughan lying fatally wounded two feet from him. Walker was in a semi-conscious state, having been wounded. He had a .38 S & W Snub nose revolver in his hand that had not been fired. When the officers rolled Walker over they found he was lying on a .38 Smith & Wesson 4-inch barrel pistol that was empty. A third gun (4-inch barrel .38 colt revolver) was found on the front floor board under the driver’s (Kumpe’s) seat. Vaughan’s gun was lying there on the ground. The three guns and empty shells that presumably belonged .to Walker and Kumpe were sent to State Police Head- • quarters for paraffin and ballistic tests.

A surgeon removed the bullet from the deceased Vaughan, which was identified as having been fired by the .38 S & W 4-inch barrel pistol, which was found beneath Walker’s body. This bullet was directly overlying Vaughan’s heart. Death was almost immediately after the bullet entered Vaughan’s body.

Walker had been shot in the right upper" arm, right chest, right lower abdomen, and upper right leg; there were five bullet wounds in him. No testimony was offered by the State of the results of ballistic tests on the bullets removed from Walker’s body.

The defendant did not testify. Linda Ford, who was sitting in the front seat with Walker, said that he had a pistol in his hand and started firing when the door was opened. She did not know who opened the door, but the door was not open when Officer Vaughan walked up. Thomas Gerald Short, the cab driver, who was also present with the police, testified that Vaughan had bent over looking into the Oldsmobile window and said a few words. Short also stated that when the door came open, Vaughan was doing a little dance-like jig, trying to get away from the car and backed up on the side of the bank; that there was a shot and Vaughan fell on his chest; that he heard several shots; that he did not see any shots fired. He said that Vaughan had just got his gun out when he was shot.

At the conclusion of all testimony, appellant moved for the court to reduce the charge from first degree murder to that of second degree, contending' that the State had not proved premeditation, deliberation and intent. The motion was overruled. The trial court gave instructions defining murder as follows:

“All murder which shall be perpetrated by means of poison, or by lying in wait, or by any other kind of wilful, deliberate, malicious and premeditated killing, or which shall be committed in the perpetration of, or in the attempt to perpetrate, arson, rape, robbery, burglary or larceny, shall be deemed murder in the first degree.
“All other murder shall be deemed murder in the second degree.”

The court then gave the State’s Requested Instruction No. 2, as follows:

“I will now give you the law defining the charge in this information.
“Murder is the unlawful killing of a human being, in the peace of the State, with malice aforethought, either expressed or implied.
“The manner of the killing is not material, further than it may show the disposition of mind, or the intent with which the act was committed.
“Malice, or expressed malice, is the deliberate intention of mind unlawfully to take away the life of a human being, which is manifested by external circumstances capable of proof.
“Malice shall be implied when no considerable provocation appears, or when all the circumstances of the killing manifests an abandoned and wicked disposition.
“The killing being proved, the burden of proving circumstances of mitigation that justify or excuse the homicide shall devolve on the accused, unless by proof on the part of the State it is sufficiently manifest that the offense amounted only to manslaughter or that the accused was justified or excused in committing the homicide. However, the burden of proof is on the State on the whole case to convince you beyond a reasonable doubt of the guilt of the. defendant.”

Then the court, over appellant’s objection, gave State’s Requested Instruction No. 9, as follows:

“The punishment for murder in the first degree is death or life imprisonment.
“If you find the defendant, James Dean Walker, guilty of murder in the first degree and you wish to fix his punishment at death in the electric chair, your verdict will be: ‘We, the jury, find the defendant guilty of murder in the first degree as charged in the Information.’ On the other hand, if you wish to fix his punishment at life imprisonment, you will say: ‘We, the jury, find the defendant guilty of murder in the first degree and fix his punishment at life imprisonment in the State Penitentiary.
“If you find the defendant not guilty by reason of insanity, your verdict should be: ‘We, the jury, find the defendant not guilty by reason of insanity.
“If you find.the defendant not guilty, or if you have a reasonable doubt of his guilt, then you will say: ‘We, the jury, find the defendant not guilty.
“In either event, you will sign the verdict by one of your members as Foreman, and the verdict must be unanimous. ’ ’

The defendant objected specifically to the action of the court in giving State’s Requested Instruction No. 9, as follows:

“The defendant specifically objects to that instruction because the second degree murder charge is not defined and made a part of that. The’burden is on the State, and it makes a question for the jury to find the defendant was guilty of intent, premeditation and deliberation. That would be the jury’s question, to be decided by them, as to whether it would be first or second degree. ’ ’
‘ ‘ THE COURT: Overruled. Save his exceptions. ’ ’

Subsequently, the court refused to give Defendant’s Instruction No. 7, which would have allowed the jury to decide the degree of murder. Defendant’s Requested Instruction No. 7 is as follows:

“You are instructed that if you have a reasonable doubt as to whether the defendant is guilty of murder in the first or second degree, then you must find him guilty only of murder in the second degree. If you have a reasonable doubt as to whether the defendant is guilty of murder in the second degree or manslaughter. If you have a reasonable doubt as to his guilt in the whole case, then it is your duty to acquit him and find him not guilty.”

In giving the forms of verdicts to the jury, the court said:

“Gentlemen of the jury, I will now give you the forms of your verdict. If you believe the defendant is guilty and you wish to invoke the death penalty, you will say: ‘We, the jury, find the defendant, guilty of murder in the first degree, as charged in the information.’ That carries the death penalty with it automatically.
‘ ‘ On the other hand, ■ if you wish to sentence the defendant to life imprisonment in the penitentiary, which is your choice, you will say, ‘We, the jury, find the defendant guilty of murder in the first degree, as charged in the information, and fix his punishment at life imprisonment in the State Penitentiary.’
“If you feel like the defendant is insane, you will say: ‘We, the jury, find the defendant not guilty by reason of insanity.’
‘ ‘ If you feel he is not guilty, or if you have a reasonable doubt of his guilt in the whole case, you will say: ‘We, the jury, find the defendant not guilty.’
‘ ‘ This verdict must be unanimous and signed by one of you gentlemen as foreman. You may retire to consider your verdict.”

The Arkansas General Assembly adopted an Act relating to murder on December 17, 1838, which is divided into three sections in Ark. Stats. 1947. These are as follows:

“41-2205. MURDER IN FIRST DEGREE DEFINED. All murder which shall be perpetrated by means of poison, or by lying in wait, or by any other kind of wilful, deliberate, malicious and premeditated killing, or which shall be committed in the perpetration of or in the attempt to perpetrate, arson, rape, robbery, burglary or larceny, shall be deemed murder in the first degree.”
“41-2206. MURDER IN SECOND DEGREE. All other murder shall be deemed murder in the second degree. ’ ’
“43-2152. MURDER CASES — DEGREE' OF OFFENSE FOUND BY JURY. The jury shall, in all eases of murder, on conviction of the accused, find by their verdict whether he be guilty of murder in the first or second degree; but if the accused confess his guilt, the court shall impanel a jury to examine testimony, and the degree of crime shall be found by such jury.”

This court, after carefully studying the record in this appeal, concludes that there is testimony from which the jury could logically infer that Walker was guilty of a lower degree of homicide than first degree murder. It was, therefore, the duty of the trial court to instruct the jury on that degree of the offense of murder. The history of the 1838 Act referred to above has been often discussed in the opinions of this court. See Walton v. State, 232 Ark. 86, 334 S. W. 2d 657; Smith v. State, 222 Ark. 650, 262 S. W. 2d 272; Jones v. State, 204 Ark. 61, 161 S. W. 2d 173; King v. State, 117 Ark. 82, 173. S. W. 852.

We have long recognized that there are two classes of first degree murder: (1) Those committed in the perpetration of or attempts to perpetrate named crimes; (2) those committed wilful, deliberate, malicious and premeditated killing.

Where there was no testimony tending to prove that a defendant was guilty of any offense lower than first degree murder, the trial court has not been required to instruct on any other grade of homicide. “The reason is that; if there is no evidence whatever tending to establish a lower degree of homicide whatever tending to establish a lower degree of homicide than murder in the first degree, it is the jury’s duty to take the court’s exposition of the law, and the court shall decline to give the jury instructions as to any lower degree of homicide. On. the other hand, if there is any testimony from which the jury might legitimately infer that the defendant was guilty of a lower grade of homicide than murder in the first degree, it would be the duty of the court to instruct on that degree of the offense.” King v. State, supra.

In this record, appellant Walker is not charged with killing in an attempt to commit other crimes, but the information charges murder of Vaughan by Walker shooting him with a pistol, “unlawfully, feloniously, wilfully, and with malice aforethought and after premeditation and deliberation. ’ ’ Although many of our decisions which require the giving of an instruction on second degree murder have dealt with cases where defendants pleaded guilty to a charge of murder in the first degree, this court feels that the same obligation, under Ark. Stat. Ann. § 43-2152 (ftepl. 1964), is imposed on the trial court when a defendant pleads not guilty and there is testimony from which the jury can reasonably infer that the accused might be guilty of a lower offense than murder in the first degree.

In this case there is testimony that Walker was shot five times and all on his right side; that Linda Ford sat next to him on his left side and was not shot; that Vaughan did shoot his gun, although we are not told how many times, and we are not informed as to what gun and whose gun fired those five bullets into Walker. Expert medical testimony indicates Vaughan died almost immediately from the one bullet in his body. It can be reasonably inferred that Vaughan shot Walker several times before Walker’s one bullet killed Vaughan. The position of Walker’s bullet holes negative his being shot by Officer Barrentine, but if the State possesses evidence as to whose gun shot Walker, such can be offered at the second trial. These are only a few of the facts from which the jury could have found a lesser offense of homicide. This is not to' say, however, that. the evidence is not sufficient to support a conviction of first degree murder.

During the testimony in chief given by the State’s •'-'’Aneases., and prior to any evidence adduced by appellant Walker, the trial court, over specific objections of Walker’s counsel, allowed Ray Vick, Chief of Police in North Little Rock, to testify that Officer Vaughan was “a very efficient officer, well liked, and did his work without any complaints.” He said that in 1961 Vaughan had won an award from a civic club for courtesy.

Prior to this testimony, Walker’s counsel, in chambers, advised the court that the State planned to call Vaughan’s widow and he objected to her being placed on the stand because she knew nothing about the alleged homicide; that the only purpose in using her was to prejudice the jury and sway it against the accused. The court asked the prosecuting attorney why he proposed to use the widow and he replied “to show her husband’s age and certain things about him ...” The court overruled appellant’s objections. First, Chief Vick was called, then Mrs. Mada Vaughan was placed on the stand. She testified that Vaughan was 32; that they had been married 12 years and had two children — a little girl 8 years old and a little boy, 16 months old. The prosecutor asked:

“Q. Was he a good father and husband?”
“Mr. Hall: I object, your Honor.”
“A. He was a wonderful husband.”
“Mr. Hall: I object your Honor. I made an objection in chambers which I would like to renew at this time. ”

The court sustained the objection, but never told the jury to disregard the answer. The prosecutor then asked the widow what she was doing at this time. The objection was sustained. The widow, on being excused, went to the waiting room near the Judge’s and Clerk’s offices and fainted. One juror apparently saw her faint. Walker’s counsel called this episode to the court’s attention. The prosecutor told the court he brought the widow to show the type of character Vaughan was, because counsel for Walker in his opening statement told the jury there was a question as to who fired the first shot.

The admission of this testimony offered by the State was error. This evidence was introduced by the State before, the accused had offered any testimony. The accused had not attacked the fact that this young police officer was a man of good reputation. Our court has held in several cases that such evidence offered by the prosecution should not be admitted until the accused has undertaken to attack the character of the deceased in that respect. Bloomer v. State, 75 Ark. 297, 87 S. W. 438; Bridges v. State, 169 Ark. 335, 275 S. W. 671; See also Mode v. State, 235 Ark. 46, 350 S. W. 2d 675; Wharton’s Criminal Evidence, Vol. 1, 12th Ed., Sec. 160, and cases cited there.

How many children officer Vaughan had, their ages, whether he was a kind and loving husband, his efficiency on the police force, and any matters relating to his good character are irrelevant facts in this case. The Alabama Court in Knight v. State, 142 So. 2d 899, said that to hold such evidence not prejudicial to the defendant was to disregard the realities of trial atmosphere and the emotional frailties, of human nature. In view of a second trial, we are bound to call this error to the trial court’s attention.

Walker was committed to the State Hospital by the trial court under authority of Initiated Measure 1936, No. 3, Sec. 11, (Ark. Stat. Ann. § 43-1301), which provides :

“. . . A written report prepared by the physician or physicians employed by the State Hospital shall indicate separately the defendant’s mental condition during the period of examination, and his probable mental condition at the time of the alleged offense. ...”

In this case a hospital report was introduced in evidence by the State.

The trial court, over appellant’s objection, gave State’s Requested Instruction No. 6 that reads:

“You are further instructed that whenever a defendant is committed to the State Hospial pursuant to Initiated Act 3 of 1937 for a sanity test that under the language of said state law, a written report prepared by the physician or physicians employed by the State Hospital shall indicate separately the defendant’s mental condition during the period of examination, and his probable mental condition at the time of the alleged offense. This report shall be certified by the superintendent or supervising officer of the State Hospital, under his seal, or by an affidavit -duly subscribed and sworn to by him before a notary public who shall add his certificate and affix his seal thereto.”

The instruction should not have been given because it singles out and calls the jury’s attention to particular evidence. See Scott v. State, 109 Ark. 391, 159 S. W. 1095. Article 7, Sec. 23, Constitution of 1874 of Arkansas.

The trial court, in anticipating the need for additional jurors, prior to the opening trial on May 5, 1964, opened Special Panel Lists Nos. 4 and 5. The judge was in the Clerk’s office with his Bailiff, a deputy clerk, the clerk’s assistant, and the court reporter. The defendant Walker and his counsel were not present. Walker’s counsel objected to the use of jurors on these lists because the lists were not opened in “open court”. Arkansas Statutes 1947, amended, Sec. 39-221, requires that the trial court order the clerk to open the panel of special jurors in open court. The better practice would be to follow the statute strictly in that respect.

Other errors complained of by appellant Walker are unlikely to be repeated in a new trial. For that reason, we deem it unnecessary to discuss them.

For the errors described herein, the judgment will be reversed and the cause remanded for a new trial.

. Holt, J., not participating.


author: Cableton Habéis, Chief Justice.

text:
    Hambleton v. Coopwood.
    5-3515
    388 S. W. 2d 92
    Opinion Delivered March 22, 1965.
    [Rehearing denied April 12,1965.]

      MannS McCulloch, for appellant;

      Harold Sharpe, for appellee.
   Cableton Habéis, Chief Justice.

This appeal involves the question of a homestead exemption. On January 11, 1962, M. C. Hambleton, Jr., instituted suit against appellees, Curtis Coopwood and wife, Alice Coopwood, on a promissory note, dated December 31, 1958. On February 15, 1962, Hambleton obtained a judgement against the appellees in the amount of $1,559.00, plus attorney’s fee, interest, and costs. In January, 1964, appellant indicated that he planned to have a writ of execution issued against appellees, and to levy on a certain forty-acre tract, owned by the Coopwoocls. The latter contended that the forty-acre tract was a part of their homestead; filed their Schedule of Exemptions, and requested a hearing by the St. Francis County Circuit Court. After hearing the evidence, the court granted the homestead exemption, and from the judgment so entered, appellant brings this appeal.

The record reflects that Coopwood and his wife own two forty-acre tracts of land, both being located in Township 5 North, Range 1 East, St. Francis County, Arkansas. The Coopwoods first purchased one of the forty-acre tracts on March 29, 1950, which we will term “the forty-acre tract — Section 22.” In December, 1951, appellees purchased an additional forty-acre tract, which we will call “the forty-acre tract — Section 23.” The first tract mentioned, in Section 22, is the forty involved in this litigation. Both lie adjacent to each other for a distance of 1.320 feet, and have a common boundary line. Admittedly, there is a dirt road, which has been cleared of trees and bushes, between the two tracts.'No house has ever been constructed on the forty in Section 22, and it has no improvements, has not been cleared of timber, and is not under fence. In 1960 or 1961, the Coopwoods moved onto the forty in Section 23, and presently make their home there. The sole question in this litigation is whether the forty acres located in Section 22 is a part of appellees’ homestead, and thus exempt from execution, as well as the forty in Section 23. The last is not in dispute in this litigation.

Appellant mainly depends upon the fact that the two tracts must be contiguous in order for both to constitute a part of the homestead, and appellant asserts that these two forties are not contiguous, because they do not “touch,” but are separated by a “public county road.” It is also pointed out that the forty in question (in Section 22) has not been cultivated; has not been fenced, and appellees have not lived on it. The forty in Section 23 has been fenced. The evidence does reflect however that Coopwood has gotten wood (for fuel) off the forty in Section 22 and has sold ties.

The parties are in disagreement as to the status of the road. Appellant contends that the road is a public road, which is maintained by the county, but appellees dispute this. As previously stated, there admittedly is a dirt road of forty to fifty feet in width between the two forty-acre tracts, and the proof reflects that the county grades it once or twice a year.

It is not necessary that we determine whether this passage-way constitutes a “public road,” for this fact is not controlling. In Stuckey v. Horn, 132 Ark. 357, 200 S.W. 1025, this court pointed out that the homestead law should be liberally construed to effect its benign purpose, and then commented that a homestead right to the whole of a tract is not destroyed by a grant of a right-of-way to a railroad company. This case is cited in 73 A.L.R., Page 146, as recognizing the Arkansas rule that lots or parcels of land constituting a homestead must be contiguous, but that contiguity does not cease because of a railroad easement through the property. Gibbs v. Adams, 76 Ark. 575, 89 S.W. 1008, relates to the question of whether certain property in an incorporated town constituted a homestead. We said:

“Now, a homestead in an incorporated town is, by our Constitution, limited to one acre. Art. 9, § 5. The burden was on the homestead claimant to show, either that this land across the street from the- dwelling, and which she now claims, was a part of the homestead upon which she lived, or that it had been impressed as a homestead after the sale of the other homestead. The mere fact that the land was separated from the dwellmg house by a street is not conclusive of the question, but that fact may be considered in connection with other evidence * * *.”

In 40 C.J.S., § Page 506, we find:

“Both in jurisdictions where a homestead may be claimed in noncontiguous tracts and in jurisdictions where it may not, it is commonly held that an owner of land.may claim a homestead in a lot or tract divided by a highway, street, or alley, railroad right of way, stream of water, quarter-section line, fence, or garden, provided the value does not exceed the limit fixed by constitutional or statutory provision; but it is essential, for this purpose, that the whole shall be used for purposes of a homestead, and hence if a part is used merely for purposes of profit by renting it to tenants, the part so rented cannot be considered as within the homestead exemption. The contiguity or compactness of tracts is commonly regarded as not affected by division of lands in tlie modes previously set forth, * * *”

Of course, even if the dirt road in question can be considered a public road, the public only has an easement, with the fee remaining in the Coopwoods.

The Coopwoods only own eighty acres, and the use of the forty in question has not been incompatible with their claim that it is a part of the homestead. This is not a case wherein the two forties are a mile or so apart, but rather, the two are actually contiguous, since, from the evidence, it appears that appellees own the land in both forty-acre tracts, even if members of the; public have an easement to travel over the dirt road.

Affirmed.

       Article 9, Section 4, Arkansas Constitution of 1874.

       Emphasis supplied.

       We do not mean to imply that, if the fee to the land constituting the road had been held by the county (or other proper highway authority) , Coopwood would not have been entitled to claim the forty in Section 22 as part of his homestead: That question is not before us, and we do not pass upon it.