author: Paul Ward, Justice. Carleton Harris, Chief Justice.

text:
    Lois Thomas Grumbles v. Harold Bernard Grumbles
    4625
    431 S.W. 2d 241
    Opinion Delivered September 9, 1968

      Arnold, Hamilton & Streetman for appellant.

      Carneal Warfield for appellee.
   Paul Ward, Justice.

This is the second appeal by these parties. See Grumbles v. Grumbles, 238 Ark. 355, 381 S.W. 2d 750.

In the first case appellant, the wife, was granted a divorce from her husband, appellee here. In that case, the trial court (on April 24, 1963) granted appellant custody of their two children, and ordered appellee to pay child support and $154 per month as alimony. Later appellee became eleven months delinquent in payment of alimony — a total of $1,694.

On June 14, 1967 appellant filed in chancery court a “Petition for Contempt Citation” against appellee. The petitioner alleged that, in spite of frequent demands, appellee was delinquent in the above mentioned amount, and is in contempt of court. In the prayer appellant also asked for “a reasonable sum for the services of her attorney”.

Answering the above petition, appellee filed an answer, stating: (a) admits being delinquent as alleged; (b) admits he has ignored repeated demands; (e) denies he is in contempt or that he should pay said amount “because of the harrassment and persecution of the petitioner”. Later appellee, in a response to appellant’s Motion for Summary Judgment, paid the sum of $1,694 in to the registry of the court “for satisfaction of his past due alimony”.

No testimony was offered by either side, and the issues of contempt, alimony, and attorney’s fee were presented to the trial court on the pleadings.

On June 29, 1967 the court (a) ordered the clerk to pay to appellant the sum of $1,694 in full payment of past due alimony; (b) ordered that appellee “should be purged of contempt”, and; (c) took under submission “the issue of attorney fees”. Appellant was “granted 20 days to plead” further.

No further pleadings were filed, and on December 18, 1967 the trial court entered an Order denying a fee for appellant’s attorney. It is from the above Order that appellant prosecutes this appeal.

It is our conclusion that the trial court was correct, and that its holding must be sustained.

Ark. Stat. Ann. § 34-1210 (Eepl. 1962), in pertinent parts, reads:

“During pendency of action for divorce or alimony the Court may allow the wife . . . reasonable fee for her attorneys . . . and the Court may allow additional attorneys fees for the enforcement of payment of alimony ...” (Our emphasis.)

As is indicated by tbe word “may” above, our courts have consistently held for many years that allowances of alimony and attorney fees are matters that lie within the sound discretion of the trial court. See: Plant v. Plant, 63 Ark. 128, 37 S.W. 308; Gladfelter v. Gladfelter, 205 Ark. 1019, 172 S.W. 2d 246, Lewis v. Lewis, 222 Ark. 743, 262 S.W. 2d 456, and McGuire v. McGuire, 231 Ark. 613, 331 S.W. 2d 257. In the Plant case the court, in 1896, was construing Sand & H. Dig. sec. 2512 and in the Gladfelter case the court, in 1943, was construing Pope’s Dig. § 4388 — both sections being the same as the present statute copied above. In the McGuire case the Court, in construing § 34-1210, made the following statement:

“This Court has said many times that the granting of support and attorney’s fee are within the sound discretion of the trial court and will not be disturbed on appeal unless there has been an abuse of discretion”.

We find nothing in the record before us — -and appellant points to none — from which we could reasonably conclude the trial court abused its sound discretion in this instance.

Accordingly, the holding of the trial court should be, and it is hereby, affirmed.

Harris, C.J. & Brown, J. dissent.

Carleton Harris, Chief Justice.

If the record reflected that Mr. Grumbles had become delinquent in the alimony payments to his ex-wife because of financial inability to pay, I would agree that no attorney’s fee should be allowed. However, this was not the situation. As mentioned by the majority, in his response to appellant’s petition for relief, Mr. Grumbles admitted that he was delinquent as alleged; admitted that he had ignored her repeated demands, but denied that he was in contempt, or that he should pay the amount sought because of the “harassment and persecution” of Mrs. Grumbles. No testimony was offered, and appellee paid the sum of $1,694.00 into the registry of the court to satisfy the past due alimony.

No evidence was taken, and I accordingly do not know whether Mr. Grumbles is well off financially, or on the verge of bankruptcy. Likewise, the record fails to reveal whether Mrs. Grumbles is financially “well fixed,” or barely able to “make ends meet.” I presume, however, that appellee’s failure to pay was not predicated upon financial reasons, for if such were the case, he would certainly have set it up as a defense— and he would have been unable to pay the money. At any rate, when one becomes delinquent in making payments ordered by a court, I think that certainly the burden is upon him to establish a valid reason for not making the payments. This was not done.

The fact remains that Mrs. Grumbles waited eleven months to receive the alimony — and was only able to obtain it after court proceedings were instituted. Under these circumstances, I think a reasonable fee should have been allowed.

I therefore respectfully dissent.

Lyle Brown, Justice. I would reverse and remand with directions that proof be taken on the issue of contempt. If we knew the facts we might readily agree that Grumbles was not in contempt. Since he was cited to show cause, and since he was admittedly delinquent, I think the husband should come forth with his proof.

We would then have a record to evaluate.


source: Caselaw Access Project

author: Lyle Brown, Justice.

license: Public Domain

text:
    Lumbermens Mutual Ins. Co. v. Noah R. Cooper et al
    4622
    431 S.W. 2d 256
    Opinion Delivered September 9, 1968

      Smith, Williams, Friday & Bowen by George E. Pike Jr., for appellant.

      Gordon, Gordon & Eddy for appellee.
   Lyle Brown, Justice.

This tort action arose out of a two car collision. Appellee, Cooper, recovered $7,-000 against Lumbermens Mutual Insurance Company under the uninsured motorist provision of Cooper’s policy. Lumbermens Mutual insists there was no evidence of negligence on the part of Willie Walker, the uninsured motorist, and, alternatively, that the verdict was excessive.

Cooper lives in a rural area north of Plummerville in Conway County. State Highway 92 is, at the situs of the collision, a two-lane asphalt road with curves and hills typical of that general area. Cooper was on his way to Sunday School, accompanied by two grandchildren. Following him was Willie Walker, a part-time preacher who was on his way to fill the pulpit at a church farther down the highway than Cooper’s church. As Cooper approached his destination he made a left turn to enter the roadway leading into the churchyard. At a point'where Cooper’s pickup was half off the asphalt and half on the shoulder entrance to the church drive, Walker struck Cooper’s pickup at the left front door, pushing the truck some 200 feet down the highway.

The trial court, sitting as a jury, placed full blame on Willie Walker. We are unable to say that finding is not supported by substantial evidence. Walker was 76 years of age, born in the area, fished the creek next to Cooper’s church, and was well aware of the exit road leading to the church; Cooper was driving at a speed which of itself could be indicative that he intended to turn into the churchyard; and there were cars already parked in the area, making it apparent that services were being conducted. Notwithstanding, Walker, who was already driving about forty miles per hour on the hilly road, increased his speed and went into an overtaking and passing movement, knocking the Cooper vehicle a considerable distance. The trial court commented that under the circumstances Walker’s speed was reckless, and we agree.

Cooper’s version of the accident is far from flawless. Contrary to the contents of his discovery deposition, Cooper testified that at a distance of 120 feet from the turnoff he started his left turn signal and eased gradually to his left across the center line; that he could then see Walker in the mirror and Walker was judged to be a safe distance behind. If that version of Cooper’s activities is correct, then the trial court was justified in placing full fault on the other driver. Walker and one other witness — his wife — contradicted Cooper. The findings of fact cannot be disturbed on appeal merely because of apparent contradictions of the claimant which, when added to other make-weights, may appear to place Cooper’s testimony against the weight of the evidence. We must be able to go further and say there is no reasonable probability in favor of Cooper’s testimony, and then only after giving legitimate effect to the presumption in favor of the jury, or trial court’s, findings. Baldwin v. Wingfield, 191 Ark. 129, 85 S.W. 2d 689 (1935).

A closer question is presented with respect to the amount of recovery. The judgment must be evaluated on the basis of the nature and duration of any injury and any resulting suffering. There is no competent evidence on which loss of earnings can be predicated, no medical expenses (they having been paid under the terms of the policy), and no claim for property damage. Noah Cooper offered this evidence of injuries and resulting pain: Dr. Hickey’s physical findings were “pain or tenderness, muscle spasm in the region of his neck, or cervical spine, tenderness of a portion of his skull, with limitation of motion of the cervical spine; he had tenderness over the anterior chest wall”; and x-rays were negative for fracture or dislocation. The doctor concluded that Cooper suffered a cerebral concussion, sprain of the cervical spine, contusion of the skull, contusion of the anterior chest wall, and sprain of the dorsal and lumbar spine; from the day after the accident (December) until March, the doctor prescribed nerve medicine, muscle relaxants, analgesics, and sedation, together with ACTH; that course was resumed the following September and continued for two months; patient suffered pain during the periods of treatment; doctor is informed patient continues to take considerable amount of aspirin and nerve medication; he will continue to have pain from time to time; and there is a probability of from five to ten per cent permanent partial disability, but more time is needed to confirm.

Cooper testified as to pain resulting from the more strenuous movements involved in carpentry, his trade; lie sold a small herd of livestock, so he testified, partly because it was painful to perform some of the incidental duties, such as handling bales of hay. He continued with his carpentry work and earned more money the following year than the year preceding the collision; however, he detailed particular carpentry chores which produced pain and forced him to do less manual labor, particularly for continued periods. Dr. Hickey testified that a man sixty-one years of age would be less likely to “bounce back” from Cooper’s type of injury than would a younger man, and that his need for medication would continue indefinitely — ‘ ‘ analgesics, sedatives, nerve medication.”

While we unhesitatingly find the verdict to be liberal, based on the record, we did not have the advantage of listening to the claimant and observing his demeanor on and off the witness stand. We cannot say the verdict is excessive.

Affirmed.


author: John A. Fogleman, Justice.

text:
    Leo Walton & Milford Fuller v. State of Arkansas
    5353
    431 S.W. 2d 462
    Opinion Delivered September 9, 1968

      Donald J. Adams for appellant (Walton).

      Moore & Brockman for appellant (Fuller).

      Joe Purcell, Atty. Gen.; Don Langston, Asst. Atty. Gen. for appellee.
   John A. Fogleman, Justice.

The basic question raised by appellants is that of validity of a search and seizure. It was properly raised in the trial court by motions to suppress evidence and objections to testimony and evidence, all of which were denied and overruled. Although it appears that several charges were filed against appellants Walton and Fuller as a result of the investigation of which this search was a part, this appeal is taken from a judgment of conviction of appellants of the crime of possessing a Zenith color type television and a Zenith stereo type record player, alleged to have been stolen from one Chuck J. Carter, proprietor of Carter-Binley Appliance Company of Seymour, Missouri.

The investigation was commenced by Sheriff Mickey Owen of Greene County, Missouri, who came to Harrison in pursuit of a large quantity of men’s clothing and television sets said to have been stolen from business establishments in his county. After he arrived in Harrison on the morning of September 7, 1967, he was accompanied to the office of the municipal judge by the prosecuting attorney of the 14th judicial district, the sheriff of Boone County, Sgt. Earl Rife of the Criminal Investigation Division of the Arkansas State Police, and the president of a clothing store in Springfield, Missouri, from which it was charged that a large quantity of merchandise had been stolen. A hearing was held to determine probable cause for the issuance of a search warrant. A draft of an addidavit for a search warrant, which Sheriff Owen was prepared to execute, was presented to the judge and was in the following form (omitting formal parts):

Information has been presented to me, under oath, by George L. Hall, President of Williams Clothing Store, Springfield, Mo., that said store was burglarized on September 4, 1967 and 400 mens suits, three top coats, ten sport coats, five pants, eight three-piece combination sport suits of the approximate cost to us of $20,000.00; and further information has been presented to me by a confidential informant whose information has proved reliable before, and whom I believe to be reliable, and I believe this information given by said informant now is reliable and that I do in truth suspect that such property is concealed in the frame dwelling house, barns, tool sheds and other out buildings located on a forty acre tract of land owned by Ed Willis and Golden Rich Distributing Co., Inc., on the Cottonwood Road, Boone County, described as the SW NW 4-19-20, as recorded on deed appearing at book 96, page 446, said lands being used by Ed Willis and others at 5 miles North on Cottonwood Road in the State and County aforesaid, and pray a warrant from said Court to search said premises, dwelling house, barns, garages, outbuildings and automobiles situated on said lands and to seize any and all of the above property found thereon.”

Inquiry was conducted to determine probable cause for the issuance of the warrant, but the judge did not administer any oath to any witness. The hearing consisted of a reading of the affidavit by the judge, a statement by the president of the concern that a list attached to the affidavit was a description of the merchandise lost by it and affirmative responses of Sheriff Owen to inquiries by the judge whether he had on previous occasions relied on the unnamed informer and whether success had been realized as a result of this reliance. The judge also asked why the officers thought the property sought would be at the place to be searched by the time they got there and was told that the place was “staked out.” Sheriff Owen then signed the affidavil an oath was administered to him and the following war rant was issued (omitting formal parts):

“Information has been presented to this Court by Mickey Owen, Sheriff, Greene County, Mo. that the Williams Clothing Store, Springfield, Mo. was on the September 4, 1967 burglarized and robbed of approximately 400 men suits, 3 top coats, 10 sport shirts, 5 pants, 8 3-piece suits as further described on the attached list of stolen goods; and that he has reasonable cause to believe that said stolen goods along with recently stolen TV sets as per the attached list are stored in a dwelling house and outbuildings located on the SW NW 4-19-20 in Boone County, said property being owned by Ed Willis and Golden Rich Distributing Co., Inc., a corporation. That he has reason to believe that said property is being wrongfully and unlawfully concealed by the said Ed Willis and Golden Rich Distributing Co., Inc., some place on the premises of the above described property in Boone County, Arkansas said premises being now occupied by the said Ed Willis and Golden Rich Distributing Co., Inc., a corporation, and he requests that a Search Warrant be issued authorizing and directing that a search be made of said premises for said property. And it appearing to the Judge of the Boone County Municipal Court that there are reasonable grounds to believe that said property is being wrongfully and unlawfully concealed as aforesaid, you are hereby directed to search the premises aforedescribed in the day time for such property, and if the same be found that you take said property into custody and hold the same in your custody for further orders of this Court; and that you make due return of this writ to this Court.”

About three hours later the officers returned to obtain a warrant for a search of other premises. Upon inquiry by the municipal judge, without administration of any oath, they reported that their initial search resulted in the discovery of some of the merchandise sought and Sheriff .Owen stated that the informant mentioned in the affidavit he then proposed to sign was the same as the one from whom he obtained the information upon which the first search was based. Thereupon the affidavit was signed by Sheriff Owen and the search warrant issued. This affidavit was as follows:

“I, Mickey Owen, Sheriff of Greene County, Missouri, do solemnly swear that: on September 1, 1967, the Garter Hillen Appliance Co., Springfield, Missouri, was burglarized and 22 TY sets were stolen, as per the attached list setting forth the set and each serial number and description; that information has been presented to me by a confidential informant, which information I believe to be reliable; and that the information given to me in the past by said informant has been reliable; the information being that said TV sets were brought to Boone County, Arkansas, and that I do in truth suspect that such property is concealed in the business place of the Golden Rich Distributing Co., Inc., a corporation, on the Clarence Hudson property located on Highway 65N in Harrison, Arkansas occupied by Golden Rich Distributing Co. Inc. in the State and County aforesaid, and pray a warrant from said Court to search said property, including the business place, warehouses, storagerooms, garages, outhouses, automobiles, trucks and any other place of concealment located on said property, and to seize any of the said TY sets located therein.” The search warrant read (omitting formal parts) :
“Information has been presented to this Court by Mickey Owen, Sheriff of Green County, Mo., that on September 1, 1967 the Carter Hillen Appliance Co., of Springfield, Mo. was burglarized and that 22 TY sets of the description and value as set forth on the attached list were stolen; That lie lias reasonable grounds to believe, and upon probable cause does believe that said property was brought to Boone County and is now located on the Clarence Hudson property on Highway 65N in Harrison, Arkansas, in the buildings and other places of concealment located on said property occupied by Golden Bich Distributing Co., Inc. a corporation; That he has reason to believe that said property is being wrongfully and unlawfully concealed by one Golden Bich Distributing Co., Inc. and its officers and agents some place on the premises of the above described lands and the buildings and trucks thereon in Harrison, Boone County, Arkansas said premises being now occupied by the said Golden Bich Distributing Co., Inc., a corporation, and its officers and he requests that a Search Warrant be issued authorizing and directing that a search be made of said premises for said property. And it appearing to the Judge of the Boone County Municipal Court that there are reasonable grounds to believe that said property is being wrongfully and unlawfully concealed as aforesaid, you are hereby directed to search the premises aforedescribed in the day time for such property, and if the same be found that you take said property into custody and hold the same in your custody for further orders of this Court; and that you make due return of this writ to this Court.”

The rule requiring exclusion of evidence obtained as a result of a search and seizure violating the Fourth Amendment to the Constitution of the United States lias been held applicable (via the Fourteenth Amendment) to the states by the Supreme Court of the United States in Mapp v. Ohio, 367 U.S. 643, 81 S. Ct. 1684, 6 L. Ed. 2d 1081 (1961). That court has also held that the standards of “reasonableness” for obtaining a search warrant are the same under both the Fourth and Fourteenth Amendments, saying that the latter imposes all the proscriptions of the former as to searches and seizures on the states. Ker v. California, 374 U.S. 23, 83 S. Ct. 1623,10 L, Ed. 2d 726 (1963); Aquilar v. Texas, 378 U.S. 108, 84 S. Ct. 1509, 12 L. Ed. 2d 723 (1964). In determining probable cause for the issuance of a search warrant, the magistrate must judge for himself the persuasiveness of the facts relied upon by a complaining officer and may not accept a complainant’s conclusions without question. Giordenello v. United States, 357 U.S. 480, 78 S. Ct. 1245, 2 L. Ed. 2d 1503 (1958); Aguilar v. Texas, supra. While an affidavit for a search warrant may be based upon personal observations of the affiant, it may also be based, in whole or in part, on hearsay information. When it is based upon hearsay, the magistrate must be informed of some of the underlying circumstances from which an informant concluded that the object of a proposed search was where he said it was. He must also be advised of some of the circumstances from which the officer concludes that the informer (whose indentity need not be then disclosed) is credible or his information reliable. An affidavit, which does not contain any affirmative allegation that affiant speaks with personal knowledge of the matters contained therein and also fails to show that information given by an unidentified source was not merely his suspicion, belief or conclusion, has been held not to show probable cause. Aguilar v. Texas, supra.

The use of oral testimony to support an affidavit for the issuance of a search warrant satisfies Fourth Amendment standards of reasonableness. Miller v. Sigler, 353 F. 2d 424 (8th Cir. 1965); Gillespie v. United States, 368 F. 2d 1 (8th Cir. 1966). Under the Fourth Amendment, however, a magistrate may not properly issue a search warrant unless he can find probable cause from facts or circumstances presented to him under oath or affirmation. Mere affirmance of belief or suspicion is not sufficient. Nathanson v. United States, 290 U.S. 41, 54 S. Ct. 11, 78 L. Ed. 159 (1933); Aguilar v. Texas, supra. Even if the additional information given the municipal judge in this case had been under oath and included in the affidavits, it did not supply any of the underlying circumstances supporting the statements which were contained in the affidavits. We are unable to find statements of underlying facts and circumstances meeting the tests required by the cited decisions of the United States Supreme Court which justified issuance of either search warrant.

The success of the search will not validate it since it was unlawful at its inception. Wong Sun v. United States, 371 U.S. 471, 83 S. Ct. 407, 9 L. Ed 2d 441 (1963).

In view of this finding, it is unnecessary for us to consider other attacks made upon the search warrants. Since neither the television set nor the record player described in the charge in this case was the subject of either search, however, it remains for us to determine the effect of the invalidity of these searches upon this case. In doing so, we must apply the doctrine of the “Fruit of the Poisonous Tree.” Under this doctrine, both the indirect and direct products of an unlawful search must be excluded from evidence. Wong Sum, v. United States, supra. Even this doctrine does not require that all evidence be excluded as “fruit of the poisonous tree” simply because it would not have come to light but for illegal actions of officers. The question is whether the evidence to which objection is made was obtained by exploitation of the illegal action or by means sufficiently distinguishable to be purged of the taint of illegality. Wong Sun v. United States, supra. The burden is on the accused to convince the court that evidence is inadmissible under this doctrine. Nardone v. United States, 308 U.S. 338, 60 S. Ct. 266, 84 L. Ed. 307 (1939).

It is undisputed that the particular property on which the present charge is based was not described in enther search warrant. When the officers arrived at the named premises for the second search, the warrant was read and then given to Walton. None of the officers asked either of the appellants any questions. In spite of this, Walton, in the presence of Fuller, voluntarily advised Sheriff Hickman of Boone County and Sgt. Rife that there was a quantity of other property besides the television sets for which the search was being conducted, and that he wanted to show them where it was. He told them that he had certain suits of clothing and the television set and record player upstairs in his living quarters. He said he had bought the television set and record player from Fuller and had gotten the television from among those downstairs. When the officers inspected (at the invitation of Walton) the serial number on the television set did not match any number on the list they had. After a discussion between the officers and Walton, it was agreed that the officers would not take these items, but conld come back at a later date and look them over. Later, on September 12th, Sgt. Rife and Carter, the alleged owner of the property, went to the premises, after a telephone call by Sheriff Hickman to Walton, and were admitted by the latter for the purpose of checking serial numbers. The serial number on the television set corresponded with a number on a list of property Carter alleged had been stolen from him. When they were unable to check the serial number on the record player because they had no screwdriver with which to remove the back of the instrument, Walton told them that it came in at the same time the television set did and to go ahead and take it because he knew that it belonged in “that stuff.” Under these circumstances, the property found in the Walton living quarters and his statements about them were not come about through exploitation of an illegal search. Walton also showed the officers other property which was not described in the search warrant then being executed. We find that there was a definite waiver of the requirement of a search warrant for any of this property.

For the reasons above set out, the television set and record player were admissable in evidence. However, neither the items discovered as a result of the two searches (except for those items not the object of the search, about which Walton voluntarily informed the officers) nor testimony relating thereto was admissible in evidence. Thus, identification of property which was inadmissible should have been excluded by the trial court as “fruit of the poisonous tree,” even though it was offered only for the purpose of showing intent and a course of conduct. Furthermore, statements of both Walton and Fuller made in the prosecuting attorney’s office, except for those portions relating particularly to property not listed in the second search warrant about which Walton volunteered information, were inadmissible as “fruit of the poisonous tree.” The erroneous admission of such testimony and evidence certainly cannot be said to have been harmless.

Although objection was made to the statements made in the prosecuting attorney’s office as being inadmissible under the rule announced in Miranda v. Arizona, 384 U.S. 448, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966), we find adequate evidence to support the trial judge’s finding that the warnings required by that rule were given, and that the statements were voluntary and made under waiver of the rights enumerated in the above case. Neither Walton nor Fuller was in custody at that time on any charge. Before interrogation, both were advised of their rights as to the giving of statements. There is nothing to indicate that either was not intelligent enough to understand the statement of his rights. Nor does it appear that either was not conscious that he was waiving them in answering questions. Walton actually signed a written waiver, on which his constitutional privilege against self incrimination and right to counsel are clearly and fully listed. There is no indication that this was not a free and voluntary act on his part. While Fuller did not sign the waiver, there is testimony that an identical statement of his rights was read to and by him before any interrogation, after which he expressed his willingness to answer questions. It was only after the interrogation was virtually concluded that he was asked to sign a written waiver of these rights, and he then stated that he wanted a lawyer “if it got down to where he had to sign something.” In addition to the warnings at the time of the interrogation of Walton and Fuller in the prosecuting attorney’s office, the evidence that both were advised of these rights at the time of the search is convincing.

While the State contends that Fuller has no standing to contest the validity of the second search, we feel that this argument is without merit under the circumstances of this case. It would be anomalous to say that one charged with possession of stolen property because of its presence on certain premises could not contest a search of these premises without showing his interest therein or his right to possession, occupancy or use thereof. See Jones v. United States, 362 U.S. 257, 80 S. Ct. 725, 4 L. Ed. 2d 697 (1960).

In view of the disposition we make of this case, other questions raised by the appellants need not be determined.

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


text:
    MFA Mutual Ins. Co. v. Floyd Bradshaw, et ux
    5-4640
    431 S.W. 2d 252
    Opinion Delivered September 9, 1968

      Wright, Lindsey & Jeinnings for appellant.

      George J. Cambiano for appellee.
   John A. Fogleman, Justice.

Appellant contends that the trial court erred in overruling its motion to dismiss an amended complaint filed against it by each of the appellees and granting the motions of appellees for a summary judgment.

Appellees, Floyd and Ethel Bradshaw, brought separate suits against appellant, MFA Mutual Insurance Company, on March 14, 1967 seeking recovery on judgments each had recovered against one Brenda Howard, an uninsured motorist. These judgments were for damages resulting from an automobile collision between a vehicle owned and operated by Floyd Bradshaw, in which Ethel Bradshaw was a passenger, and a vehicle operated by this uninsured motorist on September 17, 1966. The suits were consolidated for trial. Appellant was appellees’ liability insurance carrier. The liability policy provided uninsured motorist coverage. Each appellee was an “insured” under the policy terms. The coverage was set out as follows:

“* * * The Company will pay all sums which the insured . . . shall be legally entitled to recover as damages from the owner or operator of an uninsured highway vehicle because of bodily injury sustained by the insured, caused by accident and arising out of the ownership, maintenance or use of such uninsured highway vehicle; * *

Appellees instituted suit against appellant and Brenda Howard on October 11, 1966. Brenda Howard employed counsel and filed an answer and counterclaim. MFA filed a motion asking dismissal of the complaint as to it on the ground that appellees had improperly joined an action in tort against Brenda Howard and an action in contract against MFA. The trial court required appellees to elect which remedy they would pursue. They took a voluntary nonsuit against MFA and elected to proceed against Howard on February 17, 1967. On February 20, 1967, appellant, by its attorney, wrote a letter to appellees’ attorney directing attention to the following language in Insuring Agreement V:

“No judgment against any pei.sun or organization alleged to he legally responsible for the bodily injury (sustained by the insured) shall be conclusive, as between the insured and the Company, of the issues of liability of such person or organization or of the amount of damages to which the insured is legally entitled unless such judgment is entered pursuant to an action prosecuted by the insured with the written consent of the Company.”

In this letter appellees’ attorney was also advised that MFA Mutual Insurance Company did not consent, in writing or otherwise, to the prosecution of the action against Brenda Howard, and that any judgment obtained against her would not be conclusive as to the liability of Brenda Howard or the amount of damages appellees might be legally entitled to recover from MFA. No reason for the withholding of consent was stated.

On March 14, 1967 the complaint against MFA was dismissed without prejudice pursuant to the nonsuit indicated previously. On the following day, when the case against Brenda Howard was called for trial, neither she nor her attorney appeared, and the default judgment sued on here was entered in favor of both Bradshaws on their complaint and against Brenda Howard on her counterclaim. No explanation of the reason for her failure to appear has been given. MFA filed a motion to dismiss the cause now before us based upon the letter mentioned above and the policy clause quoted therein, stating that it was entitled to litigate the issues of liability and damages, and alleging that the default judgments . were not binding on it. The trial court treated the motion to dismiss as a demurrer and gave appellees time within which to amend their respective complaints. Both amended to add an allegation that MFA had refused to settle with them and refused to defend the suit against Brenda Howard after having-had notice of the suit and after having been notified of the trial date, and that the doctrine of res judicata applied. MFA again moved for dismissal, reiterating the statements of its original motions, and alleging that it could not have defended the action against Brenda Howard, that res judicata was inapplicable because of a lack of identity of parties, and that the sole remedy of the Bradshaws was by an action against MFA in which the issues of the liability of Brenda Howard and the amount of damages would be litigated. This motion was denied. The Bradshaws then filed a motion for summary judgment based upon the pleadings and a stipulation of the facts herein above stated. This motion was granted and this appeal taken.

The sole question on this appeal is that of the validity of the paragraph providing that no judgment in an action prosecuted by the insured against an uninsured motorist without the written consent of the insurer shall be conclusive as between the insured and the insurer. The meaning and intent of this provision is clear and unmistakable. It is designed to protect the insurer in cases such as this where, even though there was every reason to believe that the questions of liability and damages would be litigated thoroughly, the uninsured motorist defaulted. As a result, the question of liability has not actually been litigated. "We agree with the Supreme Court of Missouri that defaulting defendants are not represented because a trial court cannot and should not act as an attorney for defaulting defendants and produce witnesses who might contradict the testimony of a plaintiff and witnesses produced by him. State v. Craig, 364 S.W. 2d 343, 95 ALR 2d 1321 (Mo. 1963). This question can never be litigated unless this policy provision is held valid, or unless we hold that such a judgment cannot be conclusive on the insurer. Such a holding would be contrary to the apparent weight of authority. See, e.g., Boughton v. Farmers Ins. Exchange, 354 P. 2d 1085, 79 ALR 2d 1245 (Okla. 1960); MFA Mutual Ins. Co. v. Lovins, 248 F. Supp. 108 (D.C. Ark. 1965), and authorities cited therein.

An insurer may contract with its insured upon conditions expressed in its policy, limited only by statute and public policy. The insured, by acceptance of a policy, is deemed to have approved it with all conditions and limitations expressed therein which are reasonable and not contrary to public policy. Maryland Casualty Co. v. Chew, 92 Ark. 276, 122 S.W. 642.

Certain clauses have been voided as contrary to public policy. Ark. Stat. Ann. § 66-3233 (Repl. 1966) declares that a clause compelling an insured to submit any question of fact to arbitration is void. We agree with the United States District Court for the Eastern District of Arkansas that a clause providing forfeiture of insurance coverage by an insured who prosecuted to judgment a suit against an uninsured motorist without written consent of the insurer is against public policy of the state. MFA Mutual Ins. Co. v. Lovins, 248 F. Supp. 108 (D.C. Ark. 1965). That case, relied upon by appellees, is easily distinguished from the case at bar. No penalty of entire loss of coverage is provided for in the policy involved here. The contract here simply permits the insured to have the opportunity to litigate separately questions of liability of the uninsured motorist and the damages recoverable, unless it consents to an action by its insured against the uninsured motorist. Under this clause, the insured can pursue remedies against either or both the uninsured motorist and the insurer, but he cannot hold the insurer, without its consent, upon a judgment obtained in an action in which the insurer was not a party and consequently had no control over the defense made or evidence offered.

In many of the decisions cited in this opinion there is a holding that an insurer having notice of or an opportunity to participate in an action against an uninsured motorist is, or may be, bound by the judgment rendered in favor of its insured, but none of them involve a contract containing a clause stipulating against such a binding effect but not imposing forfeiture of coverage. We are not aware of any decision in which the insurer’s liability on such a judgment is based on the doctrine of res judicata. Most seem to be based jn some kind of estoppel. There is no statute prohibiting this clause in a motor vehicle liability insurance policy. In at least one court it has been recognized that a judgment against an uninsured motorist may not be binding on the insurer where there is a policy clause like this one. Andeen v. Country Mutual Ins. Co., 70 Ill. App. 2d 357, 217 N.E. 2d 814 (1966). See, also, Alston v. Amalgamated Mutual Cas. Co., 53 Misc. 2d 390, 278 NYS 2d 906 (1967). We are not aware of any public policy of this state which would invalidate it. On the other hand, there are many policy considerations which indicate that such a prevision is reasonable. The insured would be free to pursue his remedy against an insurance company which might be the only real party in interest as a defendant. It is desirable that uninsured motorist coverage be available at the option of the insured at a modest premium. [See Kisling v. MFA Mutual Ins. Co., 399 S.W. 2d 245 (C.A. Mo. 1966).] The insurer would not bo required to pay damages in cases in which, because of default, the questions of liability and damages were never really litigated. The effect of the duplicitous position of an insurer who would be liable on a judgment against its insured, but who would also be required to pay anv judgment rendered in fav or of its insured against an uninsured motorist not selected or approved by it, could be minimized to some extent. At least the insurer would have some control over situations in which it was called upon to defend its insured on a counterclaim, while it would be to its own interest that the parties would eventually be found equally responsible for the damages, or, if not, that the amounts of recovery would be offsetting. Any state of affairs in which an insurer would desire to minimize its insured’s recovery against another party may not be against public policy, but is undesirable to say the least. The possibility of collusion between an insured and an uninsured motorist is minimized by such a clause.

We agree with the Oklahoma Supreme Court that a situation where the interest of an insurer is to defeat the claim of its own insured should not be countenanced where it can be avoided. Holt v. Bell, 392 P. 2d 361 (Okla. 1964). That court stated that placing the parties in such a position virtually makes the plaintiff’s insurer the liability insurer of the defendant and interested in defeating the claim. The uninsured motorist provision is not intended to afford coverage to the uninsured motorist, but to provide protection to the insured against the perils of injury by an uninsured motorist. Ark. Stat. Ann. § 66-4003 (Repl. 1966); Johnson v. General Motors Corp., 242 P. Supp. 778 (D.C. Va. 1965), and cases cited therein. Appellees contend that appellant should have tendered a defense to the uninsured motorist. The insurer has no duty to defend an uninsured motorist. Kisling v. MFA Mutual Ins. Co., 399 S.W. 2d 245 (C.A. Mo. 1966). It is at least doubtful that the insurer has any right to do so. In case an insurer elected to defend, its ability to control the defense would be very restricted in a case like this one. The propriety of tendering a defense to one who has employed his own counsel is questionable.

Our statute provides that the insurer be subrogated to the rights of its insured against the uninsured motorist. Ark. Stat. Ann. §66-4006 (Repl. 1966). It has been recognized that this right could be materially impaired unless the insurer had some option about the conduct of an action against the uninsured motorist. Mills v. Farmers Insurance Exchange, 41 Cal. Rptr. 650 (1964); Alston v. Amalgamated Mutual Cas. Co., 53 Misc. 2d 390, 278 NTS 2d 906.

The clause in question does not prohibit an insured from prosecuting an action against the uninsured motorist, so it cannot be said that it hampers an insured in seeking to recover damages in excess of his policy limits from a solvent uninsured motorist.

Inferentially, it is suggested that appellant withheld its consent arbitrarily. While there well may be an implied promise on the part of the insurer that its consent not be withheld arbitrarily (see Levy v. American Automobile Inc. Co., 31 Ill. App. 2d 157, 175 N.E. 2d 607), the burden was on appellees to show that this was done. Portillo v. Farmers Ins. Exchange, 238 Cal. App. 2d 58, 47 Cal. Rptr. 450 (1966). Under the circumstances of the case at bar, we cannot say that there is any such showing.

We find the “consent” clause in this policy to be valid and binding. The summary judgment is reversed and the cause remanded for proceedings consistent with this opinion.

      This occurred before the effective date of Act 73 of 1967 permitting joinder of an action in tort with an action in contract.


author: J. Fred Jones, Justice.

text:
    W. Howard Bass and Oscar W. Bass, d/b/a The Fayetteville Linen Supply v. Mrs. Jeanne Dickerson Brewer
    4624
    431 S.W. 2d 458
    Opinion Delivered September 9, 1968

      Ball & Gallman for appellant.

      James O. Burnett for appellee.
   J. Fred Jones, Justice.

Mrs. Brewer brought suit in the Washington County Circuit Court against Howard Bass and Oscar Bass, d/b/a The Fayetteville Linen Supply, for overtime pay, unpaid wages and liquidated damages, under the Fair Labor Standards Act of 1938, Title 29, U.S.C.A. §§ 203-216. The trial court entered summary judgment for Mrs. Brewer on her motion therefor, and on appeal to this court Linen Supply relies on the following points for reversal:

“1. The lower court erred in finding there were no genuine issues of material facts regarding whether Mrs. Brewer was engaged in commerce or engaged in the production of goods for commerce or engaged in activities directly essential and closely related to the production of goods for commerce.
“2. The lower court erred in finding there were no genuine issues of material facts regarding Fayetteville Linen Supply’s claimed exemption from the provisions of the Fair Labor Standards Act, and thereby holding that Mrs. Brewer was entitled to judgment as a matter of law.”

The entire proof of the facts alleged by Mrs. Brewer is contained in the answer to the complaint and the answers to interrogatories she propounded to Linen Supply. These answers establish an employer-employee relationship between the parties from March 19, 1965, until April 4, 1966, on an eight hour per day and forty hours per week basis. They establish that Mrs. Brewer’s duties consisted of feeding a flatwork ironer, folding the flatwork and pressing pants for which she was paid a regular hourly wage of 75 cents, later raised to 80 cents, then to 85 cents, and finally to 90 cents per hour. Overtime work at regular wage scale was also established.

Linen Supply stated, in answer to interrogatories, that it was primarily engaged in the business of laundering and renting linens and garments consisting of such items as small towels for cleaning counters and tables, turkish towels used by barbers and beauticians, hair cloths used by barbers, turkish towels for cleaning grills, covers for dining tables, table napkins, bib aprons worn by food processors and stock replinishers, pants and shirts worn by workmen, uniforms worn by nurses, waitresses, etc., smocks worn by barbers and pharmacists, butcher coats used by food processors, steward coats worn by houseboys, waiters, etc., shop towels used by garages for cleaning cloths, sheets and pillow cases used on daybeds for rest by some customers, and dust mops and mats used for dust control in business houses. Linen Supply stated that it purchased its stock of items from various concerns outside the state of Arkansas; that its gross income from business in 1965 amounted to $125,000 and in 1966 amounted to $156,000. Linen Supply answered that its ten largest customers for 1965, in the order of highest volume of business, were Campbell Soup Company, Ralston Purina Company, Tyson’s Foods, Inc., Lewis Ford Sales, Inc., Chicken Shack, Wheeler Volkswagen, IGA Thriftway Stores, Shipley Baking Company, Buck’s Vaccination Service, Burger Broil, and for the year 1966, such customers, in the same order of business volume were, Ralston Purina Company, Campbell Soup Company, Tyson’s Foods, Inc., Lewis Ford Sales, Inc., Chicken Shack, Prince Mfg. Co., Wheeler Volkswagen, IGA Stores, 62 Truck Stop, Fayetteville Country Club Kitchen.

As to out of state business, the record reveals answers to interrogatories as follows:

“Q. In what States, other than the State of Arkansas, does the defendant do business?
A. One stop in Missouri.”

Following np on the question of out of state business, additional interrogatories were propounded and answered as follows:

“Q. Calling attention to your answer to Interrogatory number 23, has the Fayetteville Linen Supply made this stop in Missouri in both the year 1965 and 1966? If the answer is ‘No’ please state the exact dates of all stops for the year in which calls were made.
A. From May 31, 1962 through December 1966.
Q. State the full name of firm name and address of the person or firm with whom business was conducted in Missouri.
A. Ralston Purina Company, Noel, Missouri.
Q. State separately for the year 1965 and 1966 your gross volume of business with this Missouri customer.
A. 1965 — $ 557.20 1966 — $2,529.46
Q. State separately for the year 1965 and 1966 your gross volume of business, to the nearest one-hundred, conducted with the following:
(a) Ralston Purina Co.
(b) Tyson’s Food, Inc.
(c) Lewis Ford Sales, Inc.
(d) Wheeler Volkswagen
(e) Prince Mfg. Co.
(f) 62 Truck Stop
A. 1965 1966
(a) Ralston Purina Co., May-Dec.
$2,454.00 $19,496.00
(b) Tyson’s Food, Inc., Not Available 6,061.00
(c) Lewis Ford Sales, Inc., Not Available 3,452.00
(d) "Wheeler Volkswagen, Dec. 257.00 2,532.00
(e) Prince Mfg. Co., Not Available 2,840.00
(f) 62 Truck Stop Not Available 2,067.00
Dated this 30th day of May, 1967.”

This constituted the evidence of record from which the trial court, as a matter of law, found Mrs. Brewer “to be engaged in commerce and/or engaged in the production of goods for commerce” and granted summary judgment on her motion therefor. We agree that the trial court erred on both points relied on for reversal.

The Arkansas Legislature adopted Buie 56 of Federal Buies of Civil Procedure governing summary judgments in 1961. Act 123 of 1961, Ark. Stat. Ann. § 29-211 (Bepl. 1962). Subsection (a) of § 29-211, insofar as it relates to this case, provides:

“. . . A party seeking to recover upon a claim, counter-claim, or crossclaim or to obtain a declatory judgment may, at any time after the expiration of 20 days from the commencement of the action or after service of a motion for summary judgment by the adverse party, move with or without supporting affidavits, for a summary judgment in his favor upon all or any part thereof.”

Subsection (c) of § 29-211, as amended in 1967, and insofar as it relates to this case, provides:

“. . . The judgment sought shall be rendered forthwith if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law . .

In the case at bar, Mrs. Brewer’s entire canse of action depended upon facts that were not proven. She alleged that she was an employee and that the appellant was an employer within the definition of 29 U.S.C.A., § 203. This section is broad and simple indeed. It defines employer and employee as follows:

“(d) ‘Employer’ includes any person acting directly or indirectly in the interest of an employer in relation to an employee but shall not include the United States or any State or political subdivision of a State, or any labor organization (other than when acting as an employer), or anyone acting in the capacity of officer or agent of such organization.
“(e) ‘Employee’ includes any individual employed by an employer.”

Linen Supply denied the employer-employee relationship within the definition of the act, but we conclude that Mrs. Brewer established that relationship by proof of record.

Mrs. Brewer alleged that Linen Supply’s establishment was engaged in the business of laundering, cleaning, or repairing of uniforms, linens, clothing, or fabrics ; that more than fifty per cent of the establishment’s annual volume of sales of service were made outside the State of Arkansas within the meaning of 29 U.S.C.A., § 213 (a) (3), and that more than twenty-five per cent of the annual dollar value of sales, or gross receipts, were derived from customers engaged in manufacturing, transportation or communications business within the meaning of the preceding’ section of the act.

Linen Supply admitted in its answer to the complaint, that it was engaged in the business of laundering, cleaning, or repairing of uniforms, linens, clothing or fabrics, but it denied the allegation that it was engaged in commerce within the meaning of the act.

Now, 29 U.S.C.A., § 213 is the exemption section of the Fair Labor Standards Act, and subsections (a) (3) of 213 are as follows:

“(a) The provisions of sections 206 and 207 of this title shall not apply with respect to—
“(3) any employee employed by any establishment engaged in laundering, cleaning, or repairing clothing or fabrics, more than 50 per centum of which establishment’s annual dollar volume of sales of such services is made within the State in which the establishment is located: Provided, That 75 per centum of such establishment’s annual dollar volume of sales of such services is made to customers who are not engaged in a mining, manufacturing, transportation, or communications business; ...”

Mrs. Brewer rested her proof, and based her motion for summary judgment, on the answers to the interrogatories propounded to the appellant. Assuming that the proof of “one stop in Missouri” with a gross business of $557.20 in 1965, and $2,529.46 in 1966, was sufficient evidence that appellant was engaged in commerce within the meaning of the act, the evidence is woefully short of proof that more than fifty per cent of the annual volume of sales of service were made outside the State of Arkansas within the meaning of 29 U.S.C.A., § 213 (a) (3) and that more than twenty-five per cent of the annual dollar value of sales, or gross receipts were derived from customers engaged in manufacturing, transportation, or communications business within the meaning of the preceding section of the act. Assuming further that the burden shifted to Linen Supply to prove the affirmative to the alleged negative, the evidence does not show what business Linen Supply customers are engaged in. In other words, the evidence is clear that Mrs. Brewer fed a flatwork ironer, folded the flatwork, and pressed pants in the course of her employment, but the record is silent as to whether Linen Supply’s one customer in Missouri, or any of its other customers as for that matter, rented or used the flatwork or pants Mrs. Brewer folded and pressed, or whether they rented or used dust mops and mats with which she apparently had no connection.

A mere glance at the footnotes under Ark. Stat. Ann. § 29-211 (Repl. 1962) will show that the office of the summary judgment, as well as its limitations, are well established and clearly announced in Arkansas:

“The theory underlying a motion for summary judgment is the same as that underlying a motion for a directed verdict and any testimony which is submitted with the motion must be viewed in the light most favorable to the party resisting the motion with all doubts and inferences being resolved against the moving party. Russell v. Rogers, 236 Ark. 713, 368 S.W. (2d) 89.
“Summary judgment will only lie where there is no genuine issue of material fact and the moving party is entitled to judgment as a matter of law. Weathers v. Springdale, 239 Ark. 535, 300 S.W. (2d) 125.
“Where the pleadings show there is a genuine issue as to a material fact, summary judgment should not be granted. United Press International, Inc. v. Hernreich, 241 Ark. 36, 406 S.W. (2d) 317; United Press International, Inc. v. Hernreich, 241 Ark. 33, 406 S.W. (2d) 322.
“Where there are essential issues of fact still unresolved the record does not justify a summary disposition of the litigation. Griffin v. Monsanto Co., 240 Ark. 420, 400 S.W. (2d) 492.
“Where there is no doubt that there was presented a jury question as to a material fact it is error for a trial court to enter a summary judgment under paragraph (c) of this section. Kealy v. Lumbermen’s Mut. Ins. Co., 239 Ark. 766, 394 S.W. (2d) 629.
“This section is a salutary measure, designed to prevent unnecessary trials where the record shows that there is no genuine issue of fact to be litigated and where the record presents unresolved questions of fact to be resolved by the trial court it was improper to grant a motion for summary judgment. Kratz v. Mills, 240 Ark. 872, 402 S.W. (2d) 661.”

We conclude that the trial court erred in rendering summary judgment on the facts of record in this case, and that this case should be remanded for trial on the merits.

Reversed and remanded.

      This section was amended on September 12, 1966, Pub. L. 89-601, Title V, § 501, 80 Stat. 842, but the amendment is not retroactive to the claim here.


text:
    Stanton A. Pepper v. Daisy Pickens
    4627
    431 S.W. 2d 247
    Opinion Delivered September 9, 1968

      Leon Burrow for appellant.

      Bruce Ivy and Gardner & Steinsiek for appellee.
   J. Fred Jones, Justice.

Daisy Pickens brought suit against Stanton A. Pepper in Mississippi County Circuit Court, Chiekasawba District, for personal injuries and property damage growing out of an automobile collision under a traffic light at the intersection of Tenth Street and Chiekasawba Avenue in Blytheville, Arkansas. Pepper filed a counter-claim for damage to his automobile. A jury trial resulted in a verdict and judgment thereon, in favor of Daisy Pickens for $5,000, and on appeal to this court Petter relies upon the following points for reversal or modification:

“1. The verdict of the jury, in the amount of $5,000.00, is entirely without basis in evidence, and is excessive to the point to shock the conscience of the court; and the court erred in failing to grant a new trial or to order a remittitur.
“2. The verdict was against the law.
“3. The verdict was against the evidence.
“4. The verdict was against both the law and the evidence.
“5. The verdict was not sustained by sufficient evidence.
“6. The verdict was clearly against the preponderance of the evidence.”

Point 1 includes the others and is the only point argued by the appellant. The facts, as to liability, must be gleaned from the conflicting evidence that usually attends an intersection collision. Both parties to the action contend that the other ran the red light.

Pickens testified that she had started home from work and that the light was green when she drove into the intersection on Tenth Street; that Pepper entered the intersection on Chickasawba Avenue at a high speed, and in violation of the traffic signal, ran the front of his automobile into the side of her automobile.

Pepper testified that he was driving slowly on Chickasawba Avenue waiting for the traffic light at Tenth Street to turn green; that when the light did change to green he drove into the intersection and seeing the Pickens automobile bearing down upon him in the middle of Tenth Street, he locked all the wheels on his automobile and was stopped when the side of the Pickens automobile struck the front of his automobile and damaged it.

The physical evidence is undisputed that the impact damage was to the side of the Pickens automobile and to the front of the Pepper automobile. It was stipulated between the parties at the trial, that the damage to the Pepper automobile amounted to $412.52, and the damage to the Pickens automobile amounted to $745.00.

Mary Ocheltree testified that she was driving a pickup truck behind the Pepper automobile and saw him run the red light and strike the Pickens automobile. She testified that Mr. Pepper left the scene of the accident and that she followed him, took his license number, and reported the accident to the police.

Mr. Pepper testified that he had started across Tenth Street enronte to a tractor agency to purchase some tractor parts, but the impact of the collision forced the radiator of his automobile into the fan and the screeching noise occasioned thereby, together with the fact that he couldn’t open the doors of his automobile, irritated and un-nerved him to the extent that he turned on Tenth Street, drove several blocks, turned again and drove his automobile home. He testified that he intended to report the accident to the police, but that before he got around to calling the police, the police called him.

Three sisters, who had a friend living on Pepper’s farm, testified that they were in an automobile on Tenth Street waiting for the light at the intersection to change from red to green; that Pickens was driving her automobile in the center of Tenth Street meeting them, and that before the lig'ht changed to green, Pickens drove her automobile into the intersection in violation of the traffic signal and collided with the Pepper automobile.

The jury chose to believe Pickens and her witness, and the jury verdict on liability is sustained by substantial evidence.

Appellant argues that he is 69 years of age and has a wide reputation in Mississippi County for driving fast and powerful racing automobiles, and that the jury was prejudiced by this reputation and by the fact that he left the scene of the accident. We find nothing in the record to indicate such prejudice. Appellant’s reputation was not alluded to during the trial, he admitted that he left the scene of the accident, and there is nothing in the record to indicate that the jury was not satisfied with his explanation.

Appellant points out that appellee had had twenty-three childbirths and was not in good health prior to the accident. The appellee’s testimony is not disputed that she was 58 years of age at the time of trial; that the last of her twenty-three childbirths occurred when she was 42 years of age, and that she had never suffered any disability prior to the accident except during the twenty-three childbirths by her first marriage. Appellee’s testimony is uncontradicted that high blood pressure was the only known physical impairment she suffered prior to the accident and that her high blood pressure did not prevent her from picking and chopping cotton in season and earning $5.00 per day at housework during most days of every week prior to the collision. She was regularly employed at general housework for nine months immediately prior to the collision. Appellee’s ability to work at gainful employment prior to the collision is not questioned.

Now, as to appellee’s injuries and her physical condition following the collision: Appellee testified that she was knocked down in her automobile and bleeding, she says she was numb, and following the advice of the police, she went to see Dr. Elliott, who was unable to see her that day but told her to return the next day. She then continues:

“Q. Daisy, what was your condition the day after the accident, as far as how you felt?
A. I began getting sore and coming back to life. Stayed kind’a numb, felt like I was froze all night. After he sent me to get x-rays, told me to go home, take the medicine. I went home, that night I had some kind of a spell. I thought I was dying. Looked like something snatching me, taking my breath. I got scared then. Up to then I wasn’t too worried, till I had the spell.
Q. What happened when you had the spell?
A. Looked like I was sick, going to die, breath leaving me. I sat up late, wondering what was going to happen. I said to myself, ‘This don’t stop, going to die.’ Looked like, cutting my breath off. I hurt underneath my shoulder blade and my neck ivas hurting.
Q. The night after the collision?
A. Yes, sir.
Q. Did you go back to see the doctor?
A. I took, went to Dr. Utley.
Q. Went to see Dr. Utley?
A. Yes, sir.
Q. Remember what day you went to see Dr. Utley?
A. I don’t know, exactly, what day it was. After I had the spell, still stayed there a day or so before I went to Dr. Utley.
* # *
Q. When did you go to the hospital?
A. Twenty-seventh.
Q. Twenty-seventh of August?
A. Yes.
Q. How long did you stay in the hospital?
A. Seventeen days.
Q. Dr. Utley was your doctor?
A. Yes, sir.
Q. Have you continued to see him, up to this time?
A. Yes, continued to see him. Off a little while, not long.
Q. Has he been treating you for this condition?
A. Tes, sir.
* * *
Q. Have you tried to do any work?
A. No. No more than around home. I couldn’t make it at home.
Q. Have you done work at home?
A. No. Did some. Take the clothes to the washer in the car. House, just let it went.
Q. Why can’t you work?
A. Bach harts, get spells. It was four weeks ago I had a sick spell. Told Dr. Utley, it knocked me out.
Q. What happened?
A. Get a burning, small place in my back. Go to getting sick. Spit up a lot of slick stuff. Goes on, started to get up and fell out.
Q. Did you pass out?
A. No, I didn’t pass out. Fell and laid down on the couch. Next day I went up and told them I had a spell, went the next day, I couldn’t go the day I had the spell.
Q. Are you still having pain in your neck?
A. Yes, and back too.
Q. Is there pain there all the time?
A. In my back, goes and comes. Have a place hurts right in the middle of my back, what knocks me out. Bight here. (Indicating) When he hit me, this side, hurt my back there. This place. Lay down at night, got a big hard place, when I hit the light pole, hurts when I lay down at night, pains around my neck when I lay doion at night.
Q. Ton had to work to live, didn’t yon, Daisy?
A. Yes, sir. I worked all the time before I was sick,.
# # #
Q. Do yon get any check from the welfare, anything?
A. No, sir. No, sir.
Q. Before this accident, had yon been sick?
A. I had a little high blood pressure, didn’t bother me much. Picked cotton every fall, chopped cotton in the hot sun. All the sickness I ever had was childbirth, get up and go back to work.
Q. Did yon have trouble with your back, neck, prior to the accident?
A. No, sir. Neck never did bother me. Bothers all the time now.
Q. You were able to scrub floors, wash, wax?
A. Yes.
Q. All of this?
A. Yes, I scrubbed the floor and waxed the floors over at Mrs. Baxley’s, everything.
Q. Did it bother yon?
A. No.” (Emphasis supplied).

Doctor Utley testified that he saw appellee on August 24, 1965:

“A ... she had muscle spasm in the back, across the low part of her back. We made x-rays of this particular region. X-rays were basically negative. We felt she had received some fair ly severe bach sprain from the accident. We started her on med-co synlator treatment, which is physical therapy. Gave muscle relaxant drugs. Started on a tablet for high blood pressure. We saw her the next two or three days. She hadn’t improved, so we had her admitted to Doctor’s Hospital on the 27th of August, 1965. Her admitting diagnosis was lumbar sacral sprain and final diagnosis. Discharged September 13, 1965.
Q. In the hospital, I believe, approximately 17 days?
A. Approximately, yes, sir.
Q. Did you continue to see her, treat her, while she was in the hospital?
A. Yes, sir.
Q. Doctor, how often would you say you have been seeing her since she came to you August 24th?
A. We saw her up until, there was a period we saw her fairly regularly. Then a period we did not see her. We saw her during September, 1965, saw her about three times. Saw her in October about three or four times. We saw her in November about four times, this was in 1965.
Q. Yes, sir.
A. Then I didn’t see the patient again until March, 1966.
Q. When she came back in March, 1966, toas she still suffering, having the same symptoms she complained of before?
A. Practically the same complaints, yes.
Q. Did you find on your examination any improvement in the conditions you found in her when you first saw her?
A. I would say, slight improvement, yes. But not completely recovered.
Q. You’ve been seeing her, more or less regularly, since that time up to this date?
A. That is right.
Q. Is she still under your care?
A. Yes, sir.
Q. Doctor, what are her complaints at this time?
A. Her complaints at this time vary quite a bit too. She says she has these pains in her neck and back. Sort of, at times, passing out spells, she gets numb.
Q. Prom your, information you have and your examination, has she been able to do any type work since this accident occurred?
A. I don’t — this is purely an opinion, but I assume, she hasn’t been able to do any work. This is an opinion, but I assume she has not been able to work from what she told me.
Q. Doctor, she is still complaining of soreness in the back, right shoulder, neck and down the lower part of her back, still says she becomes kind’a dizzy when she tries to walk, can’t get around any, would you say those conditions were caused from this accident?
A. Ah — I woidd say that a lot of her complaints ivere aggravated by the accident. I couldn’t say, positively, caused by the accident. But, aggravated by the accident.
Q. She had an arthritic condition prior to the accident?
A. That is what the x-rays show.
Q. And you, say that has been aggravated by this accident?
A. Yes.
Q. Do you have anyway to evaluate the percentage of her total disability at this time?
A. No, sir. I don’t.
Q. This has been two years and two months. I believe, today is the 19th, yesterday was the 18th, it happened the 18th of August. She has been suffering this way for two years and two months. Assuming she has continued to suffer up' to this time. Having the same hind of symptoms. Do you, think she will continue suffering, have a lot of discomfort for a considerable period of time?
A. I would think, she would have some trouble. How much would be impossible to say. Yes.”
(Emphasis supplied).
Doctor Field, a neurosurgeon, testified as follows:
“Q. From your examination today, is there some justification in feeling she does still have some pain and discomfort from the accident?
A. Well, I think the only thing I can say, from an anatomical point, is that she has some arthritis in the lumbar spine, and certainly it is not unreasonable to think she could have some pain and discomfort from it. I could go that far.
Q. That would be the result of the accident?
A. Yes.” (Emphasis supplied).

We are of the opinion that there was substantial evidence to sustain a jury verdict of $5,000 damage in this case, and that the judgment of the trial court should be affirmed.

Affirmed.


author: Conley Byrd, Justice.

text:
    Anna Belle Martin v. Pacific Insurance Company of New York
    4628
    431 S.W. 2d 239
    Opinion Delivered September 9, 1968

      James K. Young for appellant.

      House, Holmes & Jewell, by Don F. Hamilton for appellee.
   Conley Byrd, Justice.

The issue on this appeal is whether fraudulent concealment of a misrepresentation of the value of stock will toll the two-year statute of limitations, Ark. Stat. Ann. 67-1238 and 67-1256 (Eepl. 1966), on the surety bond required by section 67-1238.

In the first appeal of this case, Pacific Ins. Co. v. Martin, 242 Ark. 621, 414 S.W. 2d 594 (1967), Martin contended that she had traded 1,838 shares of First Security Life Insurance Company stock, worth $1.10 per share, for 2,000 shares of Allied stock upon the false representation of M & M Securities Company, Inc., that the Allied stock was worth $1.15 per share when in fact the Allied stock had no value. M & M defaulted in that suit, but its corporate surety, Pacific Insurance Company, adduced proof that the First Security stock was worth only 20 to 21 cents per share at the time of the purchase of the Allied stock. We reversed that appeal because of insufficient evidence to sustain a verdict for $1,838.

Upon remand Martin amended her complaint to allege that M & M through its employees on June 20, 1963, sold to her 1,838 shares of First Security stock for $1,838 upon the representation that the stock was worth $1 per share, when in truth the 1,838 shares were worth only $300; that on January 14,1964, M & M while falsely representing to her that her First Security stock was worth $1.10 per share, induced her to trade her 1,838 shares of First Security stock for 2,000 shares of Allied Company, Inc., stock upon the false representation that the 2,000 Allied shares were of the same value as the 1,838 shares of First Security stock; that the Allied stock was valueless; and that because of the fraud of M & M, she did not learn of the false representation of the value of the First Security stock until February 18, 1966, when she was advised of the true value of the stock by attorneys for appellee Pacific Insurance Company.

Upon Pacific’s motion the trial court granted summary judgment holding that the First Security transaction was barred by the two-year statute of limitations contained in §§ 67-1238 and 67-1256, supra.

Section 67-1238(e) provides:
“The Commissioner shall require registered broker-dealers ... to post corporate surety bonds . . . Aliy appropriate deposit of cash or securities . . . shall be accepted in lieu of any corporate surety bond required. Such deposits of cash or securities shall not be withdrawn until two (2) years after the last effective date of registration. Every bond shall provide for suit thereon by any person who has a cause of action under this act [§§ 67-1235 — 67-1262] . . . Every bond shall provide that no suit may be maintained to enforce any liability on the bond unless brought within two (2) years after the sale or other act, upon which it is based ...”
Section 67-1256 provides:
“(a) Any person who
(1) ...
(2) offers or sells a security by means of any untrue statement of a material fact ... is liable to the person buying the security from him...
(e) No person may sue under this section more than two (2) years after the contract of sale . ..
(h) The rights and remedies provided by this act are in addition to any other rights or remedies that may exist at law or in equity, but this act does not create any cause of action not specified in this section or section 4(e) [§ 674238(e)].”

When the statutes are construed together, it is obvious that the liability provisions of the bond are coterminous with the liability provisions of § 67-1256, supra. See Commissioner’s Note to § 202 (e) of the Uniform Secur S.W. 2d 39 (1938). See Ark. Stat. Ann. 674256(h) ities Act, Vol. 9C Uniform Laws Annotated, p. 93. In other words, as we read the statutes and the Commissioner’s Notes to the Uniform Securities Act, the bond required by section 674238(e) stands as security only for the civil liability created by section 67-1256.

Can the liability under section 67-1256 be extended by fraudulent concealment of an untrue statement to such time as the untruth of the statement is discovered? We hold that it can not, but that suit must be brought ■within two years from the date of purchase of the securities. Obviously the drafters of the statute, in creating new civil rights, could place any limitation they might desire upon the rights thus created. Here the drafters were dealing with matters that would certainly not be discovered at the time of the sale of the securities, and yet the drafters limited the time in which to bring a cause of action, on the rights thus created, to two years from the date of sale. We doubt that words could be chosen that would more clearly exclude the fraudulent concealment exception usually applied to statutes of limitation.

The trial court properly held that Martin’s cause of action against M & M’s surety bondsman on the First Security transaction was barred by the two-year limitation period from the date of sale. However, the two-year limitation in section 67-1256 has no effect upon Martin’s common law action against M & M recognized in City National Bank v. Sternberg, 195 Ark. 503, 114 S.W. 2d 39 (1938). See Ark. Stat. Ann. §67-1256(h) (Repl. 1966).

Affirmed.


author: Carleton Harris, Chief Justice.

text:
    G. S. Lambert & Pauline Lambert v. Sam Newman d/b/a Sam Newman Dozer Service
    4563
    431 S.W. 2d 480
    Opinion Delivered September 16, 1968

      Murphy & Burch for appellants.
    Crouch, Blair & Cypert for appellee.
   Carleton Harris, Chief Justice.

This case relates to the mechanics and materialmen’s liens statutes, Ark. Stat. Ann. § 51-601 et seq. (1947). G-. S. and Pauline Lambert are the owners of 366 acres of land adjacent to Beaver Reservoir in Benton County. A 10-acre tract near the center of their acreage had previously been deeded to an Arkansas corporation, Bevark Investment Company, Inc. The Lamberts entered into a contract with Bevark, William E. Davidson, and Jim L. Moore for the development of the 10-acre tract (heretofore referred to) and a portion of the Lambert land a part of which had already been sub-divided into residential lots. Under the contract, Moore was obligated to develop and sell all real estate described in the contract, and that instrument also provided that the Lamberts were to share in the net profits resulting from the development and sale of the lands. Bevark, of which Mr. Lambert was president at the time of the signing of the contract, was also to receive a share of the net profits resulting from the development and sale. Moore employed appellee, Sam Newman, to do certain bulldozer work on the land pursuant to the terms of the contract, and Newman worked for a period of about four weeks. According to appellee’s records, 452 hours of bulldozing had been done, this at a charge of $12.50 per hour, and appellee contended that he was due $5,650.00 for this work. Moore paid $1,000.00 on this bill, but made no further payments, and Newman ceased work on the property. Thereafter, appellee instituted suit against Moore, Davidson, Bevark, and the Lamberts, seeking a monetary judgment for the amount allegedly due against the first two, and seeking a first lien against the lands of the Lamberts and Bevark, as security for the judgment. Moore and Davidson did not appear and a default judgment was entered against them. The Lamberts and Bevark filed a demurrer which was overruled by the court. Thereafter, these defendants filed an answer denying the allegations of the complaint. The case proceeded to trial, and at the conclusion of appellee’s evidence, the Lamberts demurred to the evidence. This was overruled, and after appellants’ witnesses had been heard, the court held that Newman was entitled to a materialman’s lien on “said property owned by the said defendants, G-. S. Lambert and Pauline B. Lambert and Bevark Investment Company.” Interest from August 15, 1966, at the rate of 6% was allowed, and the court directed that, if the judgment be not paid within 20 days, the lien should be foreclosed, and the property sold. Prom the decree so entered, the Lamberts alone bring this appeal.

Though several points are urged for reversal, actually, all are merged into the simple question, “Is Newman entitled to a lien, under Section 51-601, for the work he performed in cleaning up the premises?”

The pertinent portion of the statute reads as follows :

“Every mechanic, builder, artisan, workman, laborer or other person who shall do or perform any work upon, or furnish any material, fixtures, engine, boiler or machinery for any building, erection, improvement upon land, or upon any boat or vessel of any kind, or for repairing same, under or by virture of any contract with the owner or proprietor thereof, or his agent, trustee, contractor or subcontractor, upon complying with the provisions of this act [§§ 51-601, 51-604 — 51-626], shall have for his work or labor done, or materials, fixtures, engine, boiler or machinery furnished a lien upon such building, erection or improvement, and upon the land belonging to such owner or proprietor on which the same are situated, to the extent of one acre; . ’

Newman, in testifying, stated that his work consisted of clearing timber and underbrush at various places on the property. From the record:

“Q. I want you to describe to the Court, Mr. Newman, the exact nature of the clearing that was done by your dozers, how the land looked, give a description of how the land'was before, generally, and how it was after, generally?
A. "Well, there had been roads cut through the property but none of the land had been cleaned up for sub-leasing. We went in and removed all the brush and underbrush and small trees and rotten trees out and just left the big trees for development.
Q. What was the effect of your work in that area?
A. Well, it’s an improvement to the land, I mean, it looks to me like it is an improvement, at any time when you take out the brush and underbrush, you are improving land.”

We think the Chancellor erred in holding that appellee was entitled to a statutory lien. This exact sit-nation has not previously been presented to the court, but we think the language of the statute and our cases are contrary to appellee’s view.

It is noted that a laborer or materialism is given a lien for work done or material furnished “for any building, erection, improvement upon land, ***.” In Dix v. Olds, 242 Ark. 850, 415 S.W. 2d 567, we specifically pointed out that there is a difference in the meaning of the word “upon” and the word “to.” The court stated:

“We conclude that if the legislature had intended to create a statutory lien on all land that may be improved by labor and materials, it would have separated the improvement from the land subject to lien, and would have said ‘improvement to land’ instead of ‘improvement upon land,’ and would have extended the lien to the land so improved rather than confine it to the land ‘upon which the same are situated.’ ”

We reiterate this distinction in case the General Assembly desires to make a change.

It is also pointed out in Dix that the materialman’s lien law is in derogation of the common law, and must be strictly construed.

In Leiper v. Minnig, 74 Ark. 510, 86 S.W. 407, we held that a contractor was entitled to a lien on property upon which he, under authorization, placed a sidewalk. This was contrary to earlier decisions which, under the statute at that time, had held that “improvement” meant a building or erection of some nature. Guise v. Oliver, 51 Ark. 356. In 1895, the Legislature amended the law, and Justice Wood, writing the opinion in Leiper, mentioned this fact, and the court held that the new act was broad enough to include sidewalks. The pertinent language, “for any building, erection, improvement upon land,” in tbe 1895 act, relied on by the court, is still a part of tbe present law. There is no Arkansas case which holds that the mere clearing of land entitles one to a lien.

Oases from other states are generally of no aid, because of the difference in the wording of the statutes; courts which have a similar statute, using the word “upon,” have differed in their interpretation. The Missouri case of Vasquez v. Village Center, Inc., 362 S.W. 2d 588, is relied upon by appellee. There, the Supreme Court upheld a jury verdict which found that the work performed by the plaintiff was lienable within the meaning of the statute which provided a lien for those who performed “any work or labor upon ***.” However, it might be mentioned that the factual background is somewhat different from that involved in the present litigation. There, the court, reciting the facts, stated:

“It appears to us that there was substantial evidence from which a jury reasonably could have found that the work performed by plaintiff was lienable within the meaning of the language of Section 429.010, construed, as it should be, as favorably to plaintiff as its terms will permit. That is because there was evidence justifying a finding that the work plaintiff did was performed as an integral part of a total plan to proceed without delay to erect a group of buildings as a shopping center on the land in question. The evidence that the course of the creek which meandered through the property was changed; the evidence as to the leveling and filling, the construction of parking areas adjacent to designated building sites, the providing of means of ingress and egress for the proposed shopping-center and the parking areas to and from Manchester Road, the preparing of sub-grades for buildings on which concrete slabs were to be poured as the next step in the construction process — all amounted to evidence of essential work in the accomplishment of the specific plan and intention to build a shopping center including buildings.”

This is a “far cry” from clearing brush and rotten trees from land, which, under plans for the future, will be sold as lots — and, if sold, residences constructed thereon.

The Supreme Court of Utah, in Backus v. Hooten, 294 P. 2d 703, reached a contrary conclusion in construing the word “upon.” There, a lien was claimed for leveling land, and the court said:

“Let it be conceded that leveling land enhances its value and improves its utility. It does not follow that such leveling constitutes an improvement upon land. It would seem to be an unreasonable construction to hold that a contract for plowing, seeding, or manuring of land is a contract for the construction of an improvement upon land.
“Nor do we feel that it is necessary to call upon any rules of statutory interpretation since the language seems not to require interpretation. However, under a familiar rule of construction the expression ‘or improvement upon land’ can only refer to improvements of a character similar to those immediately before mentioned.”

See also the Iowa case of Brown v. Wyman, 9 N.W. 344, cited in the Utah ease.

It follows, from what has been said, that appellee was not entitled to the lien, and the court erred in granting same.

Reversed.

       As to Paragraph 11 of the complaint, the court treated the demurrer as a motion to make more definite and certain, and required appellee to plead definitely as to the precise nature of the relationship existing between and among the defendants relative to their proprietary interest in the lands sought to be subjected to the lien.

      The balance of the paragraph deals with buildings, erections, and improvements made upon any lot of land in a town or city.

      Once it is determined that the property is subject to a lien, the procedure for perfecting same is liberally construed.