author: J. Fred Jones, Justice.

text:
    E. L. REED v. H. B. BLACK
    5-5072
    447 S. W. 2d 660
    Opinion delivered December 8, 1969

      George E. Pike, for appellant.

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

This is a boundary line dispute between adjoining landowners. H. B. Black owns the south half of the southeast quarter of Section 18 and E. L. Reed owns the south half of the southwest quarter of the same section. The two 80 acre tracts join along the west side of the west 40 of the Black tract and the east side of the east 40 of the Reed tract and the true division line, as established by survey, is not in question. An irrigation canal or ditch extends from north to south across the property and is 14 feet east of the division line between the two tracts. An old fence row also extends north and south through the area parallel with the canal and fifty-four feet east of the division line. Black started cleaning out the old fence row and repairing the north end of the canal and Reed started plowing in the canal and asserting ownership of the property between the true division line and the old fence east of the canal by adverse possession. Black filed a petition in the Arkansas County Chancery Court seeking an injunction and restraining order against Reed from trespassing on Black’s property east of the true division line. The petition was granted and Reed brings this appeal relying upon the following point for reversal :

“The findings of the lower court are against the preponderance of the evidence.”

In trying this case de novo on the record before us we cannot say that the chancellor’s decree is against the preponderance of the evidence. Black had owned the east 80 acres since prior to 1940 and Reed purchased his west 80 in 1958. Both tracts of land were practically level rice land and drained naturally to the south. Both tracts were originally enclosed with fence and the land use was rotated between rice and cow pasture. Reed removed the fences from his land soon after he purchased it and rotated his land use between rice, oats and soybeans. Both Black and Reed used the canal or ditch for irrigation purposes, but both offered some evidence that they permitted the other to use the canal. Both Black and Reed submitted testimony that they maintained the canal by discing and cleaning it out at least twice every third year when they planted rice. Black also owned a 50 acre tract south of the two 80 acre tracts, and it is undisputed that he raised rice and soybeans on this tract and irrigated it through use of the canal in question. Neither side ever saw the other actually maintaining the canal, but both offered testimony that they did so. There is no evidence as to any maintenance or use at all, of the area east of the canal between the canal and the fence.

According to one witness this area was grown up in bushes higher than his head. Mr. Reed did not know who originally dug the canal. He testified that there was a canal just east of the fence for a period of time. Mr. Verner, who had worked for Black, .and who testified as a witness for Reed, testified that he worked as foreman for the Black estate for a period of six years prior to 1961 and never did know of but one canal between the properties. He testified that he was first on the properties during “ ’37, ’38, ’39 and the 40’s,” and that there was a canal on the east side of the fence at that time, but that when he came back and worked on the property in 1956, the canal was on the west side of the fence. Mr. Yerner does not remember more than one canal. He does not say whether the canal or the fence had been moved between 1940 and 1956.

Mr. Schilling testified as a witness for Black. He testified that he worked as farm manager for Black from 1940 until he retired in 1962. He testified that between 1940 and 1945, during Mr. Black’s lifetime, a Mr. Franks surveyed the land line between the Black property and that purchased by Mr. Reed; that he and Mr. Black put up stakes at the land corners as directed by the surveyor; that a canal was dug along the east side of the division line and a fence was then constructed by Black’s employees east of the canal. He testified that he never did see Mr. Reed using the canal but thinks he did use it.

“Q. You didn’t see him using it, all you know about it is you think he used it but you really don’t know?
A. No, he didn’t use it while we were using it. It was understood that he could use it when Mr. Black’s wasn’t using it.”

Roy Maddox testified that he has been farm manager for the Black estate since 1963 and that he used the canal for the irrigation of soybeans and rice every year except 1964. He says that he disced and cleaned out the canal every year before he used it; that there was no objection to neighbors using the canal, but that he had never seen Reed using the canal since 1963.

Black’s clear record title to /the property involved is not questioned. The burden of proving title by adverse possession fell on Reed and we agree with the chancellor that Mr. Reed failed to sustain that burden. (See the numerous cases cited under “Character of Possession,” Ark. Stat. Ann. § 37-101 [Repl. 1962]).

The decree is affirmed.


source: Caselaw Access Project

author: Conley Byrd, Justice.

license: Public Domain

text:
    Roger L. HENRY v. Brenda G. HENRY
    5-4974
    447 S. W. 2d 657
    Opinion delivered December 8, 1969

      Kenneth Goffelt, for appellant.
    No brief for appellee.
   Conley Byrd, Justice.

Following the entry of a divorce decree appellant Roger L. Henry was cited into court to show cause why he should not be held in contempt of the court’s orders. The trial court found that he was not in contempt but entered judgment against him for $850 on a property settlement entered into between him and Brenda G. Henry, being the value of an automobile he allegedly failed to deliver .and an attorney’s fee of $100.00. For reversal appellant relies upon the following points:

“I. Under the record the Chancellor did not have the authority to render the judgment of $850 against appellant herein appealed from, because appellant was before the court solely on the contempt charge, and not in response to any suit for breach of contract.
II. The garnishments on the judgment should be quashed by this court because the judgment is invalid.”

The record shows that appellant’s complaint for divorce was filed on December 9, 1968, that he and appellee entered into a property settlement on December 11, 1968, and that on January 9, 1969, he was granted a divorce. The divorce decree, in so far as here pertinent, provides:

‘ ‘ That the said parties are residents of Saline County; that no children have been born of said marriage; that they have entered into a settlement in regard to their property.
It is therefore considered, adjudged, ordered and decreed that the bonds of matrimony heretofore existing between this plaintiff and defendant be and they hereby are dissolved set aside and forever held for naught.”

On March 6, 1969, appellee filed a petition setting up the divorce, the property agreement and alleged that appellant had failed to comply with the property agreement by delivering “full possession of the automobile” to appellee. The relevant portion of the petition provides:

“5. That Roger L. Henry, should he by this court required to comply with the contract made and entered into with petitioner to deliver possession of the said automobile to her.
6. That in the event Roger L. Henry no longer has the car, that he should be ordered by this court to pay petitioner a reasonable value in place of the automobile.
7. That petitioner is without funds with which to pay an attorney for the cost of this action and should be awarded a reasonable attorney fee by Roger L. Henry for the cost of this procedure, plus all court costs incurred because of this proceeding.
WHEREFORE, petitioner moves the Court to order the Clerk of this Court to issue a citation directing the plaintiff, Roger L. Henry, to appear in this Court and show cause why he should not be punished for contempt of court, and for a reasonable attorney’s fee.”

Pursuant to the petition, the trial court directed the clerk to issue the following citation.

“The State of Arkansas to the Sheriff of Saline County :
“You are hereby commanded to summon Roger L. Henry if he be found in your county, to .appear before the judge of the Saline Chancery Court, at the Courthouse in the City of Benton, Saline County, Arkansas, at 9:00 0 ’clock A. M. on the 13th day of March, 1969, and show cause, if any he has, why judgment and sentence should not be pronounced against him for Contempt of Court for failure to comply with the order of this Court. And you will make due return of this Citation on the 13th day of March, 1969. Herein fail not.”

Or March 13th appellant moved to dismiss the citation order because the decree only granted a divorce. This motion w.as overruled, as was appellant’s objection to the testimony of appellee in support of her petitioner. Thereafter appellant testified that the citation was the only notice he received to appear in court. There is nothing in the record to show that a copy of the motion was served upon .appellant or that a copy thereof was served with the citation.

Under Ark. Stat. Ann. § 34-1212 (Repl. 1962), our cases, Strasner v. Strasner, 232 Ark. 470, 338 S. W. 2d 679 (1960), recognize that equity has jurisdiction of an action for specific performance of a property settlement entered into in contemplation of divorce even in the absence of a pending divorce suit. Consequently the Saline Chancery Court had jurisdiction of the subject matter. However it does not also follow that the trial court here had a right to proceed against the person of appellant for purposes of hearing appellee’s petition.

Unlike Thomas v. Thomas. 246 Ark. 1126, 443 S. W. 2d 534, the decree here involved made no attempt to incorporate the property settlement into the decree. Under divorce decrees such as involved here the rule is stated by 24 Am. Jur. 2d Divorce and Separation § 423 as follows:

“As a general rule, .a final judgment is conclusive both as to the relief granted and as to the relief denied or withheld, and on its entry the jurisdiction of the court over the subject matter and the parties is exhausted unless preserved in the mode authorized by statute. Hence, any further judgment or order materially varying the first judgment is a nullity, except as it is rendered pursuant to the power which the court may have in opening, modifying, or vacating its own judgments and in accord with the practice prescribed for the exercise of such power. This rule has been .applied in divorce proeeedings. But a judgment of divorce comes also within the rule that a court has full control over its judgments and may modify the same at any time during the term within which they are rendered.”

In Miller v. Miller, 209 Ark. 505, 190 S. W. 2d 991 (1945), we pointed out that notice must be given before a hearing could be held on .a motion to modify. Since that time the Legislature by Acts 1963, No. 67, § 5 (Ark. Stat. Ann. § 27-364 [Supp. 1967]) has provided:

“No Court shall hear any motion except such as may be heard ex parte unless proof of service of copy thereof upon the opposing parties as herein provided (except parties in default), and of reasonable notice of the hearing is made. Such proof may be in the form of certificate of service by counsel or the party making service and such certificate shall be prima facie evidence of service.”

As we view the record here the divorce decree terminated the jurisdiction of the court over the subject matter and the person of appellant except for the court’s inherent power to vacate or modify its decrees within term time. The citation served on appellant gave no notice of a motion to modify the decree and, furthermore, a copy of the motion was not served on appellant as required by Ark. Stat. Ann. § 27-364. Under these circumstances the court was without jurisdiction of the person of appellant to proceed with the hearing on the motion.

Appellant was unable to supersede the judgment against him and as a result thereof some garnishments have been issued. In his brief he asks that we void the garnishments. On this issue we leave him to such remedies as are provided by law.

Reversed.


author: Frank Holt, Justice.

text:
    Marceline PEARSON, widow of Robert Olen Pearson, deceased et al v. LAKE LAWRENCE PULPWOOD CO. and AMERICAN MUTUAL LIABILITY INS. CO.
    5-5039
    447 S. W. 2d 661
    Opinion delivered December 8, 1969

      Donald Poe, for appellants.
    Smith, Williams, Friday & Bowen', By: William H. Sutton and Frederick S. Ursery, for appellees.
   Frank Holt, Justice.

The appellants, the widow and dependent children of Robert Olen Pearson, are claimants for workmen’s compensation benefits. The referee and the full commission found that the decedent was not an employee of appellee Lake Lawrence Pulpwood Company and denied compensation. The circuit court affirmed the commission’s action.

On appeal appellants first contend that the decedent was an employee of the appellee pulpwood company. Although we are committed to the well established rule that we liberally construe the provisions of the Workmen’s Compensation Act in favor of the workman, we must accord to the findings of the commission the verity of a jury verdict and affirm where there is any substantial evidence to support its action. Herman Wilson Lbr. Co., et al v. Lester Hughes, 245 Ark. 168, 431 S. W 2d 487 (1968); McCollum v. Rogers, 238 Ark. 499, 382 S. W. 2d 892 (1964). In applying this rule to the facts of this case, we cannot agree with the appellants.

In the ease at bar the appellants’ decedent was a pulpwood hauler or “producer.” He purchased uncut timber with his own money and employed and paid with his own funds his helpers who cut the timber and assisted him. He owned and maintained his equipment which consisted chiefly of his truck and power saw. He was paid a verbally agreed sum of money for each cord whenever he cut, loaded and hauled pulpwood to the appellee’s place of business. Decedent was fatally injured when his loaded truck left the highway en route to the unloading site. He had hauled pulpwood for the appellee for several years. He was not a “steady hauler” since he sometimes hauled for others. It appears that the method of cutting, loading and hauling of the logs was within the control and discretion of the decedent. Nor does it appear that appellee employer was ever present at a site where the cutting, loading and hauling of the pulpwood were being done. In these circumstances there was substantial evidence to support the commission’s denial of compensation on the basis that the decedent was not an employee of the appellee pulpwood company. West v. Lake Lawrence Pulpwood Co., 233 Ark. 629, 346 S. W. 2d 460 (1961).

The appellants next assert that even though the decedent is said not to be an employee, he was nevertheless covered by workmen’s compensation insurance by a contractual agreement between the parties. Further, that if the appellee pulpwood company was not responsible as an employer, then the insurance carrier was directly responsible. The appellee pulpwood company’s workmen’s compensation policy provided coverage to employees for its logging operations and used a payroll method for premium computation purposes. Even if we were to consider as competent the evidence adduced by the appellants that decedent understood that deductions were made from his pay and that insurance coverage was provided him by appellee pulpwood company, we must affirm the commission’s findings since this issue was disputed by substantial evidence. The appellee pulpwood company’s owners, Lake and Bill Lawrence, testified there definitely was no deduction from decedent’s payments for insurance coverage or any other purpose and the haulers or “producers” were told they were not individually covered by workmen’s compensation insurance. This was corroborated by other haulers or “producers.”

Typical of the cases relied upon by appellants is Hollingsworth & Frazier v. Barnett, 226 Ark. 54 287 S. W. 2d 888 (1956). There Frazier daily supervised and controlled the work of the skidders and haulers and said he considered them his employees. The commission awarded compensation and we affirmed on the basis there was substantial evidence to support the finding of the commission. Also cited is Hale v. Mansfield Lbr. Co., 237 Ark. 854, 376 S. W. 2d 670 (1964). There Hale’s contract provided for the payment of his workmen’s compensation insurance premium by Mansfield. We do not agree with appellants that these cases are controlling in the case at bar.

Appellants contend that the appellees are estopped to deny compensation to appellants. Again the appellants argue that the appellee pulpwood company made deductions from decedent’s payments and that the appellee insurance carrier received these deductions as premiums based upon the quantity of pulpwood hauled by decedent. As we have indicated, this was disputed by competent evidence. Also, there was evidence by the appellee pulpwood company that the workmen’s compensation premiums on its policy were “computed under a three year retrospective rating plan” and that “this did not include wood being processed by Robert Pearson,” and that “there were no insurance premiums computed on any basis for any labor performed in the production of this pulpwood” by Robert Pearson, the decedent.

The appellants further argue that the appellees should be estopped because in 1959 they paid compensation benefits to the decedent as the result of an injury. It appears that benefits were paid to an Olen Pearson in 1959 when he was injured as an employee of a Clifford Brewer and the appellee pulpwood company. Appellees denied that, if this was the decedent, he was ever paid any benefits as a pulpwood hauler. Appellants rely upon Stillman v. Jim Walter Corp., 236 Ark. 808, 368 S. W. 2d 270 (1963). We cannot agree. In that case we said estoppel should apply because there was an undisputed contractual agreement that workmen’s compensation would be furnished to the claimant. As we said in Herman Wilson Lbr. Co. v. Hughes, 245 Ark. 168, 431 S. W. 2d 487 (1968), “* * * The question is not whether the testimony would have supported a finding contrary to the one made, but whether it supports the finding which was made.” Since there is substantial evidence to support the findings of the commission, we must affirm its action and the circuit court’s approval.

Affirmed.


author: Carleton Harris, Chief Justice.

text:
    Wayne J. WYLIE et ux v. Robert A. WOOLDRIDGE et ux
    5-5087
    447 S. W. 2d 851

      R. Julian Glover, for appellants.

      Wood, Smith & Schnipper, for appellees.
   Carleton Harris, Chief Justice.

Wayne J. Wylie and Winnie Bell Wylie, his wife, appellants herein, are the owners of certain land lying on the south side of a bay or inlet of Lake Hamilton near Hot Springs. Robert A. Wooldridge and Lois Y. Wooldridge owned property partly to the west and partly to the north of appellants’ property, the Wooldridge’s lake frontage being on the west end of the bay. In June of 1963 the Wooldridges began to dig a channel oí inlet along the south line of their property, filling in between the channel and the old shore line and to the north line of appellants’ property, and appellants contend that, as a result of the fill, they have been cut off from access to the water front along their north line. The Wylies instituted suit in the Garland County Chancery Court in August, 1963, against appellees and Arkansas Power and Light Company, seeking an order enjoining the Wooldridges from excavating, bulldozing, filling in, or changing the contour line of appellants’ property; damages were sought in the amount of $10,000.00. The complaint asserted that the Wylie land:

“* * * borders on and fronts the 400 foot contour line on Lake Hamilton and is separated from the defendants land by an inlet or channel of the backwater of Lake Hamilton. That the Defendants land is on the other side of said inlet or backwater channel of Lake Hamilton, being separated from the plaintiffs land by that portion of land between defendants and plaintiffs land below the 400 foot contour line.* * *
“That the defendants are claiming said strip of land and are trying to deprive the plaintiffs of the benefit of the waters of Lake Hamilton below the 400 foot contour line to which they are entitled.”

As to the Arkansas Power and Light Company, the complaint alleges that it:

“ * * * is the owner of the right to use and to flood any part of said lands by water or waters impounded by a dam or dams now or hereafter constructed and/or maintained across the Ouachita River under the authority of the Federal Power Commission. Said lands being the land in question below the 400 foot contour line between the property of the plaintiffs and the defendants, Robert A. Wooldridge and Lois V. Wooldridge, his wife.”

A demurrer was filed by the power company, and was sustained by the court on July 15, 1964, appellants consenting thereto. The case then proceeded to trial, and, at the conclusion of the presentation of evidence, was taken under advisement by the then Chancellor. However, no decree was rendered prior to the Chancellor’s death, and thereafter, the cause was assigned to the Circuit Judge, acting as Special Chancellor, who decided the case on the transcript of testimony, all of such testimony having been heard by the regular Chancellor, prior to his death. A decree was rendered for the Wooldridges, and from the decree, appellants bring this appeal. For reversal, it is first asserted that the decree is contrary to the evidence, and secondly, that the decree does not conform to the court’s finding of fact, and conclusions of law.

The actual question in this litigation is whether the appellees, in clearing and leveling their land while preparing a channel on their property, filled a portion of the area of Lake Hamilton at the west end of this bay below the 400-foot contour line, thereby cutting off the appellants’ lake frontage for a distance of approximate-225 feet at the west end of the Wylie property. The descriptions of the lands owned by the parties are not of a great deal of aid, because they are based on a 400-foot contour line along Lake Hamilton, and no contour map was offered in evidence. Accordingly, this litigation can only be determined on the basis of the evidence offered by those who were familiar with the area. A number of witnesses testified for each side, and the testimony appears to be in irreconcilable conflict. A detailed discussion of the testimony of .all witnesses would serve no useful purpose, appellants ’ evidence being largely directed to the contention that the area in dispute had previously contained water, prior to the fill-in. James Hall, a surveyor, testified that he took elevations around the land in question, noted a shght depression between the new fill and the old shore line, and found it to be the old 400 foot contour line, which compared favorably with an old Arkansas Power and Light Company map. A drawing, prepared by the witness, depicting elevations, was offered in evidence by the witness. Fred Thompson, ,a veterinarian of North Little Bock, testified that he owned a cottage in the area, and had been familiar with the property in question since 1959. He said that he had previously fished in the area, and had observed water 100 to 150 feet from Wylie’s west line. Mr. Wylie testified that he had placed a fence near the contour line to keep his cattle out of the shallow basin; that the fence was near the water line, all the way from his west line, and along the north line for a short distance. The area in the basin was covered with trees and brush, except for a creek bed. He said that the creek followed his shore line, and would be dry when the lake was down to the “395 level part * * * but when the lake was to standard level around 399 or 398,” the water stood in the creek bed. The witness added that the water extended beyond his west line when the lake was “at its full 400.” Mrs. Wylie testified that she had fished in the area as close as 50 feet from the west line. H. H. Wylie, a nephew, testified that in 1947 there was water in the bay to the Wylie fence line, and on a visit five or six years previously, he had observed the same condition. C. C. Wylie, a brother of appellant, testified that there was water west of the fence line in 1955, and there was a creek chánnel three or four or five feet wide; however, he did not know whether the water was higher than normal at the time. Olynda Bondurant, a daughter of appellants, testified that she fished near the fence line when a sma1! child. A sister, Waneta Morris, concurred with the testimony of her sister, .and she added that the area where she had fished had now been covered with dirt. Her husband, William R. Morris, agreed.

Luther Phillips, a former County Surveyor, testified that he surveyed the property when Meadows purchased it from the Arkansas Power and Light Company, and had also made a survey for Wylie in 1947. He said that the north line of Wylie’s property described in the deed as “thence west along this contour line 685 feet to a point,” tested out as 685 feet. The witness stated that it had been 17 years since the survey, and he could not remember any of the details. The testimony of other witnesses on behalf of the appellant relative to whether water was in the area, or whether it was creek or lake water, was rather indefinite.

On behalf of appellees, Irving Meadows, the common grantor of both Wylie and Wooldridge, testified that he had been over every foot of the territory numerous times, had seen the area twice after it was filled, and many times before, and that there had never been any water in the area in question. He said there was a “little bitty old crawdad ditch,” which ran only in wet weather, but that it didn’t run at the corner of the fence. “There’s no water up there where he filled in, there never has been and never will be, because the lake won’t put it there.”

Fred Buehheit, who helped with the original Arkansas Power and Light survey, testified that, in the late spring or early summer of 1960, he looked over the area, and at that time there were trees all over the creek area ; there was no water at all from the lake running back to the fence corner. He stated that, in the area filled by Wooldridge, there were pines, oaks, and gum trees, and that, based on his experience of over 20 years, he would say “no tree will live under water in this country except the willow. Pines dry (die) immediately or within two years.”

Ott Livingston, County Surveyor of Garland County, testified that he was familiar with the lands of both parties. He said that, from his examination of the property before the fill was made, the lake water never ran back to the fence corner. It was his opinion, as a surveyor (and former timber inspector for the Forestry Service), that the water could not have gone beyond that point at the 400-foot level, or below, the opinion being partly based on the fact that a flooded area would kill all timber except willow and cypress. He was also of the view that the description of Wylie’s property was incorrect in that the 400-foot contour line did not extend for the number of feet set out in Wylie’s deed. Livingston also testified that Wylie’s fence had been extended:

“There’s a new fence been added which went 15 feet north and circled around southeasterly, I’d say back around to the old line. There’s new posts and new fence, with a few wooden boards nailed on the new fence. There’s 34 feet east and west and 15 feet north, off of the old corner.”

Winthrop Ward testified that in 1962 he cleared underbrush for Wooldridge, and did not observe any water running back to Wylie’s fence corner. This testimony was concurred in by Bill Ward.

Raymond Bates, a sawmill operator, testified that he viewed the property in 1962; that there were many trees in the area, and there was no lake water back up to the fence corner. Wooldridge testified that Wylie had never indicated to him that the lake went. back to his fence corner, and he also testified that there had not been any lake water in the area in controversy.

It always seems strange when numerous people view the same property, and yet testify to opposite facts, though, of course, this is not really unusual in any type of litigation. Appellants first point out that, since the Special Chancellor did not see or hear the witnesses, and only decided the case on the basis of the record, this court and the trial court stand on the same level in determining this litigation de novo from the record. Though it is true that the case does not involve observation of the witnesses, and the manner in which they gave their testimony, we do not agree that the trial court’s findings have no persuasive value, for we will not reverse a Chancellor, unless it appears that his findings are clearly against the preponderance of the testimony.

Such a determination cannot he made in this case. The testimony offered by appellees is, at the very least, as strong as that offered by appellant; in fact, from the standpoint of interest in the litigation, appellees’ evidence is more impressive, because of the fact that several of appellants’ witnesses were closely related to the wylies, either by blood or marriage. Not only that, but appellees’ witnesses appear a little more positive in their statements. The witness who certainly should be in a position to know the real facts was Irving Meadows, the previous owner of the land, who testified there had never been any lake water in the area in dispute. Appellants’ only answer to this testimony w,as that Meadows Lad had trouble with Wylie, though the nature of the difficulty was never shown. Buchheit and Livingston were very emphatic in their testimony that the area was covered with a variety of trees which could not have lived if the area had been under water for a number of months.

Thomas Robertson, an employee of the Arkansas Power and Light Company who testified for appellants, made three trips to the area, the first in the spring of 1963 (prior to the dredging work by Wooldridge), and the second and third visits being made at a later date. On cross-examination, referring to the third trip, Robertson said there was approximately the same amount of water in the disputed area that there had been at the time of the first visit. Appellees’ Exhibit No. 5, a Soil Conservation Service aerial photograph taken on May 30, 1952, and appellees’ Exhibit No. 2, taken in April, 1962, are the most clear exhibits offered, and the area in question appears in both photographs to be . covered by timber and brush. Certainly, we are unable to say that appellees’ dredging operation deprived appellants of lake frontage.

As to the second point, appellants assert that the court’s findings, and the decree entered, in certain respects, do not conform. In its findings of fact, the court, inter alia, said:

“This court is not called upon to determine the ownership of the area between plaintiffs’ north line and the south line of the new channel dredged by defendants, but it is conceivable that the Arkansas Power and Light Company might own this area if the parties are confined to the original 400 foot contour as their boundary. There was no accretion, so this issue is not in controversy.
“Since the defendants ceased their dredging operation and have not moved fill dirt upon plaintiffs’ lands nor have the defendants, in this court’s opinion, damaged the plaintiffs, it is unnecessary to issue an injunction or to award damages.”

This language, say appellants, leaves the ownership of the area open. However, Paragraph 7 of the decree provides:

“The Court finds from the evidence contained in the Bill of Exceptions and the Exhibits thereto that the area in question at all times prior to the Defendants’ fill and construction work in the year 1963 was at or above the 400 foot contour line and was not a part of the bed of Lake Hamilton, and did not constitute usable lake frontage adjacent to the Plaintiffs’ North boundary. ’ ’

This paragraph, say appellants, has the effect of placing the ownership of the disputed area in appellees. Prom appellants’ brief:

“The findings of fact, standing alone, would permit of a reopening of a waterway along the south 400 foot contour line, either independently or in conjunction with an agreement with Arkansas Power & Light Company (which appellants would like to do), while the decree prohibits such action.
“The appellants, therefore, contend that the decree and the findings of fact do not conform.”

The need to discuss this alleged inconsistency is obviated by the fact that appellees, in their brief, concede that the issue of ownership of the property was not in question.

Prom the brief:

“* * * The precise issue of the ownership of the property, and of the property, was not in question. The sole question presented in the lower court concerned the loss of water front footage on the part of the appellants, allegedly because of actions by the appellees. The Paragraph seven (7) of the decree merely recites that the court found, from the evidence, that the appellees did not fill in a part of the bed of Lake Hamilton or usable lake frontage adjacent to appellants’ property on the north, and therefore appellees did not take away or infringe upon any lake frontage of the appellants. The ownership of the various pieces of property was not in direct issue in the lower court, even though the findings of the court may necessarily indicate where the boundary lines of the parties are.”

It is certainly correct that the ownership of the property was not in question, the court not being asked to make that determination, and, from the findings rendered prior to the entry of the decree, it does not appear that there was an intent to make a determination of ownership. In view of the court’s findings, and the concession by appellees that the ownership was not in question, we make it clear that, in affirming the' trial court decree, we are not holding that the Wooldridges are the owners of the land in controversy.

For the reasons herein set out, the decree is affirmed.

       Robert Wooldridge died subsequent to the trial, and Mose M. Holiman was named administrator of the estate, who, together with the widow, is one of the appellees in this case. However, for convenience, the term appellees may be used when referring to Mr. Wooldridge, as well as Mrs. Wooldridge.

      Wylie purchased his property from Meadows in 1947, and Wooldridge made his purchase in 1962.

      In the decree the court found:
      “The Court finds that the Plaintiffs, immediately prior to the filing of this action, extended their existing fence line at the Northwest corner of their property approximately ten feet North of the original corner, and that this extension of the fence should be removed.”

      It will be remembered that appellants alleged that the Arkansas Power and Light Company was the owner of the area here involved, but the company was removed from the litigation by the sustaining of its demurrer before any testimony or evidence was given. The demurrer was properly sustained, since it was not even alleged that the company had committed acts which damaged appellants, nor was any relief sought against it. Not having been a party when the case was heard on its merits, it has not had its day in court, as far as the company’s rights in the land are concerned. After all, in filing a demurrer, the company only admitted the allegations of appellants’ complaint, i.e., that it “is the owner of the right to use. and to flood any part of said lands by water or waters impounded by a dam.” In their answer, the Wooldridges denied that they had infringed upon Wylie’s property, or the property rights of the Power and Light Company, and affirmatively stated that all excavations performed, and dirt moved, had been placed on their own property. However, the prayer of the answer was simply that the complaint be dismissed as to them. Also, just prior to the commencement of the taking of evidence, counsel for the Wooldridges stated:
      “If the Court please, it was agreed beforehand that plaintiff had made Arkansas Power and Light Company a party to this action; that Arkansas Power and Light Company filed a demurrer; and I believe, if I’m correct, Mr. Glover, that you consent to the granting of the demurrer and the dismissal of the Arkansas' Power and Light Company?
      “[Mr. Glover] Yes.”
      It is thus made clear that the Wooldridges were not seeking an adjudication of their rights in the property as against the Power and Light Company.


author: George Rose Smith, Justice.

text:
    John P. HESKETT and Ann Heskett HALE v. Kenny L. BRYANT and Bettye Heskett BRYANT
    5-5056
    447 S. W. 2d 849
    Opinion delivered December 15, 1969

      David Solomon, for appellants.

      Daggett & Daggett, for appellees.
   George Rose Smith, Justice.

On October 22, 1966, Thelma P. Heskett, a widow, sold her one-half interest in the Grauman-Heskett farm in Phillips county to her older daughter and son-in-law, the appellees. The consideration was $22,000 and the grantees’ promise to provide Mrs. Heskett with the necessaries of life after the purchase price had been fully paid. Mrs. Heskett died a few months later, on March 11. 1967. Her son and her other daughter, the appellants, then brought this suit to cancel the deed for fraud, inadequacy of consideration, and abuse of a confidential relationship. After an extended trial the chancellor refused to set the deed aside.

We agree with the chancellor, because the proof shows with hardly any dispute that Mrs. Heskett, after having obtained full knowledge of all the facts now relied upon for a cancellation of the deed, voluntarily elected to abide by her contract with the appellees.

The record exceeds 350 pages, but the essential testimony, much of which comes from the lips of the appellants themselves, is singularly free from conflict. Mrs. Heskett’s husband operated the farm with the Grauman family until Heskett’s death intestate in 1962. The three children then relinquished their inherited interest in the property to their mother, who occupied a mobile home on the place. Later on Mrs. Heskett’s son-in-law, the appellee Kenny Bryant, gave up his job and began managing the farnff for one half of the Heskett share of the profits. The Bryants moved to a nearby residence on property owned by the Graumans. That arrangement had continued amicably for about two years when Mrs. Heskett sold the property to the Bryants.

The deed was made two days before Mrs. Heskett entered a hospital for the second of two operations for cancer. The appellants insist that their mother was especially subject to being overreached, owing to her physical condition and to the confidence that she placed in her daughter and son-in-law. They also assert that the Bryants falsely stated to Mrs. Heskett that her interest in the farm had been appraised by two impartial persons at a value of $22,000, when in fact there had been no such appraisal and the grantor’s interest was actually worth more than $100,000.

Mrs. Heskett, who was in her late fifties, seemed to recover from her surgery. She traveled to "Waco, Texas, on December 9 or 10 and visited in her son’s home there until Christmas. On the day after Christmas she went on to El Paso, where her younger daughter was living, and remained there until her death in March following renewed hospitalization in February. During those months she was mentally alert, in full possession of her faculties. In fact, she began teaching a Sunday School class in El Paso and presumably was active in other ways.

The appellant John P. Heskett, a Baptist minister, learned the details of the sale from his mother on the way to the hospital in October. Even before Mrs. Heskett loft that hospital in November he acquainted her with the truth .about the worth of the land and urged her to repudiate the transaction. With full knowledge of the facts, and with a clear understanding that she may have been defrauded, Mrs. Heskett firmly announced during the ensuing months that she would rather .abide by the contract, even at a loss of $100,000, than engage in a court proceeding (perhaps with some question about her own mental competency than lose the fellowship of her daughter. In a somewhat similar case we have held that the grantor’s inaction precludes his heirs from successfully .attacking the conveyance. Blackburn v. Nichols, 149 Ark. 669 (mem.), 234 S. W. 495 (1921).

Despite the facts that we have mentioned, the appellants earnestly argue that there could be no effective affirmance or ratification of the transaction .as long as the confidential relationship between Mrs. Heskett and the grantees continued to exist. The authorities cited, however, do not go that far. Of course an affirmance is ineffective when the defrauded person is still acting under the same undue influence that made the transaction voidable in the first place. But that was not the situation in this case. Neither of the Bryants is shown to have had any exceptionally strong influence over Mrs. Heskett even when they were living close to one another. Whatever influence there might have been was fully counteracted during the months when Mrs. Heskett went to Texas, lived with her other two children, and in that atmosphere of detachment was urgently importuned to .abrogate the sale of the property. By analogy, an insane person’s contracts, though voidable in their inception, may be effectively ratified when the person regains his sanity. Brandon v. Bryearns, 203 Ark. 1117, 160 S. W. 2d 205 (1942). A like principle controls this case.

Affirmed.


text:
    Marie BLACK v. Robert L. JENNINGS and Mary Lou JENNINGS
    5-5099
    448 S. W. 2d 18
    Opinion delivered December 15, 1969

      Bill J. Davis, for .appellant.

      William I. Prewett, for appellees.
   George Rose Smith, Justice.

The decree in this case must be affirmed under Rule 9. The appellant’s opening statement indicates that in the trial court the appellees ’ petition for a writ of habeas corpus to obtain the custody of two minor children was granted on the ground that an earlier award of custody in a Texas court was entitled to full faith and credit. The opening statement, however, asserts facts not to be found in the record, contains no page references to the transcript, and certainly cannot be treated as even a partial abstract of the record within Rule 9.

The abstract itself barely exceeds a printed page in length. It gives no information whatever about the relationship of the parties to the two children, about the domicile of the litigants or of the children, or about the contents of the Texas order, which apparently is the most vital document to be considered in the case. The appellees have not filed a brief. We dislike deciding cases on grounds other than the merits, but here we have no choice. It is not practical for the seven judges to read the transcript, but that is the only way in which we could all obtain sufficient information about the facts to consider the case on its merits.

Affirmed.


author: Lyle Brown, Justice.

text:
    Margaret Wright KIRKLAND v. James G. WRIGHT
    5-5069
    448 S. W. 2d 19
    Opinion delivered December 15, 1969

      Brown, Compton, Prewett & Dickens, for appellant.

      Ben Lindsey, for appellee.
   Lyle Brown, Justice.

On petition of James G. Wright the chancellor forgave accrued support money payments previously ordered for the minor children of the parties and suspended future reduced payments. That action was taken because the mother (the custodial parent) left the State, leaving their young boy with the father and taking the baby girl with her. The chancellor reasoned that the boy had been left behind to be supported by the father and that the girl’s removal from the jurisdiction of the court defeated the father’s visitation rights. On .appeal Margaret Wright (Kirkland) contends that any modification of monthly support payments for the children cannot be made retrospectively. She also contends that the failure of the father to visit his daughter was due to his own indifference rather than the distance between the residences of the father and the daughter.

Mr. and Mrs. Wright resided in El Dorado. In 1957 the husband was awarded a divorce. The wife was given custody of their two children, Jimmie, age ten years, and Susie, age one year. The right to visit the children “at all reasonable and seasonable times” was vested in the father. Mr. Wright was ordered to pay a regular monthly stipend of $100 to Mrs. Wright for the support of the minors. The court retained jurisdiction of the cause for the purpose of enforcing the rights of the parties. About February 1,1967, Margaret, since remarried, moved to Texas. She took Susie with her. concededly without obtaining permission of the chancellor. Jimmie was left behind and in custody of his father. Two months thereafter James Wright petitioned for the rescission of the support money order. He alleged the removal of Susie from the court’s jurisdiction, his responsibility for Jimmie, and his inability to exercise his visitation rights with Susie. That motion lay dormant for approximately one year, at which time Mrs. Wright (Kirkland) petitioned for a judgment for unpaid support money accruing since February 1967. The matter went to trial on the issues set forth in the two motions described.

It was stipulated that the mother, after remarriage, moved to Texas February-1, 1967; that she took Susie with her; that the mother was making no contribution to Jimmie’s support, who was left behind with his father in El Dorado; that Jimmie is in college and is being aided financially by his father; that the father stopped paying support money when the mother moved away; and that Mr. Wright has at all times known the whereabouts of his daughter. The only witnesses at the trial were Mr. Wright and Jimmie, the latter being twenty-one years of age at that time. Wright testified that while the daughter lived in El Dorado he was prevented by the mother from visiting with the child. In that respect he was corroborated by the son. Wright testified that he received one letter after the move to Texas and that was from Mr. Kirkland. Wright conceded that he had not tried to correspond with his daughter or send her any presents. Just how long the Kirklands remained in Texas is not revealed but it was testified that from Texas, Mr. Kirkland was transferred to Trinidad and Ms family accompanied Mm. We presume that is the reason Mrs. Kirkland did not return to testify. On the basis of the answers to request for admissions, the stipulation, and the testimony, the chancellor made these pertinent findings:

1. That James Wright had timely paid the required child support until February 1, 1967;
2. That on the last mentioned date the mother, without the permission of the court or the consent of the father, removed Susie Wright from the jurisdiction of the court, first moving to Texas and then to Trinidad;
3. That Jimmie Wright was left in El Dorado with the father and the mother has not since contributed to Jimmie’s support;
4. That the child support should be reduced from $100 a month to $50 a month, and the latter payment suspended until Susie Wright is returned to the jurisdiction of the court so that visitation privileges could be afforded the father; and
5. That the mother should be denied judgment for any support money payments which ordinarily would have accrued after February 1, 1967, the date of her departure, and to the date of trial.

The appellant, Margaret Wright Kirkland, concedes the court’s authority to modify from time to time allowances for alimony and maintenance. Ark. Stat. Ann. § 34-1213 (Repl. 1962). However, it is urged that under our case law “the modifying decree relates to the future only and from time of its entry, not retrospectively.”

Sage v. Sage, 219 Ark. 853, 245 S. W. 2d 398 (1952), appears to be the first case wherein this court squarely faced the question, namely whether courts have the power to remit court-ordered accumulated support payments. That opinion cites the majority rule as reflected in 27B O. J. S. Divorce, § 322(l)c. Our court reached this conclusion, which is consistent with the majority rule:

In our opinion the rule that courts have no power to remit accumulated payments under the circumstances here is a sound one and we adopt that view.

We now examine the circumstances in Sage. In the initial proceedings the mother was awarded custody of the two children, subject to visitation by the father, and $45 a month for their support. When the mother took the children to Virginia to live the father elected not to make the payments. Some months later there was a hearing on the father’s petition for modification, at which time the accumulated support payments amounted to $450. The trial court relieved the father of that obligation. It was in that setting that this court reversed and announced the recited rule. We should mention that Sage made one concession to a father in like circumstances; the payment of accrued installments can be suspended (not forgiven) until the child is returned to the jurisdiction of the court.

Then came the decision in Pence v. Pence, 223 Ark. 782, 268 S. W. 2d 609 (1954). Pence is significant because it modified Sage. The modification has been so recognized. Carnahan v. Carnahan, 232 Ark. 201, 335 S. W. 2d 295 (1960). See 10 Ark. L. Rev. 470 (1956). Pernee ordered the remission of payments accumulated during that period of time in which the mother had the child outside the court’s jurisdiction and concealed its whereabouts, thereby totally defeating the father’s visitation rights.

The decision in Sage is still the general rule and Pence has been treated as a modification and not an overruling case. Nicholas v. Nicholas, 234 Ark. 254, 351 S. W. 2d 445 (1961); Carnahan v. Carnahan, supra; and Brun v. Rembert, 227 Ark. 241, 297 S. W. 2d 940 (1957). Circumstances may arise, as they did in Pence, where the equities in a given case require further deviation from the general rule in Sage. It should be remembered that we applied a general rule in Sage because “under the circumstances” in that case it appeared to be sound. The fact that the mother has not incurred any expense relative to the son since February 1967 has in truth tempted us to reduce the accruals by one-half and beginning with the date the father filed his petition in April 1967. Such remission appears to be sanctioned, under appropriate circumstances, by a majority of the courts passing on the question. 6 A. L. R. 2d 859 (1949). However, for reasons which we shall next point up, we do not think the facts before us justify any such deviation in this case.

It is argued that it is inequitable that Wright should be required to pay when (1) he was not permitted visitation rights with the daughter while she was in El Dorado, (2) the mother has not contributed to the support of the son since 1967. and (3) the daughter had for some twenty months been living a considerable distance outside the court’s jurisdiction. A complete answer to those contentions is that Wright could have obtained any justifiable relief from his grievances by enlisting the aid of the court. He did file some pleadings in 1957 and 1966 for reduction but he makes no explanation why they remained dormant. He permitted the payments to accrue, payments which we have said become vested and which only the court has a right to change. Sage v. Sage, supra; Riegler v. Riegler, 246 Ark. 434, 438 S. W. 2d 468 (1969). Actually, Wright seems to have had no great desire to communicate with his daughter. He never formally pressed for visitation rights when she was in El Dorado; he made no attempt to see her when she was in Texas; and he has never sent her a seasonal card or a present. The three pleadings filed by the father over the years indicate his paramount interest to be in obtaining a reduction in payments; they sought no enforcement of visitation rights.

In resolving the question of remission of accruals we have also considered another significant factor. The original support money order fixed the amount at $100 for the support of the children rather than a specific amount for each child. If that amount was to be changed because the mother did not take the son with her, it could not by the father be artibrarily cut in half; rather, it should have been presented to the court on the basis of the separate needs of the daughter.

Appellant is entitled to judgment for the unpaid accruals from February 1967 to the date of the trial. Because of unusual circumstances we agree with the trial court (but somewhat on a different basis) that the remittance of reduced monthly payments should be suspended. With the child in Trinidad it is hardly conceivable that “reasonable and seasonable” visitation rights, to which the father is presently entitled, can be effected. Secondly, the trial court has not really been apprised of the actual needs of the daughter. The best interests of the child dictate that the problems of visitation and proper support should be re-evaluated. This the court cannot do without the cooperation of the mother, either by her personal appearance or by deposition, whereby the court is supplied the facts necessary to a current appraisal of the problems. When that cooperation is forthcoming the trial court is authorized to remove the suspension.

Affirmed in part, reversed in part.


text:
    Noah S. PEEK, Jr., d/b/a England Chemical Co. et al v. HELENA CHEMICAL COMPANY
    5-5080
    448 S. W. 2d 32
    Opinion delivered December 15, 1969

      Joe Melton, Walls Trimble and Charles Walls, Jr., for appellants.

      David Solomon, for appellee.
   Lyle Brown, Justice.

In an accounting suit between the parties. Noah S. Peek, Jr., and wife claimed credit for sales commissions allegedly due them by Helena Chemical Company. Some of the claimed commissions were disallowed and the Peeks appeal.

Appellants based their claim for credits on three exhibits which are vital to an understanding of the questions here presented. There was a written contract executed by the parties in March 1964. Appellants contend that the court misinterpreted that contract and consequently disallowed some $33,000 in commissions. The contract is not abstracted. It was drafted in longhand and a poorly legible copy appears in the transcript, being unsatisfactorily reproduced by a phototype machine. Appellee introduced an itemized account of sales consisting of eleven pages, for which it conceded it owed commissions and which accounting was approved by the court. On appeal, appellants contend that accounting was inaccurate and refer us to a supplemental accounting which appellants introduced. Neither of those itemized accounts is abstracted. The contract and the accounting exhibits are “necessary to an understanding of all questions presented to this court for decision.” Under our Rule 9 from which we have quoted, those exhibits should have been abstracted. The same rule requires that “not more than two pages of the record shall in any instance be abstracted without a page reference to the record.” In the case before us, the testimony of key witnesses ran as high as twenty-seven, sixty-one, and ninety-three pages; yet in each of those instances the abstract makes only two page references to the transcript. The size of the record in this case— three volumes containing 700 pages — emphasizes the value of the required frequent reference to transcript pages.

Affirmed for noncompliance with Rule 9.


author: John A. Fogleman, Justice.

text:
    Dr. Reuben L. CHRESTMAN, Jr. v. Mrs. Mary KENDALL
    5-5074
    448 S. W. 2d 22
    Opinion delivered December 15, 1969

      Wright, Lindsey & Jennings, for appellant.

      David Solomon, for appellee.
   John A. Fogleman, Justice.

Appellee recovered judgment for $30,000 upon a jury verdict against appellant in an action based on the alleged negligence of appellant, a physician, in treating her and administering medication during an illness. Appellant relies upon three points for reversal. They are: failure to direct a verdict for appellant; error in admission into evidence of records of the Probate Court of Phillips County in a proceeding involving alleged incompetency of appellant; and error in the court’s refusal to give AMI 1501 requested by appellant. We find reversible error in the last two points but not the first.

During the presentation of evidence in chief on behalf of appellee, the court, over the objections of appellant, admitted into evidence records of the Probate Court of Phillips County in a proceeding entitled “In the Matter of Dr. R. L. Chrestman, Jr., an Insane Person No. A-989.” This record included the following:

1. Affidavit of Mrs. Grace S. Chrestman and R. L. Chrestman on a printed form alleging that appellant was, to the best of their belief, insane, and that he ought to be committed to an insane asylum for care and treatment, as his being at large was dangerous to the community, or prejudicial to his chances of recovering from present condition of mental disorder. This affidavit was dated February 27, 1967, the same day appellee was released from a hospital in which she had been treated under the supervision of Dr. Chrestman.
2. The answers of Dr. M. H. Oldham to interrogatories in said proceeding given on a form on which the questions were printed, and verified by oath on the date of the petition. In his answers Dr. Oldham stated that during the last two years appellant was progressively agitated, high-strung and easy to antagonize. In answer to an inquiry as to the first symptoms which caused suspicion of mental derangement, Dr. Oldham answered, “agitated, high-strung, belligerent — came to drink more and more for sedation. ’ ’ He described the more prominent manifestations as “split personality — schizophrenia —.alcoholic.” This doctor stated that appellant was considered of more than ordinary intelligence by his neighbors or acquaintances. He related that Dr. Chrestman had indulged in the use of intoxicating liquors to excess and that his appetite for tobacco, opium, morphine, laudanum or other drugs was questionable. He also stated that appellant had hallucinations of brain tumor, and had been checked by .a neuro-surgeon but that he had no brain tumor or brain pathology-
3. A similar affidavit by Dr. Charles P. McCarty, sworn to on the same date, was of the same ten- or as that of Dr. Oldham.
4. The order of the Probate Court entered on February 27, 1967, committing appellant to the custody of the Sheriff of Phillips County to be conveyed to the State Hospital for Nervous Diseases at Little Rock to be confined until discharged by due course of law. The order was based upon the depositions of the two physicians from which the court made a finding that appellant was insane as stated in the affidavit of Grace S. .and R. L. Chrestman.
5. The report of the Superintendent of the Arkansas State Hospital in conformance with Act 495 of 1965 made to the Probate Judge on March 10, 1967, stating that appellant was discharged as without psychosis and that his condition was improved.
6. Order of the Probate Court entered March 23, 1967, to be effective as of March 8, 1967, declaring appellant to be completely sane, capable of handling his own affairs, removing his disabilities and restoring his complete competency.

Objections to the introduction of these records were made on the ground that they were irrelevant, hearsay, and statements of opinions. Objection was made to the statements or depositions of the physicians and to the affidavit of the Chrestmans on the basis that appellant had no opportunity to cross-examine the persons making these statements. Appellant also objected to the offer of this evidence on the basis that there had been no showing that the persons making these statements were unavailable to testify or that appellee had made diligent effort to obtain their attendance to testify in person. Further objection was made to the Probate Court order committing appellant on the ground that it was entered in a cause to which appellee was not a party and without any hearing being afforded to Dr. Chrestman or any opportunity for him to present evidence or cross-examine witnesses upon whose statements the order was based. We find these objections to be well taken.

The affidavit by the Chrestmans could not have been admissible. It was a statement of the opinion of nonexpert witnesses as to the sanity of appellant without any statement of facts upon which they based their opinion and without showing that they were qualified to express such an opinion. Hankins v. State, 133 Ark. 38, 201 S. W. 832, L. R. A. 1918D 784.

The best that could possibly be said for the entire transcript is that it is secondary evidence of the facts therein stated. This type of evidence is admissible in the same case, or in a case involving the same issues between the same parties, when: (1) the witness who testified in the original proceeding is bevond the jurisdiction of the court or otherwise unavailable without the connivance of the party offering the testimony; and (2) his deposition could not have been obtained by the exercise of reasonable diligence; and (3) the adverse party had an opportunity to cross-examine when the original testimony was given. See McTighe v. Herman. 42 Ark. 285; Pine Bluff Co. v. Bobbitt, 174 Ark. 41, 294 S. W. 1002; Ark. Stat. Ann. § 28-713 (Repl. 1962).

In this case, both Dr. Oldham and Dr. McCarty were obviously within the jurisdiction of the court, as they were called as witnesses on behalf of appellant. Singularly enough, appellee did not examine either physician on the matter contained in his affidavit in the probate court proceeding. Since the affidavits were ex parte and there is no indication that Dr. Chrestman appeared in, or had notice of the probate proceeding, he certainly had no opportunity to cross-examine these witnesses in that proceeding.

The answers to interrogatories were not admissible because Mrs. Kendall was not a party to the proceedings, the doctors were within the' jurisdiction of the court, appellant did not have any opportunity to cross-examine these deponents, and the issues in this case were different. In this respect this case is similar to, and governed by, the decision in Hammond v. Peden, 224 Ark. 1053, 278 S. W. 2d 96. There we held that the complaint and depositions in a divorce proceeding were not admissible in an alienation of affections action by the husband. The reasons given were that collateral issues would have been raised which would only have called for the introduction of further testimony, and the parties and the cause of action were different. See also Conine v. Mize, 189 Ark. 92, 70 S. W. 2d 845.

The entire transcript of the probate court proceedings actually was inadmissible because it was offered in an entirely different proceeding relating to an entirely different cause of action. Merrell v. Smith, 228 Ark. 167, 306 S. W. 2d 700. The adjudication of insanity itself might well have been admissible in evidence as a circumstance tending to make the issue as to the appellant’s nonperformance of his duty to his patient more probable but for two infirmities. The first, and perhaps more important of these, is that the probate court order was made subsequent to any act constituting any part of appellant’s treatment of appellee, and would not have shown his insanity during the course of treatment, even if that were an issue in this case. Shell v. Sheets. 202 Ark. 708, 152 S. W. 2d 301; Shores-Mueller Co. v. Palmer, 141 Ark. 64, 216 S. W. 295. Secondly, the record of the probate court proceeding indicates that the adjudication order was made without .appellant’s being present or having had notice. Rose v. Rose, 229 Ark. 899, 318 S. W. 2d 818. In view of these factors and the further fact that the superintendent of the state hospital discharged appellant and certified that he was without psychosis and was improved only nine days after the order was made, this order should not have been admitted into evidence.

Over the objections of appellant, the circuit judge gave AMI 301 instead of AMI 1501 offered by appellant. A reading of the allegations of the complaint and a review of the evidence presented shows that appellee was contending that appellant failed to use proper care and skill and was careless and negligent in administering a drug continuously for 18 days in excessive dosages without following proper procedures or taking proper precautions to avoid the deafness of appellee which resulted. This contention clearly called for the giving of AMI 1501 in its entirety. Walls v. Boyett, 216 Ark. 541, 226 S. W. 2d 552; Dunman v. Raney, 118 Ark. 337, 176 S. W. 339. The second paragraph of that instruction was necessary because the duty in issue can certainly not be said to be a matter of common knowledge. Lanier v. Trammell, 207 Ark. 372, 180 S. W. 2d 818; Gray v. McDermott, 188 Ark. 1, 64 S. W. 2d 94.

Appellee contends that this instruction was unnecessary because causation and the propensities of the drug are not questioned, relying on Lanier v. Trammell, supra. But in that case, it was established withoqt controversy that the surgeon should have washed his hands and sterilized his instruments before commencing his operation on the plaintiff. The only issue was whether he did so. "We said that no amount of medical testimony would have thrown any light on this issue. Here, the testimony is controverted, to say the least, as to what, under the circumstances relating to the patient’s condition, were proper procedures and precautions. Consequently, medical testimony was necessary as lay witnesses could not be expected to have, and the knowledge and experience of jurors could not be expected to encompass, this information.

Appellant moved for a directed verdict at the conclusion of appellee’s proof and again at the conclusion of all the evidence. Since appellant offered evidence after his first motion was denied, it was waived and we can only consider the second motion. American Physicians Insurance Company v. Hruska, 244 Ark. 1176, 428 S. W. 2d 622. It was shown that the doctor’s only source of information about the effects of the drug and its proper use was information furnished by the manufacturer, that he was familiar with recommendations in the Physician’s Book of Drugs as to periodic kidney function tests during the administration of the drug and that he failed to give the tests recommended. Even if these facts were not alone sufficient to establish a fact issue, they were when coupled with the testimony of various physicians.

Dr. Evans refused to answer a hypothetical question about standards of practice in Helena, but he gave his opinion that the dosage administered was excessive. Dr. Shea stated that the manufacturer’s directions and warnings in administering drugs should he as carefully followed as is consistent with the need for the drug. Dr. Faulkner, a Helena physician, testified that he would have continued urinalyses all during Mrs. Kendall’s hospitalization rather than discontinuing them several days prior to suspension of the administration of the drug. He attributed her deafness to prolonged and excessive use of the drug, even though he said he would have given more of the drug than she got, because her infection seemed to require excessive dosages. Dr. Kurts, another Helena physician, stated that the patient was treated properly but indicated that he would have ordered another culture later than that ordered by appellant. Dr. McCarty also thought that appellee was cared for properly, but felt that he might have given another urinalysis later than the last one ordered by appellant. Dr. Kirkman, still another Helena physician, stated an opinion based on a hypothetical question that the treatment met the standards of the medical profession in the community, but stated that he possibly would have given tests in addition to those given, even though he could not say that they were necessary.

There was no error in refusing to direct a verdict.

For the errors indicated, the judgment is reversed and the case remanded for a new trial.

      We have an entirely different situation from that which obtained in George v. Davie, 201 Ark. 470, 145 S. W. 2d 729, relied upon by appellee. That action was against the estate of a deceased maker of a note. His testimony in his own bankruptcy proceeding with regard to the note was offered. The issues involved were the same in the two matters. The witness was subjected to cross-examination by an attorney representing the holder of the note in a hearing upon the identical issue in the bankruptcy court.


author: Conley Byrd, Justice. John A. Fogleman, Justice, dissenting.

text:
    J. C. HILL, Adm’r v. Mrs. Hazel E. MAXWELL et al
    5-5044
    448 S. W. 2d 9
    Opinion delivered December 15, 1969

      Barrett, Wheatley, Smith & Deacon, for appellant.

      W. B. Howard, Jack Seegars, for appellees.
   Conley Byrd, Justice.

Appellant, J. C .Hill, Administrator of the estate of Jimmy Bay Hill, deceased, brings this appeal from a directed verdict in a wrongful death action in favor of appellees Thomas and Hazel E. Maxwell. At issue is whether there was sufficient evidence to go to the jury on negligence and proximate cause in the operation of the Maxwell automobile.

The record shows that Jimmy Bay Hill had been to the Cotton Club where he had consumed some intoxicants. He left the Cotton Club on foot between 12:00 and 12:30 A.M. He was seen by the City Marshal of Bay walking north toward his home at Bay, along the east shoulder of Highway 63. The Marshal and the occupants in the ear had no difficulty seeing Hill who was walking at a normal pace. The last time they saw Hill, he was about one fourth mile south of the Little Bay Ditch Bridge.

The Maxwells had also been to the Cotton Club. They left between 1:20 and 1:25 A.M. with Mrs. Maxwell driving. Mr. Maxwell says that on the way home they were meeting a car on the Little Bay Bridge; that they had their lights on dim; and that while they were on the bridge they struck a man that he had not seen until the pickup truck struck him. The occurrence was reported to the authorities and the man was later identified as Jimmy Bay Hill.

The investigating officer testified that Mrs. Maxwell told him that she thought she hit someone as they came across the bridge — i. e., she only had a glimpse of the object she struck.

The physical facts show that Hill’s body was found on the east side of the highway about half way between the highway shoulder and the bottom of the ditch, just north of the bridge and behind the guard rail. There were skid marks commencing immediately north of the bridge 29 feet in length and curving off to the right shoulder. The right skid marks were two feet from the east edge of the pavement. Both lights on the pickup truck burned on bright but only the left headlight burned on dim. The right parking light was broken out, the hood was dented and the right headlight was cocked up.

To support the trial court’s action appellees make the following argument:

“In short, the appellant totally failed to show (a) That the decedent was on the vehicular traveled portion of the highway long enough for appellees to see him and that their striking of him was inferentially caused by failure to keep a proper lookout; and (b) That a failure to keep the proper lookout was the proximate cause of the decedent’s death. All that was shown was that the decedent was killed by appellees’ truck at a time when the decedent wa,s on the portion of the highway being traveled, by appellees. It might well be argued that the decedent could have been walking along the portion of the highway traveled by vehicles for a considerable distance. Certainly, this was the theory of the appellant in the trial court and continues to be appellant’s theory here. However, while this is a plausible theory, a trier of fact is not free to come to such conclusion unless it can be based upon an inference which can reasonably be drawn from the evidence. It is not enough that there are two possible answers as to the time when decedent went upon the main traveled portion of the highway . . . .”

At another place appellees argue:

“Thus, when it was shown that decedent was occupying the portion of the highway being traversed by appellees, there was no presumption that he had so occupied said portion of the highway for any length of time previously. For aught the evidence shows, he stepped into the path of the oncoming vehicle a split second before he was struck. Certainly, if he did do so, a failure to keep a proper lookout could not have been the proximate cause of his demise as it would have been impossible to stop the vehicle before striking him.”

As we view the record here there is evidence from which a jury might find or infer that the Little Bay Ditch Bridge is only constructed for two lane traffic (one lane for traffic in either direction); that the bridge is protected by guard rails such as are commonly seen along the highways of this State; that it was necessary for Jimmy Bay Hill to cross the bridge if he proceeded north to his home from the place he was last seen; that in proceeding along the highway he was doing so in a normal manner; that since the City Marshal of Bay had seen Hill while he was walking along the shoulder of the highway, the appellees should have seen him; and that the appellees struck Hill while he was crossing the bridge .and that in so doing they did not see him before' he was struck. Under somewhat similar facts we held in Yocum v. Holmes, 222 Ark. 251, 258 S. W. 2d 535 (1953), that the negligence of the driver of the motor vehicle was properly submitted to the jury on the failure to keep a proper lookout.

On the element of causation, the authorities, Prosser, Torts § 41 (3d ed. 1964), point out that the burden of proof is upon the plaintiff and that he must sustain his proof of causation by more than speculation and conjecture. However it is not necessary that the plaintiff negative entirely the possibility that the defendant’s conduct was not a cause. It is enough that the plaintiff introduce evidence from which reasonable men may conclude that it is more probable that the event was caused by the defendant than that it was not. Stated another way, it is not required that the proof eliminate every possible cause other than the one on which plaintiff relies, but only such other causes, if any, as fairly arise from the evidence. See Williams v. Reading Co. (3d Cir. 1949) 175 F. 2d 32. Admittedly truth is stranger than fiction and it is possible that decedent may have stumbled, fallen or jumped into the path of the oncoming Maxwell vehicle, but a motorist who has failed to see what others saw until he struck it with his vehicle is in poor position to argue that the evidence fairly indicates that stumbling or falling was a probable cause of the collision.

For the reasons stated, we hold that the trial court erred in directing a verdict against appellant.

Eeversed and remanded.

Brown and Fogleman, JJ., dissent.

John A. Fogleman, Justice, dissenting.

I agree that, when the evidence is considered in the light most favorable to appellant and every reasonable inference is resolved in his favor, there was a question of fact as to the alleged negligence of appellees. Still I think the trial judge properly directed a verdict.

In considering this matter, we must keep in mind that pedestrians as well as motorists are entitled to use the public highways and each must act with regard to the presence of the other. Yocum v. Holmes, 222 Ark. 251, 258 S. W. 2d 535; Haralson v. Jones Truck Line, 223 Ark. 813, 270 S. W. 2d 892.

There are facts not stated in the majority opinion which I think are pertinent to the view I take of the matter. The headlights on the Maxwell pickup truck were dimmed because it was meeting a vehicle. The only evidence of damage to the pickup truck was on the extreme right front, very close to the extreme right headlight. There is no evidence to indicate that the Maxwell vehicle ever got closer to the right-hand shoulder of the highway than two feet from the pavement. This was at the end of the skidmarks. Since the skidmarks curved, then the Maxwell vehicle was somewhat nearer the center of the highway and farther from the right-hand side of the main-traveled portion of this roadway when it left the bridge. There had been a drizzling rain prior to this incident and weather conditions at the time Hill was struck were described as misty or a misty rain.

Even if a jury could have reasonably deduced that Hill was walking on the Little Bay Bridge dressed in clothing that rendered him visible to the driver of a properly lighted vehicle when he was struck, this would not have been sufficient to submit the issues to a jury. There must also have been evidence tending to show that the failure of the driver to keep a proper lookout or the lack of required lighting equipment constituted the proximate cause of the decedent’s being struck.

Appellees argue that there is no evidence to indicate that the decedent was walking on the main-traveled portion of the bridge when struck and nothing to indicate that he was occupying that portion of the highway for a sufficient length of time so that he could have been observed by the driver. Appellees say that, under the evidence here, the decedent may have stepped or turned into the path of the oncoming vehicle a split second before he was struck. Appellant states that in crossing the bridge it was necessary for Mr. Hill to walk on the portion thereof utilized by motor vehicles. On the other hand, appellees emphasize that there is no evidence to this effect and that the record is completely silent as to whether there was any other place on the bridge on which the decedent could walk.

Even though appellees' argue the lack of evidence of the proximate causé in support of the verdict, appellant has not argued the point and has failed to point out any evidence which would enable the jury to determine the proximate cause without resort to speculation and conjecture. As appellees have pointed out, there was no evidence showing when the decedent stepped onto the portion of the highway traversed by vehicular traffic or the portion of the bridge which was in the path of appellees’ vehicle nor to show the relative positions of decedent and appellees’ truck at that time. He was not seen by either appellee until the instant of the impact and it is not shown that he was in a position where he could have been seen by the driver of that vehicle.

It might be argued that the jury could have inferred either that the decedent was walking on the bridge in the path of vehicular traffic at a time such that Hazel Maxwell should have seen him in time to avoid striking him or that he stepped into the path of her vehicle so suddenly that her keeping a proper lookout would not have avoided his being struck. Yet a jury would have no evidence whatever to guide it in making its determination and would be left to speculation and conjecture only. An inference cannot be based upon evidence that is too uncertain and speculative or which raises merely a conjecture or possibility. The indulgence of inferences will not supply a nonexistent fact. Inferences to support a verdict arise out of facts established by evidence. Other inferences are purely speculative, guesswork or conjecture. It is not allowable under the rules of evidence to draw one inference from another or to indulge presumption upon presumption to establish a fact. To do so would carry the deduction into the realm of speculation and conjecture. Glidewell v. Arkhola Sand & Gravel Co., 212 Ark. 838, 208 S. W. 2d 4.

In this case, the Maxwell vehicle was meeting another vehicle on the bridge in rainy or misty weather conditions. This situation should have been as obvious to Hill as it was to Mrs. Maxwell. As a pedestrian, Hill had a duty to exercise ordinary care for his own safety and to look out for and anticipate the presence and movements of vehicles. Missouri Pacific Transp. Co. v. George, 198 Ark. 1110, 133 S. W. 2d 37; Lion Oil Refining Co. v. Smith, 199 Ark. 397, 133 S. W. 2d 895; Pate v. Fears, 223 Ark. 365, 265 S. W. 2d 954; Williamson v. Garrigus, 228 Ark. 705, 310 S. W. 2d 8. While there was no burden on appellant to show that his decedent was free from negligence, it was incumbent upon him to offer such evidence tending to show proximate cause that a jury would not be left to speculation and conjecture to resolve that question between two equally probable possibilities. Turner v. Hot Springs Street Railway Co., 189 Ark. 894, 75 S. W. 2d 675. He must have offered evidence tending to show that the deceased was in such position on the bridge that his presence could have been discovered by a driver in Mrs. Maxwell’s position in time for her to have avoided striking him. The question as to how he came in contact with the Maxwell vehicle could not be left as a matter of conjecture, when it is just as reasonable to say that Hill’s own negligence may have caused his death. Porter v. Scullen, 129 Ark. 77, 195 S. W. 17; Missouri Pac. R. Co. v. Ross, 194 Ark. 877, 109 S. W. 2d 1246. There simply was no evidence to take the issue out of the realm of speculation and conjecture, so the trial court correctly directed the verdict.

In effect, the majority has placed the burden of proving that their acts were not the proximate cause of the decedent’s death upon appellees. This is unique in our law and procedure.

I would affirm the judgment.

Brown, J., joins in this dissent.


text:
    TOWNSEND PANELING, Inc. et al v. Curley BUTLER
    5-5067
    448 S. W. 2d 347
    Opinion delivered December 15, 1969
    [Rehearing denied January 26, 1970.]

      Terral, Rawlings, Matthews & Turtle, for appellants.

      George Howard, Jr., for appellee.
   Frank Holt, Justice.

In this workmen’s compensation case the appellee claims he suffered compensable injuries which were inflicted upon him by a fellow employee. The Referee and Workmen’s Compensation Commission found that the appellee’s injuries were compensable and the circuit court affirmed. On appeal appellants, the employer and insurance carrier, contend for reversal that there is no substantial evidence that the assault was causally related to claimant’s employment. Appellants assert that appellee’s injuries arose out of a private matter and not his employment.

It is well settled that on appeal we test the sufficiency of the evidence in the light most favorable to the Commission’s findings and affirm if there is any substantial evidence to support the Commission’s action. Herman Wilson Lbr. Co. et al v. Lester Hughes, 245 Ark. 168, 431 S. W. 2d 487 (1968); McCollum v. Rogers, 238 Ark. 499, 382 S. W. 2d 892 (1964); Fagan Electric Co. v. Green, 228 Ark. 477, 308 S. W. 2d 810 (1958). We thus review the evidence.

The claimant, 64 years of age, had worked for the appellant-employer for approximately 9 years. On the date of the injury he was operating a rip saw machine and a fellow-employee, 22 years of age, was assisting him by stacking the lumber. They worked side by side approximately three to four feet apart. According to the claimant his fellow employee, Charles Wilson, offered to bet him a quarter that he (Wilson) had $3 worth of change in his pocket. The claimant refused the bet, stating he was not interested and that he (Wilson) should attend to his duties stacking lumber. This appeared to anger Wilson and he walked off. In about three or four minutes, while claimant’s back was turned, Wilson unexpectedly struck him on the left side of his face with an oak board about four feet long and four inches wide. The blow rendered claimant unconscious and caused severe injuries. Wilson contradicted this version of the altercation. He testified that an argument started when the claimant refused to pay him a Ipet and that claimant struck at him first. Wilson admitted striking the claimant with the board. It is undisputed that the claimant and his fellow employee had worked together in the same area for approximately two years and had never quarreled or had any trouble before, either on or off the job.

The appellants agree that the Commission properly stated the general rule pertaining to an assault by a fellow employee. The Commission said: “It is generally held that injuries resulting from an assault are compensable where the assault is causally related to the employment, but that such injuries are not compensable where the assault arises out of purely personal reasons.” Larson, Vol. 1, § 11.21 et seq.; Johnson v. Safreed, 224 Ark. 397, 273 S. W. 2d 545 (1954); Barrentine v. Dierks Lbr. & Coal Co., 207 Ark. 527, 181 S. W. 2d 485 (1944).

The appellants argue that the claimant made conflicting statements with reference to the cause of the assault. We have repeatedly held that it is within the province of the Commission to reconcile conflicting evidence and determine the true facts. Rose v. Black & White Cab Co., 222 Ark. 210, 258 S. W. 2d 50 (1953); Kivett v. Redmond Co., 234 Ark. 855, 355 S. W. 2d 172 (1962).

When we review the evidence, in the light most favorable to the Commission’s findings, as we must do on appeal, we are in agreement with the Commission when it stated:

< í * * * recorci is clear that the claimant was an innocent victim of an intentional assault by a fellow employee and in resolving the inconsistencies in the testimony of the witnesses, we find that the employee was in the place where he was expected to be; that he was performing his regular duties; that there was no aggressive act on his part and the injury sustained by claimant was a result of his employment. ’ ’

The appellants further contend there is no substantial evidence that claimant was unable to work at the time of the hearing. We cannot agree. There was testimony by the appellee, as well as ample medical evidence, that at the time of the hearing the claimant was temporarily totally disabled. He is a common laborer, uneducated, and has worked in saw mills most of his adult. life. At the time of his injuries he was operating- an electrical rip saw. As a result of the attack he has lost the vision in his left eye with the possibility of the right eye being affected. It appears that his left leg is partially paralyzed. In his words, his left foot “flaps” and is not controllable when he walks. He suffered a broken jaw and he cannot fully open his mouth. At the time of the hearing, which was approximately a year after the injury, his face was still swollen and he suffered pain. Another answer to this contention is the fact that appellants did not list this contention as a point relied upon for reversal. This is necessary according to our Rule 9(c).

Affirmed.


text:
    Jean Marie TUDOR v. Ray TUDOR
    5-5094
    448 S. W. 2d 17
    Opinion delivered December 15, 1969
    [Rehearing denied January 12, 1970]

      Warner, Warner, Ragon & Smith, for appellant.

      Robinson & Rooth, for appellee.
   Frank Holt, Justice.

In this action the appellee was awarded a divorce from the appellant, custody of their minor children and title to certain real and personal property.

On appeal the appellant asserts error by the chancellor with respect to the award of custody of the minor children to the appellee and in divesting the appellant of her rights in certain real and personal property. Appellant designates, on appeal, the entire record of all proceedings, including a transcript of all testimony-heard. documentary evidence, exhibits and pleadings.

We cannot reach the merits of this case and must affirm the chancellor because of the requirements of our Rule 9(d). Succinctly stated, this long established rule requires an abridgment of the record that will sufficiently enable us, from reading the appellant’s abstract, to understand all questions presented or the points relied upon for reversal. Ellington v. Remmel, 226 Ark. 569, 293 S. W. 2d 452 (1956); Smock v. Corpier, 226 Ark. 701, 292 S. W. 2d 260 (1956); Hurley v. Owens, 238 Ark. 874, 385 S. W. 2d 636 (1965); Routen v. Duyse, 240 Ark. 825, 402 S. W. 2d 411 (1966); Tucker v. Haskins. 243 Ark. 826, 422 S. W. 2d 696 (1968).

In the case at bar there is no abstract of the pleadings, exhibits, decree or the individual testimony of the numerous witnesses. And further, when there is reference to a part of the testimony of a witness, it is in the third person rather than in the first person. The latter is required by our rule. It is necessary for the appellant to abstract the essential portions of the proceedings relied upon for appeal purposes. Otherwise, all seven members of the court would have to explore the transcript in each case to enable each of them to understand the issues presented. We have no alternative in the case at bar other than to affirm the decree of the chancellor.

Affirmed.